THE RIAA MAY BE ENGAGED IN A CRIMINAL CONSPIRACY

Though I'm not a lawyer, that won't stop me from joining, and expanding on, the Volokh Conspiracy to expose the the RIAA.

some of the things the record companies are thinking about doing strike me as pretty clearly illegal. This is pretty odd given that the record companies are otherwise trying to defend their own legal rights.

...The article notes that the record companies are being held back from this plan in part by legal considerations, but the only laws that the article mentions specifically are the federal and state Wiretap Acts. I found this a bit odd, as I don't see a Wiretap Act violation here.

So we have a consortium of powerful record companies admitting they're researching how to attack computers and competitors in ways they admit are probably illegal. They claim they may hold off on the illegal attacks, but since when is it the responsibility of federal prosecutors to assume they will?

It could be argued before a judge that the reason they've taken to researching illegal hacking methods is that one or more persons have already discussed the possibility of committing those criminal acts to increase their bottom line. They've also likely discussed how there's little chance they can realistically achieve their objective with legal means, and are willing to test the law. At best, they're discussing how they can break into computers and disrupt computer networks to create fear, while using their power to escape criminal liability or just pay a few million in fines. It's worth it to them as long as they avoid jail. In my view, the planned attacks, and the fear they specifically want to generate, is best defined as cyberterrorism. In fact the RIAA tried to get an exemption for their designs in recent anti-terror legislation because they knew it was otherwise illegal. But that failed. So all the joint planning, weapon research, and scouting of targets could be considered criminal conspiracy to commit that terroristic act.

Besides the RIAA conducting detailed research and testing of destructive code, a probe on millions of computers was just launched in preparation for their attack. They're taking various legal steps in furtherance of an illegal plan. That's a trigger in conspiracy laws. Though the RIAA would call it simply "sending a message," they just jiggled the door handles as they threaten to enter the houses and destroy music collections. The RIAA has been hoping their supporters in government will look the other way as they proceed to attack consumers in a legal no man's land. They want new laws to protect them, but for now they may be breaking the law. The network and computers are not owned by the record companies.

While they admit the techniques being discussed and developed are probably illegal, all that appears to be stopping them is their engineers developing the perfect "smart weapon" that will produce massive "shock and awe" but reduces collateral damage. It's touching that they want to fight like the United States, but the RIAA is not a government at war. They should not be given that power by the Justice Dept. Nor should they be allowed to fight like terrorists either. Where is the measured response? In a case like this, the FBI actually has a duty to act pre-emptively to halt what looks to be a long-term criminal conspiracy finally about to unfold. They would do the same with any other plan for massive cyberattacks, despite the conspirators claim to have innocent intentions. The fact that it's being coordinated by billion-dollar corporations makes it an even bigger threat to public order.

I propose the FBI immediately obtain search warrants and seize all software, documents and email related to any discussions or plans to disrupt international computer networks, and to attack the personal computers and files of U.S. citizens.

The RIAA appears to have crossed the legal line already and they don't care who knows it. In your face America. How do you like the chill of unbridled power with political clout threatening to invade your property? Maybe they'll spare us destruction at their hand if we submit to their will, maybe not. The king alone shall decide our fate. If consumers want to have any of their power, they must live under a virtual Sword of Damocles. The message here is: don't endanger the control of powerful big business monopolists if you don't want to be crushed. Shouldn't John Ashcroft defend Americans against all criminal threats, including those that may be coming from lobbyists?

Here's some more from a non-authoritative guide to hacking laws:

D. CONSPIRACY

Whatever happened to getting off on a technicality? I'm sorry to say those days are gone, left only to the movies. The courts generally dismiss many arguments as "harmless error" or "the government acted in good faith". The most alarming trend, and surely the root of the prosecutions success, are the liberally worded conspiracy laws. Quite simply, if two or more people plan to do something illegal, then one of them does something in furtherance of the objective (even something legal), then it's a crime. Yes, it's true. In America it's illegal to simply talk about committing a crime. Paging Mr. Orwell. Hello?

Here's a hypothetical example to clarify this. Bill G. and Marc A. are hackers (can you imagine?) Bill and Marc are talking on the phone and unbeknownst to them the FBI is recording the call. They talk about hacking into Apple's mainframe and erasing the prototype of the new Apple Web Browser. Later that day, Marc does some legitimate research to find out what type of mainframe and operating system Apple uses. The next morning, the Feds raid Marc's house and seize everything that has wires. Bill and Marc go to trial and spend millions to defend themselves. They are both found guilty of conspiracy to commit unauthorized access to a computer system.

E. SENTENCING

...Apple Computer Corporation estimates that if Bill and Marc would have been successful it would have resulted in a loss of $2 million. This is the figure the court will use. Based on this basic scenario our dynamic duo would receive roughly three-year sentences.

F. USE OF A SPECIAL SKILL

The only specific "sentencing enhancement" I would like to cover would be one that I am responsible for setting a precedent with. In U.S. v Petersen, 98 F.3d. 502, 9th Cir., the United States Court of Appeals held that some computer hackers may qualify for the special skill enhancement. What this generally means is a 6 to 24 month increase in a sentence. In my case it added eight months to my 33-month sentence bringing it to 41 months. Essentially the court stated that since I used my "sophisticated" hacking skills towards a legitimate end as a computer security consultant, then the enhancement applies. It's ironic that if I were to have remained strictly a criminal hacker then I would have served less time.

Looks like the RIAA should have just hired hackers off the street. Any hired "professional" consultants that conspire to illegally hack computers are held to a higher standard under the law.

More background info here, via Winds of Change