Revenge Porn Site Owner Kevin Bollaert Sentenced To 18 Years In Prison

from the could-Section-230-free-him? dept

As was noted here in early February, a California court found revenge porn site owner Kevin Bollaert guilty of six counts of extortion, along with 21 counts of identity fraud. Bollaert not only ran revenge porn site YouGotPosted but also operated ChangeMyReputation, from which he would remove photos posted to his revenge porn site for a fee.

Adam Steinbaugh attended Bollaert's sentencing last Friday, tweeting out his observations and insights, including fun facts like:

• Bollaert had $20,000 in cash on him when arrested, apparently from his ChangeMyReputation sideline.
• Bollaert apparently believed Obama would pass restrictive gun laws that would make certain firearms extra valuable, and began stockpiling weapons. But buying 31 guns using only a P.O. Box for an address has a way of attracting ATF agents…and a conviction for making false statements in connection with the purchase of a firearm.
• During sentencing, Bollaert's attorneys mentioned the FTC's wristslap of Craig Brittain as an argument that Bollaert deserved a similarly light punishment.
• The judge quoted an interview with Bollaert where he blew off Marc Randazza's lawsuits.
• A Cub Scout observed the sentencing.

More than six hours after the proceedings began, the judge handed down Bollaert's sentence. A wrist slap it is not.

Kevin Bollaert was sentenced by a San Diego court to 18 years in prison following his February conviction on twenty-seven counts of extortion and identity theft.

This was much harsher than most people expected, even considering the heinousness of Bollaert's actions. Some expected a lighter sentence coupled with an extended probation period, and Steinbaugh's tweets mention a previous plea deal that was rescinded or rejected. None of that matters now. As Steinbaugh points out, if Bollaert serves every year of his term, he'll be in jail longer than some of his site's victims were alive when their pictures were posted.

The sentence will most likely be appealed. Steinbaugh advances the theory that Section 230 protections could be used to undo the extortion and identity theft charges. (Although he is careful to preface his legal speculations with this warning: "It’s rather boring — and I’m probably wrong, but someone has to raise these issues, even in defense of a revenge porn site extortionist. Only Nixon could go to China, I suppose.")

If Bollaert does appeal, he has a good chance at success with respect to the identity theft charges (assuming Bollaert himself didn’t seek out the victims’ personal information). Simply publishing content submitted by users — even if the avowed purpose of the site was to promote invasion of privacy and tortuous conduct — is immunized by §230.

Whether or not the Section 230 argument will work against criminal extortion charges remains to be seen, but previous civil cases seem to present a few possibilities.

The courts which have addressed extortionate behavior in the civil context have indicated that §230 likely immunizes that conduct. §230 applies to website operators even when they exercise traditional editorial functions.

In Ascentive, LLC v. Opinion Corp., a federal district court in New York addressed consumer gripe site PissedConsumer.com’s “Corporate Advocacy Program”, a “premium reputation management service” under which PissedConsumer would remove negative reviews (if the consumer refused to allow PissedConsumer to act as an intermediary in resolving their complaint) and resolve new complaints before they are posted. The plaintiffs brought RICO claims against PissedConsumer, including predicate acts of “commercial bribery or extortion.” The district court, in denying the plaintiffs’ motion for a preliminary injunction, ruled that the plaintiffs had not demonstrated a likelihood of success on the extortion allegations.

As ugly as it seems, the protections afforded operators of sites hosting user-generated content could keep Bollaert from being incarcerated -- or at least take a huge chunk out of his 18-year sentence. But that's the dual edge of these sorts of protections. Much like the First Amendment protects ignorant, hate-filled racists and the Fourth Amendment protects child porn enthusiasts, Section 230 can protect revenge porn site owners from the content submitted to their sites.

Bollaert's sideline removal service complicates things, but despite profiting from both ends of the equation, the content was posted by others and his extortion-esque secondary business never asked for money to prevent the posting of submitted content, but rather the removal of already-posted photos and contact info. Pure, vile nastiness to be sure, but with enough legal loopholes to potentially jeopardize his conviction.

