This is a federal case, and the Federal Sentencing Guidelines (while now discretionary, see Booker) simply don't work that way. 100 years is the potential maximum he would get if the sentences were served consecutively, but at the federal level, there must be special circumstances to justify imposing consecutive sentences. Consequently, consecutive sentencing is the exception, not the rule, and is almost exclusively reserved for the most heinous crimes, i.e., rapes, murders, or high-level drug offenses. (Note that certain factors can also result in consecutive sentences, such as gun "enhancements" which can add 5-25 years to a base sentence.)
Edit: The above assumes the case even proceeds to the sentencing stage. Several US courts have already ruled that merely hyperlinking is not enough; there must be an additional circumstance to make the hyperlinking illegal. For example, if the information hyperlinked was clearly intended to be protected or private (i.e., Schwartz and the AT&T subscriber data), then dissemination of links could fall within the meaning of one or more statutes for unauthorized access.
A physical analogy to explain why this matters: a URL isn't simply an address; it is a path, and this makes all the difference. A p.o. address, for example, may tell you how to get to someone's apartment but it wouldn't tell you how to get up there if the front door is locked. A URL is more akin to giving someone an address and telling them how to get inside. (And for you nitpickers, in this example also assume that you don't know the person at this address; you simply know the URL.)
Why did it become socially acceptable for prosecutors to throw around 100-year threats, though? It seems like the only reason that's not a crime is because they're the legal system.
Maybe there should be a limit on the span between maximum threat and minimum sentence, so that 100-year threats can't be thrown around unless the minimum plea is at least 5-10 years. That would make a prosecutor hesitate to employ such a powerful weapon, because the defendant would be more willing go to trial in that scenario, which reduces their chances of landing that conviction.
It's not, and they don't. For non-heinous crimes (i.e., crimes that aren't rape or murder) prosecutors threaten the maximum sentence for the "worst" crime charged, and only that number, because any competent defense attorney would immediately let their client know that sentences wouldn't be served consecutively. This is true in most, but not all states as well. (For heinous crimes, the consecutive sentences don't matter; the defendant has already received a life sentence and the additional years are meaningless.)
This is also a legal ethics issue, since a prosecutor who fraudulently claims a higher maximum penalty during plea bargaining can be suspended or disbarred. Cops can lie to you--prosecutor's can't. They have sworn an oath (to the bar) to be honest in their legal representations. Prosecutors have been sanctioned, suspended, and even disbarred for being dishonest about sentencing because such dishonesty indicates moral turpitude that likely extends into other facets of their legal work.
It's the media that throws around the 100-year numbers by adding together all of the potential individual sentences. It turns out that journalists aren't very good at understanding technology, science, or the law.
By all indication anything relating to computers, hacking or security research is considered one of the "worst" crimes in the USA.
Hackers seem to be getting longer sentences then career criminals these days.
"When it comes to computers we must punish severely because it's magical and we don't understand it." is the view all non IT literate politicians and lawyers seem to have.
Yeah, sorry to be 'that guy', but if there ever was a case of 'citation needed', this is it. Please don't get caught up in the bubble of HN/Reddit legal reporting, as it is all very myopic and biased, and a lot of it is plain wrong. Getting your information on legal issues from HN/Reddit is like getting your information on jews from Stormfront.
That's exactly my point - two cases that made the front page on two nerd sites doesn't substantiate the claim that
"By all indication anything relating to computers, hacking or security research is considered one of the "worst" crimes in the USA. Hackers seem to be getting longer sentences then career criminals these days."
The mere fact that there are just two such cases, and that everybody recites the same two cases when making such gross exaggerations as the one above, reinforces my point about living in an echo chamber.
This is only my opinion given there's always some person in the news facing dozens of years in prison for something as simple as sharing a link.
I can't be bothered to search for other similar articles I'm sure you can find them.
Now that quote is the internal monolog I imagine given the actions these people take. It may not be completely accurate or even real but it certainly fits.
If you can come up with a better explanation why the sentences for computer related crimes are so absurdly high I would gladly listen.
I don't really care much for the legal issues the law is just so complex that you can pull off a lot of horrendous shit while perfectly justifying it legally.
