3rd Circuit vacates Weev's conviction [pdf]
pdfserver.amlaw.com
pdfserver.amlaw.com
The prosecutors selected New Jersey as the venue for the case, despite the fact that Aurnheimer and his co-conspirators hadn't been located in NJ, and AT&T's servers weren't in NJ. The rationale was that some of the addresses disclosed belonged to NJ residents.
Not only did they select a tenuous venue, but they allowed the court to sidestep the issue during jury instructions. The jury decides whether venue is correct. Because venue was important to the case, the jury was supposed to receive instructions on how to evaluate the validity of the venue. But the trial court decided that venue had been adequately established.
"The venue error in this case is not harmless because there was no evidence that any of the essential conduct elements occurred in New Jersey. If Auernheimer’s jury had been properly instructed on venue, it could not have returned a guilty verdict"
One reason this matters is that the CFAA charges that were applied to Auernheimer depended in part on NJ state law. In fact, the specifics of NJ state computer crime law might have been the reasons prosecutors stretched venue so much to get the case located there. But with the Appeals Court determining that the NJ venue was invalid, the whole framework of the case falls apart.
We also note that in order to be guilty of accessing “without authorization, or in excess of authorization” under New Jersey law, the Government needed to prove that Auernheimer or Spitler circumvented a code- or password-based barrier to access
[..]
The account slurper simply accessed the publicly facing portion of the login screen and scraped information that AT&T unintentionally published
(If NJ law demands breaking a password, that seems to run counter to the idea they picked NJ for its law, or was that concerning some other charge?)
Must be nice to have a job with no accountability. I wonder what that's like.
I guess he should be tried in every state and several other countries then to account for the 114,000 people that were part of the list.
Reading the appellate ruling, U.S. District Judge Susan Wigenton's decisions make her seem like she's off her rocker. Beyond that, it's amazing how he was treated in court by the judge:
As [the prosecutor] spoke, a U.S. marshal approached Auernheimer from behind and told him to put away his phone. Other marshals pushed his head against the defense table and handcuffed him.
[the judge] declared a recess, and the marshals escorted Auernheimer to a side room. When he returned a few minutes later, he was shackled, with a chain around his waist and handcuffs attached to the chain.
Sentenced to 3.5 years in jail for loading a URL from a publicly accessible web page that required no login, no password.
https://www.youtube.com/watch?v=6wXkI4t7nuc
"An law school professor and former criminal defense attorney tells you why you should never agree to be interviewed by the police. "
It's not fair, but there's a reason why most defendants don't testify on their own behalf: they are, almost always, seated too close to the matter and unable to come across as objective.
http://en.wikipedia.org/wiki/Double_Jeopardy_Clause#Dual_sov...
This might be the understatement of the year :)
I get that he's now retroactively never been convicted of a felony, but he was in prison focused on protecting his corn bread for a couple years. Clearly this affects his employability, as well as his general happiness, having been deprived of both liberty and safe corn bread for a while.
Civil suit against ATT? Wrongful prosecution against the feds?
Wrongful prosecution is, for all intents and purposes, impossible to prove.
Because it was overturned on appeal and the determination was not on the merits (ie. what he did isn't actually illegal) but instead on procedural grounds he loses a bunch of options for remedy.
Isn't there something in the CFAA about having to allege causing damage, measurable in financial terms?
Maybe they did not use that provision?
Surely there must be logical reasons I am overlooking, but I find it peculiar that today technology companies can so easily get federal authorities to bring proceedings on their behalf.
Whether it's the DMCA or the CFAA, these "violations" seem like civil matters to me.
Do they harm the public, or do they just (potentially) harm a business?
I thought this opinion was very clearly written and although it only addresses venue, it does have some precedential value for the future of "CFAA law".
For one, if you plan to rely on improper venue as a defense, stay away from the Second Circuit!
This is the most heartbreaking part of the case.
But compensation? Come on. He would still be convicted of some of the computer hacking charges in other states.
Didn't his co-accused plead guilty to those charges? What happens to him?
Not because the state would be dissuaded from pushing edge-cases but because we, the people, have robbed someone of part of their life. We should make it right.
