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#names of commentators withheld to protect the innocent
alexis-royce · 4 months
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Hey there! I'm Alexis Royce, and I make-
Visual Novels
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A Theologically Spicy 18+ Horror Romance about loving the artistic process a little bit too literally.
[itch.io]
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Interrogate suspects to solve a semi-supernatural murder in an Edwardian watercolor mansion where inner demons manifest!
[Steam] [itch.io]
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Follow the correspondence of two professors, in the months before one of them makes a decision he'll never be able to take back.
[Steam] [itch.io]
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[And several more, all available on itch.io!]
Watercolors
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[Commission Info Over Here] [Print Shop Over Here]
And some fanfics and comics that tend to evoke a bunch of this:
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You can read them here.
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casspurrjoybell-29 · 6 months
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Enduring Ties - Chapter 3 - Part 1
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*Warning Adult Content*
Liam had always avoided his father, kept both himself and Cailan away from his critical gaze.
He was an obedient son but never out of loyalty.
He feared his father.
Although Liam occasionally alluded to why, mentioned past mistreatment, Cailan had never seen things get aggressive between them in the six months he had been living with them.
Cailan didn't hear the initial discussion but as things became heated the gist of it reached Cailan's room.
Liam had announced that he wouldn't be marrying the girl his father had arranged for him.
He had told his father that he would not be marrying any girl because he had no interest in girls.
Cailan wanted to clamp his hands over his ears to block out the yelling but he needed to know what was going on.
"Don't you dare touch me."
Cailan heard Liam yell.
"I'm a man now. You don't get to hit me anymore."
"You think you're a man?" Liam's father yelled back.
"You're still a stupid child. If you're going to live under my roof, you will follow my rules. If you don't like that, you can marry Louise and start your own household."
"Or I can make my own way."
"How do you propose to do that? Sell that slave of yours? He's the only thing in your name worth any money."
Cailan's gut clenched painfully. He knew Liam would never do it, he'd promised many times that he would keep Cailan forever but it still sent fear coursing through him to hear his sale suggested.
Liam's voice was too quiet for Cailan to hear what he said next but his father's reaction made it clear enough.
"You're joining the military? Don't expect to use my name to get a good position. You'll be digging latrines and working in the mud."
"As if I want any association with your name," Liam shouted back.
"I don't want anything from you."
"Then get out."
Cailan heard the boom of the front door slamming shut behind Liam, felt it in his chest.
Liam would come back for him, wouldn't he?
He'd be back in the morning.
He was just angry and his father was angry and in the morning they'd make everything okay again.
In the morning, everything was not okay.
Liam was still gone and even Aubree didn't bother to stick her head in to see if he wanted breakfast.
In everything that had happened, had everyone just forgotten Cailan existed?
Maybe that was better for now.
Liam had always protected Cailan from his father and Cailan definitely didn't want to go drawing his attention when he was still angry about his son absconding.
He carefully timed his trips to the bathroom for when nobody was around and kept to his room the rest of the time.
Liam had always made sure Cailan's need for affection was seen to, even when it meant having Cailan sit on the floor while he sat at his desk and weaved a hand through Cailan's hair while he studied.
He'd never once denied him touch as a punishment.
Cailan knew his behaviour wasn't flawless but Liam had never seen the need to doll out anything but the occasional stern word to keep him under control.
Not being at all used to having touch withheld from him, Cailan was beginning to feel the effects by the end of the first day.
Or perhaps it was simply his growing anxiety making him feel too tight inside, twisting his gut into knots.
Aubree did come by on the second morning, looked at Cailan with lips pressed into a firm line and left a bowl of plain porridge for him without comment.
She'd never quite thawed to him but as she'd realised how innocent his relationship with Liam truly was she'd started treating him less icily.
All that progress was gone now.
Once again, Cailan was left alone.
He ate a mouthful of porridge and then pushed the bowl away.
He wasn't hungry.
The bite of food just made him feel sick.
By the third day, his fingertips had begun to tremble.
Was Liam ever coming back for him?
What would happen if he didn't?
Would he be sold?
Disposed of?
Would he be expected to serve Liam's father instead?
He couldn't imagine how that would work.
Liam's father was only interested in women and though Cailan was decent at cleaning he could only use his magic if someone was providing him with regular physical contact.
Cailan was curled up in his bed, hugging himself, the next time Aubree brought him food.
She placed the tray on his bedside table and then turned to leave but paused in the doorway.
"He really has joined the military."
Cailan inhaled shakily.
"Is he coming back for me?"
"That's all I know," Aubree said before leaving the room.
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piecksz · 3 years
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own it. | (m)
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pairings: eren yeager x fem!reader
warnings: nsfw, male masturbation, mentions of rough sex, jealousy, possessiveness, explicit language 
words: 800+
summary: you and eren have been broken up for a while, but he can’t stop thinking about you, especially on lonely nights like this.
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Eren caught his bottom lip between his teeth, swallowing his own ragged groans while his palm worked quickly against his half-thickened length. His other hand wrapped securely around the back of his phone, a nimble thumb swiping quickly through photos you’d posted of yourself on social media. It had been long after the two of you had broken up, but Eren couldn’t hamper his shameless tendencies. It only took one reminder of your past relationship on a lonesome night before his mind started digressing to all the lewd and obscene recollections he had of you he had cached in his mind.
He knew you probably weren’t thinking of him after you two split. You unfollowed him only hours following your last conversation after all, and he withheld himself from checking your stories or scrolling through the comments underneath your photos. He didn’t want to know if you had already moved on because his curiosity was thwarted by the irritability stirring in the pit of his stomach at the thought of you with someone new.
His grip around his cock tightened, and Eren’s pace began to quicken, incited by the infuriating possibility that you could have been fucking someone else, whining the same voiceless praises you’d once given to him while he’d been balls deep inside you.
Why did he care?
He was the one who suggested that it was time for you to “see other people”. He hadn’t even given you a substantial reason other than he didn’t feel invested in your relationship anymore, but his regrets fed on his lust, sending him into an agonizing spiral while he forced his rigid cock into the tight curve of his hand, trying to replicate the feeling of your pussy around him.
He swiped down to another picture, superficially innocent, but his eyes fixed on the low-cut top you’d been wearing in the shot. The curve of your breasts had been on full display as if to implicitly torment him. Those used to be his too. He’d already had his mouth and hands all over them, anyone else who did the same would just be getting his seconds.
He’d suck your nipple into his mouth, hot tongue swirling over the hardened peak of your breasts  while your arms wrapped around his head to hold him even closer to your chest. It was one of his favorite things to do, watching as you grew aroused under a few skillful flicks and strokes of his tongue’s tip. Even whilst cuddling, sometimes his bored hands would somehow find their way up your shirt, grazing gently over the soft buds and adoring how they stiffened against his fingers, and you’d moaned his name. No one else's.
He’d already claimed you, even the thoughts you’d once formulated into words had been just for him. Anyone who called you theirs would have been wrong.
Eren continued scrolling while his pelvis jerked upwards, thrusting his girth into his warm clasp.
“Fuck, Y/N,” he breathed.
Another picture was taken from behind while you were sitting poolside and clad in the scantiest of bathing suits.
Your ass?
His.
In public, his protective hands would rest against your backside, especially when you’d wear that certain pair of jeans that emphasized its pert curvature. He needed everyone to know you belonged to him. In private he would dig his fingertips into the skin of your ass while you bounced on his cock, and light bruises from painful spanks when he fucked you with your face buried into the mattress had been proof of his trace.
Eren rolled his head back, eyes strung closed while the hollow of his throat bobbed with every guttural moan.
“Fuck Y/N, you’re so tight.”
The image of your sweaty face danced against the darkness of his eyelids. Your beautiful, tortured expression, with eyebrows drawn together and swollen lips slightly parted as they uttered his name over and over again. The whites of your eyes were stained a gentle pink, the result of tears while you cried in the wake of your sexual satisfaction.
“Just like that,” Eren whispered. His length throbbed against his clammy hand. “All mine.”
He pumped faster and squeezed himself tighter until the wet sound of slick skin moving together filled the quiet space of his room. A few more forceful thrusts had the small of Eren’s back tightening and his muscles seizing.
He freed a loud sigh once he felt himself twitch in his hold, and he released a thick cascade of cum. The milky, white liquid spilled from his tip, decorating the bare skin of his torso and dribbling over his taut knuckles as it dripped down his length.
Eren delivered a few more sloppy pumps to his aching cock before his grip slackened and his heavy panting subsided into satisfied breathing. He hesitated for a brief moment before his eyes fluttered open and met the dim surface of his ceiling.
“Fuck,” he grunted.
He rolled his head to the side, reaching a limp arm to pluck a few tissues from his nightstand. It would only be a minute before the routine guilt set in. If Eren could clean himself up and fall asleep with enough haste, he’d be able to avoid his shame and forget by morning.
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iwritethat · 4 years
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Older Batsis: Wally West
A/N: A bit of fun in time for Valentine’s Day.
Warnings: Sexual implications (no smut or anything), mature language
>>>>—————————>
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Entering the manor and slamming the door behind you was supposed to be like entering a world of welcoming warmth that you could melt into, not be only a degree or so lower than the frozen wasteland you'd just escaped from.
