Is It Fair To Ban Computer Use For Those Arrested For Computer Crimes?

from the legal-oddities dept

It seems like it's pretty common for anyone arrested for any sort of computer related crime to be "banned" from using computers for a certain period of time. Now, however, some are questioning that ban because computers have become such a necessary part of life for so many people. Security Focus is running an article talking about the case of someone accused of hacking into numerous company networks and defacing some websites. While his trial has not occurred yet, he's been banned from using computers since he was indicted three years ago. His lawyer is now arguing that this violates his constitutional rights, saying that it goes to far in violating his right to free speech.


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  1.  
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    Anonymous Coward, Dec 4th, 2003 @ 7:02am

    No Subject Given

    Well, the fact that the guy acted like an ass a couple of times didn't help his cause I'm sure.

    It's an interesting argument on either side. I would not want an accused child molester left around children so I'm not sure I'd want a hacker around a computer, at least not unsupervised.

    The fact that he hasn't gone to trial in 3 years is probably a more damning thing. Our legal system or his lawyers stalling .. or both ?

    On with the Trial !!! He'll probably be aloud to use a computer once he's jailed ... or released. I'm betting on the first.

     

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    Oliver Wendell Jones, Dec 4th, 2003 @ 7:31am

    We do it for other criminals

    If you're convicted of a violent felony (really, any felony) you lose the right to own or carry a handgun.

    If you're convicted of drunk driving, you lose the right to drive.

    If you're convicted of using a computer to commit a crime, why shouldn't you lose the right to operate a computer?

    To many computer operators, the idea of losing their computer usage rights if they're caught is probably much scarier than the idea of doing prison time. Maybe it will help keep them straight.

     

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    Anonymous Coward, Dec 4th, 2003 @ 8:14am

    Re: We do it for other criminals

    Hasn't the computer become too essential and ubiquitous for this penalty?

    If you commit a crime involving a telephone, do you generally lose the right to make and receive all calls?

     

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    LittleW0lf, Dec 4th, 2003 @ 4:35pm

    Legal madness...

    While his trial has not occurred yet, he's been banned from using computers since he was indicted three years ago. His lawyer is now arguing that this violates his constitutional rights, saying that it goes to far in violating his right to free speech.

    I must admit, I am not a lawyer, and don't know the slightest bit about what happens most of the time in the courtroom. Though I have a ton of experience with indictments, considering the fact that I have been sworn in as an sitting member of the federal grand jury before (yes, they are either the best 18-24 months of your life, or the worst, the one day a week is a killer for careers, but it is exciting to see how the system works, or does not work, depending on your viewpoint,) so I am very much aware of what the grand jury does, or doesn't do, and what an indictment means, or doesn't mean.

    It appears from the article (though I have no information to back this up or discredit it,) that the pre-trial ban is nothing more than a vendetta by the judge because Jerome was being a prick (without a lawyer to explain to him what is going on in the process and how to avoid trouble) in the courtroom (though I am sure the judge could justify the ban that it was necessary to protect the public because Jerome had a bad attitude.) There really isn't a legal presidence for this particular case, and I am sure that the lawyers will have little difficulty overturning the judgement since it violates the law.

    Reading the article shows why, but in order to understand it, you really need to know what an indictment means.

    For the federal government, an indictment is extremely important for furthering the prosecution of an "infamous" crime (though "infamous" is normally defined as a felony,) since under the federal system, in order to go forward with the prosecution of a federal "infamous" crime, the prosecutor must obtain an indictment.

    In order to obtain one, they must present the evidence and the charges to a federal grand jury, who then examine the evidence and the charges to determine if there is a "probable cause" that the crime has been committed, and that the accused is the person who committed the crime. The burden of proof isn't nearly as high, and an indictment in no way means that the accused is guilty of the crime. It just means that given the evidence and the charges, a group of 13 individuals felt that there was enough there to believe that a crime had been committed and that the individual being charged likely committed the crime.

    However, neither the grand jury, nor the indictment is responsible for determining or imposing this type of "ban". When a person is indicted, there is no "penalty phase". Any penalties on the accused are there because the judge has provided them, in this case the judge apparently felt that Jerome was a danger to the internet, and imposed this ban (just like an pre-trial injunction in a civil matter,) to prevent the risk. Whether or not this was fair must be decided by the courts, and traditionally, such bans were seen as incorrect (except in one case where a convicted child pornographer was banned from using the internet before his trial.)

    Since Jerome hasn't been found guilty of the crime, why should he be punished by the system as though he has? Then again, the same thing happened (to a much greater extent,) with Kevin Mitnick, so I wouldn't be surprised if the system failed again...

