
You are committing a crime right now (2012) - gpvos
http://blog.erratasec.com/2012/11/you-are-committing-crime-right-now.html
======
STRML
Selective enforcement is the real power government and police wield over the
common person. If the laws were fairly enforced, against everyone, equally,
citizens and law enforcement would be on more common ground.

Instead, the breadth of laws on the books is far too wide for the average
person to understand, with many of them vague enough to cast any person a
criminal at any time. So those who have the power to cast down these
punishments make deals. And the power to make those deals is where they derive
this power. Do this, they say, and we won't throw the book at you. But defy
us, and we have all manner of perfectly legal tools we can use against you.

~~~
rayiner
American criminal law is rooted in intent. There is a strong element of
selective enforcement in the process, but it's by design. The flip side of
selective enforcement to jerk someone around is being able to not punish
someone whose conduct falls within the letter of the law, but who didn't have
criminal intent.

It's this reason that I think the book "3 felonies a day" is very weak. See
some examples:
[http://www.threefeloniesaday.com/Youtoo/tabid/86/Default.asp...](http://www.threefeloniesaday.com/Youtoo/tabid/86/Default.aspx).

The examples play fast and loose with the facts and the law. In the first
example, the page leaves out a lot of the facts:
[http://www.justice.gov/opa/pr/2000/November/647enrd.htm](http://www.justice.gov/opa/pr/2000/November/647enrd.htm).
The defendants imported $4m of undersized and egg-bearing lobster tails in
violation of multiple state and federal laws, and took measures to conceal the
action showing their criminal intent. The page makes it seem like they were
convicted based on one vague statute.

The second example leaves out the fact that the driver was fined only $75. The
law in this case is very sensible: it's illegal to operate a motor vehicle in
a Federal Wilderness Area. The driver did, even if he did only because there
was a blizzard. Ironically, the page seems to have a beef here with the _lack_
of selective enforcement!

~~~
mahyarm
Aren't there many new laws nowadays where there is strict liability, intent is
not needed? And on top of that there is the entire section of negligence law,
with no intent by definition, which is easier than you think to get caught in.

~~~
rayiner
There are strict liability violations, but they tend to be things like traffic
ordinances, not felonies. For example driving a motor vehicle in a wilderness
is a strict liability offense, though its a misdemeanor punishable potentially
by jail time. I think those are very troubling, and I'm against jail time for
any non-violent crime, but they're not that pervasive.

But lots of otherwise troubling laws aren't strict liability. E.g. Child
pornography possession requires knowledge of both possession and its status as
child pornography. Drug laws are generally not strict liability.

Negligence law is civil, not criminal, except to the extent that reckless
disregard is a state of mind satisfying intent requirements for a few limited
gross negligence crimes (e.g. Locking the doors of a tightly packed
nightclub).

------
rayiner
The CFAA is a shitty law, but this article apparently can't be troubled to
read all of 18 USC 1030(a). All of the subsections require something more than
mere access, and all require "knowing" intent. For example, subsection (1)
requires knowing access to certain national security information. (4) requires
a "protected" computer, knowing intent, intent to defraud, and obtaining
something of value other than simple use of the computer.

In the common law there is this concept of implied license. You don't need
explicit permission to enter a public store, but the store owner can revoke
permission and if you enter the store knowing you don't have permission,
you're committing a trespass. That's why the "knowing" part can't be ignored
in the CFAA. That's why 3Taps lost against Craigslist--the IP block gave them
notice of the fact that they were no longer entitled to access what is
otherwise a public website.

~~~
moocowduckquack
_" the IP block gave them notice of the fact that they were no longer entitled
to access what is otherwise a public website."_

The same logic could presumably criminalise the behaviour of making a new
account on a site after your old account has been blacklisted.

This isn't so much about banning people from entering a premises, this is more
like banning someone from looking at your roadside advertising signs by
standing between them and a sign and then taking them to court when they
glance round you.

~~~
lawtguy
A billboard is bad metaphor for a website. With a billboard, you can get the
information while standing in public or private space not owned or controlled
by the advertiser. So a billboard is more like banner ad than a website. A
website as a public store seems to be the better metaphor.

That could mean that creating a new account after your old account was banned
could be a crime. That's like putting on dark sunglasses and a beard and
walking back into the store after you've been kicked out. It's trespassing
which is a crime. The difference is in the real world, simple trespass does
not result in a life-altering felony conviction with a jail sentence.

