Tuesday, January 29, 2013

Jay Leiderman on Voice of Russia Radio 29 January 2013

Voice Of Russia Radio
The Afternoon Show
Show host: Rob Sachs

Jay, Andrew "Weev" Aurenheimer and Rob Sachs talked about free information on the internet, the persecutions of Aaron Swartz, Weev and Bradley Manning, and scrapping the Computer Fraud and Abuse Act (See e.g.; 18 USC section 1030) such that we can start fresh with a sensible crimes computer law.  

Check it out: 

Afternoon Show   →   Hacktivist: Swartz’ Death Symbolizes ‘Prosecutorial Overreach’ in US

Reps. Darrell Issa (R-Calif.) and Elijah Cummings (D-Md.) wrote a letter to the Justice Department and asked why the department was pursuing Swartz and what was the nature of the prosecution. In addition, they asked if Swartz’ known association with the opposition to SOPA was among the factors considered. 
Host Rob Sachs spoke with Andrew Auernheimer, an internet hacktivist also known by the name Weev, and Jay Leiderman, a California-based attorney who represents notorious hacktivists like Anonymous, to talk about Swartz’ death and the reaction from the hacktivist community.

Weev calls Massachusetts US Attorney Carmen Ortiz a "seditious whore" - and that's not even the most interesting part of the interview.  

And, just for fun, and because this is a Voice of Russia interview, a picture Jay took in St. Petersburg Russia inside the political prison Peter and Paul Fortress.  The picture is of the cell once occupied by Aleksandr Ilich Ulianov, the older brother of Vladimir Ilich (Ulainov) Lenin.  It somehow seemed appropriate.  

Thursday, January 24, 2013

Barrett Brown Has Been Indicted For a Third Time: A Case of Prosecutorial Abuse

Here are some of the early reports and links on Barrett's newest case.

For those that do not know who Barrett Brown is, I encourage you to Google him.  Barrett is an information activist, journalist and author.  He is in a federal detention facility in Texas and is facing 100 years in prison, if I've done my quickie math in my head right.  

His crimes, you ask? He is alleged to have made threatening YouTube videos aimed at the FBI agent that raided his home, he is alleged to have shared a link that contained credit card and access information, and he supposedly hid laptops when the FBI came-a-knocking.  That's right, that sorta stuff could cost you 100 years these days.  

Please consider donating to his defense fund.  Barrett is interested in hiring a private attorney.  He is pleased with his present Federal Public Defender, but has expressed interest in an attorney that can dedicate more time to visiting with Barrett to discuss the evidence and strategy.  This money will be used to retain a local attorney, it is not to pay for my services.  


Donation link: https://www.wepay.com/donations/free-barrett-brown

Indictment: http://www.scribd.com/doc/121967213/Barrett-Brown-1-23-13-Indictment


Feds Pile On More Charges Against Anonymous Agitator Barrett Brown

By Kim Zetter

The Guardian

Hacktivist anger over US government's 'ludicrous' cyber crackdown

By Karen McVeigh


Dallas Morning News
By Robert Wilonsky

For the third time in three months, feds indict Anonymous’ not-spokesman Barrett Brown, charging him with obstruction


The Dallas Observer

By Anna Merlan
Barrett Brown Was Hit With a Third Indictment Yesterday, This Time For Concealing Evidence

Ars Technica

When the FBI comes knocking, don’t hide laptops in your mom’s dishes

Barrett Brown faces two new counts of "concealment of evidence" in federal case

Friday, January 18, 2013

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. 

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. 

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. 

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. 

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. 

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. 