You glanced around the hallway, darkness filling the area leaving you with a frustrated sigh - power was out. Fortunately you'd mentally mapped out the floorplan over your years and navigated your way to a lounge and lit the fireplace with a content hum.
You'd shed your wet, snow covered, outer layers but with a sudden breeze you instantly regretted that decision and spun to meet the offender with a defeated huff.
"Hey beautiful, we're working on a case down in the Batcave but heard the door slam so your brothers sent me up to check on you since 'super speed' and they didn't want to move away from the heaters." The alias under the Flash crossed his arms once quoting 'super speed', offering a flirty wink which even now still doubled your heart rate.
"They s-stole all the he-heaters... Shitbags. I - I'm free-freezing Wally." You barely managed through chattering teeth, understanding that though the Manor was powerless the Batcave ran off of a different source meaning they were toasty down there.
"I could steal you one, plus you've already armed yourself with your fluffy blanket." He gestured to the item splayed in front of the fireplace to warm it up before you had the opportunity to utilise it, instead choosing to welcome you into his arms for a warm hug.
"Wa- Are you vibrating?" You disregarded his last comment in favour of your query, tilting your head at his minuscule shifting stature unsure as to whether you were just shivering.
"Yeah, keeps me warm."
"Can you do me?"
"I, yes - any day of the week - but lemme get this straight, are you asking me to be your vibrator (Y/n)?" His reply was full of smugness, you pulled back to catch his playful smirk.
"I didn't mean it like that! I meant for warmth!"
"I know, couldn't resist~" He chuckles to himself, meeting your frustrated gaze with a kind smile as it remained comfortably silent for a few seconds before you spoke.
"But - but can you, y'know, vibrate?" Your hands settled on his chest out of your sudden curiosity, tables now flipping as he became the flustered one partly due to your insinuating words which caught him off guard in its supposed innocence.
"I mean, almost all of my past partners haven't known about the speed thing so..." This was killing him, you knew exactly what you were doing and had very little shame about it either. While you seemed untroubled by his presence - ever since you’d arrived he'd been muting all vividly romantic thoughts, holding his tongue with pick up lines and resisted the urge to hold you like he'd so desperately wanted. Like he did at your house, like you did at his apartment... The Manor was dangerous territory and acting on those lustful instincts were supposedly best avoided.
Though you had alternative ideas.
"I know about your speed, and I really need warming up Wally." Your voice was seductively enticing, your lips choosing sensitive placement on his neck and he released a shaky breath reflecting the wavering if his willpower. Damn you.
"(Y/n)... your brothers w-" It came after a satisfied moan, Wally biting his lip and gently parting from yours before attempting a weak justification he had absolutely no belief in.
"Won't miss you too much." You finished for him, kissing his jaw and awaiting his response.
"And you?"
"I'll show you how much I missed you~"
In the next instance you felt soft silky fur of your blanket against your back, Wally hovering above you with the fire dancing in his irises and illuminating his skin in a brilliant golden glow - you swore he never looked more attractive. It was rather ironic, who'd have thought losing clothes would make your temperature skyrocket?
.
Back in the Batcave, Dick barely caught the dash of his friend, now shirtless and rooting through his belongings for a spare apparently.
"Woah what happened?!"
Wally flinched at the sudden brief contact with his back and the painful sting that came with it causing him to speed a metre or so away now in a fresh sweatshirt. His healing would kick in soon.
Your beautiful, stunning, incredibly persuasive sister happened.
Dick gave him a quizzical glance, the claw marks on his best friends back obviously quite fresh and the afflicter was unknown.
"Ah - Alfred - the cat one, he kinda caught me off guard when I was with (Y/n)?" He didn't sound at all convincing but they assumed it was down to sheer embarrassment at being bested by a feline.
"Perfect, his training has paid off." Damian now fully invested in the conversation added, indicating he had an ulterior motive which was unsurprising considering the protectiveness he held over his eldest sister.
"What training?" Dick cautiously questioned, now concerned with his own safety as well as overtaken by sheer curiosity.
"Whenever West makes a move toward our sister, Alfred will attack. Clearly my training methods are effective."
"Hold up, did you make a move on our sister?!" Dick incredulously shot to his best friend, Damian now narrowing his gaze at the sighing red head.
God yes, multiple pleasurable moves.
"I hugged her." Not a lie, but not a full truth either, those was better left private but Damian wasn't fully convinced and made a step toward the stairway.
"Hmm, how about we ask (L/n) then?"
"No don't! Uh - she's asleep in front of the fire and looks really peaceful." He began protectively, speeding over to block the Robins exit before becoming flustered when explaining his reasoning.
"That why you were gone so long?" Grayson raised a brow, noting the odd behaviours and body language but ultimately didn’t dwell on it.
No, things got way hotter than originally planned.
"Yeah, I helped her find some blankets and start the fire. Then we caught up a bit, we haven’t seen each other in almost two weeks."
They displayed disinterested at this point, content in knowing they’re worst fears hadn’t been realised.
.
It was late evening when you stirred from your peaceful hour long nap, instinctively your fingers reached across the array of soft blankets finding only empty warmth. With a soft smile you’d concluded Wally had waited until you’d fallen asleep in his arms before heading back down to the Batcave, knowing him he’d probably remained a little longer simply enjoying the afterglow and warmth that followed such intimacy with you.
A pleased sigh escaped your lips when you moved to stand, the aching of your leg muscles a rather welcomed one in your opinion - regardless, as you already donned Wallys hoodie you dressed yourself fully before heading down to the cave.
"Why are you wearing Wallys hoodie?" Stephanie inquired somewhat suggestively the moment you entered, eyebrows wriggling as an indicator.
"Hmm, oh well after having sex by the fire it was the closest thing to me so logically I was too lazy to get anything else." You boredly sighed, Wally paling at your sheer lack of secrecy whereas Spoiler wasn't expecting such an open answer leaving her speechless.
Despite hating how brutally honest you were, the way you worded it so unbelievably paid off and consecutively too.
"No seriously though." Dick tried again, dismissing your last answer like usual whenever you’d given such brash replies regarding your activities.
It was rather ingenious actually, if they ever found out about Wally then they couldn't blame either of you for not telling them because, in fact, you consistently did - it's not your fault they didn’t believe you.
"Seriously. I genuinely just made love to your best friend." There wasn't a hint of misleading this time, expression casual with a smug nod to Dick who only rolled his eyes.
"Hey babe, you know they'd murder me right?" The speedster indicated to Damian carefully sharpening his katana, though his overuse of pet names meant your family paid no mind to them any more.
"They'd have to get through me first." You wink at him, your brothers scoffing at the thought even if they knew you were being honest.
Even so, you linked your arm with the speedsters despite his hesitancy at displaying any form of contact in the presence of your family - but you were good friends, a fact your family knew all too well.
“Wanna have a rather late dinner at my place tonight?”
“Sounds perfect, would you like me to get takeout or should we attempt a recipe?” Wally relaxed at the casual tone of voice, one he found familiarity in as you both left wrapped up in conversation.
Not an unusual occurrence really, but still, that didn’t cease the racing minds of the young detectives that remained.
.
It was a few moments, Damian’s glare solely focused on the two of you happily retreating, before some spark of realisation surged through him.
"Wait... There were no claw marks on his hoodie..."
"Meaning when Alfred got to him, he wasn't wearing it so - WALLY!" Dick finished, shooting after his best friend who had probably already swept you off by now - Damian more than willing to take the war to your apartment.
"The cat was happily wrapped in Wallys hoodie so it couldn't have attacked him really... Ohmygod what if it wasn't Alfred at all! Ahhhhhh~!" Stephanie clasped her hands together out of both enthusiasm and shock, low-key fangirling about the possibility despite its implications.
“Uh - or maybe, the cat attacked Wally when he gave (Y/n) his hoodie to keep her warm.” Tim justified, one that supported the proficiency of Damian’s feline training and as such already semi convinced the youngest by praising his ego - the theory made sense. Dick and the youngest offered shrugs to each other before heading off to grab some files whereas Steph withheld a suspicious expression toward her partner.
“You... You‘re covering for them. I can’t believe you didn’t tell me Tim! Why would (Y/n) even consult you in the first place?” She knew it was likely due to his lack of interference, that and no doubt you outrightly told him if he happened to ask the right questions which Tim had a knack for doing.
“Because I’m the favourite.” He offered her a smug wink, once more typing away leaving a pouting Steph with Alfred the cat purring at her leg. The creature hadn’t taken in any of Robins orders or laid a claw on West and yet radiated waves of accomplishment.
“Traitor... Damian won’t be very pleased once he finds out you allowed Wally near (Y/n) kitty cat.”
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snowycrocus · 4 years
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All of My Life
Frozen 2 Fanfic - Snow Sisters/Frohana
**Taking place after the deleted scene of Elsa showing Anna the memory of their parents**
Elsa and Anna’s parents were only trying to do what was best for their children during trying circumstances - but can their daughters accept the mistakes their parents made? 
