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U.S. To Drop Charges Against Sklyarov

Posted by timothy on Thu Dec 13, 2001 05:12 PM
from the in-exchange-for-testimony dept.
Government The Courts News
Schmerd writes: "The New York Times has a story saying that charges will be dropped against Dmitry Sklyarov in exchange for his testimony against his employer ElcomSoft." Si adds: "It looks like Dmitri might be home for Christmas. This is not the end of the trial, but it appears Dmitri has been freed, pending certain stipulations." jij adds this breaking news article on the Associated Press wire as well. (The AP story is also at Wired). Update: 12/13 22:23 GMT by T : sam@caveman.org links to a slightly more in-depth AP report at the Seattle Post-Intelligencer.
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  • I mean, this is great for Dimitry, but it seemed like a perfect case to test the DMCA against the First Amendment.

    • DOJ is biding their time.... (Score:5, Insightful)

      by Bonker (243350) on Thursday December 13 2001, @05:27PM (#2701425)
      The fact that it was a good test case is probably amoung the foremost of the reasons it was dropped.

      Say what you will about evil crackers and hackers who restlessly violate people's property. Dmitry was obviously not one of these people. He wrote a tool to do something that is still quite legal in Russia, and is considered to be quite a scholar and expert by many. Any competent lawyer would have been able to present him as such. He would have a huge chance of getting

      The U.S. has zero chance to uphold the DMCA unless they get precident behind it that come from using it to prosecute someone who they can present as having evil purposes... such as any of the alleged DoD crackers arrested this week.

      As long as the people who get involved in lawsuits are fairly upstanding individuals, they can't afford to prosecute. Once they come across someone who would probably be sent up the river even without the DMCA, then they'll prosecute.

      Just watch...

      • The fact that it was a good test case is probably amoung the foremost of the reasons it was dropped... As long as the people who get involved in lawsuits are fairly upstanding individuals, they can't afford to prosecute. Once they come across someone who would probably be sent up the river even without the DMCA, then they'll prosecute.

        Umm, just one thing: They haven't dropped the case, and they're still going to prosecute. The change is that they're going to prosecute Elcomsoft rather than Dmitry. As another poster said, this is really the best of all possible outcomes: the DMCA will be tested on a case in which arguably zero damage was done to the plaintiff and Dmitry gets to go home.

        Also, remember that it's possible that in spite of Congress' zeal in passing this law that the DOJ may not feel the same way about it. It's not unreasonable to think that law enforcement officials might see the DMCA as just another pain in the ass law they have to enforce as opposed to, say, rooting out terrorists (which is much more likely to earn a promotion). Maybe they want to test it and get it thrown out so they don't have to screw with it anymore.

      • Are they legally allowed to wait until someone breaks the DMCA "a lot" ??

        I know.. I know.. legal questions and slashdot shouldn't mix, but I'm curious

    • Re:Well that sucks ... (Score:4, Insightful)

      by omnirealm (244599) on Thursday December 13 2001, @05:58PM (#2701589) Homepage
      I mean, this is great for Dimitry, but it seemed like a perfect case to test the DMCA against the First Amendment.

      I couldn't disagree with you more. Dmitry was the absolute wrong test case. He is not within the jurisdiction of the DMCA, since he did not develop the software on American soil and he did not distribute the software in America. While his employer did distribute the software in America, Dmitry cannot be held responsible for the actions of his employer.

      This "test" kept Dmitry locked up on a foreign land away from his family for a crime he did not commit.

      The test case needs to be an American citizen, preferably a prominent university professor or researcher, who would publish an encryption circumvention technology, and who would be willing to go to jail in protest of the injustice of the law. This would not show contempt for the law; rather, it would show the highest respect for law.
  • Is this really a positive step? Wouldn't it have been better to have the law struck down in court as unconstitutional?

    Of course, it's definitely better for Dmitry.

    Twoflower

    • Re:A Positive Step? (Score:5, Insightful)

      by JScarpace (463675) on Thursday December 13 2001, @05:18PM (#2701371) Homepage
      The case is continuing in court, but it won't be against Dmitry, just Elcomsoft.