Tuesday, January 15, 2013

Jay Leiderman on Russia Today Discussing DDoS as Protest Speech

Demanding the right to digitally protest: Hacktivists petition the White House to legalize DDoS

Another wonderful article by Andy Panda Blake accompanied this RT story.  The title is above, here is the unabridged text.  Thanks to Andy for, as usual, being fair and getting it right:

Is temporarily slowing down a website a legal form of protest? Current US law says it isn’t, but hacktivists want the White House to make changes that would force the government to reconsider their witch-hunt against alleged computer criminals.
In the latest WhiteHouse.gov petition to go viral, the Obama administration is asked to make a method of momentarily crippling a website comparable to real word demonstrations, essentially allowing for a whole new legal form of online protest.
“With the advance in internet technology comes new grounds for protesting,” writes ‘Dylan K’ of Eagle, Wisconsin.
Dylan’s petition, uploaded this week to the White House’s We the People page, is the most recent of these electronic pleas on the website to generate national headlines. A series of petitions in late 2012 demanding the peaceful secession of certain states from the US garnered nearly one million signatures from across the country, and just this week the Obama administration was prompted to respond to one popular request to depot CNN host Piers Morganover his outspoken anti-gun views. That call for action, advocated by Second Amendment proponents and firearm owners concerned over a possible rifle ban, eventually accumulated around 110,000 electronic signatures.
When the White House responded to the petition to deport Morgan this week, press secretary Jay Carney said Americans shouldn’t let “arguments over the Constitution’s Second Amendment violate the spirit of its First.”
Those rallying for new computer laws say that current legislation limits those very constitutional rights, though, and that one electronic form of action should be covered under the First Amendment — the provision that provides for the freedom of speech, protest and assembly.
In the latest instance, the White House is asked to evaluate a federal rule that currently makes it unlawful to engage in distributed denial-or-service, or DDoS, attacks — a harmless but effective way of flooding a website’s server with so much traffic that it can’t properly render pages for legitimate users.
Performed by both seasoned hackers and novice computer users alike, DDoS-ing a website essentially makes certain pages completely unavailable for minutes, hours or days. Unlike real world protests, though, demonstrators don’t even have to leave the house to protest. Instead, humongous streams of information can be sent to servers with a single mouse click, only for that data to become so cumbersome that the websites targeted can’t properly function.
Under the Computer Fraud and Abuse Act, a DDoS assault is highly illegal. For those familiar with the method, though, they say it’s simply a matter of voicing an opinion in an online format and should be allowed.
“Distributed denial-of-service is not any form of hacking in any way,” states the petition. “It is the equivalent of repeatedly hitting the refresh button on a webpage.”
Overloading a targeted website with too much traffic, says Dylan K, is “no different than any ‘occupy’ protest.”According to him and the roughly 1,100 cosigners, there is much common ground between the two. “Instead of a group of people standing outside a building to occupy the area, they are having their computer occupy a website to slow (or deny) service of that particular website for a short time,” he says.
For companies that are hit with DDoS assaults, though, they sing a different song. In 2006, controversial radio host Hal Turner had his website taken offline after members of the then-infant hacktivist movement Anonymous used denial-of-service attacks to shut down his site to visitors. Turner said the bandwidth overflow cost him thousands of dollars in fees from his hosting company.
When Turner tried to sue those he blamed for the DDoS attack, a federal judge for the United States District Court in New Jersey eventually dismissed his claim. Other “hackers,” however, haven’t been so lucky.
When PayPal, Visa and MasterCard announced in 2010 that it would no longer accept funds for the website WikiLeaks, Anonymous and others responded with a DDoS attack on the payment service providers. The following summer, the US Department of Justice filed an indictment against 14 Americans they accused of participating in shutting down PayPal.
That same year, a homeless hacker using the alias “Commander X” was charged with waging a DDoS attack on the official government website of Santa Cruz, California because he opposed the city’s policy that outlawed sleeping in public space. X could have been sentenced to serious time for committing a felony, but he escaped the United States, allegedly seeking refuge in Canada where he is reported to be in hiding today.