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As Anna flung her arms around her sister’s shoulders, tears streaming down her cheeks, she couldn’t help but feel that Elsa’s magic had never been more beautiful than at that very moment.
“Thank you – so much –for that,” she said. She turned to glance back once more at the images of her parents sculpted in ice, but their forms had dissipated.
She couldn’t believe it. Her parents had been just about to tell her everything, to trust her with everything! The nagging question had stayed with her ever since her parent’s deaths, persistent and caustic. But now she knew it hadn’t even been her trustworthiness that had ever been questioned- it was Elsa’s ability to control her emotions and magic combined.
“They believed in you, Anna,” Elsa responded. She thumbed away her sister’s tears, smiling, but she wished she didn’t have to be the one to tell Anna that. Couldn’t their parents have told Anna that themselves? Regardless, she had the chance now to tell Anna how she deserved every bit of praise the world had to offer. “And so do I.” Her sister could move mountains.  “I’m sorry they didn’t get to tell you that.”
“Yeah, well,” Anna started, snuffling and snorting back tears and a runny nose, “they could’ve, you know.” She used her forearm to wipe the wet streaks from her face. “They could’ve told us a lot of things.”
She had been so incredibly happy to see the forms of her parents and to hear those beautiful, wonderful words coming out of their mouths – words she had longed to hear for years. But Elsa’s words, though said with complete innocence, brought back the persistent resentment that lingered in the back of her mind ever since Elsa’s thaw.
“Oh, Anna,” Elsa said. The way she said Anna’s name was so soft, a soothing balm to the anger rising up in her. “I know they could have. I could have done better, too. But we all did the best we could; did what we thought was best.” She looked down to her feet and began to pull on her fingers as if she were still wearing gloves, a nervous habit she hadn’t seemed to rid herself of. “I’m so sorry,” she said, voice cracking and eyes beginning to brim with tears. “It’s all because of-”
“Nuh-uh!” Anna clenched Elsa’s hands in one of hers and clamped the other over Elsa’s mouth. Her eyebrows shot up in surprise. “You can’t talk like that anymore. None of this was your fault, you were just a kid like me, a scared kid who just didn’t want to hurt anyone, Elsa! Stop taking the blame for Mama and Papa!”
Elsa began to feel the stirrings of a nearly-snuffed out spark grow from within her. She had buried it, many years ago, but the fire still flickered occasionally and Anna was fanning the flames.
My whole life, kept in a prison…for nothing.
No reason. Just a misguided attempt at protecting, a life spent secluded and alone when love and companionship were the answers she sought all along.
Her anger had sharpened like her ice over the years, though it grew and fell in turns as she grappled with whether or not they had done the right thing.
And now, look at her. Meant all along to be the fifth spirit, to use her power for good, to do what she had been trying to do all along in her seclusion – to protect.
But the answer had always been protecting others by being with them – not by avoiding all contact.
Her breath caught in her throat and stuttered along with her words. “They – they thought they were-”
“Were what?!” Anna ripped her hands off of Elsa’s, who unconsciously went back to pulling on her fingers. “Protecting us?” She gestured wildly towards where the ice forms of Mama and Papa stood just a moment ago. “They led me to think they didn’t trust me! They let me believe that my own sister, who lay in a self-inflicted prison, didn’t want anything to do with me or with anyone!”
“Anna.” Tears started to brim over Elsa’s eyes as she wrapped her arms around her stomach. The flame was gaining air rapidly, and she couldn’t help but feel the burn as it grew brighter and stronger from within. She used to feel its heat all the time, couldn’t ignore it. Now she remembered – remembered the anger, the fear, the bitterness, and despite all the ice she carried within her she couldn’t cool it down.
“No, Elsa! Don’t defend them!” Elsa doesn’t get the chance to say she wasn’t. “Doesn’t it bother you? Aren’t you mad?!”
“There’s no point-”
“No, don’t tell me that, Elsa, there is a point! The point is, because of what they withheld from us, you spent thirteen years locked away in your bedroom. You tried to erase every feeling, every emotion, that ever flickered in your mind. You were kept locked away, afraid of everything, and I was kept thinking that I was too stupid to be trusted with anything, to dumb and useless to be loved, and the point is none of this had to happen!”
Anna’s last words were punctuated by a grunt from Elsa, who tightened her arms around her middle, pressing her palms into her sides desperately, but the fire had swelled and flourished, deprived of air for as long as it had, and it burst from within her in a crackling of ice.
Anna’s breath was visible in the suddenly frigid air around her, and she breathed out in awe at the ice figures of her parents who stood just as they had a moment before – but now they were pierced and skewered with hundreds of needlelike shards of ice.
“Of course I get mad, Anna!” Elsa’s yell was rough and her breathing was ragged. She clenched her arms tighter around herself when she glanced at what she had created subconsciously.
Anna took a step forward towards her sister in silence, stunned at Elsa’s rare display of intense emotion. Elsa continued on, body coiled tight and eyes squeezed shut.
“Before the thaw, I thought they knew everything. I thought everything had to be the way it was because Mama and Papa knew best. But when you sacrificed yourself, and I learned how to control my powers? I saw that everything they had ever done was wrong – all that we had endured was for nothing!” She took a deep, shaky breath as the rage built up and leaked out in tears down her face.
Images flitted through her mind, memories that had been reflected within the dome of Ahtohallan. Closing her door for the first time. Tugging on a new pair of gloves as her hands grew. Stepping out of her mother’s hug, yelling at her father over a stack of diplomacy books. Plates of frozen food, a washbasin too full of ice to use. A knife of ice held to her wrist. Longing looks at life outside her window.
“We could have grown up together. You could have helped me. God, Anna, when I think back to – to-” the jumble of thoughts overwhelmed her and she shook her head. “It all could have been so different.” She let out a strangled laugh, almost sinister in an unsettling way, and it gave Anna chills that weren’t from the cold air around them.
“Thank you,” Anna breathed, the tightness around her chest loosening. “I thought I was the only one that felt that way.”
“You’re not,” Elsa said. “I just – I just can’t cope with the thought of how much of our lives were hurt, were wasted, with thinking of all the could-have-beens.” Her expression is fixed with a faraway look, mouth downturned. “I can’t stop thinking about it sometimes, and I get so upset.” She cradled her hands in that tender way. “I can’t bear to think that we wasted our childhoods, all for nothing.”
“I’m sorry, Elsa,” Anna said, clasping Elsa’s hands in her own. She hadn’t meant to cause her sister so much distress, to make her think back on what their lives could have been like. “I didn’t mean to make you so upset.”
“I know.” Elsa finally allows her gaze to meet Anna’s. “It’s just something we have to face and move on from, like everything else. I suppose I…well, it’s just that we all make mistakes trying to do the right thing, and those things have consequences, whether or not we meant to cause harm. Mama and Papa were no different.”
“And we don’t know what could have happened, Anna – maybe they did do the right thing. I could have hurt you again, later, or – or somebody else. Somebody who wasn’t keen on keeping secrets, and then…” she trailed off, turning even paler at the thought.
“Hey, hey, let’s not think about that stuff,” Anna comforted, wrapping her hands around Elsa’s which were starting to worry again. “But you’re right, there’s no sense in speculating. What happened happened, and hey, you know what?” She smiled and nudged Elsa under the chin to make her look up at her.
“What?”
“And now we’re together, and we’ve found where we belong. What could we possibly have to be upset about?”
The girls embraced, the hurt of years past still lingering and throbbing, but tempered now by the love they had for each other and acceptance and fulfillment of what their lives had brought them.
This is what we’ve been waiting for…all of our lives.
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Have you ever thought about how mad Anna and Elsa must be that their childhoods were wasted? When all along they could have (possibly) had very happy, loving lives together? I can’t imagine trying to let go of that anger and not think of all the could-have-beens. I think this is something that the girls try to let go but maybe can’t ever fully come to terms with.
Thanks for reading! As always, would absolutely love to hear what you think! Your comments keep me writing :)  
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Text
give ‘em hell, darling
Chapter Two—Step 1
Sandalphon appears to read Aziraphale his charges and to collect him from Earth.
(read it here on ao3!)
“An’, get this angel.”
“What?”
“She told ‘im, ‘nothin’ wrong with the economy, just get your arse up and find a job!’” Crowley hooted loudly, sloshing a considerable amount of wine down the fist gripping the stem of the glass. Aziraphale, glassy-eyed, miracled it back into the cup. “An’ she hasn’t worked in years! ”
Aziraphale shook his head, tutting. “What did you do?”
“Nicked her credit card and left it for the bum.”
“Crowley…! Alright, I would have given him money anyway. Stealing from the rich, giving to the poor, or something like that.”
“See, you get it.”
A very sharp rapping on the door rudely interrupted Crowley’s drunken rendition of a fool he had made out of a woman on the street criticizing a homeless man.
“Someone’s here,” said Crowley after a minute.
“Obviously,” said Aziraphale. “Doors don’t knock themselves.”
“No, I bloody well know that!” hissed Crowley, drunkenness slurring his vigilance. “Someone’s here! Aren’t you closed right now?” He stiffened abruptly, nostrils flaring slightly. “I can feel it—someone holy. Smells like bleach.”
