On a cool February morning in 2011, the sun barely over the horizon, police special forces, some wearing full environmental camouflage, descend upon a house. After setting up a perimeter, they squeeze it shut, enveloping the house from all angles, assault weapons drawn. Apparently, they weren’t very good at being sneaky, because there was no need to bust down the door. The homeowner answered the door and let the police in.
One would expect that for such a massive operation, the police must be raiding a meth lab, whore house, or, at the very least, a cock fighting ring. That assumption would be completely wrong. Instead of some small-scale Manuel Noriega, the police were there to arrest a computer programmer: Robert Stuart.
Surely this programmer had been active in high-level hacking. He must have been instrumental in digital incursions into banks or government agencies. At the very least, he was a member of Anonymous. Again, one would be wrong for assuming that. He made software for online gambling. This could theoretically be illegal, and lord knows, the history of gambling isn’t exactly savory. But as we will see, Stuart isn’t some Meyer Lansky-type character. He and his company made software that in itself was unremarkable and completely legal, and then sold it to companies in countries where online gambling was also completely legal. He wasn’t involved in the gambling, nor did he himself apparently gamble. Obviously, he had to be punished.
Welcome to the American legal system, bitches.
So who is Robert Stuart? He’s a programmer. Specifically, he created the back-end software (the stuff that users don’t usually see, but what determines and manages what the users do see) for online sports books. He is the very definition of mild-mannered. Now, it is generally accepted as wrong to judge a book by its cover in any instance, but in this case, it seems safe to conclude that calling him a criminal in need of a SWAT team is downright stupid.
Even if the SWAT invasion was actually appropriate, there was little justification for authorizing the raid in the first place. Stuart’s company, Action Sportsbook International, isn’t an element of the actual mechanism for accepting bets. It’s not affiliated with any casinos. All the software does is organize the data of things on which customers can bet. He is essentially offering database designs tailored to game management.
And it gets better! The disconnection is actually two-fold. Not only does his software have nothing to do with placing or accepting online bets, most of his clients are themselves not in the business of placing or accepting bets. ASI’s license allows its clients to modify and sub-license the software to the companies that are actually accepting bets. So, as it stands, we have Stuart, a programmer, whose product is sold to companies who are not doing anything illegal, who then modify it without Stuart’s input for other companies that are doing something that is completely legal in their country. No one, it seems, is breaking the law.
Let’s assume, for the sake of argument, that the police aren’t completely lying and one of the companies down the chain is indeed operating illegally in the U.S..1 That doesn’t change anything. Stuart isn’t involved with them. Stuart doesn’t know them. Stuart is in no way responsible for the actions of these other people. We don’t prosecute gun manufacturers for murders. We don’t prosecute Ferrari for speeding. It is well-understood legal precedent that a legitimate product used for illegitimate purposes does not put responsibility on the manufacturer of that product. It’s also just plain common sense!
But seeing as this is the American legal system, that didn’t stop anyone from going forward with the operation.
The raid turned out to not have been initiated in Arizona, but New York. Police officials from The Empire State collaborated with Arizona in the operation and apparently used The Copper State as something of a puppet. Why New York is so obsessed with online gambling and Arizona is not has yet to be answered. Perhaps because Arizona is too busy hating Mexicans.2
After the raid, and after all of his computers were hauled away, Stuart wasn’t charged with anything. Instead, he was brought in for questioning the next day. There, without any input from or interaction with a judge, Stuart was pressured to take a plea deal under the threat of having both himself and his wife sent to jail for thirty-five years.
The charges against him, which at this time were still unknown, would be dropped if he was willing to install “back doors,” secret access to a computer system, into his software. Thus allowing New York authorities to spy on various companies and gain access to user lists. Their thinking, if one can call it that, was apparently to track possible users in New York who were accessing as-yet unnamed casinos. If that involved stomping all over the rights of an innocent businessman, then so be it!
|Photo: Ariel Zambelich/Wired|
“They made it clear that they would do nothing. I was expected to do everything, to modify the system to allow myself to get in to get the information they wanted,” he says. “Their whole intention was for me to retrieve information from those databases that were located in foreign countries…. They were going to use me to get to the clients…. But I’m not a hacker, I’m a software developer.”His reneging on the original agreement to be a spy is, according to Stuart, the reason why he is now being charged. He says that New York is retaliating. I suspect that it is less retaliation and more New York charging him because they need to try to save face after being exposed as bullies who may actually be breaking the law. As Jennifer Granick from Stanford’s Center for Internet and Society points out,
“Sending something to backdoor people’s systems and to steal customer data would violate the CFAA and would without a doubt be crimes in any country in Europe... Many of these people will not be Americans, and it’s not unlawful for them to gamble, but [authorities] are taking their usernames and passwords. Someone needs to be investigated, but I’m not sure it’s [Stuart]…. If I were his lawyers, I’d be investigating to see where they got the idea that this was okay.”Where indeed. Perhaps they are taking their lead from the Federal Government in citing the statute of “whaddaya gunna’ do aboudit?” Regardless, this seems like the more likely reason for the indictment: if they don’t indict him, they are essentially admitting that they were trying to quietly side-step the law. If they admit that, they may run the risk of getting a stern talking to, or worse, a slap on the wrist! It’s so stressful being in a position of almost complete safety.
I’m getting ahead of myself with that. Before we begin an analysis of the failings of New York’s police, let's see for what Stuart was actually indicted? After eighteen(!) months from the initial home invasion, he was charged with a single count of promoting gambling. According to New York authorities, Stuart “knowingly advanced and profited from unlawful gambling activity by engaging in bookmaking to the extent that they received and accepted in any one day more than five bets totaling more than five thousand dollars.”