If you're a judge that just goes by the letter of the law without applying common sense and morality you have failed.
Can you empathize with how frustrating your posts are to somebody like me who actually knows a thing or two about law? Look, I assume you are generally an intelligent person who is capable of understanding some abstract things, given that you likely know to program since you're on this site. But your argument is Fox News level arguing:
- "my opinion..."
- "can't be bothered to search..."
- "I don't really care much for the legal issues, the law is just so complex..."
You know (by your own admittance) nothing of the underlying issues, yet you have a (somewhat) strong opinion on them based on your "feelings" and what your read left and right, and you have a completely warped view of reality on the facts in these issues. What does it take to convince you otherwise, without me having to spend hours compiling numbers or writing pages and pages of text? Is it enough to mention three-strike laws, which put people away for other offenses for decades for relatively minor property crimes? Or the explanations brought up elsewhere in this thread on the actual sentence in this case? I mean basically you're asking me to argue the 'why' for things that are plain not true.
Hey no taking my statement out of context. You make it sound like I don't understand it however what I'm saying is that it's so complex it's broken.
When you can charge anybody with a crime regardless of what they are doing something is wrong.
The fact that this "exception" and many others like it are allowed to progress this far is quite problematic regardless since not all "exceptions" get reported on by the press this extensively and it takes only one precedent to ruin it for everybody.
I would just like to note that the DOJ prosecutors in their press release for the indictment, have indeed touted the maximums, as well as mandatory two-year sentences on each of the aggravated identity theft counts.
"Upon conviction, however, the trafficking count carries a maximum penalty of 15 years in prison and the access device fraud count carries a maximum penalty of 10 years in prison. Each of the aggravated identity theft counts, upon conviction, carries a mandatory two-year sentence in addition to any sentence imposed on the trafficking count."
They don't add up the numbers to get 100 years, some reporter did that. They give the maximum penalties for each count, which gives an ides of the maximum he could get depending on which counts he's convicted of. They don't mean for you to add them all together, but to know that e.g. he could get 2 years if convicted only of the least serious offense, but up to 15 if convicted of the most serious.
In this case it is accurate to say he faces up to 45 years for linking, because the statutes that are charged mandate consecutive sentencing. Concurrent sentences are allowed at the court's discretion "only with another term of imprisonment that is imposed by the court at the same time on that person for an additional violation" of the same statute.
1028 does not mandate consecutive sentences. Note that 1028 is also the "base" offense, i.e., the actual felony. That means the first 3 charges yield a potential maximum sentence of 45 years, but more likely 3 simultaneous sentences of 15 years.
1028A is the "enhancement" charge, which is why it must be served consecutively to the base offense on which they are levied. However, the enhancements themselves can be served concurrently. This means the potential enhancement sentence is anywhere from 2 years to 18 years.
This may be too complicated to explain in a brief HN comment, but an enhancement to one charge can be served consecutively to another charge because the concurrency prohibition is specific to the underlying offense. (I.e., if he gets 10 years for Count 1, but 8 years concurrently plus a 2 year enhancement for Count 2, he can serve both 10 year terms concurrently because the enhancement doesn't extend the sentence for count 1).
To follow up to ageisp0lis's post (which is apparently now deleted, but linked to http://www.dmlp.org/blog/2013/adding-105-charges-against-bar...), the reasoning behind the 100-year number is: (1) that is the total maximum possible sentence assuming consecutive terms, and (2) it includes 2 other cases against him, not just the Stratfor case.
My comments on this thread only discuss the Stratfor case, which is the second indictment of the 3 discussed by the DMLP article ageisp0lis linked.
Going to sleep before the response link to your reply goes active, so here's my response:
Is it true to say "no one really knows precisely how much of a threat he's facing"? The justice system is usually precise, so it seems odd that a precise maximum can't readily be found in this case. Do you think the maximum is probably more than 10 years?
Yes, if he is found guilty. No, if he pleads. However, I heartily disagree that the justice system is precise. It's very messy, and two defendants with the exact same facts can get widely disparate sentences. A recent study from 2012 or 2013 revealed that judges were more likely to give harsh sentences after lunch than before lunch (controlling for race, criminal history, and other factors).
