Ken, you need to explain the Ninth Circuit's decision about the interaction between Section 512(f) of the DMCA and fair use law, particularly in the context of surviving motions to dismiss or summary judgment.
Shan't.
DO IT
You can't make me.
Fine. God. You're such a child. Will you write about SOMETHING please?
. . . . maybe.
Like what?
Joshua Goldberg.
The multi-faced troll the feds just arrested? The one everyone wants to pin on "the other side" of whatever argument they're having?
yes him
Seems kind of a cop-out to me. But fine. What's he charged with, and how?
The feds — more specifically, the U.S. Attorney's Office for the Middle District of Florida — have filed a criminal complaint charging Goldberg with one count of distributing information about explosives and destructive devices.
Only one count?
It's only a complaint. See, in the federal system, prosecutors can seek a complaint — an accusation approved by a U.S. Magistrate Judge, based on the probable cause demonstrated in a written and sworn affidavit by a federal law enforcement officer — or get an indictment, which is an accusation issued by a grand jury.
But unless they plead immediately, all federal defendants charged with felonies are entitled to be charged by grand jury indictment. So if you're looking to arrest someone based on a complaint, you don't necessarily have to throw all of the charges in there — you'll have the chance to throw more in when you draft an indictment and go to the grand jury.
So he could get charged with more later?
Sure, if they've got the evidence.
Right now he's charged with one count of distributing information about things that go boom under Title 18, United States Code, Section 842(p).
What's that when it's at home?
It's a statute making it illegal to teach people how to make bombs so they can use them in a crime, basically:
(2)Prohibition.—It shall be unlawful for any person—
(A) to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, with the intent that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence; or
(B) to teach or demonstrate to any person the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute to any person, by any means, information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, knowing that such person intends to use the teaching, demonstration, or information for, or in furtherance of, an activity that constitutes a Federal crime of violence.
Hmm. So it criminalizes teaching about things? Could that be a First Amendment violation?
Some will say so, but I don't think it's a very strong argument. Notice that the crime requires that the defendant intend that the information be used in a federal crime of violence. A federal court in San Diego considered a First Amendment attack on the statute and rejected it on that basis:
The specific focus of the statute is not on mere teaching, demonstrating, or disseminating information on how to construct a destructive device, but upon teaching, demonstrating, or disseminating information with the specific intent that the knowledge be used to commit a federal crime of violence.
Courts have upheld similar statutes so long as they require that the defendant intended to further an illegal act.
How are they going to prove what Goldberg intended? He's a troll. The whole point of his existence is saying things he doesn't mean.
Well, their case got a hell of a boost when Goldberg effectively confessed to the elements of the crime.
The complaint and supporting affidavit are here. The feds say that Goldberg provided bombmaking information to be used in a terrorist attack on a Kansas City September 11 memorial. The feds have a confidential informant posing as a potential domestic terrorist, referred to as "CHS" in the complaint. They monitored communications in which Goldberg encouraged CHS to engage in a terrorist attack using bombs at the Kansas City memorial, and sent him links to pages with instructions for making bombs, and suggested what sort of shrapnel to use in the bombs.
Now, Goldberg could have engaged in the troll's typical defense — that he knew that CHS wasn't a real terrorist and was stringing him along. I wouldn't want to go to a jury with that, but it's colorable. But Goldberg blew that defense by talking to the FBI when they raided his house:
JOSHUA GOLDBERG admitted that he provided that individual with information on how to manufacture bombs. JOSHUA GOLDBERG further admitted that he believed the information would create a genuine bomb. Specifically, JOSHUA GOLDBERG stated that he provided the individual with instructions on how to create a pressure cooker bomb. When creating the pressure cooker bomb, JOSHUA GOLDBERG admitted that he instructed the individual to include nails and to dip the nails in rat poison. JOSHUA GOLDBERG also admitted that he instructed the individual to place the bomb at an upcoming memorial in Kansas City, Missouri that was commemorating the September 11,2001 attacks. JOSHUA GOLDBERG stated that he believed that the individual did intend to create functioning bombs and would actually attempt to use them to kill and injure persons. During the course of the interview, however, JOSHUA GOLDBERG made varying statements in an attempt to explain his actions in providing bomb making information to the individual. In general, JOSHUA GOLDBERG claimed that he intended for the individual to either kill himself creating the bomb or, if not, that he intended to alert law enforcement just prior to the individual detonating the bomb, resulting in JOSHUA GOLDBERG to receive credit for stopping the attack.
So. By failing to shut up — which one should always do when confronted with federal agents, at least until one gets legal advice — Joshua Goldberg has made the government's case dramatically stronger.
Is this going to be another case where there was never going to be any terrorist attack because the defendant was dealing with a government agent all the time?
Sure looks that way.
So, how much time could he do?