~~~
3825
>The difference is in the real world, simple trespass does not result in a
life-altering felony conviction with a jail sentence.

Isn't that enough of a difference? Property owners be responsible for security
of their property to some extent. If there is a door with a key hanging next
to the door and anyone is allowed in by simply using the publicly available
key, is it really trespassing?

~~~
nocipher
It is still trespassing. It doesn't have to be difficult to do something for
it to be illegal.

I think the bigger issue is that trespassing is usually handled with a warning
and, if it does go to court, is usually a misdemeanor or a low-grade felony.
For this, it seems that accessing a server that you do not have permission to
use is seen as much more serious than merely trespassing.

I can't see an argument that supports that position. Certainly, if you do
anything to vandalize or disrupt the server, then you have crossed a line and
should be prosecuted. Anything less should be handled more reasonably.

------
perlpimp
Frankly government does not care at all for fairness of the law all they care
for is control and funding. The former feeds back on latter you see, if you
don't have right kinds of guards in place.

As such I don't see government making any move to make for fairer laws -
because they would have to work harder and incidentally they will get less
clout/control of the populace. Computer Trespassing act is just that a wild
card in hands of police to persecute nearly anyone who dares to cross them in
the way they do their business.

my 2c.

------
tootie
I think there is an enormous difference between accessing a public website and
what weev did. He walked into an unlocked house, copied personal documents,
and published them. Just because he didn't use a crowbar doesn't make it any
less intentionally criminal.

~~~
pyre
If what Weev did was criminal, then why isn't AT&T guilty of some sort of
criminal negligence for making it so easily accessible?

~~~
tootie
They probably should be, but I'm not aware of any law against it. Failure to
secure sensitive customer data? That should at least be a fineable offense. If
a customer was provably injured by this hack, they would probably have grounds
for civil suit.

------
soora
Most of us also commit a crime every time we drive a car by driving over the
speed limit.

Selective enforcement is pretty wide spread. It would be wonderful if at some
point in the future the law was changed, however it is too powerful a tool for
the police to give that power up without a fight.

~~~
rayiner
Speeding isn't a "crime." They're civil infractions. See:
[http://en.wikipedia.org/wiki/Civil_infraction](http://en.wikipedia.org/wiki/Civil_infraction).

~~~
rmc
Depends on the country. It's a crime in some countries

~~~
marvin
You can get jail time for speeding in Norway, so definitely criminal.

~~~
rickdale
Thats really interesting. I had a foreign exchange student from Norway come to
the States during high school and I remember him telling me that cops had to
apply to a judge to bring a gun with them for a specific task, and didn't just
carry one around. Big change for him coming to a school that had cops with
hand guns at the entrance. Just interesting how different systems work and
what goes into making them different...

------
ahallock
URLs are public and modifying them should not be considered unauthorized
access or hacking, especially semantic URLs. I mean, if there's a querystring
parameter on the end like "page=2" and I modify it to be "page=3", I'm simply
using an interface in a logical manner. The onus should be on the website
owner to secure resources within their URL space, especially since there are a
myriad of easy ways to do this in 2013.

------
moron4hire
“ignorance of the law is no defense” only applies to the "natural" crimes like
murder or theft.

~~~
SEMW
> “ignorance of the law is no defense” only applies to the "natural" crimes
> like murder or theft.

It really doesn't (at common law, at least). If you don't believe me, try
pleading ignorance of the law when you're arrested for breaching a traffic
regulation. It's your responsibility to know the criminal law - however
impractical that might be.

There is a bit of leeway on the boundaries between mistake of law and mistake
of fact -- e.g. in England, a tenant who destroyed something he'd installed
himself, not knowing that under civil law it'd become the landlord's property,
had his conviction for destruction of property quashed (R v Smith [1974] QB
354). And apparently in Canada there's a defence of "invincible mistake of
law" in situations where it's literally impossible for the person charged with
a crime to have known it was a crime at the time it was committed. But the
general principle is that ignorance of the law is no defence to any crime,
however 'unnatural'.