Most states offer compensation packages to those wrongly incarcerated. Its usually a percentage of your expected income if you hadn't been put in jail
"An error regarding venue exhibits many of the characteristics of structural error. If the District Court had found venue lacking upon Auernheimer’s motion to dismiss, there would have been no trial in New Jersey at all"
That's hardly a sure bet. The prosecutors would have to convince a completely different jury that a crime had been committed, and that different group of jurors could be far more skeptical.
The proper place of colonial trials was so important to the founding generation that it was listed as a grievance in the Declaration of Independence. See The Declaration of Independence para. 21 (U.S. 1776) (objecting to “transporting us beyond seas to be tried for pretended offences”). It was of such concern that the Constitution of the United States “twice safeguards the defendant’s venue right.” United States v. Cabrales, 524 U.S. 1, 6 (1998). Article III requires that “the Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed.” U.S. Const. art. III, § 2, cl. 3. The Sixth Amendment further provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”
This avoids any serious ruling about CFAA, and preserves the arbitrarily-expansive reading of CFAA to use against other victims. They've already ruined weev's life sufficiently for their purposes.
I'd be astonished if they did.
There may have been a case for CFAA violation (right or wrong), but the prosecutors improperly chose New Jersey as the venue of proceedings. This was a calculated move that had the effect of producing additional state charges, which then resulted in an increased Federal charge for CFAA + State Law violations. That sort of willful "venue shopping" cuts both ways, then; as soon as they try for additional charges, prosecutors now had to conclusively prove that the location of venue was material to the crime at hand, as well as the actions committed.
Since Weev &co were not in NJ at the time the act occurred, and neither were the machines they accessed, and there's no conclusive proof of NJ residents being harmed, then the venue of crime committed was incorrect and thus so were the additional charges hung on it. And that is the prosecutorial misstep which was overturned on this appeal, which is subject to jeopardy limitations.
http://criminal.findlaw.com/criminal-rights/when-double-jeop...
Still, the prosecution is really unlikely to do so.
The case on point is United States v. Ball, 163 U.S. 662 (1896)* which rejects the English common law rule that holds the opposite. Frankfurter's dissent in Green v. United States, 355 U.S. 184 (1957)+ is far easier to read and lays out the history well.
* http://scholar.google.com/scholar_case?case=2223826737867114...
+ http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&...
He had his conviction overturned by SCOTUS. The state then retried him and convicted him.
http://criminal.findlaw.com/criminal-rights/charged-twice-in...
"But if a single act violates the law of two states, the law treats the act as separate offenses and thus not in conflict with the Double Jeopardy Clause. A second state with a case against a defendant may decide that a conviction in the first state is sufficient, so it does not necessarily mean more than one state will bring charges. Therefore, it is up to the discretion of the particular prosecutor, as with other criminal cases."
This is known as the Dual Sovereignty Doctrine. This is also what makes hacking such a perilous crime. If you're hacking a large corporation in one state, you may have victims in multiple states. Thus, you can be tried separately for essentially the same crime in multiple states regardless of being acquitted in other states.
No, because this wasn't a prosecution under NJ law, it was a prosecution under federal law, in which the violation of NJ was an element of the offense. So double jeopardy prevents any further federal prosecution for the same offense, but doesn't prevent prosecution under state law of NJ or other states (even though the court here found NJ law did not apply, federal circuit court precedent on state law questions is not binding on state courts.)
As the case is vacated, Weev could still be jailed, dependant on whether or not his legal representation files a motion in the lower court to release him; another classic case of "pretending to fail".
Speed of dissemination definitely trumps ease of reading, so, yeah, I was wrong. The OP clearly should have linked to the source here.
http://arstechnica.com/tech-policy/2014/04/appeals-court-rev... is the first article.
The document isn't dense. I found it pretty straight-forward, actually. It isn't short, but unless you are a member of the "tl;dr" contingent, the gist is pretty easy to discern.
The trick is that things like "Count one charged Auernheimer with conspiracy to violate CFAA § 1030(a)(2)(C) and (c)(2)(B)(ii)" translate to "Count one charged Auernheimer for breaking a law" and things like "See Perez, 280 F.3d at 329; see also Rodriguez-Moreno, 526 U.S. at 281-82 (citing Hyde, 225 U.S. at 356-67)" are references that you don't need to resolve in order to understand.