      This really is the best of both worlds. We get the opportunity to see the DMCA blown out of the water, and Dmitry gets to go home for the holidays.
      • And wait, it gets better. If Ashcroft and his DoJ pursue the case and win, courtesy of judges carefully bought and paid for, nobody gets hurt (except the civil liberties of Americans). Elcomsoft goes to a Russian court, which throws out any penalty because what they did wasn't against Russian law. Elcomsoft chooses its banks carefully and wisely, and the government can't collect. Asscroft looks like a fool.
  • If I've read the articles correctly, Dmitri does not have to testify against ElcomSoft. He just has to testify, whether for or against, it doesn't make a difference.

  • he is not testifying against his employer... (Score:5, Interesting)

    by tcyun (80828) on Thursday December 13 2001, @05:19PM (#2701373) Journal

    In today's agreement, Dmitry will be required to testify for the government and ElcomSoft expects him to testify for their case as well. The story Dmitry has to tell is exactly the same regardless of which side calls him to testify. Dmitry's story has not changed since that day in July, when the FBI arrested him in Las Vegas, and he is quite happy to tell his story again and again, if need be.


    - from the planetpdf article

    To say that he is going to testify "against" his employer seems to be a bit much. The various articles say that he will testify and that it is unsure which side will call him first.

      • answered my own question... (Score:5, Interesting)

        by brulman (183184) on Thursday December 13 2001, @05:28PM (#2701438)
        "...Joe Burton, lead attorney for ElcomSoft, reacted to today's outcome saying "I want to make a statement on behalf of ElcomSoft, my client -- Both my client and I have, since the beginning of this case, maintained Dmitry's innocence on any and all criminal activity. From day-one of the arrest ElcomSoft has been willing to have the Government proceed against them and NOT Dmitry. Burton further states "you may remember that ElcomSoft offered to take Dmitry's place and substitute the company as the sole defendant in this case -- The company knows that neither Dmitry nor they committed any criminal acts and believes that in the end, they will be found innocent of any and all charges the U.S. Government is bringing against them as well...."

        you know, this guy has a real class act employer.

  • freedsklyarov.org (Score:3, Funny)

    by waldoj (8229) <waldo @ j a quith.org> on Thursday December 13 2001, @05:19PM (#2701375) Homepage Journal
    [waldo@tux]$ whois freesklyarov.org

    AgentZero Technologies
    955 Massachusetts Ave #130
    Cambridge, MA 02139
    US

    Domain Name: FREESKLYAROV.ORG

    Record last updated on 13-Dec-2001.
    Record expires on 18-Jul-2002.

    [waldo@tux]$ whois freedsklyarov.org

    No match for domain "FREEDSKLYAROV.ORG".

    Hmm...

    -Waldo Jaquith

  • come one (Score:2, Interesting)

    by Anonymous Coward
    The Times carried the AP wire. Wired carried the AP wire. You also linked to the AP directly. Don't the editors read before they publish? They're all the same!
    • Twenty posts begging for a mirror?


      This story probably wont generate a slashdotting, in some part because of the number of different sites linked to.


      But somebody always has to complain about something then, dont they.

  • If you look at the facts this is a good deal for everyone.

    Dmitri gets to go home.
    He gets to testify about writing a legal program in Russia.
    The DMCA test case becomes US vs ElcomSoft.

    Unfortunately, I doubt the chilling effect on presenting scientific/research papers will get explored. Although he would be able to persue a judgement like Felton went for and not get it thrown out like his was.

    -Jerry
  • The DMCA still will be tried, and may or may not withstand judgement. However, no single person is getting the shaft from the long arm of the law which will help make this much easier on everyone involved on the defensive end.

    Let him testify, my guess is his testimonial will serve ElcomSoft better in defense.

    ... So, if he weighs the same as a duck ...
  • had better be willing to go to jail for his beliefs, in Russia, for an indefinite amount of time. Because otherwise, stfu.
  • The article states Dmitry lives in San Mateo with his wife and 2 kids. Did that change since the trial and he decided that he really did like the good ol' USA?

    At least they put on that Defcon was about hacking, you wouldn't want people to actually know it is a security conference that a lot of legitimate people speak and learn at.

    I thought /. reviewing of facts was bad.. geez.

    • Dimitry really did not have much choice. He was released from jail on bail provided he stayed in California. His wife and kids came to the U.S. because Dimitry was not allowed to return to Russia.

