• What factors influenced the decision to prosecute Mr. Swartz for the crimes alleged in the indictment, including the decisions regarding what crimes to charge and the filing of the superseding indictment?
• Was Mr. Swartz's opposition to SOPA or his association with any advocacy groups among the factors considered'?
• What specific plea offers were made to Mr. Swartz, and what factors influenced the decisions by prosecutors regarding plea offers made to Mr. Swartz?
• How did the criminal charges, penalties sought, and plea offers in this case compare to those of other cases that have been prosecuted or considered for prosecution under the Computer Fraud and Abuse Act?
• Did the federal investigation of Mr. Swartz reveal evidence that he had committed other hacking violations?
• What factors influenced the Department's decisions regarding sentencing proposals?
• Why was a superseding indictment necessary?

In the latest setback for Boston’s beleaguered U.S. attorney, red-faced feds admit they may have arrested the wrong man during a massive gang and drug takedown two weeks ago because he looked like someone they wanted, after they were forced to tell a judge there was “sufficient doubt” that he was the suspect.

Last week, Digital Journal reported that the documents obtained by PCJF detailed how the FBI cooperated with the Department of Homeland Security, US military and private corporations to monitor and investigate Occupy Wall Street protesters as "domestic terrorists" and "criminals." The documents prove that federal agencies are "functioning as a de facto intelligence arm of Wall Street and corporate America," PCJF said.

Thorough analyses of the documents has now revealed a heavily redacted file that clearly mentions a plan to use snipers to assassinate Occupy protesters. The names of the groups or individuals involved in the murderous plot have been redacted, so it is impossible to identify them at this time. What is known is that the FBI never alerted any of the potential victims of the danger to their lives.

An identified [redacted] of October planned to engage in sniper attacks against protesters in Houston, Texas, if deemed necessary. An identified [redacted] had received intelligence that indicated the protesters in New York and Seattle planned similar protests in Houston, Dallas, San Antonio and Austin, Texas. [Redacted] planned to gather intelligence against the leaders of the protest groups and obtain photographs then formulate a plan to kill the leadership via suppressed sniper rifles.

Phil Pattee, assistant Bar counsel, said the agency couldn’t disclose the nature of the grievances against the attorneys or whether they relate to complaints from outside parties or the Bar’s own review of the Righthaven cases or both. But he confirmed the grievances relate to the attorneys’ work for Righthaven.

“We’ll be asking them about Righthaven,” he said.

“I will be responding to the informational requests of the Bar and believe that after such responses and clarifications, the matter will be properly addressed. Miss Lowry indicates her concurrence,” Gibson said Thursday.

To begin with, the letter asserts that "Google faces competition from only one general search engine, Bing," suggesting that only Bing (and it, only ineffectively) could keep Google in check. In essence, the Senators are prejudging an essential question on which any case against Google would turn: market definition. But why would the market not include other tools for information retrieval? Is it not at least worth mentioning that more and more Internet users are finding information and spending time on social networks like Facebook and Twitter, while more and more advertisers are spending their money on these Google competitors? Isn't it clear that search itself is evolving from "ten blue links" into something more social, multi-faceted and interactive?

In a remarkable leap, the senators then identify the specific alleged abuse that Google’s alleged market power leads to: search bias. That's remarkable because, other than the breathless claims of disgruntled competitors (given plenty of air time at the September hearing), there is actually no evidence that search bias is, in fact, harmful to consumers—which is what antitrust is concerned with. (Read both sides of this debate in TechFreedom's free ebook, The Next Digital Decade: Essays on the Future of the Internet.)

As our colleague, Josh Wright, has thoroughly demonstrated, this "own-content" bias is actually an infrequent phenomenon and is simply not consistent with an actionable claim of anticompetitive foreclosure. Moreover, among search engines, Google references its own content far less frequently than does Bing (which favors Microsoft content in the first search result when no other search engine does so more than twice as often as Google favors its own content).

The letter also reports, again with no caveats, claims by the CEOs of Yelp! and Nextag that "75 percent of Yelp!'s web traffic consists of consumers who find its website as a result of Google searches, and . . . 65 percent of Nextag's traffic originates from Google searches," and that losing this much traffic to Google preferencing its own content would be catastrophic. But the letter fails to mention that most searches for brand names on Google are "navigational" rather than "informational." As Google competitor Expedia’s CEO recently explained:

The majority of, at least Expedia’s, and I believe Hotel.com’s traffic that comes from search to our site actually come through people searching for Expedia, for example. So in typing in Expedia in Google or so on, typing in Hotels.com in Google. So of the 25% for Expedia, for example, the majority of that traffic is someone who’s already looking for Expedia, and that person is going to find Expedia one way or the other because they are searching for something very specific. (Expedia earnings call, 10/28/10, quoted here).