Additionally, Section 230 protections have previously only served to defend site owners in civil cases, rather than against criminal charges. It's highly unlikely this will be applicable to appealing the criminal charges, but these are state charges rather than federal charges, so this may provide him an opportunity to test California's statutory interpretation of Section 230.

If his conviction is overturned (Steinbaugh believes the state will do everything possible to prevent this) using Section 230 as leverage, we can expect more legislative attempts to gut these protections -- from lawmakers who are content ignore the harm it will cause site owners far more respectable than those trafficking in misery and exploitation simply because the targeted activity is so repulsive.

Filed Under: california, extortion, kevin bollaert, revenge porn, section 230, sentencing
Companies: yougotposted

Mandatory Sentencing Guidelines Have Nothing To Do With 'Justice'

from the throwing-people-away dept

One of the many problems with America's criminal justice system is the use of federally-mandated sentencing guidelines. These policies take a one-size-fits-all approach to sentencing, stripping away the chance of any leniency being applied by the presiding judge. The guidelines demand ridiculously lengthy prison terms for certain crimes -- the foremost being anything drug-related. Following close behind it are mandatory sentences for sexual offenses. What's meant to act as an effective deterrent has instead become an easy way to lock up people for far longer than their criminal activity would warrant.

One judge found out just how out of touch federal sentencing guidelines are when he did something out of the ordinary: he asked the jury's opinion. (via Simple Justice)

The crime was one of the most universally-loathed: the collection and distribution of child porn. And the perpetrator was completely unsympathetic.

When government agents used cutting-edge software to hack into the hard drive of Ryan Collins’s computer, they found more than 1,500 sexually-explicit images of children, some of whom were younger than twelve. The agents also discovered file-sharing programs, indicating that Collins may have been distributing the pornography online.

Collins was unrepentant, even after a jury in Cleveland, Ohio convicted him of possessing, receiving, and distributing child pornography. The prosecutors sought the statutory maximum sentence of 20 years’ imprisonment, and the federal sentencing guidelines would have allowed a term of as long as 27 years.

Even when faced with someone as apparently damnable as Ryan Collins, the jury's suggested sentence was lower than the sentencing guidelines called for. Far lower.

Before dismissing the jury, [Judge Gwin] asked each member what they thought would be an appropriate sentence for someone who had downloaded child pornography. According to Gwin, the average of the sentences they recommended was only 14 months.

This admittedly-small sampling shows that mandatory sentencing guidelines do not match up -- at all -- with what the public believes to be fair and just. These guidelines are supposedly written on behalf of the general public, with Congress and other government bodies acting to "protect" us from drug dealers, sex offenders, hackers, etc. by locking them away for extended periods of time. But it appears the public may still feel "protected" without putting child porn enthusiasts behind bars for a quarter of a century.

And it's not just Judge Gwin's peculiar query -- although he appears to be the first to make this line of questioning public. Other judges have heard similar answers from jury members, behind the scenes.

Iowa district court judge Mark W. Bennett:

"Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence -- every time – even here, in one of the most conservative parts of Iowa, where we haven't had a 'not guilty' verdict in seven or eight years – they would recommend a sentence way below the guidelines sentence."

Why wouldn't judges ask the jury's opinion on sentencing? After all, it's supposedly composed of the accused's "peers." They're entrusted with determining guilt or innocence, but somehow can't be trusted to offer up a worthwhile opinion as to the "reasonableness" of the sentence recommended by Congress? Those intimately familiar with the details of the case should at least be trusted to give their view on the ensuing sentence. Their view is no less informed than that of their representatives, who mostly deal with criminals and the criminal justice system in the abstract -- and are often far more inclined to appease the prosecutorial half of the equation than appear to be "soft on crime."

Judge Gwin's informal jury straw poll shows that the word "justice" -- in the context of mandatory sentencing guidelines -- is nothing more than a prosecutorial term of art, completely removed from the actual definition of the word.

All those people being sentenced to decades in prison under the pretense that it’s what society wants and needs is revealed, as Judge Bennett says, as baloney. While the Sentencing Commission won’t heed the defense lawyer perspective, perhaps a few federal judges making this point clear might carry sufficient weight to end the needless destruction of a life or two under the draconian guidelines. For the rest, maybe they will start taking the admonition of § 3553(a), “sufficient, but not greater than necessary.” seriously.