It also helps if you can translate things like "It is far from clear that this Court has ever “adopted” this test. We have mentioned it only once." into "oh no you didn't".
I do think your second sentence is apropos, but in a different way than you intended. Corn syrup, while calorie rich, provides neither protein nor necessary vitamins and minerals. For that matter, reading summaries is often information poor, compared to the underlying material.
For legal documents, research studies, academic papers and the like the cognitive load associated with wading through the original usually by far outweighs the marginal return.
The caveat is, of course, that one must be careful with one's choice of summariser.
I encourage you to read court decisions, research studies, and academic papers. Many are clear, insightful, and educational. It's also true that many are not, but I'm astonished by the number of people who don't even try.
At the very least, it's hard to judge the summarizer without sometimes comparing summaries to the primary literature.
Similarly, there's a posting now titled "Finally, usable GCM cipher suites in SChannel" ( https://news.ycombinator.com/item?id=7574678 ). I don't know what a GCM cipher suite is, nor what SChannel is, nor why it's a relief that this has happened. The link itself is not insightful. While it expands GCM as "Galois/counter mode", that's meaningless to me.
BTW, in this case, 'weev' matches some 63 other HN posts, though several provide no more summarized context than this link text. (Eg, a couple of other posts directly to other legal documents, a story about visiting weev in prison, and a letter from weev while in prison.) A Google, Yahoo, and Bing search all return http://en.wikipedia.org/wiki/Weev as the first hit. Perhaps one of those can provide the background you're looking for?
But as long as you're willing to hit the "I believe" button a few times while reading a legal decision they actually don't take too long to get the gist of.
The more likely explanation, as others have pointed out, is simply that the U.S. Attorney for the District of New Jersey is the one who wanted to bring the case.
[Edit] To be clear, there is nothing unique about the New Jersey statute that was used as a sentencing enhancement. As many states do, Arkansas has a similar statute - A.C.A. § 5-41-104 - so the sentencing enhancement could have been applied with Arkansas as the venue. The E. Arkansas US Attorney's Office exercised prosecutorial discretion by not seeking indictment. The New Jersey USAO decided they wanted to prosecute and thought they could make a colorable claim on the issue of venue.
The prosecution tells us much more about the New Jersey USAO than it does about the overall desire of the US Government to prosecute this particular act.
This seems highly suspect and improbable to me. If he was so skilled to reverse engineer iOS and "decrypt it" (whatever that means), why would he need weev's help in writing the slurper??
More than likely, though, whoever wrote the document (I'm guessing a judge) doesn't really understand what happened, and that scares me a little.
Instead, it was vacated for lack of venue. In other words, he got off on a technicality.
We also note that in order to be guilty of accessing “without authorization, or in excess of authorization” under New Jersey law, the Government needed to prove that Auernheimer or Spitler circumvented a code- or password-based barrier to access.
"To enhance the potential punishment from a misdemeanor to a felony, the Government alleged that Auernheimer’s CFAA violation occurred in furtherance of a violation of New Jersey’s computer crime statute, N.J. Stat. Ann. § 2C:20-31(a)"
In order to adjudicate the substantive matter in the case, proper procedure must first be assured, which includes assuring jurisdiction and venue are proper for the case before the Court. My point here is that the question of whether the law applied was never analyzed by the appellate court because it found the venue was faulty.
Part of their justification for vacating based on venue was that a proper venue very likely would have resulted in different charges or verdict.
ANDREW AUERNHEIMER, a/k/a Weev a/k/a Weelos a/k/a Escher
My guess is that Gawk's lawyers told them not to get involved.
Yeah, I has a sad.
Is this an instance where, now having been vacated on the basis of venue, weev can't be retried with the CFAA? Double jeopardy etc.
1) It's only a felony if the secondary charge is allowed
2) They can retry this if they want, since the judgement was vacated, weev was not acquited or convicted. My understanding is that so long as there weren't certain kinds of prosecutorial misconduct (e.g. the prosecutor intentionally caused a mistrial so they could start over).
3) That being said, retrials are fairly rare, since it's expensive and it tends to look bad for the prosecutors.
Just because it's a federal crime doesn't mean he can be tried anywhere. This is exactly what this is all about. That under Federal, and New Jersey, law he has to be tried in one of the places the crime was committed.
The ICC-ID identifies a SIM card, not a person ?