Venue Heavily Questioned by Court and Defense, Broad View of CFAA Encouraged by Government in Auernheimer Appeal

by Kenneth Lipp and Dustin Slaughter

A three judge panel of the 3rd Circuit U.S. Court of Appeals in Philadelphia heard oral arguments this morning in the case of US v Andrew Auernheimer. The gallery of the 19th floor Albert Branson Maris Courtroom filled to capacity by 9:45 a.m., with spectators including US attorneys unattached to the case, journalists, supporters, local and visiting private attorneys, and computer professionals and developers talking shop. The court heard 15 minutes of argument from both Orin Kerr for the defense and Glenn Moramarco for the government, who answered questions from the panel throughout which reflected a genuine interest from the judges in clarifying still vague elements of computer law under the Computer Fraud and Abuse Act, upon which Auernheimer’s conviction hinge. The questioning from the court of both sides focused largely on the issue of venue, specifically the use of New Jersey statutes to assign venue and to enhance a criminal charge under federal law.

Congress did not make it illegal to violate New Jersey law….the question is what Congress did, not the New Jersey Legislature,” said defense attorney Kerr, arguing that the location for Auernheimer, known as Weev’s, trial was improper, and that the application of state laws to enhance the severity of charges resulted in a prejudicial adjudication of his client’s case.

The attorney for the government, Glenn, argued that New Jersey was an appropriate venue, as “the internet is accessible in all 50 states,” and thus when information which Weev and his partner sent to Gawker was published by the site it opened jurisdiction for prosecution to the entirety of the United States. Moramarco acknowledged upon questioning by Judge Joseph Greenaway, Jr. that none of the 4500 New Jersey residents whose emails were exposed by AT&T’s website had that information posted in the Gawker article.

I encourage the court not to take a narrow view on computer law,” Moramarco told the panel.

Arguments concluded with a short rebuttal from Kerr and an assurance from the presiding judge that both sides’ arguments would be earnestly considered. Mr. Kerr told The Declaration outside the courtroom that he was “cautiously optimistic” about the outcome of the proceedings.

Attorney Tor Ekeland, another member of the defense team, also stressed the importance of the government’s position on venue, saying that “what they’re arguing essentially strips the Constitution of all venue clauses. It’s insane.”

Editor’s note: Upon publication this article referred to Tor Ekeland of Tor Ekeland, PC, attorney, as a ” member of the defense team.” Mr. Ekeland was Auernheimer’s counsel at trial and continues to represent him.