Oh, dear. Murmuring some very mild curses, Aziraphale quickly sent the alcohol in his system back into the bottles and then told the bottles to return to the dusty cabinets from which they came. He straightened his bow-tie and after he swallowed dryly, called, “One moment, please!”
“What the Heaven do they want? I thought you said they’d leave us alone!” hissed Crowley. He had sobered himself up as well and was agitatedly pacing back and forth, shooting poisonous looks at the closed door, which shuddered fearfully in its doorframe.
“I’m not sure,” Aziraphale said. 
“We’ve wasted enough time already,” said a sharp voice, laced with—glee? That couldn’t be good. Aziraphale pushed down his growing concern and made for the door. “Open up. I know you’re not—ah.”
“Good day, Sandalphon,” Aziraphale greeted tersely. “What business brings you to Earth?”
“You,” Sandalphon answered with a grin that was too wide to be natural. His gold-teeth, hardly having to be changed for his human appearance, glinted. He produced a stack of papers and brandished them. “You’re being recalled to Heaven.”
The shot of dread that fired through Aziraphale’s body made him feel weak-kneed. He resisted stumbling by sheer force of will and managed to coolly ask, “Why?”
Sandalphon stepped inside the room without invitation. He glanced derisively about, empty eyes moving derisively from Aziraphale’s dusty shelf of not-for-sale (read: favorite) books, to the antique rug, and finally, to Crowley, who curled his lip and let his forked tongue flicked menacingly. “Your performance lately has been lacking,” Sandalphon said, refocusing his stony stare on Aziraphale. “Heaven has decided you’re no longer the best suited for this job.”
Crowley snorted ungracefully while Aziraphale blinked disbelievingly.
“You’re kidding,” said Crowley. “Was there another angel who’s secretly been on Earth this whole time?”
“Am I—Am I being fired?” Aziraphale asked incredulously.
Sandalphon’s plastic grin stretched wider, somehow. “No. You’re being recalled. You should be fired, but this is the next most appropriate action to take.”
“That’s not—Never mind.” Aziraphale discreetly wiped his hands on the backside of his coat. “What about my, erm, performance has been failing?”
Sandalphon gestured to Crowley. “Obviously,” he said shortly, “ that has not been permanently banished to the deepest pits of Hell.”
Aziraphale bristled as Crowley loudly said, “I am right here. ”
“And,” Sandalphon continued, unperturbed, “your reports have been disappointingly lackluster. You’ve reported nearly the exact same interactions with humanity from this particular part of the world for the last year, and the year prior to that, and the year prior to that. And the two hundred before that.” He sighed in the morose manner you’d expect from a greedy boss denying you a raise. “Our expectations for you have simply not been met.”
Azirphale gritted his teeth and forced out, “May I see exactly what expectations you are referring to?”
To his surprise, Sandalphon actually handed over the papers. Aziraphale took them, staring suspiciously at first at Sandalphon, then the papers. Crowley’s lip curled as Sandalphon pointed out a paragraph on the first page.
“You’ll see here that the terms to your assignment are laid out quite clearly,” he said. Lines began to highlight themselves in golden light, obviously larger points of discussion. Aziraphale scowled. He filed his own taxes to the point of investigation by the British government, for Heaven’s sake, he knew how to read the small-print. The light only served to amplify the bleak blackness of the curling Enochian. “To begin, you were given the task of protecting the humans of the Garden of Eden from Evil. This included the terrible temptation of Eve.” Sandalphon shot Crowley a nasty look. He shrugged unapologetically. “You were charged with a Holy Blade of Flame by the Almighty to assist you in this task. However, you lost it mere week later, and it ended up in the hands of the one of the Four Horsemen of the Apocalypse, War.”
“It—That was to help the humans! It was in the name of good!” Aziraphale did not like where this was going. “It was cold. I could not send them back into the Garden after their ejection by the Almighty—but I had to do something.”
“Which brings me to my next point…”
Crowley rolled his eyes. Aziraphale could only grit his teeth and listen as Sandalphon went down a list of his apparent misdemeanors with excruciating detail and slowness. Being unable to keep peace in a small village teeming with anger over a corrupt political situation in 2200 BC, allowing said political situation to become corrupt, warning families of a blight in 13 AD, healing people who Heaven wanted dead in 403 AD, miracling people to full recovery during the Bubonic Plague, and, most recently—
“You’ve been observed to be indulging greatly in the sin of gluttony—”
“Now, just one minute,” Aziraphale interrupted, beginning to feel panicked. 
Sandalphon’s smile turned sour. “Angels can’t sin. This goes without saying. However, you’ve clearly proven yourself to be something else ever since that little stunt with the Hellfire. We don’t know what you are. Obviously not Fallen, but you’re not Unfallen, either. Gluttony is a sin no matter what you are. It’s only appropriate we treat it as such.”
Aziraphale froze. Beside him, Crowley had also gone still. Crowley had recounted exactly what had happened to him while he was in Heaven, including Uriel’s disgusted comment of, “What is he?” Evidently, it had not gone unnoticed. Admittedly, it was a rather logical question to ask. But Aziraphale couldn’t answer, “I don’t know either,” and he couldn’t explain what he and Crowley had done to escape extinction. That would only tell Heaven they could try again, and get the results they wanted this time. He swallowed and said nothing at all.
“So,” drawled Sandalphon, “the sin of gluttony. Gabriel noticed you partaking in some Earthly food while he was here. You explained it was for your human disguise. However, you’ve been recorded sullying your heavenly body with gross matter for centuries now. You don’t need to eat. Therefore, anything you consume can be considered excessive and unnecessarily.”
“That’s bollocks,” Crowley cut in. Both angels turned to him, Sandalphon in annoyance, Aziraphale in surprise.
“What?” said Sandalphon.
“That’s wrong,” Crowley said impatiently. “I’m the demon here, I should know what sin is. Gluttony’s supposed to be, y’know, an excess of food or wealth or whatever withheld from the needy. Sure, he eats a lot for an angel”—Crowley pulled his face into a ‘well, what can I say?’ frown—“ans he eats every day like most humans do. But he’s never sat around and ate big ol’ honeyed hams and wine all day while telling the poor people to piss off. I would know; I’ve been, erm, adversary-ing him for six thousand years.”
Thank you, cried Aziraphale internally, but Sandalphon was not impressed.
“Then what of these books?” he said at once. “Surely you don’t think we haven’t noticed the way he hoards these things. They are a symbol of status he refuses to part with, even for the innocent human pursuit of knowledge.”
“That’s different! Humans don’t need books the same way they need food.”
“Fine,” Sandalphon said with great reluctance. “The food is excluded. Then do tell me, demon; what is the reasoning for his reluctancy?” 
Sandalphon turned to Aziraphale, who had gone quite pale.
“Their contents would be wasted on them,” he said. “It would be a tragedy, really.” He wanted to say collectors only bought them for the name, but he knew that wasn’t true; most collectors were just like him, in reality. The only difference is that Aziraphale has been there, living the events that inspired the legendary books of their times. There was no experience like it. Any modern day collectors were simply grasping for a way to experience a past they never could live. And for as long as a story is passed around humanity, it is eventually lost in the mess. As long as they were with Aziraphale, they were safe.
Sandalphon raised an eyebrow. His bald head was shining in the lamplight. “You wouldn’t even spare that moment of joy for a human? They don’t have forever to indulge themselves.” Sandalphon took Aziraphale’s guilty press of his lips as a victory. His eyes shone triumphantly. “Do you have anything to say for yourself, Principality?”
Aziraphale blinked once and let all pretenses of politeness slide off of his face. “Nothing you would sincerely listen to.”
“Aziraphale!” Crowley whirled on him, gripping Aziraphale’s forearm in one hand and gesturing furiously with the other. “Wha’—You can’t just go with him!” he snapped. “There’s—You haven’t hardly got to make a case for yourself!”
Aziraphale forced a weak smile for Crowley. He patted his bony hand gently. “It’s looking like I’m having little choice in the matter, my dear.”
“Hell, even Hell at least has a jury!”
“Yes, well… this is Heaven after all.” Aziraphale leveled an icy glare at Sandalphon who shifted uncomfortably. “They can do no wrong. Can they.”
“No,” Sandalphon said airily, sounding severely less confident. His mouth opened to say something else, only it opened, and then nothing at all came out. In fact, it stayed perfectly still, as did the rest of the room; the dust motes froze mid-flight, the swaying of Sandalphon’s trench-coat was caught in a dramatic turn—
“Crowley?”
“Aziraphale, they can’t take you again!” Crowley had a snarl on his face as he angrily waved his hands in the air. “They brought a demon last time for the Hellfire, they’ll bring another to—to torture you, or something! You won’t last a second! Or they’ll find you over to Hell itself—!” 
“I’m tougher than you think,” Aziraphale assured him gently.
Crowley’s face crumpled. “I want to believe you, angel, I do. But this is Heaven’s punishments we’re talking about.”
Aziraphale’s heart ached at the fear in Crowley’s voice. He took Crowley’s cold hand and folded it tightly in his own two hands, holding it against his chest. “I understand your concern, my dear. But I’ll be alright. They’re operating out of fear, at the moment, I’m sure.”