The statutory maximum for the charged crime is 20 years. But, as Popehat readers know, his sentence will be calculated using the recommendations of the U.S. Sentencing Guidelines; the statutory maximum is only a ceiling and usually has little to do with the actual sentence. Plus, the feds will probably load more charges on when they indict.
We have very little information, and we don't know the final charges yet. But it appears to me that under the applicable guideline, taking into account only what's in the complaint, his recommended sentence will be very substantially less than 20 years. As currently charged, it's more like a couple of years if he pleads guilty. Of course, a judge can go above the guidelines, and may well do so in a case this vivid.
So. What's next for him?
He appeared in court and his Public Defenders agreed that he would stay in custody pending a bail hearing. That's often, though not always, a sign that the defense thinks they have a tough argument to get him out on bail. He's entitled to bail unless the government can show that's he's a danger to the community or flight risk in ways that amount and conditions of bail cannot address.
Normally, the next step would be for the feds to indict him, and for him to enter a not guilty plea on the indictment. But today apparently he got new lawyers and the U.S. Magistrate Judge ordered him to be evaluated for competency to stand trial.
What? He's trying an insanity defense?
Not necessarily. Competency is different than insanity. The insanity defense goes to whether the defendant can be held responsible for his actions. A competency exam assesses whether the defendant is even competent to stand trial — that is, whether as a result of mental illness he's "unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense."
So if he's incompetent, he walks without even going to trial?
Oh no. First he gets evaluated at a federal psychiatric facility for up to 30 days. There's one in Springfield, Missouri, for instance. Then, if the judge finds by a preponderance of the evidence that he's competent, he stands trial. If the judge finds him not competent, he gets sent back to the federal psychiatric facility for up to four months to see if they can make him competent using drugs and therapy. Then he gets sent back for another assessment, and maybe more therapy and drugs, and so forth. He's in custody the whole time. Eventually, if it looks impossible to make him competent but he's still adjudged dangerous, he can be committed long-term.
The process of being shipped to a place like Springfield, and "treated" there, and returned, is notoriously unpleasant. I think I might prefer to get tried and sentenced. I mean, assuming I helped people make bombs or something.
What do you anticipate happening next?
He'll be back in 30 days, or longer if the parties agree to a longer time. The judge will make a determination of his competency, which the parties may or may not contest. Then, anything can happen. Remand to treatment if he's not competent, a guilty plea to minimize exposure, trial, and everything in between.
By the way, if his competency is in question, if I were his lawyer, I'd be thinking about whether I could get his confession thrown out. It's not a Fifth Amendment violation to take a confession from someone who is incompetent; a defendant still has to show police coercion. But a defendant's lack of competence can be one factor in determining whether law enforcement coerced a confession. It's worth a look for his defense.
Is that all?
For now.
Now do the DMCA case!
Bite me.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016
But, what about that DMCA case? It's the baby dancing to Prince, right? We need some lawsplaining! Or I should unleash the ponies! I've got them right here, all the Sparkle Ponies corralled up since Burning Man ended. They're getting pretty riled up, so watch out!
Wait wut? Since when is having evidence a requirement?
Or if the AUSA has a spare ham sandwich. The affidavit mentions rat poison, so I'm thinking Chemical Weapons Treaty violations.
As much as clients not shutting up continually frustrates me, part of me is comforted by considering it job security. If there were no stupid criminals, there'd be a lot less need for criminal defense attorneys.
If you don't want to write about the Lenz DMCA case, maybe you'd be interested in writing about this odd ball case with 1st amendment issues from CA:
http://blog.sfgate.com/crime/2015/09/11/court-says-stalking-doesnt-require-threat-of-violence/
One of the acts of speech at issue in the case was the creation of a locally popular monument (a walking 'labyrinth', a maze like path that is outlined with rocks)
http://archives.sfexaminer.com/sanfrancisco/san-francisco-man-cesar-lopez-built-popular-bernal-labyrinth-for-woman-hes-accused-of-stalking/Content?oid=2320126
Prenda. Just saying. Plenty of news there, but getting a bit old.
I disagree with the characterization of this particular shitbiscuit as a "troll".
Did he perhaps participate in trolling during his career as an asshole? No doubt. That does not mean he gets to be dismissed as a troll, or a "performance artist".
No, if we deal with people on the internet, it is best to treat them and the things they say as one and the same. And the things he has said paint him as a criminal and would-be terrorist.
Not a "troll".
No point in writing about Prenda until the Ninth Circuit issues its decision. Which could be far more interesting than its dancing baby decision yesterday.
In other news, Scrawling 'F**k Your S**tty Town Bitches' On Speeding Ticket Is Free Speech, Judge Finds (Huffington Post; here's the Syracuse.com link for same). So, another victory for the First Amendment against small-town, jumped-up power-hungry ijits.
I always knew Christina Hoff Sommers was a bag egg.
