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DATE 2013-01-01

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Key: Value:

MESSAGE

DATE	2013-01-17
FROM	Ruben Safir
SUBJECT	Subject: [NYLXS - HANGOUT] [ruben@mrbrklyn.com: Re: [conspire] Post Mortum legal explosion]
Easier to read, I hope.. ----- Forwarded message from Ruben Safir ----- Date: Thu, 17 Jan 2013 22:11:04 -0500 From: Ruben Safir To: Ruben Safir , Ruben Safir , Aimee Zeltzer , Anne Gordon , Uncle Abogado? , Hannah Aizenman , Peter Norton , paul Robert Marino Subject: Re: [conspire] Post Mortum legal explosion User-Agent: Mozilla/5.0 (X11; Linux x86_64; rv:16.0) Gecko/20121025 Thunderbird/16.0.2 On 01/17/2013 07:42 PM, Rick Moen wrote: > Quoting Ruben Safir (ruben-at-mrbrklyn.com): > >> He is not the only legal opinion and there are many who disagree. > I'm underwhelmed by your data. (In short, you are posting bullshit.) http://www.wbur.org/2013/01/16/gertner-criticizes-ortiz-swartz also http://blogs.findlaw.com/fourth_circuit/2012/07/fourth-circuit-refuses-to-apply-cfaa-to-employee-data-breach.html "This week, the Fourth Circuit Court of Appeals affirmed that decision. The CFAA is primarily a criminal statute designed to combat hacking. Nevertheless, it permits a private party "who suffers damage or loss by reason of a violation of [the statute]" to bring a civil action "to obtain compensatory damages and injunctive relief or other equitable relief." Although proof of at least one of five additional factors is necessary to maintain a civil action, a violation of any of the statute's provisions exposes the offender to both civil and criminal liability. A person can be liable under the CFAA if he: 1. Intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains ... information from any protected computer. 2. Knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value. 3. Intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage, or causes damage and loss. Here, WEC alleged that Miller and Kelley violated the Act because they were not permitted to download confidential and proprietary information to a personal computer under WEC's policies, and they breached their fiduciary duties by doing so. Based on that breach, they either lost all authorization to access the confidential information or exceeded their authorization. WEC sought to hold Arc liable because it claimed that Miller and Kelley undertook this conduct as Arc's agents. The defendants moved for a 12(b)(6) dismissal, and the district court held that WEC failed to state a claim for which the CFAA provided relief. The Fourth Circuit Court of Appeals affirmed the district court, noting that Miller and Kelley didn't hack WEC's system. (Remember, the CFAA was created to combat hacking, not an employee data breach.) Judge Henry Floyd, writing for the three-judge panel, said, "We are unwilling to contravene Congress's intent by transforming a statute meant to target hackers into a vehicle for imputing liability to workers who access computers or information in bad faith, or who disregard a use policy. Providing such recourse not only is unnecessary, given that other legal remedies exist for these grievances, but also is violative of the Supreme Court's counsel to construe criminal statutes strictly."" http://blogs.findlaw.com/supreme_court/2012/08/doj-wont-ask-for-supreme-court-review-of-cfaa-hacking-decision.html " In April, the Ninth Circuit Court of Appeals dismissed a federal hacking charge against a California man, finding that the Computer Fraud and Abuse Act (CFAA), which outlaws computer use that ?exceeds authorized access,? was inapplicable to the case. For months, we?ve wondered whether the Justice Department would appeal that decision to the Supreme Court. This week, we got our answer. The DOJ has decided not to petition for Supreme Court review, reports Wired." http://blogs.hbr.org/cs/2013/01/aaron_swartzs_crime_and_the_bu.html from Harvard Business School http://www.slate.com/articles/technology/technology/2013/01/aaron_swartz_suicide_prosecutors_have_too_much_power_to_charge_and_intimidate.html The Author wrote for Yale Law review: "Bazelon was raised in Philadelphia and attended Germantown Friends School.[27] She graduated from Yale College in 1993 and from Yale Law School in 2000 and was an editor of the Yale Law Journal.[1] She was selected for and participated in the Dorot Fellowship in Israel from 1993-94.[28] After law school she worked as a law clerk for Judge Kermit Lipez of the United States Court of Appeals for the First Circuit. Bazelon is the granddaughter of David L. Bazelon, formerly a judge on the United States Court of Appeals for the District of Columbia Circuit,[29] and second cousin twice removed of feminist Betty Friedan.[30] She lives in New Haven, Connecticut with her husband, Paul Sabin, an assistant professor of history at Yale, and their sons, Eli and Simon.[5][31][32][33][34]" ~~wikipedia From the LA Times: http://www.latimes.com/news/obituaries/la-me-0113-aaron-swartz-20130113,0,5232490.story "Some legal experts believe the charges are unfounded since Swartz had been a university fellow, which gave him the right to access the articles." They could be lieing, of course since there is no source quoted. This is also worth a review and discusses both the legal and the ethical issues http://crln.acrl.org/content/72/9/534.full http://www.bloomberg.com/news/2013-01-17/the-overzealous-prosecution-of-aaron-swartz.html By Lawyer Stephen L Carter: Stephen L. Carter is a professor of law at Yale, where he teaches courses on contracts, professional responsibility, so... While Kerr sat down and gave a long and detail writing of his analysis, his is not a whole accepted opinion. >> Where was there a applicable case like this? This case is unique, FWIW > Reference was to all other past cases under 18 U.S.C. 1343 (wire fraud), > 18 U.S.C. 1030(a)(4) (computer fraud), 18 U.S.C. 1030(a)(2)(C) and 18 > U.S.C. 1030(c)(2)(B)(iii) (unauthorised access), and 18 U.S.C. > 1030(a)(5)(B) and 1030(c)(4)(A)(i)(I) & (VI) (computer damage). Which one involves a political activist? > I'm sure Swartz's case was 'unique' in many ways, but none of them > relevant to the question. That would be your opinion. None involve the taking of data from an opened accessed computer by a political activist who never even released the papers. >> Prosecution of the law and public opinion are not ever seperate issues. > Are you comprehensively misreading what I said deliberately, or is it > accidental? > > HAH - am I now your chew toy?!? ----- End forwarded message -----