“For a 30-minute online protest I’m facing 15 years in a penitentiary,” he told the National Post last year while on the run. According to an interview he gave last month with Ars Technica, he also participated in OpPayBack — the Anonymous-led assault PayPal and others over their WikiLeaks blockage.
California attorney Jay Leiderman has represented X, and has gone on the record to compare DDoS attacks with real life sit-ins.
“A DDoS is a protest, it’s a digital sit it. It is no different than physically occupying a space. It’s not a crime, it’s speech,”he told Talking Points Memo in 2011. “They are the equivalent of occupying the Woolworth's lunch counter during the civil rights movement," The Atlantic quoted him saying last year.
Speaking specifically of the operation against the companies that cut funding to WikiLeaks, the lawyer said online action is equivalent to peaceful protest.
“Take PayPal for example, just like Woolworth's, people went to PayPal and said, I want to give a donation to WikiLeaks. In Woolworth's they said, all I want to do is buy lunch, pay for my lunch, and then I'll leave. People said I want to give 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's fulfilled,” he said. “PayPal will take donations for the Ku Klux Klan, other racists and questionable organizations, but they won't process donations for WikiLeaks. All the PayPal protesters did was take up some bandwidth. In that sense, DDoS is absolutely speech, it should absolutely be recognized as such, protected as such, and the law should be changed.”
Leiderman added that he considers the use of DDoS not to be an “attack” in some circumstances, but actually legitimate protest. 
“[T]he law should be narrowly drawn and what needs to be excised from that are the legitimate protests,” he said. “It's really easy to tell legitimate protests, I think, and we should be broadly defining legitimate protests,” he said.
New York attorney Stanley Cohen, who is representing one of the accused “PayPal 14” hackers responsible for the Anonymous-led operation, agrees.
“When Obama orders supporters to inundate the switchboards of Congress, that’s good politics, when a bunch of kids decide to send a political message with roots going back to the civil rights movement and the revolution, it’s something else,” Cohen told TPM in 2011. “Barack Obama urged people to shutdown the switchboard, he’s not indicted.”
“It’s not identity theft, not money or property, pure and simple case of an electronic sit in, at best,” he said.
So far over 1,100 people agree on WhiteHouse.gov, and hope the Obama administration will get their point. Until then, though, Commander X and others face upwards of a decade in prison apiece for violating a clause in the Computer Fraud and Abuse Act that makes it unlawful to “knowingly cause the transmission of a program, information code or command, and as a result of such conduct, intentionally causes damages without authorization to a protected computer.”
With attorneys like Leiderman and Cohen arguing that the damages in questions aren’t quite criminal, the White House may have to respond to the latest WhiteHouse.gov petition. The Obama administration is mandated to respond if it can garner 25,000 signatures in the next month. Until then, though, proponents of DDoS as free speech can cite what Jay Carney said when petitioners rallied for the deportation of Piers Morgan for his call to ban assault weapons.
“The Constitution not only guarantees an individual right to bear arms, but also enshrines the freedom of speech and the freedom of the press – fundamental principles that are essential to our democracy,” said Carney. 
Meanwhile, exercising constitutional rights by way of overloading web servers isn’t being accepted as such by the government. That doesn’t mean that Anonymous or other so-called ‘hacktivists’ will change their ways: just last month, members of the hive-mind computer collective waged a DDoS attack on the website of the Westboro Baptist Church after the religious group announced plans to picket the funerals of mass shooting victims in Newtown, Connecticut. Anonymous waged a similar wave of attacks on the Church of Scientology in 2008, the result of which landed a number of Anons in prison for violating federal law.

Monday, January 7, 2013

On the Defense of Criminals; An Essay by Jay Leiderman

On the Defense of Criminals
An Essay by Jay Leiderman

It is fashionable always to cast aspersion upon those that defend persons accused of committing crimes.  The viler the accused crime, the more vigorous defense the accused needs, yet, at the same time, the more vitriol the defense attorney will face.  I cannot speak for my brethren in the legal community, I can only state that what follows is my own brand of patriotism; I defend those charged with crimes because it is both my duty as a lawyer and as an American.  Each piece of resistance to the encroachment of overreaching governmental power is, in and of itself, a victory for freedom.  

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