Indeed, a recently published independent academic study conducted across search engines concluded that 52% of "business queries" (and 72% of organizational queries) were navigational. In other words, most of the Google traffic going to these sites was likely from users who simply typed in "Yelp" or "NextTag" as a convenient way of getting to those sites. Such searches are not diverted (and not even claimed to be diverted) to Google’s own sites, and the first search result for the search term “Expedia” will always be expedia.com. Thus, the majority of these searches that are claimed to make up 75% and 65% of the complaining companies’ traffic is not in any way threatened by Google’s business model, and is completely irrelevant to assessing the effect of Google preferencing its own content.

Furthermore, the letter does not mention Yelp's recent boast that over 40% (and growing) of its searches are now conducted on its mobile app—insulating it from whatever "power" Google might exercise over traditional searches.

Bing: A Microsoft & Yahoo Production?

What really set off my alarm bells was this:

Bing, a partnership of Microsoft and Yahoo

Despite substantial amounts of staff time and money spent to have the hearings, the committee mistakenly believes that Microsoft’s Bing search engine is a Yahoo and Microsoft production.

It’s not. Bing is a wholly-owned part of Microsoft. Yahoo has no ownership in Bing.

But wait. Isn’t there a partnership? Yes, but one that gives Yahoo a minor role handling Bing’s ad sales to “high volume” advertisers. The deal came after Bing was launched. It wasn’t an essential part of it, nor does it help with Bing building consumer market share against Google.

If the committee fully understood the competitive space, they’ve have said instead:

Yahoo Search, a partnership of Microsoft and Yahoo

That would be far more accurate. That’s because Yahoo no longer has its own core search technology, nor its own search ad serving technology.  It gave all these up to partner with Microsoft (it would have kept them in a deal with Google. See our side-by-side comparison).

Heck, Yahoo’s former CEO Carol Bartz was quite specific that her goal was to use Bing’s technology as a way to somehow beat Bing at its own game. Bing wasn’t a partnership to her; it was the competition.

Bing & Yahoo Distant To Google?

Perhaps the committee thought that the “partnership” was the overall “search alliance” between Bing and Yahoo? If that was the case, then why did the letter go on to say

…which is a distant second in market share and is losing an estimated $2 billion annually…

Those stats only make sense if you’re talking about Bing itself, having a 15% share to Google’s 65% in the United States, as recently reported. If you’re talking about Bing and Yahoo combined, they come up to 30%, much healther competition.

Contradicting past statements that no records exist of police involvement in the search for the lost prototype, San Francisco Police Department spokesman Lt. Troy Dangerfield now tells SF Weekly that "three or four" SFPD officers accompanied two Apple security officials in an unusual search of a Bernal Heights man's home.

Dangerfield says that, after conferring with Apple and the captain of the Ingleside police station, he has learned that plainclothes SFPD officers went with private Apple detectives to the home of Sergio Calderon, a 22-year-old resident of Bernal Heights. According to Dangerfield, the officers "did not go inside the house," but stood outside while the Apple employees scoured Calderon's home, car, and computer files for any trace of the lost iPhone 5. The phone was not found, and Calderon denies that he ever possessed it.

While the legality of spying on students with webcams remains in dispute, the potential child porn angle of the case has caught the eye of a federal grand jury and the FBI, who are investigating the district. But, in an added wrinkle, federal prosecutors are now claiming that a U.S. District Judge is hampering their investigation into the case. The Feds are complaining about a recent Judge order banning anyone from disseminating evidence involving the case to anyone not directly involved in the lawsuit. Prosecutors, of course, want to get their hands on the photographs taken by the webcams (which are now estimated to total 56,000 -- with only one made public), and are asking the Judge to modify his order (which was asked for by the plaintiffs) accordingly.

Interestingly, in an effort to try and control media coverage of the case, a group of area parents are asking the same U.S. District Judge to issue an order banning anyone involved in the case from giving interviews "near district schools or students' homes":

"...wearied by the international attention caused by the suit, a group of Lower Merion parents asked the judge Friday to ban lawyers and other parties in the case from giving interviews near district schools or students' homes. "We and many other parents of Lower Merion School District are outraged by the substantial distraction that the recent media frenzy has visited upon our district and our community," the parents wrote to U.S. District Judge Jan E. DuBois. "The incessant news cycles about this litigation are plainly taking their toll on the education of our children," the parents' letter said. "It has become a harmful distraction to the very persons that plaintiffs and their counsel seek to represent."