Oral argument in the Andrew “Weev” Auernheimer case was held before the 3rd Circuit Court of Appeals, with Orin Kerr, knowledgeable in both law and technology, squaring off against AUSA Glen Moramarco, knowledgeable in the limits of the judiciary’s virtual grasp. The government fired the first shot, suggesting to the judges that the measure of technological prowess was the mad skilz of their law clerks, because all kids are magically computer whizzes.
But that was nothing, from the reports back of oral argument. The money quote from the government, with regard to the abnormalcy of Weev’s co-defendant, Daniel Spitler, having written code:
He had download the entire iOS system on his computer, he had to decrypt it, he had to do all of these things I don’t even understand.
What the prosecutor said was essentially the Monty Python bit from Holy Grail: if she weighs as much as a duck, she must be a witch. BURN HER.
That the prosecutor doesn’t understand Spitler’s actions doesn’t mean Spitler is a witch – it just means the prosecutor is an uneducated villager.
But can this really be the case? There may be a disingenuous shrewdness to Moramarcos’ feigned stupidity. It strikes me as inconceivable that a smart Assistant United States Attorney can’t comprehend the workings of basic code designed to repeat an internet query, particularly since there were numerous amici briefs dedicated to explaining in the simplest possible terms what was done, how it was done, and why it was little more than what all of us do every day, even if unwittingly because the shiny button performs many of the functions for us automatically. After all, if the buttons work, someone has to know how to program them.
Rather, the government’s argument, besides being a lie to the court if Moramarcos indeed understands exactly what was done, is an appeal to ignorance. It’s in the government’s interest to perpetuate the myth that computer technology is some unfathomable magic performed within boxes that mere mortals, judges, can’t possibly understand. This voodoo is done only by shamans, or as Motherboard describes him, “the notorious internet troll who seems to be equally celebrated and reviled,” Weev.
While the hacker community was far more interested in, and concerned about, the way in which the 3rd Circuit will interpret the Computer Fraud and Abuse Act, as the broad interpretation applied in Weev’s case would essentially criminalize what the InfoSec wing does daily, the court spent far more of its time and focus on the question of venue. Arcane and legalistic, this question has even broader implications for all of us.
Weev hacked AT&T while physically in Arkansas. AT&T servers were in California and Georgia. Gawker, who received the information about AT&T’s security flaw and posted it online, is located in New York. So naturally, the prosecution was brought in New Jersey, with the government arguing that an FBI agent read the Gawker article there.
“I would urge the court to not go narrow on computer crimes,” the prosecutor said. One judge interjected: “[That would mean] every computer crime at every computer in America would be in all 50 states.”
This would suggest that the concept of venue, mentioned twice in the Constitution, would cease to exist for computer crimes. Whether it’s the federal district that is most convenient to the government, or the least convenient to the defendant, any computer crime could be prosecuted in any of the 94 districts of the United States. When is the last time you hung out in Anchorage?
The government, perhaps lacking any credible argument, addressed its venue deficit by literally going the explosive route.
In its opening statement, the government made an incendiary comparison that seemed to reflect the nature of its understanding of the crime: the prosecution compared Auernheimer’s deeds to hackers “[blowing] up a nuclear power plant in New Jersey” in an attempt to illustrate how it was a relevant venue. “It doesn’t matter where the server is located.”
What this analogy is supposed to mean is anyone’s guess. Perhaps the government thought a whiff of terrorism would aid their cause, or that in a virtual world, virtual analogies are close enough.
Given the scope and breadth of the issues raised in this case, and their application by extension to so much of the activity happening every day by
magical shamans people with, perhaps, a community college degree in computer science, not to mention every person who uses a shiny device to post something to the interwebz, we can only hope that the 3rd Circuit doesn’t fall for the government’s playing the stupid card.
Technology isn’t magic, but it is the future. Pretending that it’s just way too hard to grasp today will impact every advance going forward. This is a pivotal time in the law to either recognize the role played by those with basic technologies prowess, or reduce them to criminals because it will then leave the skilled and knowledgeable to the mercy of the government. Make friends with a lawyer in Anchorage, just in case.
Update: EFF’s elder statesman, Jim Tyre, sent me the link to the oral argument. If you have popcorn ready and no interest in watching Real Housewives of New Jersey do some serious damage to the Garden State, hunker down for a listen.