The U.S. Copyright Office’s Anticircumvention Rulemaking just came out, and we won our requested exemption for cell phone unlocking. Hooray! Five other exemptions were also granted. I felt so strongly that our case established a fair use without any corresponding harm to copyright owners, that if we didn’t get the exemption, the game was impossible to win. I don’t like to play games I can’t win, so I vowed to quit policy work if we lost. Now I don’t have to! No doubt, the system is still horribly skewed against exemptions. But with this little hit of lawyer crack, I’ll be happily running in the gerbil wheel of futility for a few more years.

Now that my involvement in the case is public, here’s my analysis of the legal claims against Chris Soghoian’s Boarding Pass Generator.

In challenging Chris’ right to put up the boarding pass generator, the government alternately mentioned the statutes listed below.

In other words, for Chris to be in violation of the law, he either had to enter into a secure area of any airport, aid or abet someone else in doing so, or conspire with someone else to do so.

The FBI wanted to know whether Chris had ever used a fake boarding pass, but was most interested in whether Chris had helped bad guys get fake boarding passes. He had done none of these things, and decided to cooperate to put their minds at ease. Attorney Stephen Braga of Baker Botts represented him in these talks and did a wonderful job with a delicate task. I played a supporting role.

Because Chris had never entered into a secure area using a fake boarding pass, the would have to have evidence either that he had an agreement with someone to provide the boarding passes so that they could enter the secured area (conspiracy), or that he intended to help someone do so.

Regarding conspiracy, there was no agreement of any sort. The government recently proved conspiracy against animal rights activists by using evidence of website language supporting illegal acts in protest of inhumane treatment. (Stop Huntingdon Animal Cruelty). The convictions are decried as a violation of the First Amendment, but there were illegal activities, and while the website operators were not directly tied to those activities, the website discussed, lauded and claimed joint responsibility (by using the word “we” with regard to the illegal acts. I have not seen a written opinion on the issue. Nevertheless, Chris’s website had no such language.

The aiding and abetting law is a bit broader, even. The government doesn’t need to show an agreement, just an intent to further someone else’s illegal activity. Intent, as always, is inferred from circumstances. Rarely does the government infer illegal intent from mere publication to the general public, but it happens. For example, some courts have inferred a speaker’s criminal intent from publication to a general audience, as opposed to a co-conspirator or known criminal, if the publisher merely knows that the information will be used as part of a lawless act. United States v. Buttorff, 572 F.2d 619 (8th Cir.), cert. denied, 437 U.S. 906 (1978) [information aiding tax protestors]; United States v. Barnett, 667 F.2d 835 (9th Cir. 1982) [instructions for making PCP]. Both Buttorff and Barnett suggest that the usefulness of the defendant’s information, even if distributed to people with whom the defendant had no prior relationship or agreement, is a potential basis for aiding and abetting liability, despite free speech considerations.

In contrast, in Herceg v. Hustler Magazine, 814 F.2d 1017 (5th Cir. 1987) a magazine was not liable for publishing an article describing autoerotic asphyxiation after a reader followed the instructions and suffocated. The article included details about how the act is performed, the kind of physical pleasure those who engage in it seek to achieve and ten different warnings that the practice is dangerous. The Court held that the article did not encourage imminent illegal action, nor did it incite.

I think Barnett and Buttorff are the very outside limits of where aiding and abetting law meets the First Amendment, and Barnett in particular is wrongly decided.

In any case, there was zero evidence from which you could infer that Chris intended to help bad guys. His intention with website, though irreverent, was crystal clear. He believes the TSA Boarding Pass/ID check is useless for security.


18 USC 2: aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

18 USC 371: conspiracy

18 USC 1036: entry by false pretenses to secure area of any airport

18UC 1343: wire fraud

18 USC 2318: Trafficking in illicit labels (CR related)

49 USC 46314: Entering aircraft or airport area in violation of security requirements