IANAL.

~~~
s_q_b
There are similar concepts in American law.

Some crimes, (it used to be almost all crimes, now it's very few) require a
particular state of mind, or mens rea. Mens rea, or "guilty mind", is a
classic precept that goes all the way back to Roman law, and would have been
considered an ordinary requirement for all criminal laws at the time the
Constitution was written.

Unfortunately, the Constitution was silent on the issue of mens rea, and the
Supreme Court refused to create a universal mens rea requirement for all
criminal cases under the due process clause. As a result, there are now a
great deal of "strict liability" crimes, which don't require any ill intent on
the part of the accused at all. For example, a car accident in some states,
even absent negligence, can be grounds for felony charges.

Prosecutors moved for this shift during the 70s-90s, since state of mind is so
difficult to prove in court. In doing so, they overturned a precedent that
goes back literally two millennia. What nobody realized was that mens rea was
there for a reason, that it was difficult to prove by design. As a result we
see lots of prosecutions for strict liability crimes that leave the defendant
at a distinct disadvantage.

The second defense that comes up in this context is vagueness. Since penal
laws must be strictly construed in favor of the defendant, i.e. any ambiguity
in interpretation open in the statute must be resolved in favor of the
defendant, vague laws can be and are struck down as being void for vagueness.

The theory here is not that the defendant did not bother to learn the law, it
is that even if he _had_ , the text of the law was insufficiently clear to
give adequate notice to the defendant that his actions were illegal.

The real problem here, however, has nothing to do with the mens rea
requirement. The real problem is that we have de facto dispensed with the
presumption of innocence. In today's justice system, it is not a conviction
that ruins a person's life, it is the decision to merely to bring a charge.

At the moment a felony charge is filed, before any determination of guilt has
been made, the defendant may be incarcerated, for as long as nine years in
some jurisdictions without violating the speedy trial requirement. All of his
assets may be seized, before they have been proved to be involved in a crime
of any kind. He will almost certainly be expelled from educational programs,
usually with little or no due process, and lose his employment.

All of this happens before any proof has been shown, any arguments have been
heard, any witnesses have been questioned, any evidence has been challenged,
and before the defendant has had the chance to utter any words other than "not
guilty." The fact is, in today's American justice system, your life is
effectively over at the mere pointing of a finger.

The checks that were supposed to be the last line of defense, probable cause
hearings before neutral magistrates and Grand Juries, similarly failed. Local
magistrates often work hand-in-glove with the police, often in the same
building, and since the probable cause standard is so low there is little
obstacle to charging anyone for anything.

In states that use Grand Juries, jurors often meet repeatedly with the same
prosecutors, month after month. The prosecutor is the only one that can call
witnesses, present evidence, make argument, and even testify. He can refuse to
present exculpatory evidence and witnesses, and the defendant is not even
present to respond. From this fact comes the common saying among prosecutors,
"I could indict a ham sandwich for the murder of a pig."

Most citizens are comforted by the notion, that no matter the unfairness in
the initial process, eventually they will be able to present their case to a
jury of their peers. However, even juries are no longer a right in most
trials. Since the federal constitution's jury trial requirement was never
incorporated against the states, most local magistrates are given the power to
sentence defendants for up to six months in jail _per count_. Because most
defendants face multiple charges stemming from the same conduct, there are
countless American citizens spending years in jail, never having had their
case heard by a jury.

We've given prosecutors the unbridled power to destroy anyone by signing a
piece of paper.

Our justice system is just barely hanging on. Our rights still exist, but it's
becoming impossible for an average citizen to effectively assert them. It's an
interesting case to me. The decline of the legal system will be slow, and it's
still far preferable to virtually any other system I've studied in detail, but
it's scary to see it starting to happen.

The system still functions well, in some areas, especially for the rich. But
the new unchecked system, (advocates would call it "streamlined"), pioneered
upon inner city black and hispanic minorities is gradually moving up-market.
Remember when you think about policies that seem to only apply to others, like
loosening criminal law requirements, sovereign immunity, rampant disregard for
the warrant requirement in poor neighborhoods, vehicle checkpoints, and stop-
and-frisk: once the precedents are set, there is nothing to keep the
government from applying them to you.