As for Judge Gwin, he did what he could in response to this gaping disparity by sentencing Collins to the minimum allowed under the guidelines -- five years, or roughly four years longer than the jury felt was reasonable or just. The prosecution had recommended the maximum -- 27 years -- a number so far removed from the public's sense of justice it may as well have been a number pulled out of thin air by a government lawyer who had stumbled into the wrong courtroom.

We're imprisoning people at an alarming rate in this country, and the nation's unofficial hobby shows no sign of slowing. And we're doing it for far longer than the public itself feels is necessary. We're destroying lives by taking criminals out of circulation for decades at a time, based on little more than Congressional appeasement of professional moral panickers and the law enforcement officials who love them. The fact that so many of our prisons are now run by private corporations makes the situation worse, because nothing pays better -- or more consistently -- than cell after cell of long-term "tenants."

Filed Under: criminal justice, justice, mandatory sentencing, sentencing, sentencing guidelines

Crime And Punishment? 33 Months In Jail For Filming And Uploading Fast & Furious 6

from the seems-a-wee-bit-excessive dept

As a whole bunch of folks sent in, over in the UK, a guy named Philip Danks has been sentenced to 33 months in prison for camcording Fast and Furious 6 and then uploading it to the internet. As is all too often the case, the UK authorities more or less let the movie industry, in the form of FACT (the Federation Against Copyright Theft) run the entire investigation. FACT employees were involved in all facets, including controlling most of the interview after Danks was detained. If that seems... questionable, you have a point.

As TorrentFreak now notes, while 33 months may seem extreme, part of the reason for the long sentence was that Danks didn't seem to take the hint:

FACT report that following his arrest in 2013, Danks continued to both sell and distribute illegal copies of movies. He was assisted with uploading by Michael Bell, his sister’s former boyfriend. The Court sentenced Bell to a 12 month community order with 120 hours unpaid work.

That does seem particularly shortsighted if you wanted to avoid getting into further trouble. Either way, 33 months still sounds rather extreme. Skimming through UK sentencing guidelines, apparently camcording and uploading Fast & Furious 6 is criminally equivalent to a "series of assaults on children" or "protracted neglect and ill-treatment" of a child. That doesn't seem exactly equivalent. Meanwhile Fast & Furious 6 brought in $789 million worldwide, which makes it in the top 50 movies of all time in terms of revenue. It ranks 31st all time in terms of its opening week's performance.

Given all that, I'm curious how much "harm" Danks could really have done to the movie. Sure, it seems clear that he violated copyright law, and so it's legitimate to assume some sort of punishment is reasonable. But 33 months in jail when it's hard to see how any actual harm was done? How does that make any sense at all?

Filed Under: copyright, criminal copyright, fast & furious 6, philip danks, sentencing, uk
Companies: fact

UK Plans To Bring In Life Sentences For 'Serious Cyberattacks'

from the because-terrorism dept

At the official State Opening of the UK Parliament, the Queen makes a speech in which she lays out what the UK government hopes to achieve in the new legislative session. It's one of the quainter British ceremonies -- BuzzFeed has a good summary of just how quaint -- but the one-line statements of intent can mask some very far-reaching plans. This year, for example, the Queen's Speech contained the following item :

A serious crime Bill will be brought forward to tackle child neglect, disrupt serious organised crime and strengthen powers to seize the proceeds of crime.

The Guardian has more details of one particular measure the serious crime Bill will contain:

Any hackers that manage to carry out "cyberattacks which result in loss of life, serious illness or injury or serious damage to national security, or a significant risk thereof" would face the full life sentence, according to the serious crime bill proposed in Wednesday's Queen's speech.

As well as targeting cyberterrorists, the new offence in the proposed update to the Computer Misuse Act [CMA] 1990 would also hand harsher sentences to those hackers carrying out industrial espionage, believed to be a growing menace affecting UK business.

The law would have a maximum sentence of 14 years for attacks that create "a significant risk of severe economic or environmental damage or social disruption". Currently, the section of the CMA covering such an offence carries a 10-year sentence.