That’s not what the initial threats were, though. The greatest charge against Stuart was money laundering in the first degree — used as justification for three decades in jail and to which he initially pleaded guilty — a charge which mysteriously disappeared when he was actually indicted. In fact, more charges may have disappeared, but we don’t know, and may never know. The affidavit used to invade Stuart’s home is sealed. Even Stuart and his lawyer have never seen it. Neither have they been allowed to see which of Stuart’s clients are supposed to be violating New York law. So much for facing one’s accuser.
Shockingly, New York has defended its actions and insists that what it did was lawful. Because, haha, obviously they would admit to breaking the law! Police never do anything knowingly wrong, that’s why they’re the police and not the bad guys! And even if they do something wrong, it’s for the greater good. “Truuuuuust us!” they say.
In fact, that is the only defense proffered for the raid. Any further explanation would have required, ya’ know, words, and instead of making those words, New York officials took a page from the Federal Government’s playbook and simply refused to discuss the case. When interviewed by Wired Magazine, Daniel Alonso from the Manhattan D.A. was only willing to say,
“The provision you have questioned is perfectly consistent with the obligations of all law enforcement officials to follow state and federal law to secure evidence of criminal conduct... The staff of the Manhattan District Attorney’s office involved in this case, both prosecutors and investigators, have behaved ethically and consistent with their obligation to seek justice in every case.”Stuart’s version of events, if true, casts serious doubt on these claims. Most, if not all, of the companies that would be using ASI software are based outside of the U.S. New York officials would thus be invading the computers of companies under the laws of other countries, likely without the knowledge of officials within those countries. Somehow, that doesn’t seem legal. Probably because, as Granick pointed out earlier, it isn’t. One has to wonder whether the state department is annoyed by what appears to be significant overreach.
As it stands, Stuart’s company has had its revenue more than halved. He is being forced to spend thousands of dollars defending himself in a state that is 2,500 miles away, and the case against him is weak at best. Obviously, New York has thrown down its gauntlet. They cannot turn back now. Their only hope is that Stuart either runs out of money, or some incredibly damning evidence is presented in support of their accusation. Otherwise, I cannot see them winning this case.
In my opinion, this is a colossal failure of both New York and our entire justice system. It doesn’t matter that Stuart is likely innocent of any wrongdoing; his business is damaged, his reputation is in the toilet, and he has to spend tons of money defending himself. It is a terrible miscarriage of justice and a perfect example of why transparency and oversight are necessary elements of any just society.
Moreover, the true criminals are the ones who will never face reprisal: New York authorities. They have smeared a person and a business, violated international treaties and laws, and done so with little concern for ever having to face consequences. They are free to violate rights whenever they please. Calling them the Gestapo is an exaggeration, but we’re getting far closer to it being accurate than we ever, ever, should have.
The prosecution of a commercial programmer for crimes committed by people who used his software would set a dangerous precedent for other software makers who might be held liable for how their legally licensed software is used, says Jennifer Granick, director of civil liberties for the Center for Internet and Society at Stanford University.Obviously, the representative of an organization that is trying to appear measured and professional can’t go as far as someone who is, say, an anonymous, pissed off, type-A, Internet popinjay. This is more than merely dangerous precedent! This is outright flouting of the law that the police supposedly represent. Considering the current state of American enforcement and judiciary, that officials are willfully ignoring the law and international treaties to further oppressive campaigns of pseudo-justice shouldn’t come as a surprise, I suppose.
“It’s scary for software distributors, if someone happens to use their software for illegal activity,” she says. “If you know what people could use it for, and didn’t prevent it, did you take enough steps? What level of knowledge you need to have and all of that is not as clear as it should be [under current laws].”
While I may find hyperbole a better fit for the events, Granick’s more subtle point remains valid. This is a chilling case in the very legal definition of the term. Namely, it chills otherwise legitimate behavior because people are afraid of being attacked by an oppressive government. If a software developer who is not doing, and has never done, anything wrong can simply be hammered in court because some authorities somewhere in the country decide to be oppressive, what is going to happen to economic development? Will it go to another country? Will it even happen at all?
It has already had a direct and immediate chilling effect. Stuart’s company had over twenty clients. He now has ten. Ten. He lost over fifty percent of his client base in a matter of weeks because of this. Just think about how startling this must be to his clients! They are buying something legal, from a lawful company, to do something that is legal where they are operating, and now they discover that authorities in another country are trying to illegally strong-arm the company to spy on them. How many companies are going to do business with companies in the United States if they know that authorities here will disregard laws and treaties to spy?
I’ll venture a guess. None. None.
I am very happy and thankful that Stuart decided to fight the case, because if he hadn’t, we wouldn’t know that this all took place. We wouldn’t know that New York decided to take both interstate and international law enforcement into its own hands. We wouldn't have yet another example of justice failing in the land of the free, and the home of the brave.
1: I admit, I’m being a bit heavy on the vitriol, but I think that New York deserves it. In their defense, there are many companies that are serving American gamblers through illegal channels. By that, I mean that there are elements of the operations based in the United States. As such, efforts to fight these operations are legitimate.
2: Arizona does have some history of this. Aside from noted scumbag Bill Frist, one of the primary supporters of the UIGEA was Arizona Senator Jon Kyl, who was instrumental in sneaking the bill through congress without debate. Kyl, because he is also a scumbag, just less-so, would later sabotage government functioning because of his anti-gambling crusade. He has retired from congress and has entered the "revolving door" of politicians becoming lobbyists after accepting positions at the American Enterprise Institute and Covington & Burling.