Ask Jennifer Granick About Computer Crime Defense 114
Attorney Jennifer Granick has defended many high profile hackers, including researcher Christopher Soghoian, creator of a fake boarding pass generator (2006); Michael Lynn versus Cisco/ISS (2005); Jerome Heckenkamp; and Luke Smith and Nelson Pavlosky in Online Policy Group v. Diebold Election Systems (now Premier Election Solutions), a copyright misuse case related to electronic voting. Granick also won an exemption from the U.S. Copyright Office in 2006 allowing phone unlocking despite the anti-circumvention provisions of the Digital Millennium Copyright Act, which set the stage for renewal of the exemption and for the jailbreaking exemption in 2009. At Stanford, Granick worked with Lawrence Lessig on constitutional copyright cases and taught six years worth of law students about computers, technology and civil liberties. While Civil Liberties Director at the EFF, Granick started the Coders' Rights Project and participated in litigation against ATT and the federal government for violation of surveillance regulations. Now an attorney at ZwillGen PLLC, Granick assists individuals and companies creating new products and services. And now, she's graciously agreed to answer your questions. Please, as usual, ask as many questions as you'd like, but confine each question to a separate post.
Should jailbreaking exemption apply to consoles? (Score:5, Interesting)
Should the exemption granted for jailbreaking cell phones apply to game consoles like the Xbox 360 and PS3 as well?
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I'm a developer, who would like to play with some nice hardware.
Devil's advocate: That's what a PC is for. Even midrange graphics cards for the PC are stronger than the Radeon 9000-class Hollywood GPU in the Wii, the Radeon X1900-class Xenos GPU in the Xbox 360, and the GeForce 7800-class RSX GPU in the PS3. It's even rumored that the Wii U is just an Xbox 480. What does a console give you that a living-room PC with a comparable GPU does not, other than the assurance that your users won't try to run your game on a PC with an Intel GMA (Graphics My [Behind]), fail, and c
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So? The console hardware is usually cheaper if you want the bundle.
They sell it at a loss? Cry me a river, how is that my problem?
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The console hardware is usually cheaper if you want the bundle.
Cheaper, but not by much. There are three current major high-definition video game platforms: Windows, Xbox 360, and PlayStation 3. Without any family members who own a PS3, I'm not qualified to comment on that platform, so I'll comment on what I know. Windows: An Acer Aspire X1 with a quad-core AMD CPU, NVIDIA graphics, 1 GB RAM, and a 1 TB hard drive costs $400 at Walmart. Xbox 360: An Xbox 360 costs $540: $300 for the console with only a quarter TB drive and $240 for four years of Xbox Live Gold service,
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oh no, sir. They sell it at a loss in your perception - in reality they start selling it at a profit, and then all the games are sold at a profit. The result is you get crap hardware over time, and the costs for consoles have skyrocketed.
$200 consoles 10 years ago -> $300-600 today. Blech.
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How they'll try to preempt the discussion (Score:2)
The makers of the major video game consoles don't even want there to be a public discussion "about whether you should be *allowed* to do so". They might try to preempt such discussion by arguing that there is already an open alternative to video game consoles, namely gaming PCs. The existence of such an open platform thus lessens "the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has" under 17 USC 1201(a)(1)(C) [copyright.gov] and takes away the pressing need to ja
It's a consistent platform (Score:2)
You write for it, and anybody else with that platform can use it. No worries about differing performance or hardware within a defined range (you can say needs Kinect or Move, and then you know exactly what extra hardware they have).
But that matters not. It's your stuff, you do with it as you will, no need to justify it to anyone. It's not about needs, it's about wants, and wants are all that are required when it comes to freedom.
Same with free speech. Why do you think you should be able to say that? None of
Jailbreak for anybody else with that platform (Score:2)
You write for it, and anybody else with that platform can use it.
Good luck distributing it to "anybody else with that platform" when the next patch will disable the jailbreak on which it relies to start running. So you'd need to make an exception not only for developers but also for users.
Specific factors (Score:2)
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Devil's advocate: That's what a PC is for.
Response: If I wanted to modify a PC, I'd modify a PC, but I'm not - I'm trying to [run custom software on, improve hardware wise, etc] [insert console name here], so the point is moot.