People wanting a lawsplainer on the Lenz decision: Sarah Jeong has a pretty good one at VICE.
I'm beginning to suspect the boldface voices in Ken's head are J. Jonah Jameson.
That's a big goddamned win, because the judge ruled it was so clearly free speech that it trumps a prosecutor's "absolute immunity" from liability for a bad prosecution. Brutal.
This case is just another "let's beat up a loudmouth we don't like and pat ourselves on the back" operation in a long string of post-911 cases claiming to thwart terrorist plots:
1. Government agency finds a loudmouth they don't like.
2. Undercover agent contacts loudmouth, then badgers and cons loudmouth into violating some arcane federal statute, or doing something that can be construed as "terrorism".
3. Agent supplies the necessary weapons, tools or means of "terrorist attack".
4. Agency crows and congratulates itself for thwarting a terrorist attack.
Without government involvement, no attack would have been advanced beyond drunken babble before the so-called "terrorists" passed out and slept it off.
The only purpose these operations serve is to terrorize naive citizens into believing that the government officials who conceived the operation are their courageous protectors. They are not courageous protectors. They are only interested in arrogating more arbitrary power for themselves.
They are the same punks and bullies who beat up third graders when they wanted to be playground boss in elementary school. They just happened to be smart enough to realize they can always get away with it if they get a shiny badge and license from the government. As a bonus, the more outrageous their behavior toward ordinary citizens, the more target rich their environment becomes.
The same statute under which Mr. Goldberg was charged also defines "weapons of mass destruction" as "any weapon involving a biological agent, …" See page 3 of the linked complaint.
Human flatulence involves biological agents. Farting in the general direction of someone is a weapon of ridicule, which the law has now transformed into a weapon of mass destruction because it "involves a biological agent". Do not teach or demonstrate how to fart in the general direction of any government institution or agent. If you do, they will be delighted to indict you too.
RE: Paradigm Spider
These particular actions that led to the charges may not qualify as him being a troll, but look into the other 99% of the things he has said online.
From Newsday:
""Australi Witness" had a long trail of tweets, many of them vilifying Jews as "filthy cockroaches" and threatening attacks on synagogues. On another occasion, Goldberg, who is Jewish himself, hijacked the identity of a prominent Australian Jewish lawyer, Josh Bornstein, to make a blogpost on the Times of Israel site advocating the "extermination" of Palestinians. The post was taken down and denounced by Bornstein. Meanwhile, another Goldberg persona posted on a neo-Nazi site bragging about the hoax.
Still another Goldberg fake, "Tanya Cohen," was a radical feminist who wrote articles attacking sexism in video games and calling for laws banning hate speech — while his neo-Nazi alter ego attacked Cohen with anti-Semitic and sexist epithets.
Under his own name, Goldberg posted articles on the Thought Catalog website espousing free-speech absolutism and criticizing the zealotry of "social justice warriors" who battle political incorrectness. It was one of those pieces that he tweeted to me asking for my opinion. The article attacked Amnesty International, a target of Goldberg's obsessive hate, for double standards in supporting Pussy Riot, the Russian activist punk singers prosecuted for a protest in a church, while supporting laws against hate speech and supposedly backing a ban on the 2006 Danish cartoons satirizing Muhammad. I thought that while the article made some good points, it also had exaggerated and unsubstantiated claims. I told Goldberg as much. We argued in circles for a while until he gave up."
Still think he's not a troll?
RE: En Passant
What about the millions of loudmouths the government hasn't and won't prosecute for sharing bomb making materials?
What about the 2.64 billion results on Bing for 'How to make a bomb'? Including the dozens of videos and wikihow's.
What about the fact that the Anarchists Cookbook (motto: "Turn on, Burn down, Blow up") is still available for sale?
This isn't a free speech case. This is about a troll trying to get someone else to kill people. If you want to find out how to make a bomb, head on over to an internet search engine and learn all you want until your hearts content. Nobody will break down your door and arrest you until you try to use that information to harm someone else.
From a legal perspective, does it matter that he provided links to websites that had the bomb making information rather than giving the information himself? Would the situation change if he had instead recommended books on amazon or simply said that the information was easily available via google searches?
Yes, who could possibly have guessed that getting someone to make and detonate a bomb for you might be against the law?
Sounds like a put up job to me. I'm betting the "confession" above was the troll saying "I pointed him at this web site", and the Special Agent ran with "whatever the web site said, the troll said".
Mikee says September 16, 2015 at 10:33 am:
The publishers invite someone else, the readers, to make a bomb and blow it up, with the intent that they would. Building a bomb and exploding it would be a federal crime of violence. Why shouldn't they be prosecuted under the same law? In fact, since its publication there have been calls for removing it from circulation and for prosecution of those who wrote and/or published it. But those prosecutions never happened.