     

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    LittleW0lf, Dec 4th, 2003 @ 4:42pm

    Re: We do it for other criminals

    If you're convicted of a violent felony (really, any felony) you lose the right to own or carry a handgun.

    Read the article again, Oliver... This guy hasn't been convicted, he has been indicted of the crime, and there is a big difference between the two (read my previous post...)

     

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    Anonymous Coward, Dec 6th, 2003 @ 8:03am

    Re: We do it for other criminals

    Uh, well how about this little thought:

    If you're convicted of a felony (it doesn't matter which one, any felony will do really), you can pretty much foget:

    1 - you're right to vote (I've always thought this to be nothing more than a self-preservation previso... but when you consider the a felony convicition follows you around for life and considering the rate at which felons are being convicted, having a minority of the population being able to vote in 20 years does present some serious problems for the powers that be)

    2 - you're right to work at anything other than a minium wage job... and before someone chimes in about the land of opporunity and picking ones self up by ones boot straps, two words: "business license". Not if you're a felon.

    3 - live outside a demographically challenged area (you know what I mean... that side of town you wouldn't want to live on or are currently trying to escape)

    4 - remove yourself from "your country of persecution". That's right, you can't travel internationally of immigrate either.

    5 - you can never again posess or own firearms. Basically, you lose your right to self defense and you usually live where you need that sort of thing the most.

    There are a bunch of other wonderful side-effects to becomming a convicted fellon that revolve around serving the judicial industral complex for the rest of your natural born life, starting with UNICOR while you're doing your time (increased likelyhood of IRS audits, never-ending visits from police to see if you've gone recidivistice on them (again), much higher likelyhood of being pulled over and searched throughly for no particularly good reason.)... but hey, just remember that the system works and if you're daddy is obsceanly rich/powerful, you can have you're felony coke conviction wiped from the records and become president some day.

     

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    Anonymous Coward, Dec 6th, 2003 @ 8:29am

    You folks are so incrediably nieve...

    ...if you become the focus of a federal indictments, the federal prosecuter/LE officials have this little program they will put a defendant on:

    First order of business is to stop by your place of employement and drop some subtle hints that they need your cooperation.

    Next, if you don't play ball, the get your employer involved, sobpeonaing and searching and seizing all computers you may have touched at work. If the employer plays ball and fires you (which *will* happen), the employers get their computer equipment back, as the need to search and seize this equipment goes away completely for some mysterious reason.

    Now, after you've lost your job (no unemployment insurance for you buddy, you were "fired") and inbetween the time that your formalize a relationship with proper council, you *will* get an IRS audit (possible wire fraud, blah blah balh)... and since you are the subject of a federal indictment, any savings /funds you have will be frozen.

    Now, it looks like the judicial industrial complex has thrown another step into the process of getting convicition that involves preventing you from using a computer... and more than likely, you earn a very good living using computers; so, this is nothing more than an additional step to insure that you never get proper legal representation by denying you the ability to pay for it.

    Next comes a nice long wait... quite possibly, you haven't been charged and you're certainly not incarcerated, so you have no right to a speedy trial. Lawyers can help speed up this process, but what lawyer is going to touch you with a 10' pole in your current circumstances? Computer crime "investigations" can take a very long time (you've got to find experts and an amicus curis for the judge and jury after all). You would be surprised how long the prosecution/LE officials can drag it out.

    Next comes plea bargining time... Your lawyer (if you don't have a court appointed one by now) wants to get paid and the only way to do that is to keep you in the (non-prison) labor market... and your lawyer would rather be paid by you (not the federal government... guess which one you can take to court, file leans on, etc.?) and not go through the hastle/gamble of an actual trial... So, guess what kind of advice you get.

    This process has been fine tuned over the years for other types of convictions; what make you think that (alleged) "computer criminals" are entitled to any more due process the normal rank and file criminals?

     

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    LittleW0lf, Dec 6th, 2003 @ 9:43am

    Re: We do it for other criminals

    1 - you're right to vote

    Sorry Anonymous, this is not necessarily true. Yes, according to the law in most states, felons cannot vote (while they are incarcerated or on probation,) however, recent changes in many of the states either reduced or removed the felon ban on voting, and now once you are free from your sentence, your right to vote is restored. The reason for this change was that the state governments felt, or were persuaded to feel that the ban was racist. Only a few states still impose this ban.

    2 - you're right to work at anything other than a minium wage job... [...] "business license". Not if you're a felon.

