Bradley Manning Gets Punished Twice Because He Accessed Information 'With A Computer'

from the hysterical-hackers dept

Thu, Aug 1st 2013 10:58am — Mike Masnick

Update: The original EFF post on which the below post was initially based has been retracted. While there are still significant problems with both the CFAA and the Espionage Act, and, early on, the US did attempt to effectively double charge Manning, those problems were effectively reduced/minimized during the course of the trial, such that, by the end, he wasn't getting punished twice for the same thing. We regret if there was anything misleading posted here and retract the post as well.

We've talked plenty about the CFAA -- the Computer Fraud and Abuse Act -- which has a variety of significant problems and is in need of significant reform. The biggest issue is that this law, which was written back in the mid-1980s and doesn't match at all with today's internet, really just seems to add an extra layer of punishment on other crimes if they were done "on a computer." In fact, as the folks over at the EFF are noting, among the convictions against Bradley Manning, there was the first ever conviction under a particular section of the CFAA: section (a)(1), which more or less takes the Espionage Act and adds more punishment if the "espionage" you do is via a computer:

In fact, as the Judiciary Committee Report on the 1996 amendment to the CFAA makes clear, Congress explicitly based (a)(1) of the CFAA off 793(e) of the Espionage Act. “The bill would bring the protection for classified national defense or foreign relations information maintained on computers in line with our other espionage laws,” the report says. The original CFAA, written in 1984 was modeled on another part of the Espionage Act, section 794, which has never been used in leak cases. But Congress wanted it tailored after 793(e), a statute that in recent years has been used to prosecute a record number of leakers. (Compare the text here and here.)

The statutes are so similar, in fact, it’s hard to tell them apart even when reading the Judiciary Committee’s explanation about how they differ:

Although there is considerable overlap between 18 U.S.C. 793(e) and section 1030(a)(1), as amended by the NII Protection Act, the two statutes would not reach exactly the same conduct. Section 1030(a)(1) would target those persons who deliberately break into a computer to obtain properly classified Government secrets then try to peddle those secrets to others, including foreign governments. In other words, unlike existing espionage laws prohibiting the theft and peddling of Government secrets to foreign agents, section 1030(a)(1) would require proof that the individual knowingly used a computer without authority, or in excess of authority, for the purpose of obtaining classified information. In this sense then, it is the use of the computer which is being proscribed, not the unauthorized possession of, access to, or control over the classified information itself.

Did you get all that? The Judiciary Committee basically copy-pasted the Espionage Act into the CFAA, but forbid "use of the computer" rather than accessing the documents. So there you have it: they specifically wanted to make the isolated act of using a computer a separate crime.

The implications of this are somewhat ridiculous. It basically allows the government to charge someone twice for the same thing, if they used a computer as part of the process of accessing those documents. That's what's happened with Manning. In short: accessing the information is a crime under the Espionage Act and using a computer to do it is a second crime under the CFAA. Even if you think that leaking information to the press is a form of espionage (and we think even that's ridiculous), the idea that you get charged with a second felony just because a computer was used is absolutely ridiculous. It's just yet another example of the overcriminalized world we live in today -- especially when it comes to technology.

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Filed Under: bradley manning, cfaa, computers, espionage act, overcriminalization

19 Comments

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Internet Zen Master (profile), 1 Aug 2013 @ 11:30am

Need a major software upgrade
1980s: "If you use a computer to steal classified information, we're gonna come down on you twice as hard!"

21st Century: "Uh, old guy, EVERYTHING is on computers these days!"

1980s: "Oh... Uhm, well, don't do it or well charge you with two crimes for the price of one!"

21st Century: "You seriously need to upgrade to the modern world you crazy geezer."

All in favor of tossing out the CFAA and starting over, or heavily revising the thing, please raise your hands. *raises hand*
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- Anonymous Coward, 1 Aug 2013 @ 12:13pm
  
  Re: Need a major software upgrade
  Replace "the CFAA" with "the entire government" and we have a deal.
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btr1701 (profile), 1 Aug 2013 @ 12:16pm

Appeal
Sounds like great grounds for appeal based on double jeopardy.
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- Anonymous Coward, 1 Aug 2013 @ 6:22pm
  
  Re: Appeal
  There is no double jeopardy in this case because all the charges are prosecuted at the same time. The only way double jeopardy could happen is if he was charged with one crime, found innocent, and then charged with the overlapping crime, which did not happen.
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  - btr1701 (profile), 13 Aug 2013 @ 9:23am
    
    Re: Re: Appeal
    > There is no double jeopardy in this case because
    > all the charges are prosecuted at the same time.
    > The only way double jeopardy could happen is if
    > he was charged with one crime, found innocent, and
    > then charged with the overlapping crime, which
    > did not happen.
    
    Nonsense. This sort of prosecutorial trickery was addressed by the Court long ago. The government can't take one offense, say robbery, and make it separate crimes to commit robbery while breathing, and robbery while clothed, and robbery by someone with brown hair, and robbery by someone wearing shoes, and speaking while committing robbery, and standing while committing robbery, etc. resulting in 20 separate robbery charges stemming from the same physical transaction. The Court correctly held that this is nothing more than an end-run around the Constitution's prohibition against double jeopardy.
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Zakida Paul (profile), 1 Aug 2013 @ 12:20pm

I'm sure they could get another one in if they worked in "on the Internet" as well.
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Johnny Canada, 1 Aug 2013 @ 12:31pm

So which is a great threat.

