Blog Jay Leiderman Law

Protest Speech and the Digital Revolution

The unpolished draft of the op-ed written for the Guardian

There is no weapon on the planet more powerful than speech.  In recent years, the digital revolution has led to new and unique ways for people to express themselves.  Speech has flourished around the globe, and brought the world closer together.  As a lawyer and as someone who promotes the advancement of individual liberties, I was fascinated by the advent of online speech, and then the advent of online protest.

Speech

The power of speech – a microphone and brass knuckles

While affixing your e-signature to an online petition is a new and somewhat direct way to “petition your government for a redress of grievances,” I am most concerned with advocating for more immediate and effective manners of protest.   Accordingly, I was quite interested in December 2010 when the hacktivist collective Anonymous took to the internet to voice their displeasure with PayPal over their part in the banking blockade of Wikileaks.  A reported 10,000 protestors around the world voiced their displeasure with PayPal by using a protest method known as DDoS.  DDoS is the functional equivalent of hitting the refresh button on a computer repeatedly.  With enough people refreshing enough times, the site is flooded with traffic and slowed or even temporarily knocked offline.  No damage is done to the site or backing computer system, and when the protest is over, the site resumes business as usual.

This is not “hacking.”  It is protest.  It is speech.

True, customers of the site are temporarily inconvenienced, but democracy is often messy and inconvenient. Moreover, to hear the voice of your fellow citizen for a moment should always be worth slowing down for.  Exposure to new or differing views enriches us all.  Such was the case with the 2010 PayPal DDoS protest.

Or, at least, it was until the United States Government decided to serve 42 warrants and indict 14 protesters.  While protest crimes have typically been seen as tantamount to nuisance type behavior, like trespassing or loitering, these were different.  The 14 PayPal defendants, some of whom were teenagers when the protest occurred, find themselves looking at 15 years in federal prison.  For exercising their free speech rights.  For redressing their grievances to PayPal, a major corporation.  For standing up for what they believed was right.  Instead of facing a $50 fine, like one would face for traditional protest crimes like a sit-in, the PayPal defendant’s freedoms are in real jeopardy.

This is not “hacking.”  It is protest.  It is speech.

To address this situation, there was some more traditional, yet still-modern speech aimed at the White House.  An online a petition has been launched asking that DDoS be treated as speech.  I wholeheartedly support this concept.  Being mindful that all protest must be reasonable in time, place and manner, I believe that there is room in cyberspace, indeed in the world, for this type of protest activity.

Speech

Free Speech is seldom pretty, but it is essential to an open and free society

The example used above, that of the PayPal protest, is again apt to analogize why DDoS is speech.  Just like civil rights protestors who went to the Woolworth’s lunch counter in the segregated American South of the 1960’s to seek a simple meal, people went to PayPal to express their desire to make a donation to WikiLeaks.  In Woolworth’s the protestors made plain their goal: “If you serve me a meal, I will eat it, pay for it and then I will leave.”  This simple concept was lost on the Jim Crow South.  And so protest became necessary.  Certainly this situation is a lesser evil.  No one suggests it is not.  But the analogy is apt nonetheless.  Thousands of PayPal protestors said, via their protest speech in DDoS form: “I want to make a donation to WikiLeaks, I’ll take up my bandwidth to do that, then I’ll leave, you’ll make money, I’ll feel fulfilled, everyone wins.”  But alas, PayPal, and their parent company eBay were not in the win-win business.  They were in the censorship business.  Censorship is not something Anonymous suffers lightly.  PayPal will take donations for the Ku Klux Klan, other racist and questionable organizations, but they won’t process donations for WikiLeaks.  So it came to pass that thousands of displeased people around the globe voiced their displeasure via a DDoS protest.   All the PayPal protesters did was take up some bandwidth.  PayPal claimed – almost as a cry of victory – that their site never even went offline.  In that example, DDoS was used as an almost pure form of protest expression.  Accordingly, it was speech, it should absolutely be recognized as such and protected as such.   The law should be changed.