Much of this is the kind of activity carried out in the form of attacks sponsored by governments outside the UK -- or, as in the case of the NSA, directly by those governments. Despite the recent grandstanding by the US when it filed criminal charges against members of the Chinese military whom it accuses of espionage, there is little hope of ever persuading the main players to hand over their citizens for trial, so the new UK law will be largely ineffectual against the most serious threats.

But there is a real danger in the "or significant risk, thereof" part, since that gives the UK authorities huge scope to claim -- as they have in other contexts -- that some online action "risked" some terrible outcome, even though nothing actually happened. Things are made worse by the fact that there is no public interest defense or exemption for research. As the Guardian notes:

The government has also not addressed complaints over the application of current computer crime law, which some in the security industry claim actually makes the internet less safe.

This is because certain kinds of research could be deemed illegal. Experts known as penetration testers, who look for weaknesses in internet infrastructure, often carry out similar actions to real cybercriminals in their attempts to improve the security of the web, such as scanning for vulnerabilities.

But such research is punishable under British law, even if it is carried out for altruistic ends, leaving potential weaknesses unresolved, critics of the CMA said.

What this means is that while it will fail to tackle the most serious online attacks, and chill research into security flaws, the proposed Bill will conveniently allow the UK government to target groups like Anonymous who carry out high-profile but relatively harmless actions over the Net. This section of the proposed Bill is really about the UK government bolstering its already disproportionate powers to throttle online protests by characterizing them as "serious cyberattacks", and threatening to impose life sentences on anyone involved.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: cfaa, computer misuse act, cyberattacks, cybersecurity, hacking, sentencing, uk

Florida Convict Appealing 162 Year Sentence Over Warrantless GPS Evidence

from the tumbling-down dept

A couple of months back, Tim Cushing wrote about a Massachusetts court finding that warrants are indeed required in order for law enforcement to get cell phone GPS data for use in a criminal case. That victory for the Fourth Amendment rights of US citizens was bound to have wide-ranging repercussions within the legal and penal systems. We didn't have to wait long, as one Florida man is appealing his 162 year prison sentence because prosecutors relied in part on locations data obtained without a warrant in his trial.

Lawyers for a south Florida man serving almost 162 years in prison for his role in a string of armed robberies told a U.S. appeals court that prosecutors had no right to use cell phone location data during his trial and the double life sentence without parole was cruel and unusual punishment. The American Civil Liberties Union (ACLU) argued that authorities should have had to show probable cause and obtain a search warrant before seeing cellphone records for 22-year-old Quartavious Davis. The case comes as federal circuit and appeals courts around the country have been wrestling with cellphone privacy issues.

Now, it should be noted that the prosecution also had the testimony of several alleged accomplices of Davis', who all received shorter sentences for their cooperation, and this post isn't intended to proclaim his innocence. In fact, he may very well be guilty, which is what makes the government's cavalier attitude towards gathering evidence all the more egregious. If this guy is guilty and walks on a technicality, when better police work could have kept him behind bars, that's on the government.

That said, regardless of his guilt, the sentencing aspect of this case is insane.

The unusually long sentence stemmed from a controversial practice known as "stacking," in which each charge in an indictment is counted as a separate crime. The policy transforms a first-time offender into a "habitual criminal" subject to multiple sentences and mandatory sentencing guidelines.

The district court judge said if he had been able to make the decision himself, "he would have given him 40 years with parole," said Shapiro.

Nothing like a little prosecutorial trick to simultaneously make a name for one's self and ensure that justice takes a backseat to politicizing the life-sentence of a man prosecuted with warrantless GPS data.

Filed Under: 4th amendment, florida, gps, sentencing, warrants

Hacktivist Jeremy Hammond Gets 10 Years In Prison; Explains How FBI Gave Him The Targets To Hack

from the of-course-they-did dept

We wrote, earlier this year, about LulzSec/Antisec/Anonymous hacktivist Jeremy Hammond pleading guilty to hacking Stratfor. While the other Lulzsec hackers who were arrested in the UK got sentences of one to three years, the fact that here in the US we have the CFAA, and the fact that the DOJ saw another hacktivist to railroad, it was expected that Hammond would get a much longer sentence. Indeed, he did: he was sentenced today to ten years in prison plus another three years of supervised release.

