What explains this prosecution is not the law, nor the
justice within this commercial dispute. What explains it,
apparently, is the relative inexperience of the front line prosecutors.
Those prosecutors were new to the U.S. Attorney’s office. They
allowed their inexperience to guide their intuitions. And once it
was clear that they had uncovered not a criminal commercial
enterprise but ordinary online commerce, rather than acknowledging their error, and the injustice in prosecuting a
commercial dispute as a crime, they continued to press the
prosecution against Mr. Teman...
I urge you to take whatever steps are
possible to stop this prosecution before Mr. Teman is sentenced to
prison."
"I believe that his conviction constitutes a miscarriage of justice for two reasons: first and foremost, evidence I have reviewed does not prove a crime or criminal intent. It is, at bottom, a business dispute that should have been resolved in civil court; second his lawyers have alleged prosecutorial misconduct that raised serious concerns about the integrity of the process by which he was convicted.
I have come to know Ari over the past months and he impresses me as a good person who had no intention to defraud anyone or commit any crime."
I believe justice would be served if the case were dismissed or the sentence commuted."
I have lectured and written extensively on these subjects, and I write today to join with the esteemed legal authorities and figures, including Prof. Alan Dershowitz, Prof. Lawrence Lessig and outstanding attorneys such as Molly McCann (General Flynn’s attorney), David Markus, Pat Nolan, Kurt Schlichter, Robert Barnes, David Safavian, and others – all of whom, like me, have made themselves available pro bono publico concerning this cause – in urging a full pardon for Mr. Ari Teman, the defendant in the referenced criminal matter.
...Mr. Teman was essentially convicted on the basis of what is commonly called a “click-wrap” contract, meaning the web-based terms that an Internet business – in this case, Mr. Teman’s company, GateGuard – uploads and requires users to agree to before offering a product or service. It is well established that such online contracts are, under virtually all circumstances, proper and enforceable, and that their terms govern the seller’s relationship with its customers. The Government’s theory of criminal liability was that the structure of GateGuard’s online terms was evidence of an “intent to defraud” its customers, however. Ultimately, the District Court ruled that the jury could have reasonably convicted Teman of fraud because GateGuard’s terms included hyperlinks to subpages, requiring them to follow those links in order to be fully apprised of the terms to which they were agreeing to be subject in their relationships with GateGuard. The premise of this ruling appears to be that the use of hyperlinks, as opposed to cutting and pasting text and information into the terms found online on one webpage, constituted a sort of deception.
With all due respect to the District Court judge, I write to urge that such an interpretation of the custom and practice utilized throughout the world of Internet commerce is incomprehensible. Certainly, there is no question that virtually all contemporary businesses utilize online contracts to offer their services to the public and subsequently to document the terms under which their customer relationships will continue to proceed. And it is beyond question that the practice of using hyperlinks to extend, elucidate or otherwise incorporate online contractual terms in e-commerce websites, using subpages and hyperlinks, is widespread and uncontroversial. Organizing terms and related information in this way benefits businesses and customers alike, allowing all parties access and reference to them, and the ability to update specific sections of the terms, when necessary and appropriate. There is no obvious or even rationale for claiming that it is deceptive or fraudulent for Internet-based customers, who are at this point in technology history intimately familiar with how the Internet works, to click a clearly-highlighted hyperlink to obtain information. Indeed, it can be argued that doing so is far more convenient...
(Full letter) (Added 2020-11-30).
"Add to this witches’ brew a post-trial allegation of prosecutorial misconduct for failure to disclose the disreputable history of one of the lead prosecution witnesses and we have the makings of a miscarriage of justice, and one with a potential to ruin a young life.
Are these rogue prosecutors of the sort that have become the bane of the American judicial system? It shouldn’t only be the hoax prosecutions of political figures that attract our attention. Indeed, it should be the ones that target the average individual without access to media hoopla because if we ignore them, then anyone can become a target. And the expense and anxiety of defending one’s innocence can be debilitating."Read more & Donate to the Legal Defense Fund on GoFundMe.
The Ari Teman Legal Defense Fund is managed by attorney Emmanuelle Subar. Learn more at https://www.gofundme.com/f/justice-matters-ari-teman-legal-defense-fund/.