    • At least they put on that Defcon was about hacking, you wouldn't want people to actually know it is a security conference that a lot of legitimate people speak and learn at.

      Strangely, the writer seemed to change his/her mind midway through.
      At the beginning, we have:

      Sklyarov was arrested after speaking at a hacking convention in Las Vegas on July 16.

      but at the end:

      Adobe complained to the FBI, which arrested Sklyarov as he was preparing to fly back to Russia from the computer security convention.

      Maybe the AP just wants a little variety to spice things up.

  • DMCA will never get to the US Supreme Court (Score:5, Insightful)

    by JungleBoy (7578) on Thursday December 13 2001, @05:28PM (#2701429)
    I doubt that the DMCA will ever be tested in the US Supreme Court, especially in a criminal case. The corporations who put the law in place won't risk lost profits by letting the DMCA be test against the Constitution at the highest level. They will continue to beat people (and small companies) with it, then they will either get the case dropped or thrown out.

    There is something severely wrong with the check and balances system of the US Gov't. Laws don't have to be constitutional to be passed. Corporations (or AG Ashcroft) just have to keep the nconstituional laws from being tested all the way up to the SC. What we really need is a judiciary review of new laws (before they go into effect) which pits them against the constitution.

    -JungleBoy
    • Sorry, but there's nothing in the constitution preventing Congress to pass constitutional laws. Indeed, there's nothing in the consistition saying that the courts are where laws are deemed to be constitutional. The Supreme Court took this power upon itself, way back when (sorry, I forget the case where they decided it). They basically said "if we don't, then who?".

      • (I assume you meant "unconstitutional".)

        Sorry, but there's nothing in the constitution preventing Congress to pass [un]constitutional laws.

        How about all those sentences that begin with "Congress shall make no law..."? To my non-lawyer's ear at least, that sounds like a pretty explicit statement that it is illegal for Congress to make such a law. (I just said the same thing twice, didn't I?) It seems that when Congress does make such a law, they are committing a crime: it says they shall not do it ==> they did it ==> they broke the law. Right?

        I just wish it included some provision for punishment of those who violate the supreme law of the land. Maybe your point would be better stated as "There is no incentive for Congress to pay any attention to the Constitution, since othing bad happens to them when they violate it."
  • Free at last.

    We can make whatever political statement we like about the American laws he may or may not have broken.

    But I'm pretty sure he's going to be happy to go home to Russia and see his wife and children.

    You know, Russia. Where he's safe from government persecution.
  • ...a la the Damian Conway purchase. Anyone in the right place to set up a little "hey, sorry our country hassled you, here's something for your trouble" fund? Or am I just being naieve thinking, well, among other things, that I can spell naieve?

  • What does it matter anyway? (Score:5, Interesting)

    by chuckw (15728) on Thursday December 13 2001, @05:34PM (#2701461) Homepage Journal
    What does it matter if he testifies against his company? The US can't do a darn thing to them since they aren't in this country. Look at the DeBeers monopoly. Diamonds aren't rare at all, but DeBeers made some strategic agreements with countries to keep most of the supply locked up. Now the DeBeers executives will be arrested if they ever enter this country. That judgement hasn't done a darn thing. DeBeers still operates and so will ElmComsoft(SP?). I think it's just the justice department's way of saying, "Yeah, it's a stupid law, but we'd look stupid if we just let you go, so we're going to ask you to do something stupid so we can save face."
      • I doubt if he was in college, that he was an executive of the actual company. AFAIK, it is only the execs that have the "enter the country and get arrested" order. Simply being a member of "the family" is not a crime... Same reason they don't arrest mobster's wives, and prosecute for aiding and abetting.
  • You're free to go Dmitry! Sorry about holding you in a US Jail all that time! Changed our minds!

    He should be able to sue for something. Damned if I can think what, though.

  • I don't live in CA and couldn't get there anyway but why don't all the people who protested for him through a party in his honor before he goes home. Show him that not all Americans are jackasses and celebrate his freedom at the same time. Obviously he'd rather go home to his wife and kids but the party could easily be before he is allowed to leave California, it would at least lighten up the time before he gets to go home.