Crowley furiously shook his head and wrapped his other hand around Aziraphale’s, gripping it as though he would vanish right then and there. Which, Aziraphale thought grimly, he very well might be. “It doesn’t matter what they’re operating out of! They want to get rid of you—”
“That may be so. But I think that Heaven is being a tad ambitious,” Aziraphale said primly. 
Crowley stared at him. Then he took off his sunglasses to really drive in the disbelief shining in his—entirely yellow, Aziraphale noted guiltily—eyes. “Aziraphale, what are you saying?”
“There is no such thing as luck,” he said delicately. It was not a coincidence I found a scrap of prophecy that happened to be exactly what we needed to live another day.”
Crowley’s pupils narrowed to thin lines. “I, you, wh—gh? Can you even hear yourself right now? You think—? Come on, after all of this, you really think She— ?”
The room had slowly begun to move again. Crowley’s miracle was wearing off. 
“How can you be so sure?” he finally asked.
“Crowley, listen to me,” Aziraphale said lowly. “I honestly cannot say I know what they will do. Your guesses are as good as mine. But I know Heaven, and I am not stupid. They don’t believe the failure of the Great Plan was a part of the Ineffable Plan. They’re searching for someone to blame, and, well, I’m a prime candidate.”
“Then they should take me too!” Crowley said indignantly. “I’d rather be trapped in Heaven with you than be on an Earth without you.” Aziraphale’s cheeks grew faintly warm at the intensity and genuinity of that statement, but he had to focus right now. He shoved the tidal wave of adoration towards Crowley as hard as he could and hoped he would feel it.
The sway of Sandalphon’s coat has reached its apex and was now falling the other way.
“The feeling is mutual,” he said honestly. “Heaven does not care for Earth as much as they do about the War. But they do care about what will happen to Earth if Hell is given free-range. They won’t leave you alone. If—when—they take me, they’ll send another angel in my place.”
Crowley made a disgusted sound. 
“Heaven does not appreciate the wonderful stories and intricacies of this place; I believe it is why they were so eager for the end of the world. And if they do send another in my place, it is under the assumption they can use any stuffy old angel to replace me. That anyone can appreciate humanity as I do. Crowley— you need to prove them wrong. ”
Crowley was always a particularly cunning demon. His distressed face went through a complicated series of emotions before ending on a positively, if slightly wobbly, serpentine grin. “And how should I do that, angel?” he purred.
The completely random thought of kissing Crowley dramatically before the miracle ended flirted intensely with Aziraphale. Startled, Aziraphale found himself leaning in to growl, “Give them hell, darling,” and then the miracle’s lifespan was up.
Sandalphon looked incredibly displeased.
“You’re only delaying the inevitable,” he said snidely.
“I delayed the ineffable,” Aziraphale corrected. Sandalphon narrowed his eyes. “Well? Go on, then. List my charges.”
Sandalphon tapped his foot on the ground and the pages went flying back into his outstretched fingers. “It is with these words that I charge thee, Principality Aziraphale, Angel of the First Order of the Lowest Hierarchy, Guardian of the Eastern Gate…”
Aziraphale stopped paying attention as the list of his crimes ( crimes, he thought with a mental eyeroll, this was ridiculous) was read. He nudged Crowley, and hoped the brief contact was enough to convey, I’ll be okay, we’ll be okay, I promise I’ll come back. I won’t leave you behind.
“I still hate this,” murmured Crowley, low enough to go unnoticed by Sandalphon.
Aziraphale gnawed his cheek—a nervous habit gained after reading the phrase from a book and trying to figure out what it meant. “It is not ideal,” he said back just as quietly. He smiled tightly when Sandalphon glanced at him. “But I believe it won’t be long,” he continued. “I’ll be back before you know it. Two shakes of a lamb’s tail.” 
“...two thousand, seven hundred, and thirty-three accounts of gluttony…”
“Yeesh. You’d get a commendation from Hell for that one.”
“Hush, you.”
Finally, after what felt like a day's worth of monotonous droning, Sandalphon lowered the papers. “Given this evidence, Heaven no longer sees you fit to be the angelic representative of Earth. You will be recalled to Heaven until given further notice, and during this time, Heaven will proceed with any necessary actions. Do you have any questions?”
Aziraphale made a show of looking cowed. “May I say goodbye?”
“To who? The demon?”
“Humans question things when a regularity in their life vanishes without imaginable reason.”
Sandalphon nodded after a very obvious hesitation. “You have one hour.”
And he vanished in a great crackle of lightning. Aziraphale slouched, unaware of how tightly he’d been holding himself up. Crowley squeezed his tense shoulder.
“I should get going,” said Aziraphale. “Clock’s ticking. Will you mind the bookshop for me while I’m gone?”
“‘Course.”
“If anyone asks, I’m on a business trip.” Crowley nodded, a pinched expression crossing his face. “What is it, Crowley?”
He didn’t answer for a pronounced moment. “Just—Don’t do anything stupid, angel.”
“I’ll miss you too, my dear.”
An hour later, after he had exhausted himself teleporting around London hastily explaining his absence to the restaurants he frequented, his manicurist, the bakeries, making phone calls, and leaving voicemails for would-be buyers of his books, Aziraphale was gone.
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talesmaniac89 · 7 years
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His home
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Pairing: Sam x Reader
Summary: Sam seeks forgiveness and comfort in the reader’s arms after a hard day.
Triggers: Some talk about Sam not really believing himself to be worthy and other low self-esteem thoughts, and a bit of fluffy angst.
Y/N = Your name Y/H/C = Your hair colour
Part of the TFW comfort stories: Dean’s: His Rock | Castiel’s: His Shelter These three are only connected by theme and can be read in any order.
Sam had gone to bed earlier than you. 
He often did that on the bad days. Simultaneously seeking solace and holding court within the confines of his head in the safety of his room. When the bad days turned to painful evenings, where every smile looked painted and every laugh sounded hollow, you usually gave him a few minutes to just be alone. To collect his thoughts before following him into your shared room. 
Never wanting to be too far away when your heart was hurting. Because he was your heart as much as you were his, and when Sam Winchester was in pain, so were you.
That night was no different as you followed him to bed after saying goodnight to Dean. No words were spoken as you entered the bedroom and watched Sam from the doorway. His back rigid and straight on the bed as he looked at the ceiling. Treating the grey surface as a movie screen; a window into past hurts that pushed down on him and left him a motionless captive audience.
It had been one of the really bad days. 
It was always harder when he had to work directly with one of the people who had abused his kind heart, his demons, because in your eyes that was all they were. Human, angel, the devil, or literal demon alike.
They were the monsters who had taken a broken man and ground the pieces into dust for their own satisfaction. Just to watch it run through their fingers like the shattered remnants of an hourglass as they stole more of his precious time than he had left to give. 
Especially in the presence of those out to hurt his family and him, even if they had offered a momentary truce. Around them every minute ticked and clicked, like the bullets entering the chamber of a revolver.
Cases like your latest one were Sam’s Russian roulette, and you, you tried to be his shield against blanks and bullets alike. Both at night as he held onto you to keep from drowning, and during the day as he acted strong and unconcerned. 
Though you knew that every comment, every smile was like the flash of a camera, bringing a distorted polaroid image to mind. A reverse Kodak moment of a dark time in his life. Yet in Sam’s eyes he was the one in the wrong. The one who didn’t do enough.
 Because unless the whole world was safe it was never enough for your Sam Winchester. The man who believed a hero saved all and didn’t stop until everyone had a happy ending. 
On nights like that Sam was choking. 
Unable to breathe past the burdens of his past as he carried sins and regrets on his back like Atlas carried the world. Unwilling to let go, or share the burden, even if it was slowly crushing him. Even if it kept him rooted to the spot as the tide came in and threatened to make a second Atlantis out of the man as he sank below a sea of unshed tears. Equipped with nothing but a pair of cement shoes crafted from the lives he’d been unable to save.
You knew, just as well as you knew your own heart, that it wasn’t words Sam needed. Not really. He needed you; he needed a guardian to watch over him and someone to hold him up and anchor him to the present. 
So, you didn’t speak as you crawled into bed, allowing Sam to turn on his side until your back fit perfectly against his chest and wrap his arms around you. Holding onto you with a deep, fierce need, as if you were both something to be protected and something that could protect him.
When the hurt came and the sun set Sam just needed to talk. To be forgiven for burdens he didn’t have to carry and past scars he had no reason to feel guilty for. To hold you close with your back against his heaving chest as he fought for every pained breath while confessing his imagined sins into the back of your neck. 
Burying his head in the layers of your (Y/H/C) hair and leaving it damp with a mix of blood soaked whispers of guiltless confessions and the defeated tears of a man who had played at being the sacrifice in a world that always demanded more for too long.
It wasn’t about the words, he didn’t need you to speak; to absolve him of sins he believed he carried no matter how many times you and others tried to convince him otherwise. No, he just wanted you to listen. To hear what he was carrying on his shaking shoulders. To act as the paper on which he etched his story. Your skin soaking it in where it was too much for him to carry. 