Speech

Anonymous. Headless. Leaderless. The hive.

The Computer Fraud and Abuse Act is being used to stifle new and creative forms of online expression.  This type of harmless creative protest should be encouraged.  Our nation was built upon the principles of free speech.  If the founders of this great nation saw the abuses of the laws as applied to these minor protests I think they would be shocked and offended.

Speech

The Government would seek to restrict speech if left to their own devices

Our best and brightest should be encouraged to find new methods of expression.  Direct actions in protest should be encouraged, not stifled.  The dawning of the digital age should be seen as an opportunity to expand our knowledge and collectively work together to enhance our communication.  Government should have the greatest interest in promoting speech, especially unpopular speech.  If new and contrary methods of speech became mainstream, they would need no protection.  The majority, the corporatocracy and the oligarchs are, no doubt, displeased by dissent.  Such is the nature of dissent.  When the world becomes perfect, no one will ever have need to protest.  Until then, the Government should never be used to stifle the new and creative – not to mention effective – methods of speech and expression.   Since the PayPal prosecution there has been no DDoS protests on that scale.  Speech has been chilled.

Supreme Court Justice William O. Douglas said: “Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.”  Toward that end, let’s begin a conversation about carving out some room for DDoS to be seen as protest speech deserving of First Amendment protection.

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A ten-year delay due to attorney misrepresentations was excused by the appellate court in In re Grunau, 169 Cal.App.4th 997 (2008). The court in part said that “it does not lie in the state’s mouth to object to relief, since it has in a sense warranted the attorney’s competence by issuing him a license.” Id. at 1003 (emphasis added).

Grunau is best summarized by it’s opening paragraph: “Defendant Mark Daniel Grunau seeks recall of the remittitur in this matter on the ground that the 1997 dismissal of his appeal resulted from neglect and misconduct by his appellate attorney, and that relief was not sought sooner because that attorney consistently and plausibly misrepresented the status of the case to defendant through defendant’s father. We initially denied defendant’s motion but were directed by the Supreme Court to reconsider the matter. Having done so, we are persuaded that defendant is entitled to the relief he seeks. Accordingly, we will recall the remittitur so that the appeal may be determined on the merits.”  169 Cal.App.4th 1000.  Grunau was a case involving sex convictions.  Grunau’s attorney had timely filed a notice of appeal but thereafter failed to diligently prosecute the appeal, and lied to Grunau’s father, stating the appeal was progressing when it had been dismissed (Grunau himself was unable to communicate with his lawyer).

The facts of Grunau are astonishing:

delay

The shocking case of In re Grunau discusses what remedies are available to a defendant abandoned by his attorney

Defendant relied on his father to communicate with Foley regarding the appeal, in part because his own attempts to contact Foley were largely unsuccessful.   Everything defendant learned about his case came from his parents.   Between 1996 and 2004, Mr. Grunau called Mr. Foley monthly, sometimes weekly.   In September 2002, he discovered that Foley’s phone had been disconnected, but tracked Foley down by using the phone book to find someone who knew Foley’s mother.   According to Mr. Grunau, Foley at no time disclosed that the appeal had been dismissed.   On the contrary, from 1996 to 2004, in response to repeated inquiries, Foley consistently assured Mr. Grunau that the appeal was proceeding in due course.

Despite Foley’s assurances, Mr. Grunau attempted to independently confirm that the appeal was pending by contacting the superior court. Those attempts were unsuccessful.   Eventually-on August 24, 2004-Mr.   Grunau contacted this court, and was told that the appeal had been dismissed.   He went to the law library to research a possible remedy.   He also continued to attempt to communicate with Foley regarding a possible solution.   Finding none, he again telephoned this court in November and was directed by the clerk’s office to contact the Sixth District Appellate Project.   He did so that same month.

 

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Is former Sacramento media employee Matthew Keys a victim of overzealous, misguided cybercrime prosecution?

Matthew Keys’ trial here in Sacramento in federal court to wrap up soon
By  

This article was published on .

Some say the U.S. Department of Justice’s priorities are out of whack when it comes to cyberterrorism prosecutions.