Weapons of mass destruction

or

a Computer
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- Marcel de Jong (profile), 2 Aug 2013 @ 3:51am
  
  Re:
  A computer is mightier than a SCUD missile?
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  - John Fenderson (profile), 2 Aug 2013 @ 10:50am
    
    Re: Re:
    That's what they keep trying to tell us.
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Anonymous Coward, 1 Aug 2013 @ 12:42pm

Stupid question
"In short: accessing the information is a crime under the Espionage Act and using a computer to do it is a second crime under the CFAA."

This interests me...does this imply that each and every document he accessed has a readily available paper counterpart?

Otherwise, how in the living hell would you be able to access it in the first place?

That's like saying shooting someone is one crime, and using a gun to do it is another. How does horse shit like this even begin to make sense?
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athe, 1 Aug 2013 @ 3:26pm

Just wait...
Next he will be facing a civil suit because it was "on the Internet"...
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Anonymous Coward, 1 Aug 2013 @ 3:34pm

more than that, it shows what fucking vindictive morons are making the laws! if an extra crime is added because a computer was used, was one knocked off if no computer was used, or if the crimes could only have been committed by using a computer?

i wonder what these numbskulls would say if they got stopped for speeding and were given two tickets, one for speeding and a second for using a car to do so? be some blustering done then, i'll bet!!
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- Anonymous Coward, 1 Aug 2013 @ 6:34pm
  
  Re:
  I was going to add a separate post until I saw yours. In fact, you can be charged with multiple crimes for one act.
  
  For example, if you fail to signal a lane change while driving and cause an accident because of the failure, you can be charged for reckless driving, failure to properly change lanes, failure to yield, and failure to use your turn signal, at the very least. I think I am missing one. In this case, it is the failure to use safety equipment (the turn signal) which is treated as a separate crime on top of the other crimes. If you used your turn signal, and made the lane change properly, but failed to account for the speed (or presence) of another vehicle, you might just end up with reckless driving and failure to yield.
  
  Traffic laws are rife with duplicate, triplicate, and even quadruplicate charges for related incidences.
  
  Then we can move on to other crimes. If you rob a bank, you are charged with robbing a bank. If you rob a bank with a gun, you can be charged with robbery and robbery while using a gun, two separate charges, all because you used a gun during the robbery. Of course, those charges will be on top of other potential charges, depending on what the robber does and depending on the state, since robbery is covered by state laws.
  
  Laws have gotten to the point where they are incredibly finite (and getting worse). Partially because of punishment issues (legislators realized that mere robbery was not as serious as when a gun - or automatic weapon - was used, so they created two separate laws, depending on your state). Partially because legislators really do not think laws through before they draft them.
  
  It is quite humorous to read charges against a criminal. Depending on the prosecutor, and how heinous a prosecutor wants to make a suspect look, a prosecutor can heap dozens of charges on a suspect for a single incident. That's why you hear newscasters explain that a suspect was facing X number of charges, which can be one to dozens (and rarely, hundreds; I don't think I have every heard one in the thousands).
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  - Anonymous, 2 Aug 2013 @ 5:37am
    
    Re: Re:
    Someone who downloads CP from the internet can be charged with a ridiculous number of "offenses", including accessing, viewing, receiving, and possession. On top of that, federal law makes it a crime to even ATTEMPT to access it. (Under the laws of certain states, viewing it on the net is perfectly legal as long as one doesn't download it.) Add to that the feds can actually charge someone for failing to report it, which is simply another charge to heap upon someone. Then after all that comes the "sex offender" label and all that goes with it, even if that person has never harmed another human being. All this, for doing nothing more than looking at pictures in the privacy of one's own home.
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Rekrul, 1 Aug 2013 @ 7:28pm

If someone hits me in the head with an iPad, can I have them locked up for a decade because they used a computer in the commission of a crime?
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Wally (profile), 1 Aug 2013 @ 8:10pm

Believe it or not...
I'm actually quite shocked yet not surprised they are trying to bring up CFAA charges against Bradley Manning. He had actually had authorized access to the information he leaked.

I wonder when they will try to say Edward Snowden violated the CFFA...I mean clearly he's allegedly done everything else in their book. Don't get me wrong, I still firmly believe beyond a shadow of a doubt of Snowden being a whistle blower. I'm just surprised they haven't tried that charge on him yet.
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Pixelation, 1 Aug 2013 @ 9:44pm

Nailed twice for doing it through a bunch of tubes. More misplaced aggression by our wonderful government.
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- Anonymous Coward, 2 Aug 2013 @ 2:20am
  
  Re:
  Well, funny thing about adversaries getting that data is that it could be used against us in terms of keeping relations with the locals of certain areas of Afghanistan. The danger is simply that the Taliban would ride in with their clerics preaching against "western ways". It especially puts those who do what a very close friend of mine does...Army Intelegence. Most of the intel gathered is used to avoid offending a local populous, finding out various insects or critters carry which diseases, and generally making sure that the locals are comfortable with US Army presence as we allow them to live on peaceably.
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Anonymous Coward, 2 Aug 2013 @ 7:39am

He did it with a computer? Hell, the judge should give him a patent, not a prison sentence.
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