He didn’t need to hear from you that he was wrong to feel the way he did. Enough people already told him that his guilt was unnecessary, that he shouldn’t carry it, that none of the bullshit was his fault.
Deep down you were sure even Sam knew he was an innocent man. Wrongfully convicted and forced to carry the shackles of hurt and pain for actions beyond his control. Yet, he stayed at the gallows with the noose around his neck. 
The sacrificial lamb and his own executioner, falsely accused of pain inflicted both onto himself and to others. And you, you were his confessional, his saviour and the ground beneath his feet, keeping him from falling.
With his arms tightly wound around you and his long legs entangled with yours he would whisper truths and untruths into the dark bedroom air. Sam would speak, beg for forgiveness, to pay penance for old mistakes, and you would stay in his arms. Your own hands on top of his as he held you close enough that you could feel the echo of a shake in each breath he fought to draw. 
You would listen, and you would reassure both with words and with soft strokes of fingers against bare arms. Telling him that he was good, that he was human. And that the greatest gift to humanity was that it was alright to make mistakes.
Though Sam didn’t always believe you, he needed your reassurance on nights like those. To know that, though he sought forgiveness and absolution, he didn’t need them from you. 
Even if your reassurance was the silent comfort of patterns painted on whitening knuckles or just whispered words of understanding. He wasn’t looking for you to forgive him for sins you believed him innocent of. Since the only one he really had to seek forgiveness from was himself on those nights.
Because he owed the world nothing, but he owed himself the world.
Just holding you made the hunter feel at ease. It loosened the thorny chains he normally carried, wound around his body, for a while as he let out some of his pain. Allowed himself to fall apart since he knew you were there to help pick up the pieces, or at least keep them from being crushed by new burdens until he was strong enough to once again pick them up himself.
Sure, Sam could share certain parts of his pain with his brother. Yet, he always kept the worst of it in. Triple locking the padlocks on his heart out of old childhood fears. 
He was still, after all those years, afraid to be a nuisance. Still too caught up in a past he had already defeated to clearly see through the haze of the ghosts he carried that he wasn’t that scared little boy anymore. He was no longer little Sammy, who worried his father would turn him away if he made life on the road too difficult.
Yet, the worst of it he only shared with you. Lying together and holding you close as he whispered of sins and doubts. Only offering up the deepest wounds in his heart to you and the darkened bedroom around you.
Like a child whispering its deepest secrets to a teddy bear in exchange for protection from the monsters in his closet, Sam would hold you close and share even the most bruised and battered parts of himself with you as you kept an eye out for the skeletons from his past. He would tell you his fears and you would cradle them in your arms. Softening the corners and lighting up the shadows to lift some of his burden.
Sam feared nothing more than he feared happiness. 
Because in his life the golden rule was that something bad always followed a happy moment. Something was there, waiting to drag him down into despair again. As if to punish him for his smiles. Making the bright man treat even a small moment of peace like it was as sinful as the forbidden fruit itself. Though, instead of nobody being allowed to take a bite, only he himself was withheld from the pleasure. A starving man in a sea of gluttons.
Sure, he would smile, but deep in those hazel eyes you could see him breaking. Like the very act of pulling the corners of his mouth up was pulling at his seams, chipping away pieces of him with every new attempt at happiness, real or not.
Even the idea of normalcy, of finding happiness and comfort with white picket fences, homemade pies and manicured lawns no longer cheered the weathered hunter up. What was a normal life and childhood for others was foreign to him. Something to be feared and desired, and most of all something he didn’t believe himself worthy of. 
Those moments with you, being just Sam. Not Sammy, the hunter, the recovered addict, the vessel or the victim… Those were the closest he ever got to normalcy and guiltless happiness, and he was ok with that. As long as you were.
Unlike his older brother, Sam couldn’t remember normal. 
He didn’t have memories of his mother’s comforting arms around him or her telling him that everything would be alright and that the angels were watching over him. So, you took on the role, carried the sword and shield for him and cradled his hopes and dreams in your arms. Not as a mother, but as a guardian angel. As his knight, his protector, his guiding light on darker days. 
You were the angel his mother had whispered about in a time before he could remember. And though he didn’t feel worthy of it, you embraced all of him, protected his heart and soul, imagined sins and all.
And so you held him and let him speak. Let him confess and be fragile for a while as you kept the demons and monsters at bay. Just listening to his confessions until the wounds stopped hurting and you could kiss them and fill them with love.
As the whispers stopped flowing from him and into your hair, and his arms lost some of their tight hold around your waist you turned in them to look into his eyes. The lack of light not keeping you from seeing how your image somehow looked like it was thrown back at you through fractals of glass in the broken soldier’s hazel eyes. Yet, where there had been only pain you saw hints of temporary peace. Of tired comfort, as he held onto you and put his forehead against yours.
“I’m ok,” Sam whispered the words into the darkness, trying to act strong as your hands lifted to push his soft hair out of his eyes to truly read his expression. ‘Ok’ was a lie you both told yourself. Merely an answer to an unspoken question that could never really have a sincere answer. 
‘Ok’ was a grey zone, a middle ground. The line to walk between falling to pieces and peaceful comfort. And ‘ok’, was never enough when you wanted to give the man in front of you the world.
Moving your forehead from his, you placed a soft kiss in its stead as a placeholder before lifting your arms until they enveloped his head and held him tight against your chest. So that the hunter could not only hear your words but feel the vibrations of them in time with your heartbeat. Your eyes shutting tight around tears you couldn’t cry for him, since he would only soak them up and carry them with the rest of his unwarranted guilt.
“I know you’re not, and that’s fine, you’re allowed to hurt Sam. We all are. Right now everything is shit, the world’s just a mirror image of hell, but we’ll make it better,” You whispered your words into his hair, keeping the shake of your voice at bay as you punctuated yours words with small kisses. 
“It’ll be hard going, but we’re not alone. We’ll have each other’s backs. Be each other’s guardian angels. And one day, it will be better. Maybe not perfect, but better,”
“I hope so,” Sam’s voice was small as his arms tightened around you and his hands curled into your t-shirt holding on for dear life. Like a kid holding onto his mother’s skirts when things seemed uncertain, new and scary. 
“I just… I hope so,” He sighed as he repeated himself. Pain and doubt clouding the good, hopeful man you knew he really was.
“Even if things aren’t perfect, or even slightly ok, we’ll always have each other. You’ll always have me,” You added, rocking the big guy back and forth in your arms as you rested your head on top of his. 
“And we’ll always have our dreams,”
“Unless you’re here, (Y/N), they’re always nightmares,” Sam sighed from somewhere within your embrace. His defeated voice tugging at your heart as you rested your head on top of his and held him close. 
It was your turn to embrace him now, to hold him together until there was nothing left between the two of you but good dreams and soft comfort. Sam’s nightmares were worse on nights when he’d dealt with one of the monsters that normally starred in them. And all you could was to try and overwrite them with a world of your own.
On evenings and nights like those he just needed you to convince him his dreams wouldn’t be filled with horrible flashbacks and black and white horror shows of the abuse life had handed the man in lieu of lemons. And so you would hold him. You would plan your dream’s destination like it was a vacation. Your voice soft and mild as you told Sam what would be painting the landscape in his dream whilst you watched over him to keep away the shadows.
“Where do you want to go tonight? Paris?” You asked Sam and the hints of childish imagination that you were sure still surrounded the young heart of the man you loved. A man who still held onto hope of finding the good in everyone but himself.
“No, I want it to be just us,” Sam buried his head in the crook of your neck as he waited for you to help him to decide on where his good dreams would take the two of you tonight. A place where he could be just Sam. A place without gallows or confessionals, where sin was magically absolved, and happiness wasn’t a rare find.
“Alright, then how about that clearing in the forest we found over near the Rocky’s?” Your murmured question brought a small tired smile to your lips as you remembered the near magical place you had found by chance after a hunt. 
The place where Sam had seemed like just a man, a good man, with no weight on his shoulders. The otherworldly place that somehow temporarily had shown you a Sam with no shadows staining his blinding light.
“Yeah I’d like that,” You could feel and hear his faint smile as his arms momentarily tightened around you and his breath tickled your neck.
“Sure, so we are in the clearing. It’s a beautiful day; sunny with not a cloud in the sky,” You closed your eyes, feeling Sam do the same as his eyelashes fluttered against the sensitive skin of your neck. 
“We can hear the birds, and sense the movement of small animals through the bushes in the distance as we put out a blanket and ready the picnic basket. I’ve made you all your favourites,”
“Brownies?” Sam asked as you responded to the food request with a chuckled confirmation.
The little comments continuing as you painted a picture of your picnic in the quiet forest clearing. He was like a kid listening to a fairy tale as he let you create his dream from the ground up. Never really adding to it, just curious comments about certain details and little wordless sounds of happiness that acted like a backing track to your spoken word lullaby.
Your dream worlds were always detailed, because Sam needed the details to sink into them. And so you spent the night whispering about sunsets and stargazing. About the warmth of the fire and the smell of the clean air that was free of sulfur or bad memories. 
Creating a space where he was free to be him. Just Sam.
