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'weev' Conviction Vacated on Venue Grounds, Needs Bacon

By Gabriella Khorasanee, JD on April 18, 2014 | Last updated on March 21, 2019

We've been watching the progression of Andrew "weev" Auernheimer's trial and appeal and last week, the Third Circuit released its opinion in the hacker's appeal. Though "complex and novel issues that are of great public importance in our increasingly interconnected age" were presented, the case was decided on what some might call a technicality -- venue.

Until Monday, Auernheimer was serving a 41-month sentence for identity theft and conspiracy to commit unauthorized access to a protected computer, in violation of the Computer Fraud and Abuse Act ("CFAA"), when he accessed and leaked 114,000 email addresses of iPad users.

Upon his release, Auernheimer expressed his need for bacon, says Ars Technica.

Arguments on Appeal

On appeal, it was clear the Government didn't really understand what it was prosecuting. In trying to criminalize activity he didn't understand, Assistant U.S. Attorney Glenn Moramarco stated, "He had to do all sorts of things -- I don't even understand what they are," reports Ars Technica. He later analogized weev's "actions to blowing up a nuclear power plant in New Jersey."

Auernheimer's attorneys focused on two arguments: First, they argued that there was no "password gate," and thus no unauthorized access. Second, they argued that New Jersey was not the proper venue.

Choice of Venue

The Third Circuit analyzed venue for each of the criminal counts and found venue lacking in all of them. Finding none of the Government's arguments persuasive, the court found that New Jersey was neither the locus delicti ("place where the offense was committed"), nor "the site of ... essential conduct element[s]." The only tie to New Jersey was that four percent of the emails taken (about 4,500 out of 114,000) were of New Jersey residents -- that was simply not enough.

This case is interesting for two points: First, though the court did not decide the merits of the CFAA claims, in a footnote, the court noted that under New Jersey law a "password-gate" would have to be breached, and there was no evidence of that at trial. Second, the opinion is an important case for trying cyber-related crimes. The court stated:

The ever-increasing ubiquity of the Internet only amplifies this concern. As we progress technologically, we must remain mindful that cybercrimes do not happen in some metaphysical location that justifies disregarding constitutional limits on venue. People and computers still exist in identifiable places in the physical world.

There you have it. Please pass the bacon.

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