  • Red's Free America, Film at 11 (Score:3, Informative)

    by eddy the lip (20794) on Thursday December 13 2001, @05:39PM (#2701494)

    for some reason, the wired print version [wired.com] has more info, including this bit:

    ElComSoft's chief executive, Alex Katalov, said he was pleased that the company, not Sklyarov, would bear sole responsibility for the charges.
    i have to say, i'm very impressed with ElComSoft's generally enlightened attitude.

    wouldn't it be ironic if a russian company played a role in freeing america from an unjust law?

  • I would be first in line to purchase it.
  • This farce, was ill conceived. The program was written in Russia. It was not against the law there, but US douchebags thought they would make a "statement". How pathetic are US anyway? Back-ups of software for archival purposes have been legal for years. Was everyone asleep at the wheel on this one? Shit, I am embarrassed at being an American. "Slick Happens"

  • Alexander Katalov (Score:5, Interesting)

    by BrotherPope (8102) on Thursday December 13 2001, @06:13PM (#2701659)
    ElComSoft's chief executive, Alex Katalov, said he was pleased that the company, not Sklyarov, would bear sole responsibility for the charges.

    Hands down, Mr. Katalov is the coolest employer I've ever seen. Since Dmitry's arrest, he had been front-and-center, doing what it took to get Dmitry free regardless of the risk. Thomas C. Greene [mailto] raised this issue in an article [theregister.co.uk] in The Register [theregister.co.uk] a while back and it got my attention. But I am very impressed that he continued to put responsibility on his company when Dmitry would have provided a convenient scapegoat.

  • Charges are deffered NOT dropped... (Score:3, Informative)

    by thumbtack (445103) <thumbtack@ j u n o .com> on Thursday December 13 2001, @06:15PM (#2701672)
    There is a big difference. Deffered is kind of like probation. "Do this for this long and we will remove the charges completely..If you don't the full charges will be reinstated and since we now have your confession your goose is cooked". This is often used to allow the prosecution to "drop" charges while saving face. Sometimes used to gain testimony, sometimes to force the person to adhere to certain conditions and often used to give a win-win spin to the case. "he did technically break the law, but we see no need to prosecute...blah..blah ...blah...

    From The US Attorneys Office
    FOR IMMEDIATE RELEASE
    December 13, 2001

    The United States Attorney's Office for the Northern District of California announced that Dmitry Sklyarov entered into an agreement this morning with the United States and admitted his conduct in a hearing before U.S. District Judge Whyte in San Jose Federal Court.

    Under the agreement, Mr. Sklyarov agreed to cooperate with the United States in its ongoing prosecution of Mr. Sklyarov's former employer, Elcomsoft Co., Ltd. Mr. Skylarov will be required to appear at trial and testify truthfully, and he will be deposed in the matter. For its part, the United States agreed to defer prosecution of Mr. Sklyarov until the conclusion of the case against Elcomsoft or for one year, whichever is longer. Mr. Sklyarov will be permitted to return to Russia in the meantime, but will be subject to the Court's supervision, including regularly reporting by telephone to the Pretrial Services Department. Mr. Sklyarov will be prohibited from violating any laws during the year, including copyright laws. The United States agreed that, if Mr. Sklyarov successfully completes the obligations in the agreement, it will dismiss the charges pending against him at the end of the year or when the case against Elcomsoft is complete.

    Mr. Sklyarov, 27, of Moscow, Russia, was indicted by a federal Grand Jury on August 28, 2001. He was charged with one count of conspiracy in violation of Title 18, United States Code, Section 371, and two counts of trafficking for gain in technology primarily designed to circumvent technology that protects a right of a copyright owner in violation of Title 17, United States Code, Section 1201(b)(1)(A), and two counts of trafficking for gain in technology marketed for use in circumventing technology that protects a right of a copyright owner in violation of Title 17, United States Code, Section 1201(b)(1)(A).

    In entering into the agreement with the government, Mr. Sklyarov was required to acknowledge his conduct in the offense. In the agreement, Mr. Sklyarov made the following admissions, which he also confirmed in federal court today:

    "Beginning on a date prior to June 20, 2001, and continuing through July 15, 2001, I was employed by the Russian software company, Elcomsoft Co. Ltd. (also known as Elcom Ltd.) (hereinafter "Elcomsoft") as a computer programmer and cryptanalyst.