No one denies that he broke into Stratfor's computers (as well as other sites and even governments). However, many people quite reasonably argue that he was doing so for the purposes of activism, not for personal wealth or benefits, and that fact should have been taken into account in his sentencing. The DOJ, of course, want to use Hammond as yet another example case of how they can throw the book at hacktivists. The Sparrow Project has a good account of what happened in the courtroom:

Jeremy’s lead counsel, Sarah Kunstler, who is 9 months pregnant and due to give birth today, delivered a passionate testimonial as to the person that Jeremy is, and the need for people like Jeremy during our changing socio-political landscape. She was followed by co-counsel, Susan Keller, who wept as she recalled her experiences reading the hundreds of letters from supporters to the court detailing the Jeremy Hammond’s selflessness and enthusiastic volunteerism. She pointed out that it was this same selflessness that motivated Jeremy’s actions in this case. She closed her testimony by underscoring that, “The centerpiece of our argument is a young man with high hopes and unbelievably laudable expectations in this world.”

They also include Hammond's statement, in which he clearly states why he did what he did, and repeatedly points out that most of the sites he hacked (including Stratfor and foreign governments) were done under the direction of Sabu (real name: Hector Xavier Monsegur) who had already turned into an FBI informant. In other words, he's suggesting that the FBI was more or less telling him who to hack, and then they get to turn around and throw the book at him.

The acts of civil disobedience and direct action that I am being sentenced for today are in line with the principles of community and equality that have guided my life. I hacked into dozens of high profile corporations and government institutions, understanding very clearly that what I was doing was against the law, and that my actions could land me back in federal prison. But I felt that I had an obligation to use my skills to expose and confront injustice--and to bring the truth to light.

Could I have achieved the same goals through legal means? I have tried everything from voting petitions to peaceful protest and have found that those in power do not want the truth to be exposed. When we speak truth to power we are ignored at best and brutally suppressed at worst. We are confronting a power structure that does not respect its own system of checks and balances, never mind the rights of it’s own citizens or the international community.

The full statement is long, but well worth reading. The court forced everyone to redact part of the speech -- where he names who else he hacked at the direction of Sabu, including foreign governments. When you think about this, it seems particularly obnoxious. Basically, the FBI had Sabu tell Hammond to hack into the computers of foreign governments and now Hammond gets the book thrown at him because of that. Does anyone think that the feds didn't make use of that access to foreign government computers? It's a pretty neat trick: trick a hacktivist to break into the computers of foreign governments for you and then throw him in jail for ten years.

In an interview Hammond gave to The Guardian prior to the sentencing, Hammond notes that his days of hacking "are done" but remains pretty defiant and supportive of hacktivism in general and against oppressive government action. He notes that one of the reasons he was such a target was he had access to an exploit that it appears the NSA didn't yet have, which allowed him to get into those foreign government servers:

“I felt betrayed, obviously. Though I knew these things happen. What surprised me was that Sabu was involved in so much strategic targeting, in actually identifying targets. He gave me the information on targets.”

Part of Sabu’s interest in him, he now believes, was that Hammond had access to advanced tools including one known as PLESK that allowed him to break into web systems used by large numbers of foreign governments. “The FBI and NSA are clearly able to do their own hacking of other countries. But when a new vulnerability emerges in internet security, sometimes hackers have access to tools that are ahead of them that can be very valuable,” he said.

In that same interview, he notes he never would have hacked Stratfor if it weren't for Sabu, noting he'd never even heard of the organization before that.

Clearly, Hammond broke the law. But it seems very, very wrong that the federal government clearly used him to break into places they wanted to get into (all of which now remains classified), and then threw the book at him and will lock him up for a decade.

