Category Archives: Legal

Update on NYS Bill A2736

A while ago, I wrote a short post about a piece of legislation in New York that would prevent police and prosecutors from using the presence of condoms as evidence of prostitution. The State Assembly session is almost over and that bill, A2736, still has not been brought to the floor.

Here’s what Red Umbrella Project has to say:

We need help from New Yorkers to get the bill to pass the Assembly before the end of session (which is tomorrow). Here are two calls you can make that really  make a difference. Each will take less than a minute:

Call Speaker Sheldon Silver’s office to urge him to put bill A2736 to a vote on the floor! The number is 518-455-3791

We are confident that we have the votes to pass the bill  once it is on the floor, but we need to MAKE SURE so please call your  Assemblymember and ask them to VOTE YES on A2736! You can find the info  for your Assemblymember here. Call your representative’s Albany office.

I have already made both calls, and I encourage you to do the same. NYC Department Health and Mental Hygiene distributes free condoms all over NYC free of charge. The Center for Disease Control even highlights that program as an example of a structural level intervention. This bill would prevent police and prosecutors in NYC and all over NYS from undoing the work of many government and nonprofit groups across the state.

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Here, there, and everywhere: when policing practices don’t line up with public good

The NYPD’s Stop and Frisk practices have garnered much attention recently, and rightly so. There have been a bunch of videos of men of color talking about their experiences with Stop and Frisk in NYC. The Open Society Justice Initiative just put out a video that covers the equivalent in Britain. Here’s the full report: Viewed with Suspicion: The Human Cost of Stop and Search in England and Wales.

Last year Open Society Foundations’ Public Health Project put out Criminalizing Condoms, an amazingly strong report comparing policing practices regarding the criminalization of condoms in Kenya, Namibia, Russia, South Africa, the United States, and Zimbabwe. There was also a good video that accompanied it and included the voices of people directly affected.

It’s good to remember that our policing problems in the United States are not unique. It’s also sad since this really hurts people and communities and it would be far better if nowhere had these problems. Even with Stop and Frisk, we in New York City are not isolated as people working on the issue may sometimes feel.

On a happier note, last week’s lobbying to support bill S1379/A2736 in Albany reported went well. Bill S1379/A2736 would ban the use of condoms as evidence of sex work in New York State. Red Umbrella Project has more information available here.

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When Activism Goes Online: Anonymous, Hacktivism and the Law Lecture at NYLS

A couple weeks ago I went to a “When Activism Goes Online: Anonymous, Hacktivism and the Law” at New York Law School, co-sponsored by the Institute for Information Law and Policy, National Lawyers Guild- National Office, and Students for Free Culture. The panelists were Kenneth Citarella, an adjunct professor at NYLS and former prosecutor who specialized in computer crimes starting in the 1980’s, Abi Hassen, Mass Defense Coordinator with the National Lawyers Guild, and Grainne O’Neill, a defense attorney specializing in the intersection of law and technology.

Citarella talked a little bit about his experience as a prosecutor of computer crimes very early on. One of his main points is that he strongly dislikes the word hacker, specifically because he doesn’t feel like he known what it means. Later on in the evening he emphasizes the difference between in person actions and actions mediated by technology, without clarifying exactly how. Mainly, I think that he served as a prosecution-side counter point to the other speakers. The most interesting thing for me was hearing how generally conservative he is in his interpretation and squaring that against his early involvement in the Electronic Frontier Foundation, which serves as a good reminder that civil liberties is an area where many people can find common ground.

O’Neill started by talking about the Computer Fraud and Abuse Act (CFAA) of 1984. The CFAA was conceived of and passed in a time before the internet as we know it- both socially and technologically- and was passed to specifically protect financial institutions, the government, and interstate commerce. For purposes of the CFAA, “unauthorized access” is defined by the computer or website’s Terms of Service (TOS), violations of which would otherwise be only a matter of contract law, not criminal law. In effect, CFAA empowered private companies to dictate criminal law through their TOS. The CFAA’s definition of damages sets a low standard.

After covering the basics of what the CFAA, O’Neill compared the penalties for online behaviors to their closest offline equivalents. She placed a DDOS (distributed denial of service) attack as similar to a picket, since both are intended to provide visibility to the activists’ displeasure with the target. Theft of a cheap laptop in a coffee shop that contained sensitive information might be punishable by a year in jail, but accessing the same information via an unsecured wi-fi network would get up to 10 years in prison under the CFAA, and in that senario, the victim hasn’t lost use of anything. Even assuming that that the laptop is more expensive and taken from a home, burglary in New York has a maximum sentence of 7 years, which is still less than allowed for remote entry under the CFAA, and involves someone physically entering one’s home. After going over the potential disparate treatment of crimes based on the involvement of hacking or not, O’Neill reiterated that many online crimes are criminalized under non-online specific legislation and that we should look to our rich history of jurisprudence in seeking to address

Hassan put together a PowerPoint presentation which he titled “The Fifth Estate: Information Activism in the Age of Secrecy,” drawing on the idea that hackers and information activists (including whistleblowers) may work for the public good, as a watch dog, much as the press, or forth estate, has. An example of this he gave was Hamed Al-Khabaz, a Canadian student who was expelled from Dawson College after finding and reporting a major security flaw in his university’s storage of student information.  He also emphasized the role of “lulz,” vaguely defined as humor or mischievous satisfaction, in hacking. His example of this was Guccifer’s release of George W. Bush’s remarkably bad self-portrait while showering.