Describe the goal, not the step (Score:2)
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Prove this goal is policy-worthy (Score:2)
the goal was about making something else do those things
Now prove to a government regulator's satisfaction that this goal is worthy enough by itself to justify making an exception to a federal law. Or, as the console makers would put it: "Our products were never intended for doing these things. People who want to make a device do those things can buy a PC in the first place instead of buying our products. Therefore, the exemption that the petitioners seek is not necessary, and we request that you deny it."
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The 'wargames' defense (Score:3)
Couldn't your clients break in to the court computers after the trial and change the verdict to "not guilty"?
Cost? (Score:5, Interesting)
How much does it cost to defend against these sorts of lawsuits?
10 years ago... (Score:2, Interesting)
10 years ago, what would've you said would be the most pressing issue regarding personal electronics/personal data use?
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10 years from now, what do you think will be the most pressing issue regarding personal electronics/personal data use?
Questions from an MMO Fan (Score:3, Interesting)
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One question per post! Is that too much data for you to interpret?
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I'm So Done With This Site (Score:2)
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Second, even though the source code will eventually enter the public domain,
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What's the next 'big case'? (Score:2)
Hope? (Score:4, Interesting)
After seeing the heartless machinations of our political and legal system up close, are you still hopeful that an individual can get a fair shake in our system? How rampant is prosecutorial abuse, such as that suffered by Kevin Mitnick (e.g. the NORAD whistle)? Is the complete lack of accountability for incompetent, corrupt, and malicious prosecutors and judges as serious of a problem as it appears from the outside?
What is your advice to someone who has absolutely no faith whatsoever in the legal system?
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"The trouble with law is lawyers."- Clarence Darrow
It's still my favorite..
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Become a lawyer. Individual lawyers have a huge amount of discretion, including federal prosecutors, and as a skeptic, you could make a difference. The legal system is complicated, and sometimes it's arbitrary and unfair--often most so to the weakest members of society--but the discretion of individual lawyers in their application of the law can make a huge difference.
A few questions (Score:4, Interesting)
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Rampant Piracy (Score:3)
Given the vast disconnect between society's common opinion on data piracy and the large fines and penalties being pursued in the legal system by copyright holders, do you think the 'unlocking' argument could lead towards more leniency in civil cases involving copyright violations, or will that be confined to purely criminal violations?
Jury Trials (Score:5, Interesting)
Is is possible to get a fair Jury trial for these highly technical cases? It seems like the prosecution would generally aim to eject any jurors remotely technical, and the general public is highly susceptible to sensationalization because of how technology and hacking is portrayed in the media.
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Is it possible to get a fair trial AT ALL, Jury or single judge, given that NEITHER has a hint of a clue regarding the technology?
Very good one, much larger issue (Score:2)
I would say the entire voire dire process in the US needs to be changed.
Dismiss a juror only for direct cause. Do you know the defendant and/or his close relatives/associates? Do you have any direct stake in the outcome? Have you already given an opinion on innocence or guilt? Everyone else is the luck of the draw, as it should be, a jury of your peers, not a jury of a few very carefully selected people.
Long ago a relative of mine had a DUI a few years before he was called to sit on a jury for a DUI. He vot
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you know the "the defendant obviously was guilty" part actually kinda makes me wonder if your relative had ever heard of jury nullification and why it's significant. Plenty of people focus so much on the facts that they forget about their rights as a jury, of course the opposite can happen too.
Maybe I said that wrong (Score:2)
To him, the prosecution had easily overcome the burden of proof in that case, so he voted guilty.
He had no desire to use jury nullification. He admits he screwed up with his own DUI and had no objection to the law.
Phone Unlocking Vs Game Hacking (Score:4, Interesting)
Bringing suit or taking creative non-traditional enforcement actions against hackers, cheats, in-game spammers, RMT sellers, and others who disrupt the game experience;
I like the creative non-traditional enforcement route but I have to question why would you bring suit against this group of users? You might not agree but the way I see it is that I paid for my phone, I'll now do what I want with it. What do you care if I'm running different software on it? Similarly, I paid for this game and what do you care that I'm selling items for real money on the side? Or writing a bot to farm gold? It seems like users that derive an alternative means to enjoy something they buy outside of the intended usage get targeted and locked out when it happens. They're both cat and mouse games between user and corporation, why is one a legal right to do whatever you want with something you paid for and the other is prosecuted by your firm?