    "Prior to June 20, 2001, I was aware Adobe Systems, Inc. ("Adobe") was a software company in the United States. I was also aware Adobe was the creator of the Adobe Portable Document Format ("PDF"), a computer file format for the publication and distribution of electronic documents. Prior to June 20, 2001, I knew Adobe distributed a program titled the Adobe Acrobat eBook Reader that provided technology for the reading of documents in an electronic format on personal computers. Prior to June 20, 2001, I was aware that documents distributed in the Adobe Acrobat eBook Reader format are PDF files and that specifications of PDF allow for limiting of certain operations, such as opening, editing, printing, or annotating.

    "Prior to June 20, 2001, as a part of my dissertation work and as part of my employment with Elcomsoft, I wrote a part of computer program titled the Advanced eBook Processor ("AEBPR"). I developed AEBPR as a practical application of my research for my dissertation and in order to demonstrate weaknesses in protection methods of PDF files. The only use of the AEBPR is to create an unprotected copy of an electronic document. Once a PDF file is decrypted with the AEBPR, a copy is no longer protected by encryption. This is all the AEBPR program does.

    "Prior to June 20, 2001, I believed that ElcomSoft planned to post the AEBPR program on the Internet on the company's website www.elcomsoft.com. I believed that the company would charge a fee for a license for the full version of the AEBPR that would allow access to all capabilities of the program.

    "After Adobe released a new version of the Adobe Acrobat eBook Reader that prevented the initial version of the AEBPR program from removing the limitations or restrictions on an e-book, I wrote software revisions for a new version of the AEBPR program. The new version again decrypted the e-document to which it was applied. The version of this new AEBPR program offered on the Elcomsoft website only decrypted a portion of an e-document to which it was applied, unless the user had already purchased a fully functional version of the earlier version and had both versions installed on the same machine. The new version was developed after June 29, 2001. At that time, Elcomsoft had already stopped selling the program. The version of this new program offered on the Elcomsoft website did not provide a user with an opportunity to purchase it or convert it to a fully functional one, and was developed as a matter of competition.

    "On July 15, 2001, as part of my employment with Elcomsoft, I attended the DEF CON Nine conference in Las Vegas, Nevada. At the conference I made a presentation originally intended for the BlackHat conference that immediately preceded the DefCon Nine in July 2001 in Las Vegas, Nevada. The same group of people organizes both BlackHat and DefCon Nine. Since there was no available slot for a presentation at BlackHat at the time when the paper was sent for the committee consideration, the organizers of both conferences suggested that the paper be presented at the DefCon rather than at BlackHat. The paper that I read at DefCon is attached as Exhibit A. A principal part of my presentation is comprised of my research for the dissertation. In my presentation when I said "we", I meant Elcomsoft."

    Mr. Sklyarov's employer, Elcomsoft, remains charged in the case, and the Court in that matter has set hearings for various motions on March 4, 2002, and April 1, 2002.

    The prosecution of Elcomsoft is the result of an investigation by the Federal Bureau of Investigation. Scott Frewing and Joseph Sullivan of the Computer Hacking and Intellectual Property ("CHIP") Unit are the Assistant U.S. Attorneys who are prosecuting the case with the assistance of legal technician Lauri Gomez.

    A copy of this press release and key court documents filed in the case may also be found on the U.S. Attorney's Office's website at www.usdoj.gov/usao/can <http://www.usaondca.com>.

    All press inquiries to the U.S. Attorney's Office should be directed to Assistant U.S. Attorney Matthew J. Jacobs at (415)436-7181 or Assistant U.S. Attorney Ross Nadel, Chief of the CHIP Unit, in San Jose...

  • Poor reporting (Score:5, Insightful)

    by booch (4157) <slashdot2009@cra ... m ['che' in gap]> on Thursday December 13 2001, @06:16PM (#2701675) Homepage
    The AP article says:
    He lives with his wife and two children in an apartment in San Mateo and was working on a doctorate in computer science.
    Which makes it sound like he was living in the US before he was arrested. The only reason he's living in San Mateo is that the US won't let him go home to Russia. His family had to be flown here to live with him.