Hassan’s presentation included a couple of really great quotations on related topics from Bloomberg and Thomas Jefferson. He showed graphs from Google and Microsoft of requests for user information from governmental agencies and emphasized the contradiction of increased government and corporate secrecy with the decrease of personal privacy and increase of individual surveillance at the same time. He also gave a great run-down of current major hacking cases in the United States:

And of whistleblower cases:

The best part of the lecture was the question and answer session after the structured presentation. I didn’t take great notes on that part, and since the lecture was back on April 3rd, my memory is not good enough to flesh out the discussion. Highlights included: Citarella arguing that federal sentencing guidelines are frequently too ridgid and pointing out that in the case of Matthew Keys we should strongly consider the difference between what the end result of his giving out passwords was with what it could have been in understanding it’s treatment in the courts; Hassan building on his early talk of current cases and mentioning that 95% of cases end in pleas, largely because of the power that prosecutors have in their discretion regarding charges and requests; and O’Neill stating that the freedom to assemble is really the freedom to assemble anonymously and that it is the anonymity is key to the power of the freedom to assemble. Other items of discussion including emergent 4th and 5th Amendment issues as well an time-place-manner restrictions on in-person protests and how that translates into online activism.

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Jail Support for OWS Arrestees

Reprinted from National Lawyers Guild New York City News, Fall 2012. Available at: http://nlgnyc.org/wp-content/uploads/2012/11/NYC-NYC-News-November2012-final4.pdf. 

“Jail support” is an umbrella term referring to various services activists provide for each other when arrested. Most of the time is means having people waiting with food, cigarettes, a friendly face, and basic medical assistance. It is a way that we take care of each other so we can come back again to make our voices heard.

I started attending protests in New York City a decade ago like many others, to oppose globalization from above,to stop unprovoked acts of war by the United States, and angry that the Republican party chose to hold their convention in NYC to further capitalize on the city and nation’s trauma. While the motivations for all of the rallies and marches were ongoing, the events themselves were finite in length, conceived and planned for that day. We went to pre-protest skill-shares, formed affinity groups, had phone check-ins with people off-site in case we all got arrested or separated, and always brought markers for writing the NLG’s phone number on our arms. Just as older activists shared this knowledge with us, we passed it along to new activists. At this time, the majority of jail support was organized by activist street medics, not legal activists.

Occupy Wall Street was different than any of that. It was spontaneous and rapid compared to anything I had experienced, with the planning and build-up taking months instead of years. People who had never been politically active heard about it and showed up without basic orientation to street activism and without people they already knew and trusted. These experiential differences combined with the nature of occupation as a tactic lead to radically different jail support needs than anything I had ever heard about, let alone experienced.

Initially, jail support shared the general spontaneity of OWS. There was a table for the legal working group in Zuccotti and jail support happened largely through word of mouth. People had effectively self-organized to meet most basic needs, like kitchen, sanitation, medical, and comfort, but jail support was always a scramble and we will never know just how many people were released without support early on. While waiting for arrestees to be released from the 7th Precinct in early October, Erick Setterlund and I sat down and started putting together a plan for a different way of responding to arrests. The three basic ideas that we started with were: remote coordination and dispatch using a Google Voice number that could be easily transferred between coordinators, premade bins of supplies with instructions so that anyone could step up to do jail support, and no meetings other than for specific, immediate planning. The goal was to make it as easy as possible to do jail support for the first time and to lower the threshold for participation. The remote coordination phone line also served as way that we could walk new people through the jail support processes and respond easily wherever and whenever the calls started coming in.

Our model diverged radically from how street medics tend to run jail support. When we found out about arrests, we sent out texts and tweets looking for volunteers, lined up coverage, stayed in contact until everyone was released, and passed legal information back to the NLG-NYC chapter office. As our relationship with the guild grew and we realized that that there was a serious lack of legal literacy, we started started seeing ourselves as activists working in resistance to the dehumanizing systems of the police state. Many people helped, but a core group of about a dozen amazing people spent an astronomical number of hours through bad weather and late into the night waiting for the release of arrestees.

Neither Erick nor I thought that we would still be coordinating jail support for OWS seven months later. Actions did not slow down significantly until the mid-winter, at which point the issue of planning for May Day already loomed large. OWS kept moving and shifting, setting up durable presences in Union Square, at Federal Hall, and outside Trinity Wall Street. Again, jail support found itself in a situation where the system needed to shift. The core jail support team went on strike, telling activists that they needed to learn and use the skills and legal knowledge we had been teaching. As we prepare for the one-year anniversary of the start of OWS, the jail support line is back up and running and we are again rethinking how to build a system that meets the needs of the movement.

As with any major projects, there were ups, downs, and notable events somewhere in the middle. Sometimes, we did really well and knew exactly where every arrestee was. Other times, there was confusion and people were released without support. Fundamentally, jail support is trying to work with a system that does not want to work with us. The NYPD learned about what we do and tried to frustrate the support and solidarity the community was offering by transferring arrestees multiple times, giving out false information on arrestee location, stonewalling lawyers and family members looking to confirm the presence of arrestees at precincts, and directly threatening, sometimes arresting, people on jail support. We also began seeing increasing usage of questioning for investigations, malicious use of psych holds, and a continued refusal to provide access to medical care for many hours or sometimes at all. These are not new behaviors for the NYPD. Many of us came from relative privilege regarding police interactions. Through jail support we saw the real impact of the NYPD’s practices.

We will need jail support as long as we have a judicial system based on a punitive model, and policing is a major means of social control of communities of color, Muslim communities, and political activists. I look forward to seeing the new ways that activists, the guild, and target communities are working together to take on a system that was not built in the public interest.

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