ILLUSTRTAION BY BRIAN BRENEMAN
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The trial of former KTXL Fox40 Web producer Matthew Keys in Sacramento federal court appears to be approaching its anticlimax.

The 27-year-old blogger and journalist is accused of helping hackers break into the Los Angeles Times website, where they changed the headline of a story. Keys has even confessed to the substance of the crime, though it hardly qualifies as misdemeanor vandalism. So why make a federal case out of it? Couldn’t Department of Justice resources be better directed elsewhere?

It’s a question of priorities, according toSurviving Cyberwar author Richard Stiennon. “For those in justice, your career path is to get a whole bunch of successful prosecutions and get noticed,” Stiennon says. “So you’re going to go after the low-hanging fruit.”

Lately, prosecutors have been taking advantage of the wide latitude afforded them by the Computer Fraud and Abuse Act to press cases involving “network security.” And they press hard.

Last January, Internet entrepreneur and activist Aaron Swartz killed himself while under felony prosecution for downloading academic journals. Swartz, who helped create the crowdsourced entertainment site Reddit, was facing 50 years and $1 million in fines.

“The days of ’Let’s haul this kid in front of the judge, scare him and send him home with a warning’ are long since gone,” says attorney Jay Leiderman, who represents Keys. “Prosecutorial discretion is a great thing if it’s exercised, but it doesn’t happen in any meaningful way these days, because prosecutions are so politicized.”

That’s the crux of the problem for Keys, the former Reuters social-media editor and possessor of 23,000 Twitter followers. In December 2010, he crossed paths with Hector Xavier Monsegur, a.k.a. Sabu, the eventual leader of AntiSec, a more mischievous offshoot of hacktivist group Anonymous. Keys passed them the credentials he once used to log into KTXL’s computers, which were linked to the Tribune Company network.

Keys left KTXL two months earlier, and he’s since expressed surprise that the credentials still worked. An AntiSec member used them to access the L.A. Times website and change a story headline from “Pressure Builds in House to Pass Tax-cut Package” to “Pressure Builds in House to Elect CHIPPY 1337,” a reference to another hacker group. Within 30 minutes, the hacker was frozen out and the headline corrected.

Keys might have expected, at worse, a stiff warning and small fine. But he literally messed with the wrong guy. Sabu had been an FBI informant since his arrest in June 2011, right around the time he started AntiSec.

For months, Monsegur encouraged his followers to commit cybercrime while under the FBI’s control. He was the “honeypot” attracting would-be perps into an operation seemingly designed to intimidate future hackers and anyone who might associate with them, like Keys.

“Part of this is [the feds’] broader push to send a message that anything and everything is going to go punished that appears to suggest that the control of the Internet is up for grabs,” says Hanni Fakhoury an attorney at Electronic Frontier Foundation in San Francisco. “It is not a coincidence that this was linked to behavior undertaken in the name Anonymous.”

It wasn’t always like this. Keys and Swartz were charged under CFAA, a 28-year-old law whose contours, like the shore, have worn away with time, yielding to much wider application.

The CFAA was conceived in the wake of the Matthew Broderick movie WarGames, about a hacker who inadvertently almost starts a nuclear war. The original drafters focused narrowly on government computers and the intent of the intrusion.

But changes in the law and vague wording have turned “unauthorized access” to a computer into a prosecutorial blank check.

Eleven years ago, nearby Fiddletown resident Bret McDanel was jailed under the CFAA for a crime the government later admitted he hadn’t really committed.

McDanel noticed a security flaw in his firm Tornado Development’s Web-based communications software. He told his supervisors, but his concerns went unaddressed. After leaving their employ, he sent an email to all the software’s users informing them of the issue. The Amador County resident was charged with undermining the “integrity of a computer system.”

By the time the feds admitted the law wasn’t meant to protect a software company’s reputation, he had already served his 16-month sentence. He’d lost his fiancée and was living with his parents, while his former employer had gone out of business. But McDanel can surely tell you which way the railroad runs.