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You're right to modify technology you hold ends where a service you subscribe to starts. Yes, you can modify your phone to run whatever program you want. If you install a program that automatically sends out text messages, that's ok. If you use that program to send out heaps of sms spam, you are violating the terms of your service contract. Same things for games. You want to install a bot to play a game on your own computer, that's fine. You want to connect a bot to someone else's server, you are violating
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It seems to me that they just don't like how you play the game. If the server owners feel like banning them, though, fine.
in the past cable co use to say no to routers (Score:2)
and that let to NAT being a big thing
Raison d'etre (Score:1)
Not in the United States (Score:2)
The government grants copyrights through the power of the Copyright Clause of the Constitution. That clause explicitly states the reason,
Then "secure ... exclusive Right" is only a means to this end, not an end in itself. Not profit, that's not guaranteed, only the exclusivity to increase the chance of profit in order to provide an incentive to create more works.
We'll never have real copyright reform until all of Congress and most of the public remember th
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EULAs, Terms of Use and the Like (Score:5, Interesting)
Advising clients on EULAs, Terms of Use, and related contract issues;
What do you tell your clients (who apparently include Blizzard Entertainment, Square Enix, Disney and Zynga) when that "thing" I agree to before playing their game is unreadable and painfully lengthy? Are you providing them more legalese or are you saying, "Look, no gamer is going to 1) sit down and read all of this and 2) have the background to comprehend some of these terms." Because right now, in the software world, those EULAs are a complete joke. Is your firm making any positive headway on shoring up that gap between the understandings of both company lawyer and end user? If so, how?
Re:EULAs, Terms of Use and the Like (Score:5, Interesting)
And: Is an EULA a contract? How can an EULA be enforced if the person agreeing (in the US) is under the age of 18? The parent didn't agree, someone who is not legally eligible to enter into a contract has.
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I do the same whenever I pop in a blueray disc. I have no reason to let those discs access the Internet. There's an option to "confirm access" first, but it's too easy for it to get reverted, and it asks every time.
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This exact same argument could be made to argue why no apartment lease agreement should ever be upheld in court. Apartment contracts involve far more money than any software EULA outside a few that involve parties who are already represented by attorneys (i.e., site licenses for large companies, etc.). Lessees rarely are represented by an attorney when finding an apartment to rent. "No one r
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Some EULA's are written as jokes (Score:1)
This is where the bloodthirsty license agreement is supposed to go, explaining that Interactive Easyflow is a copyrighted package licensed for use by a single person, and sternly warning you not to pirate copies of it and explaining, in detail, the gory consequences if you do.
We know that you are an honest person, and are not going to go around pirating copies of Interactive Easyflow; this is just as well with us since we worked hard to perfect it and selling copies of it is our only method of making anything out of all the hard work.
If, on the other hand, you are one of those few people who do go around pirating copies of software you probably aren't going to pay much attention to a license agreement, bloodthirsty or not. Just keep your doors locked and look out for the HavenTree attack shark.
Disclaimer: I used to work there, back in the day. Great place, with the right attitude. (And, yes, there actually was an attack shark.)
jailbreaking mac os x from apple hardware (Score:2)
Now that may fit under some laws and may even full under phone unlocking.
Now what psystar did was selling full systems with mac os x loaded on them but if you where to do it on your own will you be ok?
What if I want to load a office full of pc with mac os x and I buy a OS X Lion USB Thumb Drive at $70 each for each system will I be ok?
What should be next? (Score:1)
I'd think the interesting cases are the borderline ones, as those are the ones that are most likely to shape the law rather than be shaped by it. Assuming that, what area of computer law do you see being so vague and ill-defined that it's actually essential that case law be produced for it?
Can you hire me? (Score:3)
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No. We have real lawyers [law.com] willing to work for free. Have fun paying your student loans.
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Are ToS Legal? (Score:3, Interesting)
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Login banners? (Score:5, Interesting)
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GREAT question!
cable box rent lawsuit / buying a canada / owned b (Score:2)
There have been a few law suits over being forced to rent them but there is a other board line legal part with people who clam that all the boxes on e-bay and other places are stolen even when you have owned boxes from Canada, Boxes from smaller cable systems. There was this small college that to get tv on the dorm cable system you needed to buy a cable box. Also real board line part is the big cable systems list a unturned cable box price now if you pay that price you should now be the owner of the box rig
Class-action lawsuit waiver? (Score:5, Interesting)
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I believe this type of thing was recently upheld in court (class action waiver). I'm not Jennifer, but I thought I'd share.