Filed Under: cfaa, fbi, hacking, hacktivism, hector xavier monsegur, jeremy hammond, sabu, sentencing
Companies: stratfor

People Who Got Shorter Sentences Than Bradley Manning: Spies Selling Secrets To Russians & Active Terrorists

from the disproportionate dept

By now, of course, you've heard that Bradley Manning received a sentence of 35 years, and lots of people are arguing over whether or not this is reasonable. In fact, we've even seen some people arguing that he got off easy. Okay, well, let's explore that line of reasoning. Over at the Huffington Post, there's a good article looking at the sentences that eight actual spies received from the US. These are people who actively sold or tried to sell key US secrets to enemies, such as the Russians, as opposed to revealing wrongdoing to the public via the press. Guess what? The actual spies got off with lighter sentences.

Take, for example, the case of David Henry Barnett, a CIA agent who directly sold secrets to the Russians, including but not limited to outing around 30 active CIA agents to the KGB. Oh, and at the urging of the KGB, he also tried to get a job on Capitol Hill in order to get access to more secrets. He was eventually caught and charged with espionage in 1980... and received an 18 year sentence. Got that? Directly sell the identity of CIA agents to the KGB and you get about half the time that Manning got, not for revealing the identity of any intelligence agents, but basically for embarrassing the State Department and the military. That doesn't seem right.

Okay. And how about people, including Americans, who actively tried to hurt America? Remember, Manning made it quite clear his goal was to help America. But that's not true for these five people who joined the Taliban or teamed up with terrorists working on plans to attack America. Those people actively wanted to harm America. And they got shorter sentences.

David Hicks: An Australian national who was captured fighting alongside the Taliban and sent to Guantanamo Bay prison in 2002, Hicks plead guilty to material support for terrorism in a Gitmo military commission in 2007 and was sentenced to seven years confinement. That sentence was reduced to nine months given time already served.

John Walker Lindh: Lindh was convicted of a slew of terrorism and conspiracy charges in 2003 for fighting with the Taliban against the U.S. invasion of Afghanistan. He was sentenced to 20 years in prison.

Or, for a different type of comparison, how about how other countries have treated leakers of key government information? Once again, we discover people who appear to have revealed much more damaging information... and got off with much lighter sentences.

Had he been born in Denmark, he might have gotten four months for disclosing information a Danish court found highly damaging to national security. That’s the penalty Danish Defense Intelligence analyst Frank Grevil received in 2005 for disclosing threat assessments concerning Iraq’s possession of weapons of mass destruction.

Or, had he been British, he could have been released after serving seven weeks of a six month sentence, as was David Shayler, the former MI5 member who gave a newspaper 28 security and intelligence files on a variety of topics, including on Libyan links with the IRA, Soviet funding of the Communist party of Great Britain, agents’ names and other highly sensitive information.

Or, given his military status, he might have received a sentence of 12 months in jail – the penalty a British judge gave to Navy petty officer Steven Hayden in 1998 for selling significant security and intelligence information to a newspaper concerning a plot by Saddam Hussein to launch anthrax attacks in the UK. That sentence was the heaviest awarded to any of the eight Britons convicted of disclosing sensitive information since the current Official Secrets Act was passed in 1989.

In fact, the article notes that, after looking at the laws of 20 European countries, they discovered that while all have criminal penalties for disclosing classified national security info, most have a top penalty of just a few years in jail, so long as the person leaked the information, rather than delivering it directly to a foreign state. In the UK and Great Britain, for example, the longest time allowed under law is two years in prison. France is the most aggressive punisher, where leakers can face up to 7 years in jail.

Now, compare that to the truth about Bradley Manning. There's no evidence he put anyone in danger. Nothing he leaked was "top secret" (even though he had top secret clearance). His intent was clear from the beginning and it was not to aid our enemies or to harm America. Yet guess who gets the longer sentence?

Given all of these comparisons, it's difficult to see how the sentence that Manning received is anywhere even close to proportionate or reasonable. It seems fairly obvious: Bradley Manning was not punished so harshly for harming the US. He was punished for embarrassing the government. That's not how things are supposed to happen in an open and free society.

