Exclusive interview with PayPal 14 lawyer Omar Figueroa

“corporate America uses the U.S. Attorney’s Office and the Federal Bureau of Investigation as their private security firm”

In 2010, thousands of people launched distributed denial of service attacks against the websites of PayPal and other financial companies in retaliation for those companies’ extra legal blockade of WikiLeaks upon the publication of war logs and diplomatic cables revealed by Chelsea Manning. PayPal said that its website was never actually down, but in court, alleged more than $5 million in damages. Fourteen people were arrested for the action and charged under the Computer Fraud and Abuse Act. Thirteen of those men and women pled guilty. Eleven of those took felonies on their records, avoiding jail time, but owing a collective total of about $80,000 in restitution to PayPal. The other two served short jail stints instead of having felonies on their records. On October 29, 2014, with the judge in their case retiring, each defendant with a felony had that count dismissed. They paid what they could at the time and each worked out a time frame to pay the remainder, with most owning about $100 per month. One of those activists is Vincent Kershaw. His lawyer is Omar Figueroa, and now that sentencing is over, Kershaw and his legal representative are more free to discuss the case.

Nathan Fuller: So, Omar, thanks for talking to me today and if you could start off just by telling me, who is Vincent Kershaw?

Omar Figueroa: Vincent Kershaw is an individual who lives in Colorado and he was an activist was indicted by the Federal Government for allegedly participating in this distributed denial of service attack.

Why is this case — why are the PayPal 14 and their case important?

This case is important because it sheds light on the abuse of corporate power and how corporate America uses the U.S. Attorney’s Office and the Federal Bureau of Investigation as their private security firm.

We know that PayPal is involved, but can you tell us how PayPal and then eBay were involved in this case?

Yes, PayPal was involved. What triggered all this was that PayPal stopped accepting donations made to WikiLeaks, around the time of the Julian Assange controversy and they extra-legally decided to stop accepting payments and these were gonna be donations for what I think is a good cause. First Amendment related activities to disseminate information and to keep secrets from being kept from the American people. Basically, an attempt to shed light on government action. And PayPal was part of the coverup.

What role exactly did they play against the defendants in this case?

PayPal called itself the victim in court, and so they’re the ones who were telling the U.S. attorneys what would be an acceptable outcome for them and what the amounted restitution was. Their role in the litigation was not as active as it would have been had the case gone to trial. So mostly they played a behind-the-scenes role. They were considered the victim.

We saw via Alexa O’Brien’s Daily Beast article that they alleged more than $5 million in damages, but we saw statements from PayPal representatives saying that their website was never actually down. Can you talk about what kind of damages that they are alleging, or was that all behind the scenes?

That was mostly behind the scenes, but they were alleging an impairment to their system, and it’s really funny, because the reports that they filed with the Securities and Exchange Commission claimed that there had been no actual damages and that would have come out at trial. We would have impeached PayPal with their own SEC filings had the case proceeded to trial. I think that was partly why we were given such an unprecedented deal. To correct what you had said about felony on the record — the defendants, the eleven defendants who entered pleas of guilty to a felony charge were never sentenced on those pleas. They were later allowed to withdraw their pleas. Technically, they don’t have any felonies on their record and never did because there cannot be a felony conviction until sentencing. So it is a two-step process. Step 1: Enter a plea. Step 2: Get sentenced. The way the deal was structured, they only went forward with Step 1, they entered a felony plea. They were basically given a time-out. After they completed their time-out, the felony plea was dismissed, and all that remains on the record is a misdemeanor conviction.

Thank you for clearing that up. eBay, as I understand it, is the parent company of PayPal. Were they playing any kind of behind-the-scenes role as well as you understood it?

Not as active as PayPal. As a parent company I think they had corporate counsel but that was probably working with PayPal, but they did not have a prominent role in the litigation.

OK, because we know that Pierre Omidyar, who is on the board of PayPal, made comments later on. He was calling for leniency for the PayPal 14, but the way that he phrased it, he still said that the PayPal 14 had excessive impact and he still kind of accepted the logic of the Computer Fraud and Abuse Act. Do you have any comments on his comments?

Ah, yes. I think he should step up and pay the restitution for the PayPal 14 if he’s truly honest that this case was over-prosecuted. I think if he can put his money where his mouth is, we invite him to do so.

I spoke to another defendant, Mercedes. She was talking about the enormous restrictions placed on the defendants. I was wondering if you could go into detail — some of the restrictions placed on the defendants before sentencing.

Oh, yes. They have numerous conditions of pre-trial release, such as checking in with pre-trial services. It’s basically like being on probation. Many people think that in America you are innocent unless proven guilty, but in the Federal system you are put on probation from day 1. It’s called pre-trial supervision and it is burdensome and onerous as being on probation. It is almost like you are put on probation before you are ever convicted. So the conditions for my client, Vincent Kershaw, also included a ban on being on IRC. He could not be on any IRC activity at all. He was also banned from Twitter. We successfully challenged the ban on IRC — I’m sorry, we successfully challenged the ban on Twitter … but the court did not lift the ban on IRC. I think this is the first case where somebody’s right to tweet was recognized by the courts.

Mercedes was also talking about how these restrictions kind of broke up their social circle. I mean, before these restrictions, this group was their friend circle and so they were not allowed to talk to one another. That really broke them down. Did Vincent suffer from that as well?