“Thank you,” The mumbled words left your hunter as his smile softened and his arms lost some of their strength. Already hinting that he was one step ahead of you; waiting patiently for your arrival in the clearing with a picnic basket and a blanket.
Because though you were the steady ground, the protective walls, and the carpenter that created a space for him. To you he was the light and colour that filled it. Your love the air you both needed to breathe. And that clearing, the bedroom, and your arms around each other, that was your home.
In dreams and in reality, together you were always home. 
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A Summary of Bad Things Trump Did This Week, 4/9/17-4/15/17
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Ahhh! Life is crazy and busy, which I’m sure is the case for everyone reading this. We at Bad Things Trump Did Today definitely want to bring you accurate and timely news about the doings of the Trump administration and Congress in general, however we can be limited by our own personal time constraints. We absolutely appreciate everyone’s understanding, and without further ado here’s the summary of Bad Things Trump Did This Week!
This summary mainly includes the bad things Trump and Congress did this week, as well as some news that’s important to note.
Monday, April 10, 2017
Republican leaders avoid town halls after House health care vote 
Source: USA Today
The migration away from public forums has been going on for months, despite complaints from constituents and local media. There have been roughly 30 recent newspaper editorials slamming lawmakers for avoiding town halls and calling on members to face their voters, not only in bluer portions of the country like New York but also in critical battlegrounds like Pennsylvania’s 6th and 7th districts[...]
Trump on track to surpass 8 years of Obama’s travel expenses in just 1 year
Source: CNN
Trump's frequent weekend travel makes it all but certain the 45th President will surpass Obama's spending in his first term, likely within months.
The spending comes as Trump asks the federal government to slash non-defense spending by $54 billion, including deep cuts to the State Department, the Department of Housing and Urban Development, the Environmental Protection Agency and the wholesale elimination of other federal programs. The proposed cuts, which are unlikely to be adopted in total, will correspond with $54 billion in increases to defense spending.
As CNN reports, Trump’s expenses for his Mar-a-Lago trips has already surpassed a fifth of what Obama spent on travel in his entire 8 years as presidency. Obama’s expenses included both personal and work trips.
Sessions orders an end to forensic science commission and suspension of policy review 
Source: The Washington Post
The commission was a partnership started in 2013 between the Justice Department and independent scientists. It’s purpose was to evaluate and elevate the standards of forensic science in the U.S., and Session’s decision has led to criticism from members:
Several commission members who have worked in criminal courts and supported the input of independent scientists said the department risks retreating into insularity and repeating past mistakes, saying that no matter how well-intentioned, prosecutors lack scientists’ objectivity and training.
U.S. District Judge Jed S. Rakoff of New York, the only federal judge on the commission, said, “It is unrealistic to expect that truly objective, scientifically sound standards for the use of forensic science . . . can be arrived at by entities centered solely within the Department of Justice.”
In suspending reviews of past testimony and the development of standards for future reporting, “the department has literally decided to suspend the search for the truth,” said Peter S. Neufeld, co-founder of the Innocence Project, which has reported that nearly half of 349 DNA exonerations involved misapplications of forensic science. “As a consequence innocent people will languish in prison or, God forbid, could be executed,” he said.
Tuesday, April 11, 2017
Two members of extreme anti-immigration groups hired in high-level advisory roles
Source: CNN
Jon Feere, a former legal policy analyst for the Center for Immigration Studies (CIS), has been hired as an adviser to the acting director of Immigration and Customs Enforcement (ICE). Meanwhile, Julie Kirchner, former executive director of the Federation for American Immigration Reform (FAIR), has been hired as an adviser to the acting Commissioner of Customs and Border Protection. Both CIS and FAIR are both anti-immigration groups representing the extreme far-right, according to the Southern Poverty Law Center:
"CIS has published articles that labeled immigrants 'third world gold diggers' and that blamed Central American asylum seekers for the 'burgeoning street gang problem' in the US, while Dan Stein has said that many immigrants that come to the US hate America and everything the country stands for," said Heidi Beirich, director of Southern Poverty Law Center's Intelligence Project, which oversees the center's yearly count of anti-immigrant groups. "We take these designations very seriously, and CIS and FAIR are far-right fringe groups that regularly publish racist, xenophobic material and spread misinformation about immigrants and immigration."
Despite claims from anti-immigration groups that they are willing to enter discussions with immigration rights groups and the government, many immigration rights organizations fear what these appointments could mean:
"This isn't exactly the same situation as having Democrats and Republicans, conservatives and liberals, both in the same room," countered one pro-immigrant advocate. "The fundamental difference is that their agenda is driven by a nativist white supremacist approach to policy. So, to sit together in a room, not only does it have a chilling effect, but I think that many of the advocacy organizations, including ours, fear that we would be normalizing the nativist agenda as it gets into the halls of our government."
Spicer claims that Hitler didn’t use chemical weapons while discussing Assad’s use of such weapons in Syria
Source: The Hill
“We did not use chemical weapons in World War II. You had someone as despicable as Hitler who did not even sink to using chemical weapons,” Spicer said. “If you are Russia, ask yourself, is this a country and regime that you want to align yourself with?”
Given an opportunity to clarify his comments, Spicer misspoke again by trying once more to draw a distinction between Assad and Hitler, whom the press secretary said did not gas “his own people.”
“When it comes to sarin gas, [Hitler] was not using the gas on his own people the same way that Assad is doing,” Spicer said to audible groans from some reporters. He also referred to concentration camps as “Holocaust centers.”
Spicer’s remarks, made during Passover, have drawn criticism from numerous groups, including the Anne Frank Center for Mutual Respect:
“On Passover no less, Sean Spicer has engaged in Holocaust denial, the most offensive form of fake news imaginable, by denying Hitler gassed millions of Jews to death,” said Steven Goldstein, executive director of the Anne Frank Center.
Wednesday, April 12, 2017
Trump switches sides on four policies over the course of a day, backing away from some campaign promises
Source: The Hill
Trump swapped positions on the future of NATO, naming China a currency manipulator, the Federal Reserve chairwoman, and the Export-Import bank. The Hill provides a breakdown in their article above.
Thursday, April 13, 2017
Trump signs law allowing states to choose to defund Planned Parenthood
Source: NPR
This law was one of a number that was passed using the Congressional Review Act, which allows the house to overturn legislation made during the last 6 months of the previous President’s administration. The legislation overrules the regulation put in place under Obama that protects federal funds from being withheld by individual states:
Now that the rule has been repealed, states can effectively block Planned Parenthood and other abortion providers from funds associated with the Title X Family Planning program, which was established in 1970 to subsidize organizations that offer services related to contraception, pregnancy care, fertility and cancer screenings primarily for low-income people. 
Breaking: US drops America’s largest non-nuclear bomb in Afghanistan
Source: CNN
The bomb drop, which targeted an ISIS cave and tunnel complex, has never before happened in combat:
The US military dropped America's most powerful non-nuclear bomb on ISIS targets in Afghanistan Thursday, the first time this type of weapon has been used in battle, according to US officials.
A GBU-43/B Massive Ordnance Air Blast Bomb (MOAB), nicknamed the "mother of all bombs," was dropped at 7:32 p.m. local time, according to four US military officials with direct knowledge of the mission. A MOAB is a 30-foot-long, 21,600-pound, GPS-guided munition.President Donald Trump called it "another successful job" later Thursday.
The bomb was dropped by an MC-130 aircraft, stationed in Afghanistan and operated by Air Force Special Operations Command, Pentagon spokesman Adam Stump told CNN.
Friday, April 14, 2017
Concrete evidence of collusion between Trump and Russia has reportedly been handed to the investigation
Source: The Independent
The official investigation into relations between Donald Trump and Russia now has "specific, concrete and corroborative evidence of collusion", it has been reported.
New evidence proves discussions took place “between people in the Trump campaign and agents of [Russian] influence relating to the use of hacked material,” a source allegedly told the Guardian.
The developments come as it has emerged that Britain’s spy agencies were among the first to alert their American counterparts to contact between members of Mr Trump’s campaign team and Russian intelligence operatives.
The Secret Service has spent $35,000 on gold cart rentals since inauguration
Source: The Hill
The Secret Service has spent over $35k on gold cart rentals at Trump’s Mar-a-Lago resort since January 20. This information, first reported by CBS news, came as Trump settles in at the resort over the holiday weekend:
CBS' new report comes as Trump spends the full three-day Easter weekend at Mar-a-Lago. No senior staff took the Air Force One flight to Florida, according to a report.
Saturday, April 15, 2017
Trump says that he can’t be sued for inciting violence at rallies because he won election
Source: The Washington Post
Trump’s team rebuffed a suit filed by protesters claiming that Trump incited a riot against them in May of last year at a rally in Louisville. According to his team, Trump is immune to lawsuit since he is the President. The Washington Post reports more:
Trump's team challenged the accusations — negligence and incitement to riot — on many other grounds, too.
But a federal judge already rejected their attempt to have the lawsuit thrown out earlier this month.
And in another new filing in the same case, a Trump supporter accused of assaulting protesters agreed with the plaintiffs that Trump wanted a riot — while denying he actually harmed anyone.