~~~
barries
Can't upvote enough because this is the single most troubling aspect of our
(US) justice system today: as soon as you are charged, your quality of life is
ruined unless you are both wealthy and lucky enough to avoid pretrial
incarceration. Even if you are both wealthy and lucky, the stress, effort and
money required only to be found "not guilty" or get charges dismissed is a
huge burden.

Even if there were redress for cases when "the system" makes a mistake, you
can never get your quality of life back.

~~~
mahyarm
Unfortunately this seems like the trend internationally. It's just the justice
systems in other countries just seem to be less aggressive, but have similar
or even worse privileges.

The human rights court for example in Canada is known as pretty much a
kangaroo court. But Canadian law enforcement is not nearly as aggressive and
militarized, and the country does not suffer from an as large historical SES
gap that can cause this aggression to develop in the first place.

~~~
s_q_b
It's funny to hear that perspective from a Canadian. In comparative
constitutionality, the prevailing scholarly opinion is that the Canadian
Charter of Rights and Freedoms is a modern update to the US Bill of Rights.

The United States Constitution has served as the template for countless
founding documents, especially those written constitutional documents in most
of the Commonwealth of Nations.

The innovations in the Constitution were threefold. First, a federalist system
in which states ceded only specific enumerated powers to a central government.
Second, a balance of powers between three branches with differing missions,
members, and procedures. Third, a specific list of tasks that fell explicitly
outside the powers of the central government. These are commonly termed
federalism, separation of powers, and the Bill of Rights.

The federalism experiment failed, beginning with the establishment of true
Federal supremacy following the Civil War and ending with the SCOTUS decisions
that expanded the definition of "interstate commerce" to include virtually
everything. The United States Federal government is for all intents and
purposes now a government of general jurisdiction. This is what they have in
e.g. Britain, so this is neither a good nor a bad thing, but it's simply no
longer a differentiator from other modern governments.

Separation of powers is failing us right now. Without controlling both houses
of Congress, with a supermajority in the Senate, and the Presidency can
accomplish any coherent agenda.

Our third contribution, the Bill of Rights, is still holding relatively
strong. Unfortunately, it's a few centuries old, and we've had to update it
quite a bit by quite creatively reading rights into text where they might not
really exist.

So the search is on in academia for a bill of rights that's a better model for
new documents than the United States version. The Canadian Charter of Rights
and Freedoms is the most commonly examined alternative. And the Supreme Court
of Canada is generally considered more activist than SCOTUS.

So it's strange to hear that tribunal described as a kangaroo court. I'm not
saying you're wrong, just wondering how the experience of an informed citizen
differs from the prevailing winds in academia here.

One thing that troubles me about the Canadian Charter of Rights and Freedoms
is that it has an explicit escape clause to suspend it. In fact, I believe it
was invoked two years ago during the student protests in Quebec. An off-button
seems like a major anti-pattern for a bill of rights.

------
chrischen
Maybe we should grant amnesty to all crimes committed by xx% of the
population? If not, we could end up where it becomes the norm everyone is a
criminal to something, and the government can selectively prosecute only when
it serves their purpose.

------
greenyoda
Lots of previous discussion here:

[https://news.ycombinator.com/item?id=4812496](https://news.ycombinator.com/item?id=4812496)

------
Sagat
I'm glad I don't live in America.

------
rtpg
The thing about these articles that I hate is that they all try to play to the
letter of the law as if we're playing word games. But in real life, in the
courts( of public opinion and the judicial ones), where this stuff matters,
its almost always been about the spirit of the law.

People do get thrown into jail for technicality (minimum sentencing laws are
moronic), but this is one of those cases where circumstance and plain common
sense would prevail.

~~~
bo1024
Did you not see the Auernheimer case mentioned in the article? What happened
there is the exact opposite of what you describe.

