Saturday, January 26, 2013

HOLY (Anonymous) COW!

The hacker group calling itself Anonymous has taken control of the U.S. Sentencing Commission website and made all the encrypted contents public. Anonymous threatens to make the encryption key public and attack the internet on a far broader scale if judicial reforms are not enacted.

In other words, if I may be so bold in my interpretation, we as a society must enact significant judicial reform or suffer significant, unspecified damage to the internet. Since I rely on the internet (as do most people) and since I spend much of my time writing of problems associated with our system of justice (as do few people), I'm compelled to write about this story.

There is much to talk about. I suspect I will do so in a series of posts. Here I will merely start writing. I'll only know exactly what I'm going to say once this post is done. Perhaps this stream of consciousness approach to posting will be an improvement.

If you were to now conduct a Google search for Anonymous, the first hits will all have to do with the group Anonymous. It's members may be anonymous, but its loosely affiliated organization is not. Think of it as an Occupy or Tea Party type organization, but one that operates within the digital world, and one that may be far more potent. Here's some material from the Wikipedia entry.
Anonymous (used as a mass noun) is a loosely associated hacktivist group. ... It strongly opposes Internet censorship and surveillance, and has hacked various government websites. It has also targeted major security corporations. It also opposes Scientology, government corruption and homophobia. Its members can be distinguished in public by the wearing of stylised Guy Fawkes masks.
... Beginning with 2008, the Anonymous collective became increasingly associated with collaborative, international hacktivism. They undertook protests and other actions in retaliation against anti-digital piracy campaigns by motion picture and recording industry trade associations. Actions credited to "Anonymous" were undertaken by unidentified individuals who applied the Anonymous label to themselves as attribution. They have been called the freedom fighters of the Internet, a digital Robin Hood, and "anarchic cyber-guerrillas." 
... In 2012, Time named Anonymous as one of the most influential groups in the world.
Anonymous is acting aggressively now in response to the aggressive prosecution of Aaron Swartz that led to his suicide. From their manifesto, at least what I call their manifesto:
Two weeks ago today, a line was crossed. Two weeks ago today, Aaron Swartz was killed. Killed because he faced an impossible choice. Killed because he was forced into playing a game he could not win — a twisted and distorted perversion of justice — a game where the only winning move was not to play.
Now for Wikipedia's introduction of Aaron Swartz.
Aaron H. Swartz (November 8, 1986 – January 11, 2013) was an American computer programmer, writer, political organizer and Internet activist.
Swartz was involved in the development of the web feed format RSS, the website framework, and the social news site Reddit, in which he was an equal partner after a merger with his Infogami company. Swartz also focused on sociology, civic awareness and activism. ...
On January 6, 2011, Swartz was arrested by federal authorities in connection with systematic downloading of academic journal articles from JSTOR. Swartz opposed JSTOR’s practice of compensating publishers, rather than authors, out of the fees it charges for access to articles. Swartz contended that JSTOR’s fees were limiting public access to academic work that was being supported by public funding. 
On January 11, 2013, Swartz was found dead in his Crown Heights, Brooklyn apartment where he had hanged himself.
His supporters argue that he preferred death over the loss of his freedom. More from Wikipedia on the punishment Swartz was facing.
Assistant U.S. Attorneys Stephen P. Heymann and Scott L. Garland were the lead prosecutors, working under the supervision of U.S. Attorney Carmen Ortiz. The case was brought under the Computer Fraud and Abuse Act, which was passed in 1986 to enhance the government’s ability to prosecute hackers who accessed computers to steal information or to disrupt or destroy computer functionality. "[I]f convicted on these charges," said Ortiz, "Swartz faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million."... 
Swartz's attorney, Marty Weinberg, has indicated that prosecutors told him, two days before Swartz’s death, that "Swartz would have to spend six months in prison and plead guilty to [all] 13 charges if he wanted to avoid going to trial." He has also said that he "nearly negotiated a plea bargain in which Swartz would not serve any time," but that bargain failed. "JSTOR signed off on it," he said, "but MIT would not."
I've explained before that we do not have a jury based justice system in this country, that we have instead a prosecutor based justice system. I discussed the problem of overcharging in my post Eating Dogs and Bargaining Pleas. Prosecutors are so effective at forcing guilty pleas by threats of long prison sentences that less than 10% of cases are resolved at trial. Once a prosecutor decides you are guilty, you are faced with either pleading guilty to a lesser charge (even if you are innocent) or facing extreme penalties. 

In Swartz' case, as an example, the price for maintaining his innocence could have been as high as 35 years. The Feds apparently offered 6 months jail time (maybe even no jail time) if he pled guilty. The Feds threatened him with 35 years behind bars if he didn't.

Swartz was apparently not such a threat to society that he had to be incarcerated for 35 years. Even his prosecutors conceded that 6 months (or even zero months) would have done the trick. The extra 34.5 years was the potential price Swartz would have to pay if he insisted on his so-called right to a trial by a jury of his peers.

Where is the right to a jury trial if the cost is 34.5 years of your life?

The over-charging problem is hardly limited the Swartz case. Nor is over-charging the only problem with our justice system. I dare not start listing my concerns here. Instead, I list a summary of the problems cited by Anonymous in their manifesto. Visit zdnet for a video providing the full text in its original. I include only the closing here. We'll talk more about this soon.
However, in order for there to be a peaceful resolution to this crisis, certain things need to happen. 
There must be reform of outdated and poorly-envisioned legislation, written to be so broadly applied as to make a felony crime out of violation of terms of service, creating in effect vast swathes of crimes, and allowing for selective punishment. 
There must be reform of mandatory minimum sentencing. 
There must be a return to proportionality of punishment with respect to actual harm caused, and consideration of motive and mens rea. 
The inalienable right to a presumption of innocence and the recourse to trial and possibility of exoneration must be returned to its sacred status, and not gambled away by pre-trial bargaining in the face of overwhelming sentences, unaffordable justice and disfavourable odds. 
Laws must be upheld unselectively, and not used as a weapon of government to make examples of those it deems threatening to its power. 
For good reason the statue of lady justice is blindfolded. No more should her innocence be besmirked, her scales tipped, nor her swordhand guided. Furthermore there must be a solemn commitment to freedom of the internet, this last great common space of humanity, and to the common ownership of information to further the common good. 
We [who] make this statement do not expect to be negotiated with; we do not desire to be negotiated with. We understand that due to the actions we take we exclude ourselves from the system within which solutions are found. There are others who serve that purpose, people far more respectable than us, people whose voices emerge from the light, and not the shadows. These voices are already making clear the reforms that have been necessary for some time, and are outright required now. 
It is these people that the justice system, the government, and law enforcement must engage with. Their voices are already ringing strong with a chorus of determined resolution. We demand only that this chorus is not ignored. We demand the government does not make the mistake of hoping that time will dampen its ringing, that they can ride out this wave of determination, that business as usual can continue after a sufficient period of lip-service and back-patting. 
Not this time. This time there will be change, or there will be chaos…