  • He's on probation... IN RUSSIA?? (Score:3, Interesting)

    by Catbeller (118204) on Thursday December 13 2001, @09:58PM (#2702628) Homepage
    That sums up part of the deal. For one year, he has to not break American law WHILE HE IS LIVING IN RUSSIA.

    Is this Pournelle's American Empire at last? Has anyone noticed that the DOJ now claims worldwide powers?

    So fast, so fast it's happening...
  • US law seems unpredictable to a scary degree, I for one would never consider relocating to the US due to this. This feeling is certainly shared by many other non-US residents.

    When the economy is recovering next time, this may become a problem. To those of you out temporality of work, how about spending your effort changing this situation to the better?

  • You can tell the DMCA was written by a corporation (Score:3, Insightful)

    by evanpcordes (543925) on Friday December 14 2001, @04:14PM (#2705690)
    Sklyarov had faced five charges and up to 25 years in prison -- five years for each violation of the DMCA -- and fines of up to $2.25 million. ElcomSoft faces a $500,000 fine if found guilty of the five counts of "conspiring, for commercial advantage and private financial gain, to traffic in a technology that was primarily designed and produced for the purpose of circumventing, and was marketed by the defendants for use in circumventing, the Adobe Acrobat eBook Reader."

    Hmmmm..... So if I, an individual citizen, break the DMCA, I go to jail and pay a very large fine. If I become "Individual Citizen, Inc." and break the DMCA, I don't go to jail and I pay a small fine. The CEOs who wrote the law were smart enough to protect themselves.

    • You poor, deluded, naive little boy.

      How exactly is forcing him to rat out his boss in return for being let out of jail (where he has been rotting for months, by your OWN admission) correcting a mistake?
    • If you were suddenly arrested by the federal polices, and held in jail for many months without being able to see your wife and very young child, I doubt you would give up the chance to see your family and native home again. He is no "weak-hearted coward" for putting his own dedication to his family above your silly anti-DMCA campaigning. He is just a regular person like you or myself, he does not wish to be the revolutionary or martyr for your cause.

      I for one am happy to know he is free to be seeing his wife and children; I know if I were kept a long time from my soon-to-be-husband Yves for a great part of a year, I would do anything to see him again, and I think you would too.

      • The company he works for put up his bail and arranged for his defense, no? So if what he says in trial goes strongly against them, i.e. "I didn't want to write it, but they made me, honest!" then he's a coward. If, however, he says, "yeah, I wrote it, they bought it from me and decided to sell it" or some such thing, well that's different.
        Also, I don't seem to know of any charges being held against his employers yet, so for now, nobody is in trouble. This wrong has been righted, if only temporarily.
    • Probably.

      Religion [strategicnetwork.org]: 57% of the population is Christian with 1% being Protestant. 33% of the population is non-religious and less than 9% of the population is Muslim.

      Most "non-religious" people in predominantly Christian countries celebrate Christmas as well, so it's a pretty good bet.

    • It's called the first amendment. Free speech in Perl should be as protected as free speech in French. Can anyone honestly say, "It should be legal to tell someone how to make a pipe bomb but not how to decrypt a DVD" with a straight face?

      • Re:Legal Advice for foreigners (Score:5, Insightful)

        by (void*) (113680) on Thursday December 13 2001, @05:55PM (#2701578)
        What do you mean, he demostrated an action that broke US law?What did he demostrate? He GAVE A TALK. That TALK has, as a subject matter, how to crack ebook encryption. Is that a demostration?


        By that peculiar logic, Hollywood should be jailed and locked up by DEMOSTRATING how to hijack airplanes. I would say that is more appropriate example of DEMOSTRATING, than giving a talk.


        Say what you want about legality. The whole point is that this piece of legality is immoral, unconstitutional.

          • Re:Legal Advice for foreigners (Score:4, Insightful)

            by squiggleslash (241428) on Thursday December 13 2001, @08:03PM (#2702179) Homepage Journal
            However, his talk was a detailed explanation on how to circumvent ebook encryption, and under the DMCA that very act is illegal. He broke the DMCA.
            Chapter and verse please. Where in the DMCA does it say you can't talk about how to break access control devices?

            Senators and Congressmen aren't that stupid, nor are Hollywood lobbyists.

            My understanding was that it was trafficing in access control circumvention devices he was charged with, and that offense was committed by his employer, and was unrelated to his visit in the US.

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