The Spam Diaries

News and musings about the fight against spam.
 by Edward Falk

Tuesday, March 21, 2006

Today's court hearing in the computer crime case

I had my second court hearing today; this time in the Sierra vs Ritz & Falk case. It dragged on forever, and will have to be continued until another day.

There are a couple of issues that pertain to jurisdiction. The first is: what, if any, contacts I made with North Dakota, and the second is: was I involved in a conspiracy with David Ritz to illegally obtain DNS data from Sierra.

We had hoped that Judge Racek's decision on the first issue would be taken as precedent by Judge Irby, and we could limit ourselves to the issue of conspiracy. Unfortunately, it was not to be the case, and so we had to settle in for the long haul.

Most of what Harristhal talked on the contacts issue about was the same as before. He still won't give up on the "inner-circle" mailing list. He also asked me if I considered myself a hacker or had ever called myself a hacker on the internet. I said no, and he triumphantly pointed to my web page, which is listed under "hacker artists" at I had to explain that the original definition of hacker meant a very clever programmer. I also pointed out that I did not call myself a hacker on that web page, but that the owner of had chosen that designation.

Harristhal sprung another surprise on me: He asked me if my web site has cgi scripts. Well, yes it does; if you click on a header in a spam report, a cgi script extracts the one header you selected and returns it as a web page. Amazingly, Harristhal insists that the use of cgi scripts makes a web site interactive. That came from so far out in left field that I was left stunned for a moment. Unfortunately, because John Levine was sequestered while I testified, during his cross examination by Harristhal, he had no idea what Harristhal was talking about.

Anyway, the fun really began when my lawyer, Kelly Wallace (of Wellborn & Wallace) started quizzing Brad Allison, Reynolds' sysadmin. Under questioning, Allison admitted that DNS transfers are ordinary network operations. He also asserted that he didn't know what port 25 is, or whether or not you can telnet to a mail server. This probably makes him the world's most incompetent sysadmin. As the questioning got closer to having Allison admit that doing a DNS lookup is not, in fact, against the law in any way, Harristhal popped up and started objecting like crazy. He kept insisting that this was not relavent to jurisdiction. Kelly Wallace insisted that it was, for the obvious reason that if there's no crime, there's no conspiracy. And then Harristhal was like "hey, that's not fair, we had no idea you guys were going to bring this up. This is trial by ambush; you guys gave us no indication you were going to do this", and we're all "Nuh uh, look in the affidavits, both Falk and Levine mentioned this", and then the judge is like "Yeah, I'd like to hear this too", and now Harristhal is all "But I gotta plane to catch in an hour, and I need more expert witnesses".

Well, maybe the dialog didn't go exactly like that, but I'll have a court transcript as soon as I can. Anyway, it was a real shame that we didn't get to finish this just when it was starting to get interesting.

So the upshot is that the hearing has been continued to a later date and I have no idea when we'll finish. Harristhal is going to find expert witnesses (apparently he's realized that putting Allison on the stand wasn't such a good idea) to explain what DNS is, and probably to explain what a "hacker" is. Now I need to come up with more expert witnesses of my own and maybe buy plane tickets out there.

In other words: To Be Continued.

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