    I agree that felons get shafted much of the time, but the attitudes are changing. If you want any sort of job that requires a security clearance, and you have a felony, you are SOL, but most of the jobs out there thankfully do not require a security clearance.

    You don't need a business license to work. And while IANAL, and this is an area I have little experience in, I was not able to find the question "Have you been convicted of a felony?" on the business license forms I found online (there are a lot of them,) nor any indication on the documentation along with the form that says you cannot be a convicted felon to get a business license. If you find otherwise, please let me know.

    3 - live outside a demographically challenged area

    You'll have to explain this one for me...I have lived in fairly expensive neighborhoods with one or two felons as neighbors (and one was a sex offender.) While I am sure most felons find themselves on the wrong side of the tracks because of personal choices in their lives (and sometimes the same choices that led them to commit felonies,) I don't believe that just because someone is a felon means that they must be poor the rest of their lives...the statistics don't prove it.

    4 - remove yourself from "your country of persecution".

    Wow, this is so not true I am not sure where you are coming from. There is no law preventing you from leaving the country after you have served your time. The problem is that other contries get a say in whether you are allowed into their country, and most countries will definately question, and often reject your immigration to their country, however this often isn't the case since you can request asylum, and if you go through the proper immigration procedures, they may let you in with a felony conviction.

    5 - you can never again posess or own firearms. Basically, you lose your right to self defense and you usually live where you need that sort of thing the most.

    True, you cannot possess a firearm, but you know, there are a lot of people living "where you need that sort of thing the most," who don't own or possess a firearm. They seem to be able to cope just fine. I personally don't want a person convicted of a violent crime possessing a firearm, as they have already proven themselves to not be able to handle disputes or problems in a civilized manner. Then again, I don't personally own a firearm, but I have friends who do, and their only reason for owning one is not to protect themselves, but to hunt game or target practice (I prefer the old fashion bow-and-arrow, a lot less messy if you ask me.)

    One thing you didn't include was the ban on being on a Jury...which I think is wrong. Considering the fact that there are a lot of convicted felons in our population, the jury pool of your peers should also include convicted felons. It is only fair (and may cut down on the unbelievable number of times I've been called for jury duty (8 times in 11 years.))

    Anonymous, I agree with you that our Judicial system is broken in many ways, but in my humble opinion, it is one of the better justice systems in the world (in some countries, you don't even get the option of defending yourself or having a trial by peers, and in other countries, you don't even get the benefit of a trial at all.) To fix the system, we have to work from the inside out, and part of that will need to be making the system fair for everyone (not just the rich and powerful.)

     

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  9.  
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    LittleW0lf, Dec 6th, 2003 @ 10:16am

    Re: You folks are so incrediably nieve...

    Maybe you are naive to believe that there is a conspiracy going on here when there isn't one. Yes, there have been some really bad examples, Kevin Mitnick being a big one, but truth be told, most computer crime cases are handled no differently then every other crime (which is often the problem, since a computer crime should be handled differently,) and just about everything you said occurs whether or not the person is being charged with a computer crime or with any other crime.

    However, you have the order screwed up, as an indictment from a federal grand jury doesn't usually occur before police are brought in to investigate the crime. It usually occurs somewhere between the initial investigation and the trial.

    Realizing that you may have gone through the process yourself, this may be what you have seen, but in reality each case is unique, and not all of the cases out there have this same type of process.

    As I said before, the system isn't perfect, and there are many examples of abuse of the system on both sides, but I challenge you to find a better one. If you don't like the current system, work within the system to change it.

    Next time you are called to jury duty, serve. Or become a lawyer or a politician and work to change the system.

     

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  10.  
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    Anonymous Coward, Dec 6th, 2003 @ 9:31pm

    Re: You folks are so incrediably nieve...

    > Next time you are called to jury duty, serve. Or become a lawyer or a politician and work to change the system.

    Fsck that; the system is broken beyond repair and this condition has been exacerbated by 9/11 (...and to me it sounds like you've only seen the system from one side).

    What am I doing to fix it? I'm not participating in the farce to begin with; I left the country while I still could.

    ...and having lived and worked in three other countries, I can tell you, without a doubt, Americans over rate their judicial system; it's not one of the better ones in the world. It's right in the middle of the list where 1st world countries are seperated from 2nd and 3rd world countries. In fact, I would argue that the only significant difference between, say, the USA and Mexico is the speed by which money can free you from being convicted of a crime, with mexico actually comming out on top. I mean how else do you explain having a former cocaine users for a president? ...if there were any fscking justice in the world, just another victim of the drug war with a felony conviction fscking up the rest of his life. Fortunatly for him, daddy was very very rich and powerful. It doesn't work that way for 99.9999% of the US population no matter what the judge tells you or what you saw on "The Practice" or "Law and Order".