Yes. All the defendants had a restriction that they would not communicate with each other unless in the presence of counsel. Basically, it eliminated any relationships that they had if they can’t communicate. Communication is key to maintaining social relationships. Basically, when they are forbidden from talking to their friends it’s going to have a detrimental impact. It’s almost like being grounded by Big Brother.

Has Vincent talked about how happy he is to have that freedom since the sentencing?

Yeah, Vincent was very happy to be able to communicate and to renew those relationships that had been idle. It’s very liberating. I think there is something very oppressive about feeling that the government could be monitoring you. They have the duty, the right to monitor you, and they don’t want you to communicate with your friends. It just feels extremely intrusive. We did our best to fight against that, but that is what the Federal system has come down to. When people are charged in a Federal crime, usually they are forbidden from communicating with their co-defendants.

So at least he does have those restrictions removed. But he does have some money owed left. Is that correct? How much money does he still owe?

He still owes $5600.

And is that on a payment plan?

Yes. The payment plan is going to be $100 a month for the duration of probation which is going to be about twelve months. We anticipate that if he doesn’t pay that off before the probation expires, that the restitution amount, $5600 or whatever is left, will be converted into a civil judgement. That civil judgement cannot be discharged in bankruptcy. So he has to pay it at one point in his life. It is very important for him to try to get it paid off as soon as possible so that he can be a free person again.

I was speaking also to Mercedes and it sounded like there was some surveillance, at least financial surveillance as the government was monitoring the defendants to make sure that they were at least looking for work to attempt to pay restitution. Do you know if that was the case and, if so, is that still the case?

My understanding is that right now the only condition is that they pay but not like they have to get a job or they have to do something in particular. I can only speak to Vincent Kershaw. He doesn’t have any conditions other than make his payments. Once he’s done making his payments, probation will be terminated. That’s why it’s so important that the funds be raised as soon as possible so that these people who have been under very restrictive conditions for four years can be set free as soon as possible. They’ve served their time and then some. They’ve already done four years probation.

Where can people who support the PayPal 14 — can people donate to them?

Absolutely. I think there is a PayPal 14 website and there is also a foundation in Germany that is helping with the fundraising. As well, the defendants are embarking on a fundraising project that is going to involve them auctioning off the computer equipment that they obtained from the FBI, that they got back from the FBI.

They’ve already all received that equipment back?

I can speak for Vincent Kershaw. He received his equipment back, yes.

So that auction will happen soon, I hope.

Yes. The auction will probably be started on eBay, the parent company of PayPal, ironically enough.

We were also discussing about the defendants’ collective options as far as saving up money to liberate one of them or whether they want to liberate each of them individually. Do you know if they have come together to discuss that or whether that is something they are going to do in the future?

They are going to discuss that in the future. For now the default is going to be that nobody is free until they are all free. But they are talking about maybe establishing a lottery so that those who can be off probation can get off probation and they can still help the rest with the fundraising.

That would be great. Is there anything else you want to add, Omar?

Yes. I think that the point of this case — it goes back to WikiLeaks, it’s about transparency in government. It’s about people engaging in nonviolent civil disobedience. This case, the distributed denial of service attack, I see it not as breaking and entering or as a physical trespass. It’s more akin to a game of Ding, Dong, Ditch, where somebody is ringing the doorbell. The response by the federal government was disproportionate. It just seems to me that it was a tremendous waste of taxpayer dollars to go after nonviolent, good-intentioned people who are standing up for what is right.

 As far as I understood it, thousands of people took part in that action and only 14-

Absolutely, it was really arbitrary who was selected by the government. The people who operated the botnets and who were responsible for the most pings, those people were never arrested, were never brought before the court. They got off scot-free. They just went after the little fish. The little fish they were able to catch but the big fish got away.

These 14 were seemingly selected at random?

It seems like it to us. We couldn’t really find any — it’s just whoever they are able to catch.

Seemingly disproportionately prosecuted as a potential deterrent is you’re understanding?

Oh, yes. They wanted to make a big example out of them.

Do you think they succeeded in that or do you find there is more support for the PayPal 14 and more people are inspired to support them?

I think they did not succeed. I think there is more support. If anything, this case has set a precedent for future activists because they are going to want the same deal that the PayPal 14 got, which is a time-out with a misdemeanor at the end and no felony convictions. I think even that is draconian because the Computer Fraud and Abuse Act used to require malice. When the government was not able to get convictions because they couldn’t prove malice, they dropped the malice requirements. Initially it was required to be malicious. I would argue that the PayPal 14 were not malicious. If anything, they were acting out of idealism. It was not a malicious action, it was an idealistic act of civil disobedience.

That law was written in 1986, I believe. In the last few years it has been really used to crack down on civil disobedience and political action, like Jeremy Hammond, Chelsea Manning and others.

Absolutely. It’s been abused. If that law had the malice requirement like it did when it was first passed by the Congress, they probably could not go after Chelsea Manning or Jeremy Hammond without proving that they were malicious.

Do you believe there is any option that we have to repeal it, to get rid of it, or to end its abuse?

Yes, I think the option that we have at this point, with Congressional gridlock, it’s going to be difficult to repeal. But prosecutors have so much discretion that the law doesn’t need to be repealed, it just needs to be applied in a judicious and wise fashion. And go after the foreign intelligence services that are stealing industrial secrets from American companies and not go after American activists who are engaged in civil disobedience because they want open government, and they are advocating for transparency.

Alright. Omar Figueroa, legal representative for Vincent Kersaw, member of the PayPal 14, thank you very much for talking with me today.

Thank you, Nathan. It was a pleasure.