Personally, I think they should be illegalized as very much against public policy.
The Human Body at the Terminal (Score:3)
What are the more interesting ways you have seen prosecutors prove that the person sitting at the defendant's chair was the person committing the cybercrime at the keyboard.
Question: Pragmatic Legal Protection--but how? (Score:3, Interesting)
My question for Jennifer:
I've observed in work and professional life (my job is 50% nerd whisperer, 50% energy policy and political matters) that while laws that protect "the little guy" are practically worthless unless one is willing to shell out several hundred dollars for a lawyer--and perhaps even $10K+ for a litigator.
It's also scary and disheartening to hear an experienced and successful friend say that he selected a US Government-owned patent for technology his startup is implementing--if only because he hopes the Feds will come to his defense if he's sued for patent infringement.
Could you please suggest some political and/or legislative outcomes that we need to pursue to try to make access to law more egalitarian from technology and innovation standpoints?
SteamWorks on PC game DVDs (Score:3)
(My apologies... posted anonymously.)
Just about every PC game out now or in development is using SteamWorks [wikipedia.org] [wikipedia.org]. Square Enix's products are some of those that do.
SteamWorks makes a game DVD into a Steam game so it's no different than buying it online with no DVD. Because of this, the buyer isn't allowed to trade, lend or resell the DVD under the TOS [steampowered.com] [steampowered.com]. If they are found doing this the account and the DVD key may be terminated. Unlike MMOs this is being applied to single-player games that don't use the internet at all. This may be unprecedented.
Several questions arise from this. We're only supposed to ask one so I guess just pick the one you like best!
1) Is there any legal precedent for or against this practice? ie Does the Right of First Sale apply? (As this is a physical medium rather than digital-only, as it has been confirmed to apply to digital data on a disc (UMG v. Augusto) regardless of the copyright holder trying to restrict the sale.) If not, even though it's a maxim that "software is licensed not sold" what is the relevant actual law that says this?
2) If the EULA that enforces this is in fact legally binding (which has not been established with any regularity as there have been decisions for and against) does this mean that these discs should not legally be allowed to be sold to minor persons who can't sign contracts? (This is to be contrasted with online purchases where the buyer is presenting evidence of being age of majority by their method of payment. Someone else also asked this before I was done typing mine.)
Deniability of OTR (Score:3)
Many people use an IM add-on called Off-the-Record. On top of encryption, it also provides deniability by not proving any digital signatures for the other party to present to a court, and the procol ensures everyone can make false messages in the past. How strong do you this technical protection would be from a legal perspective if one of the two parties has a logfile with all messages?
Can the courts restrict my network access (Score:2)
I remember hearing stories courts ordering people convicted of computer crimes to not touch a computer for 10+ years (sorry, I'm too lazy to find one right now). Are these stories true? Can courts really order someone not to own or use a computer or not to use the Internet?
If so, is the fact that this probably makes the person ineligible for a huge number of jobs (all jobs in their field for many) and is essentially taking away his livelihood taken into account?
What constitutional arguments have been made i
Cost of justice (Score:5, Insightful)
Do you agree that, for many people who are wrongly accused, it is cheaper to settle or plea than to fight and win?
And if you do, how will you suggest to fix the system?
Dear Single Female lawyer (Score:1)
I don't have any questions, I just wanted to make a Futurama reference.
Dear Pedantic,
Yes, I know she is married to Brad Stone. Which part of 'just wanted to make a Futurama reference' do you not get?
PROTECT IP Act (Score:1)
Cruel and unusual (Score:2)
The other day there was a story about the fines associated with file sharing [slashdot.org]. Like many here on slashdot I feel that a $675,000 fine is way over the top.
So here is my question.
Is there any legal definition to the limits that the eighth amendment would seem to imply as it applies to an individual?
Changes to Patent Law (Score:2)
Who has a rewrite of copyright and patent law? (Score:1)
Who has written the book or article that works out how American patent and copyright law can be brought back to benefiting the people?
One critic a few years ago said that we are living with a "Pre VCR Law in a digital You-Tube age."
So the question I have is, what political group or thinker has a draft of a better more citizen favourable patent and copyright law? Who understands how to get enough elected politicians all moving on patent and copyright law reform?
I think to myself, in the '80's Ralph Nader was
3D printing (Score:3)