Filed Under: bradley manning, leaks, prison, punishment, sentences, sentencing, spies, terrorists

Judge's Random, Unrelated Rant Against Facebook Leads To Child Porn Sentence Being Overturned

from the wtf? dept

I recognize that there are some people out there who really just don't like social networking or Twitter or Facebook, but I'm often amazed at how this sometimes leads people to blame other societal woes on those kinds of things. That apparently happened with a judge in a child porn case. The actual case itself sounds somewhat horrifying. A 56-year old woman, Laura Culver, was sentenced to 8 years in prison for collaborating with another person, Edgardo Sensi, to film an 8-year-old girl engaging in sexually explicit content. As I said: horrifying. Assuming all that is true, I'm happy to see them get locked up for a long, long time (in fact, 8 years seems too short).

However, that sentencing has now been sent back to the lower court, because the judge who issued the sentence apparently spent a significant amount of time at the sentencing blaming Facebook for child pornography and attacking Mark Zuckerberg. While the full transcript is sealed (due to the fact that the case involves a minor), the ruling to redo the sentencing includes some details:

In justifying its decision to impose a sentence of eight years instead of six, the district court referenced “Facebook, and things like it, and society has changed.” ... The court speculated that the proliferation of Facebook would facilitate an increase in child pornography cases. The court said it hoped Mark Zuckerberg (who founded Facebook) was “enjoying all his money because . . . he’s going to hurt a lot of people . . . .”

Just one problem: the case had nothing to do with Facebook. In fact, it had nothing to do with the internet. And yet the judge claimed that he upped her sentence because of Facebook:

Culver is correct that the court’s lengthy discussion of Facebook had no clear connection to the facts of her case. It is plain error for a district court to rely upon its own unsupported theory of deterrence at sentencing, especially where, as here, that theory has little application to the actual facts of the case itself.... This error undoubtedly affected Culver’s substantial rights; the court stated that it would have granted a sentence of six years if not for its concerns about Facebook and general deterrence. See Sentencing Hr’g Tr. at 42 (“[W]hat we’re looking at is general deterrence, and the general deterrence is very important, and frankly, that’s why I went to eight [years] instead of six.”).

While the government defended the judge's rant, the appeals court points out that given the lack of any connection to the internet at all in this case, it clearly didn't make any sense:

The government argues that the district court was merely concerned about the extent to which various new technologies may facilitate child pornography, rather than Facebook specifically. In that sense, Facebook was a reference to the internet, using synecdoche. But the government does not explain (because it cannot) the role of new technology in this case. Culver did not use the internet to commit her crime, and it should not have played a predominant role in her sentencing.

The court further notes that a sentence of 8 years may be entirely appropriate. In fact, it points out that this is below the minimum sentencing guidelines, though it sounds like the court gave Culver a "lower" sentence for cooperating against Sensi, but still notes that the "particularly abhorrent" nature of her crime may still mean that the eventual sentence (or even more) is appropriate, but "that discretion should be exercised without the influence of procedural error."

Indeed. Oh, and in case you're wondering, the judge in question, Warren Eginton, appears to be nearing 90 years old, which may explains some of his misplaced hatred for things like Facebook.

Filed Under: luddite, rant, sentencing, warren eginton
Companies: facebook

Aaron Swartz Could Have Killed Someone, Robbed A Bank & Sold Child Porn & Faced Less Time In Prison

from the the-system,-she-is-broken dept

Among the many injustices in the Justice Department's pursuit of Aaron Swartz was the disproportionate punishment he was facing. Remember that he used an open network connection at MIT, which explicitly allowed free guest access, to download academic research papers that were available for free for any user on that particular network. And yet, due to the US Attorney's Office led by Carmen Ortiz and Steve Heymann piling on additional charges, Swartz was potentially facing 50 years in prison.

Yes, reports claimed that Heymann offered to plea bargain things down to a mere 7 years in prison, but that's still an insane length, and by rejecting such a plea offer, Swartz guaranteed that Heymann was likely to throw the book at him and seek the maximum. That's how they work.