1028 imposes a maximum sentence of 15 years for the gravest crime listed in the statute. Assuming he is found (or pleads guilty) this yields a likely maximum sentence of 17 years, or a potential maximum sentence of no more than 33 years.
Does this seem excessive?
Yes since the crime is relatively non-serious compared to something like drug dealing or aggravated assault, and especially since our financial system already protects credit card holders. Hell, even violent robbery with a first-time gun enhancement can have a lower maximum potential sentence than 33 years.
Is it true to say "no one really knows precisely how much of a threat he's facing"? The justice system is usually precise, so it seems odd that a precise maximum can't readily be found in this case. Do you think the maximum is probably more than 10 years?
EDIT: I see you've run the numbers in your other comment, sorry:
1028 imposes a maximum sentence of 15 years for the gravest crime listed in the statute. Assuming he is found (or pleads guilty) this yields a likely maximum sentence of 17 years, or a potential maximum sentence of no more than 33 years.
Where did anyone throw around a 100 year number, besides the reporter?
When someone is convicted of a federal crime, its the Department of Corrections that will put together a presentence report with a computation of the sentence under the guidelines. To get above that, the prosecutor has to argue to the judge that this case is special and requires a sentence above the guideline range. This is very difficult.
> a URL isn't simply an address; it is a path, and this makes all the difference.
I'm not sure how you came to the conclusion that a URL is a path. A path implies a route from A to B. When I share a URL with you, I imply no path.
> A p.o. address, for example, may tell you how to get to someone's apartment but it wouldn't tell you how to get up there if the front door is locked.
You began your comment with the words FUD, so I'd like to add two of my own - Red Herring!
If you must use analogies, the physical equivalent of a URL is an address, not a P.O. box. But I suspect you still chose the P.O. box analogy because it allows you to create the false construct of a locked front door.
The availability of digital resources at a public URL is equivalent to the availability of physical resources at an address. The "locked front door" is irrelevant in both these (limiting) examples.
I think a url is both an address and a path. The domain is clearly the address of the server (residence), where the 'path' applies to. You can even construct a path in many cases that includes a password to grant entry to an otherwise protected resource, which is no different from giving someone a key to get in the door.
I don't like that interpretation, because i feel it's important that linking remains legal in most crcumstances, if not all, but that doesn't change the fact that if you reason by analogy to the physical world most url's are indeed paths. And this is where the danger is: reasoning by analogy. It doesn't produce good results to reason about dgital resources by analogy to physical resources.
At the risk of prolonging an unnecessary digression (the analogy was brought up by the parent), I still don't believe a public URL in itself contains a path. In fact it's quite possible that some URLs may never lead to a valid path depending on the starting address. Paths are only inferred or drawn up during traversal.
I wouldn't mind being proven wrong though, preferably with an example.
Uniform Resource Identifiers (URIs, aka URLs) are short strings that identify resources in the web: documents, images, downloadable files, services, electronic mailboxes, and other resources. They make resources available under a variety of naming schemes and access methods such as HTTP, FTP, and Internet mail addressable in the same simple way. They reduce the tedium of "log in to this server, then issue this magic command ..." down to a single click.
"the most heinous crimes, i.e., rapes, murders, or high-level drug offenses"
As a side note, it's amazing how the war on drugs advanced in the propaganda front. Selling drugs in bulk is not only a serious crime, it's high up there with rape and murder.
Look, I understand that you are referring to that guy in apartment 4c who brings some pot for his buddies from Colorado to finance his daily bong. That is quite different from, say, a Pablo Escobar who sells in tonnes leading an organisation the size of a large multinational, including a private army.
I'm as pro-legalisation as they come, but any reasonable person would have to admit that the damages caused by the actions of the leaders of big drug cartels are, in the aggregate, causing at least as much suffering as, let's say, a single rape. I know I'm threading on thin ice here because this might make it seem like I'm trivializing rape, which I'm decidedly not, but regardless of what side of the debate one is one, it's wholly unreasonable to assert that drug dealers do not cause any suffering and that they are in no way responsible for that suffering (i.e. the 'users make their own choices' and 'if I didn't sell it, somebody else would have' arguments).