    Having had the opportunity to view America from the outside in for over 10 years, I can tell you first hand that it is quite comical how the USA considers itself #1 in so many areas where it is actually #10 or worse. During the last presidential elections, my co-workers and people on the street were actually laughing at the USA. During the hang-time, foreign co-worker asked me who I thought was going to win the us presidency, I told him straight up that Bush was going to win because daddy was former director of the CIA and had lots of experience fixing elections around the world and that we could expect some fireworks within a few months of his confirmation. People were actually shocked when I said this, but that's the kind of clairity that you get when you're forced to leave your country due to circumstances beyond your control. 9/11? Americans sometimes just can't understand why all the world isn't with the USA (and why a larger number of those who say they're with the USA are only with us as long as there's money to be had)... well, let's just put it this way: there's a large number of folks around the world that just think we had it comming.

    Not my opinion, mind you, buy my eyes are open now... meanwhile, back in the good old USA, as it peers at the world through its black-eye, everything is becomming more and more polarized and jingoistic. So, you go on a be all you can be... be #1 if that's what you think your are... more power to you. But, don't be surprised and angry when people pull your card and call your BS bluf.

     

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  11.  
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    Anonymous Coward, Dec 7th, 2003 @ 1:42am

    Re: You folks are so incrediably nieve...

    > Next time you are called to jury duty, serve.

    You know what they say about a "jury of your peers": being judged by 12 people not smart enough to get out of/avoid jury duty.

     

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    LittleW0lf, Dec 7th, 2003 @ 5:55pm

    Re: You folks are so incrediably nieve...

    What am I doing to fix it? I'm not participating in the farce to begin with; I left the country while I still could.

    Well then, congratulations on your escape, and sorry you cannot return. Since you aren't willing to discuss why you were forced to leave or provide meaningful discussion about the system, and instead just want to bash me and the US, I can only see this as a troll, but I'll bite for the sake of others.

    I've actually seen both sides of the justice system, thank you, and while I agree the system is broken, but I am still waiting for you to point out a system that works better? You say the US justice system is number 10, what are the countries above it? I am sure the moment you point out countries with better systems you'll find folks in those countries who will disagree.

    The problem isn't the justice system, but the legislature and executive systems (or politicians which also exist within the judicial system, who manage to screw everything up for the sake of greed, power, or whatever.) Power corrupts, and politicians have a lot of power, and want to keep it.

    Not my opinion, mind you, buy my eyes are open now... meanwhile, back in the good old USA, as it peers at the world through its black-eye, everything is becomming more and more polarized and jingoistic.

    And Xenophobic... Yes, I can agree that US policy makers tend to be ignorant about international affairs. But lumping all of us Americans into one very small box is not fair, it would be like me lumping the rest of the world into the category "Non-Americans". I know very well that the world is not as black-and-white as that. There are a lot of folks here who are against what Bush and his crownies are doing, there have been anti-war demonstrations here as there has been elsewhere. However there are a number of people in the world who have a very short memory when it comes to all the things the US does do for the rest of the world (despite attacking countries.) How many times has US support and money been sent to other countries to help with national disasters and the like?

    But, don't be surprised and angry when people pull your card and call your BS bluf.

    I am still waiting for you to call my BS bluf. You haven't provided anything other than a baseless attack. I may be an apologist, but you sir, are an anonymous troll.

     

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    LittleW0lf, Dec 7th, 2003 @ 6:00pm

    Re: You folks are so incrediably nieve...

    You know what they say about a "jury of your peers": being judged by 12 people not smart enough to get out of/avoid jury duty.

    In Rome during the 3rd century they also thought it was a good idea to sell their votes and not take an active role in government...

     

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    Anonymous Coward, Dec 8th, 2003 @ 2:08pm

    Re: You folks are so incrediably nieve...

    Only one problem with that thought: fully informed juries simply don't exist in America and there's no quicker way to get removed from jury duty.

    ...so before you start spouting off about how it's all the citizen's, perhaps you should give the system you serve a good, long, hard, rational look at what it is really about (hint: justice has nothing to do with it).

     

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    LittleW0lf, Dec 8th, 2003 @ 5:15pm

    Re: You folks are so incrediably nieve...

    Only one problem with that thought: fully informed juries simply don't exist in America and there's no quicker way to get removed from jury duty.

    Not at all true. This is one of the most perverse myths out there, usually spouted by folks unfamiliar with the process. The problem with "fully informed juries" is usually that they have pre-conceived notions either one way or another about the validity of the evidence and what-not. What the attorneys want is someone who has an open mind and doesn't already have opinions about something, not necessarily someone who doesn't have knowledge about something.