As Keys has discovered, the feds lean hard and wear you down. He faces up to $750,000 in fines and 25 years in prison.

Swartz initially faced only 35 years, but four months before his death (20 months after his initial arrest), they added nine more felony counts, raising his jeopardy to 50 years. The idea, critics say, was to squeeze a plea out of him; Swartz found a different way out.

Swartz’s act of martyrdom generated a firestorm of protest. It caught the attention of Bay Area Congresswoman Zoe Lofgren, who sponsored (still-stalled) legislation known as Aaron’s Law to change some CFAA provisions.
“In talking to Aaron’s family and others who were involved in his situation, it was a real eye-opener to what happens in the criminal-justice system,” says Lofgren. “What they felt was very abusive was this sort of thing where you more or less try to extort concessions through the use of overprosecution.”
Keys’ odyssey appears to be drawing to its close, for better or worse. His last court appearance, on April 2, was accompanied by news that the case had gone to “reverse proffer.” This involves the prosecution sharing their case with the defense, generally with an eye toward an agreement.

Nearly all those swept up in the feds’ Anonymous-related enforcement actions have been processed. The sole remaining exceptions are Keys and cooperating ringleader Monsegur. In January, Monsegur’s sentencing was delayed for a third time, so it’s not difficult to believe he’s the bow on the whole operation.
Keys is certainly guilty of something, but probably not a felony. In that respect, he’s perhaps a victim of cybercrime’s intrigue and a prosecutor’s desire to leverage that publicity.

“Any case that has the word ’cyber’ in it brings headlines, because it’s interesting. There’s a degree to which careers are made this way,” says Leiderman. “’Cyber prosecutor blah-blah-blah.’ Nobody reads the ’blah-blah-blah.’ They just go, ’They caught a cybercriminal. Fantastic.’”

Lofgren continues to push changes in the law to make it less prone to abuse. Unfortunately, there’s precious little to be done about overzealous prosecutors.

“You really can’t impose good judgment legislatively,” Lofgren says, “but we do need to have better oversight over the Department of Justice.”

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On 20 July 2000, the state court of appeal for the Fourth District announced its opinion in People v. Giardino, 82 Cal.App.4th 454 (2000), holding that Penal Code section “261(a)(3) proscribes sexual intercourse with a person who is not capable of giving consent because of intoxication.” Id. at 462.[1] Thus, it was perfectly clear as of July 2000 that actual capitulation and agreement is not a defense in a rape case if the victim is intoxicated or unconscious or otherwise incapable of exercising free will, because they lack the capacity to legally .  No competent attorney could have thought otherwise.[2]  Accordingly, attorneys who as of that date suggested otherwise fell below the standard set forth in Strickland.

This was not the case in the proceeding complained of herein. It was ineffective to not tell the client about the clarification in law and that he had no defense.

consent

Notes:

[1] All counsel needed to do was read this paragraph, toward the beginning of Giardino, to know that any defendant situated like the facts of these cases did not have a defense of “consent”.  It was literally that easy, and the Giordino decision that clear:

 

“By itself, the existence of actual consent is not sufficient to establish a defense to a charge of rape. That the supposed victim actually consented to sexual intercourse disproves rape only if he or she had “sufficient capacity” to give that consent. (See People v. Mayberry (1975) 15 Cal.3d 143, 154 [125 Cal.Rptr. 745, 542 P.2d 1337]; 2 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against Decency and Morals, § 774, p. 873.) For example, if the victim is so unsound of mind that he or she is incapable of giving a legal “go ahead,” the fact that he or she may have given actual consent does not prevent a conviction of rape. (People v. Griffin (1897) 117 Cal. 583, 585-587 [49 P. 711], overruled on others grounds by People v. Hernandez (1964) 61 Cal.2d 529, 536 [39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092].) Hence, the consent defense fails if the victim either did not actually consent or lacked the capacity to give legally cognizable consent.”