From what I've read, this Joshua Goldberg guy appears to be a total asshole. I wouldn't give him the time of day. But from the facts stated, he pointed somebody to bomb making instructions and said, in effect, "build one and blow it up". Just like the publishers of the Anarchist Cookbook did on countless occasions.
You misconstrue my point, whether intentionally or not. As countless people reasonably well educated in STEM subjects do, I already know how to make bombs, including a crude nuclear bomb. I have neither inclination nor intention to do so.
I pointed out that inviting someone to fart in the general direction of a federal institution or employee would technically violate the same statute under which Goldberg is prosecuted, because farting involves "biological agents", and "biological agents" are broadly defined by the statute as being "weapons of mass destruction".
So, for my own protection from overzealous prosecutors, I emphatically state that nobody should even think of, let alone act upon, farting in the general direction of any federal institution or person.
Goldberg is being prosecuted because the government perceives him to be a bad person (maybe even accurately), but they choose to prosecute him under an arcane and muddled "catch-all" law. If he is as bad as they think he is, why not prosecute him for clear crimes that they believe he has committed?
Instead, they rely on a "confidential informant" who claims Goldberg pointed him to bomb making instructions and said in effect "make one and blow somebody up."
If they really have evidence that he solicited someone to commit a federal crime, then why not just prosecute for solicitation of a federal crime?
Are they just too lazy to actually investigate the clear cut crimes they believe he has committed?
The DMCA case has already been done elsewhere, as indicated in an earlier comment. Unless they substantially screwed up or left something out, a rehash by Ken would be amusing (as always) but unnecessary. I'd much rather he tell me something new, like this.
RE: En Passant
You think the publishers of the Anarchists Cookbook invited people to build bombs and then instructed them where to place it to achieve a high kill count? So you've never read the book then and you're just making shit up as you go?
There's a difference between the two. One provided information on how to do something, the other provided information on how to do something and then directed that information to be used in a violent and specific manner against other people. I'm finding it hard to believe that you can't understand that difference. Are you intentionally being that obtuse to score some anti-guvvmint points?
Write about the sanctions against John Steele. You've been sadly negligent on the Prenda front lately.
Mikee says September 16, 2015 at 7:08 pm:
Yeah, that must be it. Doesn't everybody want to score enough anti-guvvmint points to inspire some ambitious jackasses at DOJ to enrich his life with a felony complaint?
Think for a second or two. Most everyone agrees that Mr. Goldberg voices obnoxious opinions. But somebody at the DOJ decided he's so obnoxious that they had to charge him with a crime. So they gin up a crime where none existed before.
They send in a confidential informant pretending to be a terrorist, whom they hope they will never have to identify. The CFI swears that Mr. Goldberg told him where to find out how to build a bomb, and encouraged him to build one and blow somebody up with it. Based on that statement by somebody who will likely never be publicly known, they file a criminal complaint.
If the DOJ had not decided to target Mr. Goldberg for being obnoxious, nothing would have occurred that could be charged as a crime. But they succeeded in creating a crime where none existed before. So, scratch one guy whose speech somebody at DOJ decided was too obnoxious to leave alone.
All I've done is point out that suggesting someone fart in the general direction of a federal institution or person could draw a criminal complaint under the same statute they are using against Mr. Goldberg. If some attorney at DOJ thinks your speech offends his precious fee-fees, he can always find an anonymous informant to swear you told him to do that.
Goldberg, and every other citizen including you, only have freedom of speech as long as your speech doesn't offend some jackass at DOJ.
Whether DOJ can get a conviction is beside the point. The punishment is the process.
"Human flatulence involves biological agents." I would note that human flatulence involves greenhouse gasses too.
Damn, the Anarchist's Cookbook, talk about a really old reference.
Perhaps it is time to change the law from Not Guilty by reason of mental disease/defect to Guilty by reason of mental disease/defect with appropriate sentence to be served in an appropriate facility capable of providing treatment.
I guess we need a law making it illegal to teach people how to use ponies to indoctrinate children with the false and harmful belief that ponies are cute and love children. Ponies, and pony rides, are a real physical danger to children. Not only do ponies often bite children, and infect their skin with germs, they also damage the minds of children; stand near a pony ride, and observe the children who have already been on the ride, and are leaving. There will be lots of tears and mental anguish tormenting these children. Sometimes children who haven't even been on the ride yet show signs of addiction and withdrawal; merely seeing other children riding ponies, and contemplating riding a pony, can cause harmful pony addiction in children. There is no known effective treatment for pony addiction.
So having established that pony rides are child abuse under existing statutes, I think it is high time we criminalize teaching about ponies, when combined with the intent to encourage or give comfort to pony riding.
OK, now do the DMCA one.
What would be a conspiracy but with only one conspirator.
The Feds troll better than anybody.
Sha'n't, not shan't