    Each attorney (the prosecution and the defense,) want to have a jury that will vote their way, and will do whatever possible to weed out the jurors who will vote the other way. However, they have a limited number of challenges, so they must carefully weigh their challenges. Since both sides get the same number of challenges, if each attorney uses all of their challenges, in theory they both have the same playing field. I've been called in a number of times, and have actually (even though I am a computer scientist, and have had some rather distinct opinions,) been selected to sit on a petit jury panel. And for the grand jury, there is no selection process, if you are called, you serve, or you pay the $5000 fine.

    Believe me, it seems I have to say this over and over to you guys, but I believe the system is broken in many ways, but the things you guys are pointing to aren't the ways it is broken. If you were actually more informed in the process, you might not have the same opinions (but you'd likely still not like the system.) I have taken a good, long, hard, rational look at what it is really about, actually sitting down and researching the issues. And I still believe that justice is served, no, maybe not when the defendent has no money or when they have a ton of money at their disposal, but these are the parts of the system that are broken and need to be fixed.

    Then again, I think the problem here is that the pot is calling the kettle black.

     

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  16.  
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    Anonymous Coward, Dec 9th, 2003 @ 2:36am

    Re: You folks are so incrediably nieve...

    As someone who has had their life destoryed by the american "judicial" process (without a conviction, I might add), I can assure you that the view from the other side of the jury box is not so rosy... and the money, power and politics are exactly what the american legal industral complex is all about... and very little else.

    When you've actually had to defend yourself, come back and talk to me; until that time yours is just idle speculation.

     

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    LittleW0lf, Dec 9th, 2003 @ 9:13pm

    Re: You folks are so incrediably nieve...

    As someone who has had their life destoryed by the american "judicial" process (without a conviction, I might add)

    Anonymous, sorry, but at this point how do you expect anyone here at Techdirt to believe your story, to believe that your life has been destroyed by the American justice system? I must admit, after four spite-filled posts from you on this matter, you have given me nothing to show that you actually know what you are talking about or that any incident with the "American Justice System" has even occurred. Really, Anonymous, I want to believe you...I have an open mind about these things, and I have said, time and again, that the system is broken. You seem to argue that I believe the system is infallable, perfect, or whatever, yet if you go back and read any post that I have written about the justice system you will find that your position and mine are in violent agreement. I don't like many aspects of the justice system, but I also don't like hypocracy and the blind belief without looking at all the evidence, not just the evidence that supports my case, or anyone elses for that manner.

    But I am left, after reading your four posts, with no feeling for your cause. If your intent was to make us sorry for you, you've failed miserably. I believe that Kevin Mitnick was wrongly prosecuted, and I believe that there are many others in similar situations, but there is another saying common in the justice system that "everyone in jail is innocent, even the guilty ones." You say that this travesty against your rights and freedom has occurred, yet you have provided no details what-so-ever as to what it was that happened to you that might persuade us to find the same conclusion that you are asking, that the system is broken beyond repair and that we should just scrap it and start from scratch. I'm not asking for your name or any personally identifiable information either, I am just asking you to tell us why your case is different than any other case, and why we should believe that your life really was destroyed by the American Justice System. How are we supposed to support this conclusion based on a lack of evidence, coming from an anonymous coward who spends their time rediculing the opinions of others based on non-existant evidence, and a persistant "you have to believe me because I was there and I saw it happen." How is this any different from Darl McBride of SCO saying "Linux contains our trade secrets and copyright code" without showing evidence that proves the conclusion. And somehow your case is different?

    Somehow we are to feel sorry and agree with you based on your (anonymous) word? In order to win anyone over to your side, you are going to have to provide something other than personal attacks against my intelligence and against the American Judicial system, otherwise, "don't be surprised and angry when people pull your card and call your BS bluf."

    When you've actually had to defend yourself, come back and talk to me.

    That is fine by me.

     

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    Anonymous Coward, Jun 23rd, 2006 @ 11:57pm

    Re: Re: We do it for other criminals

    thank you so much for this comment, it really helped me.

     

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    Last True American, Jul 19th, 2006 @ 7:24am

    No Freedom in America

    > His lawyer is now arguing that this violates his constitutional rights, saying that it goes to far in violating his right to free speech.

    It does. He can't write a blog or web article about his political or religious beliefs. Since he can't spread the world of whatever religion (or lack thereof) he believes in, this also violates his freedom of religion.

    The judge should be disbarred.

     

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