 

82 Cal.App4th 454, 460.

 

[2] No reasonable practitioner of criminal law could read Giardino, supra, and conclude the defense of actual acquiescence could be used in the instant case  Two years later, on 13 September 2002, while the present trial was still pending, the court in People v. Dancy, 102 Cal.App.4th 21 (2002), reiterated that a victim cannot legally agree to sex when she is severely intoxicated. A man’s reasonable belief that a woman has consented or would have consented to unconscious sex is irrelevant because a woman must always be able to “withdraw her consent to a sex act even after the initiation of sexual intercourse.” Id. at 36-37. Dancy is entirely consistent with and has the same holding as in Giardino and a reasonably competent attorney would have known so.  To fail to know the basic law of the case falls below the Strickland standard.  On the issue of rape and consent, see also People v. Roundtree (January 21, 2000) 77 Cal.App.4th 846.

 

 

Here are portions of Giordano that explain the issue in detail:

Reasoning that lack of consent is an element of rape, or conversely that consent is a defense, the defendant contends that the trial court should have defined consent in accordance with section 261.6 and instructed the jury that lack of consent is an element of the offenses of rape by intoxication and oral copulation by intoxication. [ ] He is mistaken. Giardino, 82 Cal.App.4th 454, 459.

In the context of rape and other sexual assaults, “consent” is defined as the “positive cooperation in act or attitude pursuant to an exercise of free will.” (§ 261.6.) To give consent, a “person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.” (Ibid.; accord, CALJIC No. 1.23.1.) In short, that definition describes consent that is actually and freely given without any misapprehension of material fact. We shall refer to this as “actual consent.” (82 Cal.App.4th 459, 460.)

By itself, the existence of actual consent is not sufficient to establish a defense to a charge of rape. That the supposed victim actually consented to sexual intercourse disproves rape only if he or she had “sufficient capacity” to give that consent. [citations] For example, if the victim is so unsound of mind that he or she is incapable of giving legal consent, the fact that he or she may have given actual consent does not prevent a conviction of rape. [citations] Hence, the consent defense fails if the victim either did not actually consent or lacked the capacity to give legally cognizable consent. (Id. At 460.)

We conclude that, just as subdivision (a)(1) of section 261 proscribes sexual intercourse with a person who is not capable of giving legal consent because of a mental disorder or physical disability, section 261(a)(3) proscribes sexual intercourse with a person who is not capable of giving legal consent because of intoxication. In both cases, the issue is not whether the victim actually consented to sexual intercourse, but whether he or she was capable of exercising the degree of judgment a person must have in order to give legally cognizable consent. (Id at. 462.)

 

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A Petitioner is entitled to competent privately retained counsel on Habeas Corpus. (In re Clark (1993) 5 Cal.4th 750, 780)  In addition to that, here, the ineffective assistance of counsel has denied the petitioner access to the courts.  The ineffective assistance of counsel claimed denied petitioner actual access to courts including the trial court, the appeals court and the court on habeas.  As stated by the California Supreme Court in In re Clark (1993) 5 Cal.4th 750, 779 (emphasis added):

consent

“In limited circumstances, consideration may be given to a claim that prior habeas corpus counsel did not competently represent a petitioner. An imprisoned defendant is entitled by due process to reasonable access to the courts, and to the assistance of counsel if counsel is necessary to ensure that access, but neither the Eighth Amendment nor the due process clause of the United States Constitution gives the prisoner, even in a capital case, the right to counsel to mount a collateral attack on the judgment. [¶] Regardless of whether a constitutional right to counsel exists, a petitioner who is represented by counsel when a petition for writ of habeas corpus is filed has a right to assume that counsel is competent and is presenting all potentially meritorious claims.”

 

This language in Clark applies to a situation like the one presented herein, where counsel and successor counsel denied petitioner access to the courts .

Thus, petitioner was denied due process by the ineffective assistance of counsel.  He has alleged facts to support that he received ineffective assistance of counsel, and the ineffective assistance denied him the right to be present at trial, to appeal, and to present the claims in his habeas.   The Clark court was clear that they could not countenance improper representation that would fail to present all potential meritorious claims.

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