FC: More on Brian K. West, DOJ, and "Good Samaritan" prosecution

[Declan McCullagh <declan () well com>]

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In-Reply-To: <5.0.2.1.0.20010825100116.00accec0 () mail well com>
Date: Sat, 25 Aug 2001 19:41:18 -0400
To: declan () well com, politech () politechbot com
From: John Noble <jnoble () dgsys com>
Subject: Re: FC: U.S. Attorney replies to "Good Samaritan" outcry with
 statement
Cc: gharlanr () bellsouth net

It's an interesting defense -- accidental penetration. Maybe somebody on
your list, Declan, who knows more about network security can answer this
question: if a hypothetical cracker was nailed by real-time monitoring -- a
"gotcha" while online and inside the network -- would he likely know it or
suspect it? Or can we assume that his voluntary report of his accidental
accomplishment was the product of good faith and stupidity?

John Noble

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Date: Sat, 25 Aug 2001 11:30:21 -0700
From: Anthony Mournian <mournian () acusd edu>
To: sheldon.sperling () usdoj gov, Declan McCullagh <declan () well com>

August 25, 2001

Sheldon J. (Shelly) Sperling
United States Attorney
Eastern District of Oklahoma
1200 West Okmulgee
Muskogee, OK 74401
sheldon.sperling () usdoj gov

Re: Brian K. West

Dear Mr. Sperling:

I have been following this matter and received a copy of your message
regarding the ongoing investigation.

I appreciate the U.S. Government's vigilance and attention to the law.
However, based on my limited knowledge of the facts in this case, and 25
year career as a trial lawyer (two facts which are at odds with one
another) I wonder just what is happening here.

Probably the single thing that bothers me most is the apparent offer to
settle the case if Mr. West enters a plea to a charge, and yet you say
he has not been charged. If I had received your offer to plea to the
charge I suspect I would have felt as threatened as does Mr. West.

Somehow this whole thing of Internet security has begun to turn upside
down. It has a chilling effect on free and open communication when it
becomes a crime to talk about the possibility of breaching security, or
to discuss it in an open forum. It has a chilling effect on free speech
when the U.S. Government decides to act like the 800 lb gorilla and go
after a person like Brian K. West, who did in fact look at the content
of another person's computer, and had the common sense to report the
complete lack of security to the computer's owner.

Funny, I feel even by writing you this note I invite investigation by
Big Brother. As I read other articles, I see reference to Carnivore
becoming a part of all our lives, as the FBI, and thus the U.S.
Government, listening in or recording, or examining private
communications at will. Yes, of course, the goal is noble that the Good
Guys want to catch the Bad Guys, but there are a lot of us Other Guys
who don't want Big Brother sticking its nose in our business, reading
our mail, or listening to our phone calls.

Much of this note is off the point, and yet is directly on point. The
U.S. Government is too much in many of our lives already, and this
newfound Mecca of computer investigation and The Hammer for those who
even technically step off the line, as apparently did Mr. West, is a bit
too much.

Yes, you can decide to hammer Mr. West. Yes, you can put the fear of Big
Brother in many of us, and yes, you will contribute to the continuing
loss of Free Speech in a way that saddens me, and will affect the unique
society we call the United States of America.

I hope the U.S. Government sees the light and acts in a common sense
manner in the resolution of this matter. Brian K. West is no more a
criminal than you are, and he does not deserve to be treated like one.

Best regards from SoCal,

Anthony F. Mournian
Attorney at Law
4770 Kane Street
San Diego,  CA 92110
California State Bar #55952
mournian () acusd edu

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