Over at ThinkProgress, Ian Millhiser, looks at the maximum jail terms for other crimes, and wonders how it's possible that Swartz had the potential to spend even more years in jail. It's quite a list, and you should go check out the full thing, but here are a few of the more interesting ones:

• Manslaughter: Federal law provides that someone who kills another human being “[u]pon a sudden quarrel or heat of passion” faces a maximum of 10 years in prison if subject to federal jurisdiction. The lesser crime of involuntary manslaughter carries a maximum sentence of only six years.
• Bank Robbery: A person who “by force and violence, or by intimidation” robs a bank faces a maximum prison sentence of 20 years. If the criminal “assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device,” this sentence is upped to a maximum of 25 years.
• Selling Child Pornography: The maximum prison sentence for a first-time offender who “knowingly sells or possesses with intent to sell” child pornography in interstate commerce is 20 years. Significantly, the only way to produce child porn is to sexually molest a child, which means that such a criminal is literally profiting off of child rape or sexual abuse.
• Knowingly Spreading AIDS: A person who “after testing positive for the Human Immunodeficiency Virus (HIV) and receiving actual notice of that fact, knowingly donates or sells, or knowingly attempts to donate or sell, blood, semen, tissues, organs, or other bodily fluids for use by another, except as determined necessary for medical research or testing” faces a maximum of 10 years in prison.
• Selling Slaves: Under federal law, a person who willfully sells another person “into any condition of involuntary servitude” faces a maximum prison sentence of 20 years, although the penalty can be much higher if the slaver’s actions involve kidnapping, sexual abuse or an attempt to kill.
• Helping al-Qaeda Develop A Nuclear Weapon: A person who “willfully participates in or knowingly provides material support or resources . . . to a nuclear weapons program or other weapons of mass destruction program of a foreign terrorist power, or attempts or conspires to do so, shall be imprisoned for not more than 20 years.”
• Violence At International Airports: Someone who uses a weapon to “perform[] an act of violence against a person at an airport serving international civil aviation that causes or is likely to cause serious bodily injury” faces a maximum prison sentence of 20 years if their actions do not result in a death.

And Aaron faced more than any of those for accessing freely available knowledge. Something seems very, very, very wrong about that.

Filed Under: aaron swartz, sentencing

Camming Group Leader Sentenced To 5 Years; Barred From Owning 'Any Device' That Can Infringe Copyrights After Release

from the how's-that-going-to-work dept

The DOJ triumphantly announced the five year sentence handed down to Jeremiah Perkins, who was named as the "leader" of IMAGiNE, a group that coordinated the recording of movies in theaters for upload to the internet. The DOJ and ICE arrested many of those involved in the group last year, and was able to convince them to do plea deals over "conspiracy to commit criminal copyright infringement." It's a bit of a stretch to claim their actions met the requirements of "criminal" copyright infringement, but they did get some money for their actions, and that tripped the wire. I don't have an issue with them getting in trouble for their actions, which were pretty blatant infringement, though I'll say that the punishment of five years in jail seems ridiculously excessive when this one group's actual impact on movie piracy was non-notable. So many leaks are internal leaks, rather than cams -- and even if they take down this one group, it's not like it stopped any movies from showing up online quickly. And, of course, none of this does anything to make people buy. So I fail to see the value in spending taxpayer money going after these people, and then paying for their prison sentence at a time when our prisons are overcrowded.

But the issue that gets me about this is this bit, highlighted by TorrentFreak:

After his imprisonment ends Perkins will be subjected to a further three years of supervised release and will be banned from possessing “any electronic device with the capability or reproducing and distributing copies of copyrighted materials.”

That's basically pretty much any electronic device these days. Computer, phone, camera, tablet. Anything that can record audio or video or take a picture has that capability. Five years from now, it's likely to include many more commonly used devices as well. That seems ridiculously excessive. Especially given that devices that can infringe on copyrights also do a ton of legitimate and important things, to say that he can't possess any such device seems ridiculously limiting. The MPAA, who pushed this prosecution (which, again, was led by Neil MacBride -- the former industry anti-piracy enforcer -- who now does the same job for the government and rarely misses an opportunity to support his former colleagues), don't see any problem with completely taking away all devices that can infringe on copyright from someone, but that's because they still don't realize how central to culture and society such devices have become these days.

Filed Under: copyright, criminal copyright, doj, ice, imagine, jeremiah perkins, restrictions, sentencing