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> uses sentencing guidelines to figure out a sentence for the "worst" single count you're charged with, The prosecutors get to decide what if any counts you ar

> uses sentencing guidelines to figure out a sentence for the "worst" single count you're charged with, The prosecutors get to decide what if any counts you are charged with. They have the most control over sentencing, judges very little. The little Judges do have is often constrained by mandatory minimums some of which require consecutive termss. That judges are able to use their discretion and work within "guidelines" is a myth.

tptacek 12y ago
There are no mandatory minimum sentences for computer crimes of any sort. Here's an apparently more-or-less complete list of federal crimes that have mandatory minimums: * Drug trafficking or manufacture * Firearms used in the commission of felonies * Identity theft, but only in the context of the specific list of crimes in 18 U.S. Code § 1028A (c) (purchase of firearms, immigration, passports, terrorism, bank fraud, &c) * Trafficking in illegal immigrants * Sex offenses against children * Hijacking, kidnapping, violent terrorism, and hostage-taking * Murder * Racketeering * Piracy, of the yo-ho-ho variety The "consecutive sentence" issue here is also tricky, because some of these minimums are added as sentence accelerators; for instance, the gun crime minimums add years to the sentence you'd get for the underlying felony, and those extra years are served consecutively --- but that doesn't make all the charges for the felonies necessarily "stacking". Mandatory minimum sentences are a terrible idea, and the minimums for drug crimes are particularly stupid, but they're not a factor in this story.
- madaxe_again 12y ago
  Yeah, but they're trying to make racketeering something you're guilty of by being in violation of the CFAA - see https://www.techdirt.com/articles/20130324/14342822435/rather-than-fix-cfaa-house-judiciary-committee-planning-to-make-it-worse-way-worse.shtml https://www.techdirt.com/articles/20130324/14342822435/rathe... . "if you are found to violate the CFAA as part of an activity that involves a variety of other crimes, you can now also be charged with racketeering. More specifically, if you look at that long list of related statutes in the definition to 18 USC 1961 (1), it will also include: "‘section 1030 (relating to fraud and related activity in connection with computers)."
  - tptacek 12y ago
    First, don't ever take legal analysis from Techdirt at face value. It's often quite bad. Here are good comments from 'tzs about this issue ('tzs, besides being one of my favorite HN commenters, also went to law school): https://hn.algolia.com/?q=author%3Atzs+techdirt#!/comment/forever/0/author%3Atzs%20techdirt https://hn.algolia.com/?q=author%3Atzs+techdirt#!/comment/fo... Second, not all racketeering crimes are subject to federal mandatory minimums --- racketeering charges with minimums all involve forms of money laundering. The court has to find that you were laundering money regardless of how you use computers to do it. Third, Techdirt takes the bill radically out of context; by Techdirt's logic, 18 USC 1961 also makes any misuse of a passport, any bribery, any counterfeiting, any obstruction of justice, and any violation of money transmitting statutes "racketeering". Of course, that's not how the law works. CFAA offenses were merely being suggested as one of the huge list of offenses that could, in the context of a racketeering case, be construed as part of the racketeering. The state still needs to make a racketeering case on the merits. Fourth, in context, that one section of the bill actually makes sense. Racketeering is the crime of running a "racket"; the best-known example of this is a protection racket. It actually doesn't make sense for computer crimes to be exempt from the list of things you can shake businesses down for. As luck would have it, this is an issue being discussed on the front page of HN today: https://news.ycombinator.com/item?id=8661245 https://news.ycombinator.com/item?id=8661245 Fifth, the bill was a House draft that apparently never made it out of committee. If you want to learn more about the elements of the crime of racketeering and RICO in general, a good place to start is model jury instructions. I'm less charitable towards Techdirt than other smart people seem to be. Popehat, for instance, which I more or less revere, routinely links to them. I find their coverage misleading at best, and often --- as in this case, where the author tries to convince their readers that the House wants to make all CFAA crimes chargeable as "racketeering" --- overtly dishonest. In any case: no, nobody has proposed mandatory minimums for CFAA crimes.
    - lawnchair_larry 12y ago
      > "In any case: no, nobody has proposed mandatory minimums for CFAA crimes." False. http://volokh.com/2011/05/24/congress-considers-increasing-penalties-adding-mandatory-minimum-sentences-to-the-computer-fraud-and-abuse-act/ http://volokh.com/2011/05/24/congress-considers-increasing-p...
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tptacek 12y ago