You are conflating the (very real) damages caused by drug consumption with the much larger damages caused by other crimes in the illegal drug trade. Drug cartels do a lot of murder.
Drug laws would lock up for good the guy in apartment 4c as well, and large segments of society do not see him as "quite different" than the cartels.
No, I'm not conflating anything, I was referring to the suffering of addicts and their families from addiction itself, apart from the second-order crime from cartels and addicts who need to commit petty crime to fund their habit. Now one might argue that that suffering is caused largely by the mere fact of the drugs being illegal, and in fact I made that argument myself usually. That doesn't change the existence of that suffering though, even if it's relatively small compared to the total.
And all of that is separate still from the murders drug cartels commit as part of their business operations, I realize that. Apart from all that, there are still harmful effects from their acts. (hence my wording 'in no way responsible' - they are not fully responsible, but are at least contributing, and their contributions to many cases make for a lot of aggregate negative effects).
If you throw around possibility of ridiculously high sentences to scare people and manipulate them into guilty pleas, then you have no right to complain when people act like being threatened with unfairly high sentence.
To respond to your point, the statutes in question here DO in fact mandate consecutive sentencing. Look it up next time.
18 USC § 1028A, etc.
"no term of imprisonment imposed on a person under this section shall run concurrently with any other term of imprisonment imposed on the person under any other provision of law..."
Only one of the statutes in question mandates consecutive sentences, 1028A. The maximum sentence for these counts is 2 years for the crime charged. (He was not charged with a terrorism offense under 1028A, so the 5 year sentence is not applicable.) The way this statute is written, this 2 year sentence may not be concurrent to any other sentence for any other crime but multiple counts of the same crime can be served simultaneously. (Note that 1028A is an "enhancement" charge, similar to the gun enhancements I mentioned earlier. They are add-ons to other crimes, and cannot be charged separately. Basically, enhancement charges are used when additional circumstances covered by the enhancement make the underlying crime "worse" than a normal instance of that crime.)
1028 imposes a maximum sentence of 15 years for the gravest crime listed in the statute. Assuming he is found (or pleads guilty) this yields a likely maximum sentence of 17 years, or a potential maximum sentence of no more than 33 years.
Sadly, the headline is unfortunate because "Barrett Brown faces 100 years for link" was not supposed to be the story here. The story is that his legal team filed a motion arguing that hyperlinks are protected speech under the First Amendment, etc. lol
A p.o. address, for example, may tell you how to get to someone's apartment but it wouldn't tell you how to get up there if the front door is locked.
A URL may tell you how to get to someone's file, but it wouldn't tell you how to download it if the server required authentication. A URL might be more comparable to driving directions than a mere address, but it does not grant access to a resource with even the most rudimentary access control.
This is a federal case, and the Federal Sentencing Guidelines (while now discretionary, see Booker) simply don't work that way. 100 years is the potential maximum he would get if the sentences were served consecutively, but at the federal level, there must be special circumstances to justify imposing consecutive sentences. Consequently, consecutive sentencing is the exception, not the rule, and is almost exclusively reserved for the most heinous crimes, i.e., rapes, murders, or high-level drug offenses. (Note that certain factors can also result in consecutive sentences, such as gun "enhancements" which can add 5-25 years to a base sentence.)
Edit: The above assumes the case even proceeds to the sentencing stage. Several US courts have already ruled that merely hyperlinking is not enough; there must be an additional circumstance to make the hyperlinking illegal. For example, if the information hyperlinked was clearly intended to be protected or private (i.e., Schwartz and the AT&T subscriber data), then dissemination of links could fall within the meaning of one or more statutes for unauthorized access.
A physical analogy to explain why this matters: a URL isn't simply an address; it is a path, and this makes all the difference. A p.o. address, for example, may tell you how to get to someone's apartment but it wouldn't tell you how to get up there if the front door is locked. A URL is more akin to giving someone an address and telling them how to get inside. (And for you nitpickers, in this example also assume that you don't know the person at this address; you simply know the URL.)