There are no mandatory minimum sentences for computer crimes of any sort. Here's an apparently more-or-less complete list of federal crimes that have mandatory minimums: * Drug trafficking or manufacture * Firearms used in the commission of felonies * Identity theft, but only in the context of the specific list of crimes in 18 U.S. Code § 1028A (c) (purchase of firearms, immigration, passports, terrorism, bank fraud, &c) * Trafficking in illegal immigrants * Sex offenses against children * Hijacking, kidnapping, violent terrorism, and hostage-taking * Murder * Racketeering * Piracy, of the yo-ho-ho variety The "consecutive sentence" issue here is also tricky, because some of these minimums are added as sentence accelerators; for instance, the gun crime minimums add years to the sentence you'd get for the underlying felony, and those extra years are served consecutively --- but that doesn't make all the charges for the felonies necessarily "stacking". Mandatory minimum sentences are a terrible idea, and the minimums for drug crimes are particularly stupid, but they're not a factor in this story.

madaxe_again 12y ago
Yeah, but they're trying to make racketeering something you're guilty of by being in violation of the CFAA - see https://www.techdirt.com/articles/20130324/14342822435/rather-than-fix-cfaa-house-judiciary-committee-planning-to-make-it-worse-way-worse.shtml https://www.techdirt.com/articles/20130324/14342822435/rathe... . "if you are found to violate the CFAA as part of an activity that involves a variety of other crimes, you can now also be charged with racketeering. More specifically, if you look at that long list of related statutes in the definition to 18 USC 1961 (1), it will also include: "‘section 1030 (relating to fraud and related activity in connection with computers)."
- tptacek 12y ago
  First, don't ever take legal analysis from Techdirt at face value. It's often quite bad. Here are good comments from 'tzs about this issue ('tzs, besides being one of my favorite HN commenters, also went to law school): https://hn.algolia.com/?q=author%3Atzs+techdirt#!/comment/forever/0/author%3Atzs%20techdirt https://hn.algolia.com/?q=author%3Atzs+techdirt#!/comment/fo... Second, not all racketeering crimes are subject to federal mandatory minimums --- racketeering charges with minimums all involve forms of money laundering. The court has to find that you were laundering money regardless of how you use computers to do it. Third, Techdirt takes the bill radically out of context; by Techdirt's logic, 18 USC 1961 also makes any misuse of a passport, any bribery, any counterfeiting, any obstruction of justice, and any violation of money transmitting statutes "racketeering". Of course, that's not how the law works. CFAA offenses were merely being suggested as one of the huge list of offenses that could, in the context of a racketeering case, be construed as part of the racketeering. The state still needs to make a racketeering case on the merits. Fourth, in context, that one section of the bill actually makes sense. Racketeering is the crime of running a "racket"; the best-known example of this is a protection racket. It actually doesn't make sense for computer crimes to be exempt from the list of things you can shake businesses down for. As luck would have it, this is an issue being discussed on the front page of HN today: https://news.ycombinator.com/item?id=8661245 https://news.ycombinator.com/item?id=8661245 Fifth, the bill was a House draft that apparently never made it out of committee. If you want to learn more about the elements of the crime of racketeering and RICO in general, a good place to start is model jury instructions. I'm less charitable towards Techdirt than other smart people seem to be. Popehat, for instance, which I more or less revere, routinely links to them. I find their coverage misleading at best, and often --- as in this case, where the author tries to convince their readers that the House wants to make all CFAA crimes chargeable as "racketeering" --- overtly dishonest. In any case: no, nobody has proposed mandatory minimums for CFAA crimes.
  - lawnchair_larry 12y ago
    > "In any case: no, nobody has proposed mandatory minimums for CFAA crimes." False. http://volokh.com/2011/05/24/congress-considers-increasing-penalties-adding-mandatory-minimum-sentences-to-the-computer-fraud-and-abuse-act/ http://volokh.com/2011/05/24/congress-considers-increasing-p...

deleted 12y ago

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