Alvin Bamberger, who was seen in a video pushing a protester through a jeering crowd at the Louisville convention center, “would not have acted as he did without Trump and/or the Trump Campaign’s specific urging and inspiration,” Bamberger's lawyer wrote.
Bamberger denied “shoving … and striking” anyone, as the lawsuit accuses him of. But he admitted to touching plaintiff Kashiya Nwanguma, a 21-year-old college student who had gone to the rally with a protest sign.
And he accepted as true her claims that Trump's speech “was calculated to incite violence” against the protesters.
Trump continues hiring lobbyists without input from the Office on Government Ethics
Source: Propublica
Despite claims during his campaign that he would be willing to ban lobbyists from his administration, Trump has hired lobbyists from over 300 different corporations:
One striking case involves Michael Catanzaro, an appointee on the National Economic Council whose portfolio includes energy and environmental issues. Catanzaro was formerly a lobbyist for oil and coal companies that strenuously opposed the Obama administration’s clean power regulation. Three industry sources told the Times that Catanzaro is now working on that same issue in the Trump administration.
Even under Trump’s weakened ethics rules, former lobbyists like Catanzaro are not supposed to work on issues that they formerly had lobbied on.
Still, under Trump’s executive order, he can issue waivers at any time to staffers, Catanzaro included, for any reason, and never disclose it.
Even the federal government’s top ethics official, Walter Shaub, who runs the Office of Government Ethics, is being kept in the dark.
“There’s no transparency, and I have no idea how many waivers have been issued,” Shaub told the Times.
Want to learn more about how we can stop more bad sh*t from happening?
Donate to charities dedicated to fighting against the Trump agenda.
Learn from former congressional staffers on best practices for making your representative listen to you.
Register to vote in the November 6, 2018 Congressional midterm elections, save the date, and vote!
Learn how to run for office or get involved in your local political party.
Attend peaceful political protests and know your rights as a protestor.
Support organizations dedicated to investigative journalism and protecting our First Amendment rights.
Be sure to follow for more Bad Things Trump Did Today.
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if-you-fan-a-fire · 6 years
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This column was written by an inmate at Burnside jail, as told to prisoner advocate El Jones. The writer's name has been withheld to ensure his personal safety, and to protect the identity of his children.
A comment I heard on CBC Radio recently, made by someone who had been sentenced time and time again to the Central Nova Scotia Correctional Facility, resonated deeply with me:
"This facility gets worse and worse every time I come back."
Another brother stated, "When you're housed in this facility to be rehabilitated but instead you're warehoused like merchandise, your government has failed you."
The truth in these comments is real to me, even though it's my first time being incarcerated. I personally feel that the public should be very much concerned with what has taken place inside the Burnside jail, because it is they, as taxpayers, who keep these doors open.
"Rehabilitation" and "transparency" are two words that should never be used in describing this facility. The bare necessities required for a healthy and productive life aren't being provided here. Every time you can't get a towel, a change of clothes, or a pair of shoes your size — "your government has failed you," as my friend said.
Conditions at Burnside
Last Sunday, as we listened to callers to CBC tell us that we don't deserve breathable air because if you "do the crime, you do the time," three new people came onto our range without clothes, shoes or a towel to even take a shower. People have been assigned to this range without a change of underwear, or a mattress and without even a radio to pass the time.
It's hard to even get a Tylenol, never mind medical treatment. I've seen people with diabetes and asthma not get the medication they need. If you don't believe us about the conditions in here, you should believe the auditor general's reports, or even what staff who work here have been saying.
There hasn't been any programing for months, and we've been locked down for 23 hours per day. We are guaranteed time outside in accordance with the Corrections Act, but it only seems to matter to people that you get punished for breaking the rules when it's our rights that are being violated.
We must also keep in mind that the majority (around two-thirds) at Burnside are here on remand. They, in the eyes of the law, are innocent until proven guilty. And those who are here who have been sentenced, well, they then have been sent to Burnside as punishment, not for punishment.
Our children are certainly innocent, and yet they can go years without even touching us, because they have to visit us behind glass. Most people don't let their children go through that.
We are still human beings.
This is why we at Burnside are engaged in a peaceful protest. Through it, we hope to spread awareness of our plight, and raise the voices of the voiceless through solidarity with the communities we've come from, as well as activists who hear our call for dignity and constitutionally appropriate treatment.
We are making sure that nobody is confrontational with the guards because we want this to remain peaceful. Since August 19, when we released our statement, no one on the range has received a single disciplinary infraction. We are keeping ourselves calm and ordered because we want our non-violent message to be carried by those outside in solidarity with us.
Getting eyes on Burnside
The old ways of conversation, complaints, petitions and negotiations no longer work, and we want to avoid the violence of past protests. In those cases, people might refuse lock up, or damage property, but our protest is principled.
Through our outside support network, we decided to take a different approach, which has gained national and global attention. Right now, across the country, a lot of eyes are on Burnside — perhaps more than ever before — and so before the next "hot" news hits the papers, and the attention shifts to the next "hot" story, we hope to gain some traction in addressing some of the serious issues of our current situation.
We strikers want to send a big token of appreciation to all those who are in solidarity with us. Those who have spoken on our behalf, and shared our story. And for those still on the fence, it's important to remember the words of Nelson Mandela: "It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones."
- “I'm a Burnside jail inmate, and also a human being. Here's why you should care about our protest,” CBC News. September 4, 2018.
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itsfinancethings · 5 years
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October 04, 2019 at 10:17AM
A federal judge has ordered the release of a man convicted for the 2000 murder of an Indiana University student, ruling that his lawyers were ineffective and violated his sixth amendment rights — a decision one expert calls “very rare.”
On Monday, Indianapolis U.S. District Court Judge James Sweeney II granted John Myers II’s petition for a writ of habeas corpus, which orders his release from custody unless the state elects to retry him within 120 days. Myers has already served over a decade of his 65-year prison sentence.
In 2006, Myers was convicted in state court in the murder of Indiana University freshman Jill Behrman, who went missing before she was scheduled to arrive at work. While the bike she was riding was found days later, her remains were not discovered until 2003 after hunters found them in a wooded area in a nearby county.
According to the Indianapolis Star, investigators believed that Myers killed Behrman, a stranger to him, because he was upset his girlfriend at the time had broken up with him.
Myers initially challenged his conviction in state post-conviction proceedings, but was unsuccessful. He then went to federal court and sought a writ of habeas corpus—arguing that his lawyers provided ineffective defense during the trial, and that prosecutors presented false evidence and withheld exculpatory evidence.
In a 147-page order released on Monday, Sweeney determined that Myers’ counsel’s ineffectiveness violated his Sixth Amendment right, which guarantees all accused the right “to a speedy and public trial…and to have the assistance of counsel for his defense.”
Myers had been represented at trial by lead attorney Patrick V. Baker, as well as Hugh Baker.
According to Sweeney, Myers’ lawyers made two false statements to the jury in their opening statements, failed to object to inadmissible bloodhound evidence and failed to object to evidence Behrman was raped before she was murdered.
“Mr. Myers’s counsel made false statements to the jury during opening arguments,” Sweeney wrote, “which the counsel admitted to the Indiana Supreme Court in a subsequent attorney disciplinary proceeding. (They) also failed to object to two significant categories of evidence that should not have been presented to the jury.”
“In the end, these serious errors all but destroyed the defense that trial counsel presented to the jury and tainted the entire trial,” he added.
According to the Indiana Supreme Court, the false statements included the claim that search dogs were sent out shortly after the victim’s disappearance, and while one dog was “alerted” at the home of Behrman’s married co-worker, Mr. Hollars, the dog was called off. “These statements were false and Respondent should have known that no evidence would be admitted at trial to support them,” the Indiana Supreme Court said.
The lawyers also falsely claimed that Hollars and Behrman were seen arguing days before she disappeared. According to Sweeney, one of Myers’ attorneys’ theories presented to the jury was that Behrman was having an affair with Hollars, got pregnant and Hollars killed her to “cover it up.”
According to Sweeney, “the cumulative prejudice flowing from these errors is sufficient to entitle Mr. Myers to relief.”
Despite being suspended for practicing law for at least six months in 2011 for his false statements in his opening arguments in the Myers’ case, lead trial attorney Patrick Baker tells TIME in a statement that he is “very pleased” with the ruling.
“Our legal team initially took on Mr. Myers’ murder case in April of 2006 pro bono because we believed in his innocence, as we still do,” Baker said. “We fight for the Constitutional rights of our clients, and when necessary, take on difficult and unpopular causes in the interest of justice. We are very pleased the Court’s Order has given John Myers and his family renewed hope. We express our heartfelt sympathies to the Behrman family and will continue to pray for all involved.”
In a statement to TIME, Jill’s mother, Marilyn Behrman, says she is “disappointed in this ruling, especially after so many years.”
“I do trust the justice system and the process, so I will take this one day and one moment at a time and will deal with it,” she added. “I am more concerned with the emotional toll this may take on family and friends. I believe I am stronger now than I was the first time around and I know Jill would be proud of me for that.”
Hugh Baker and a third lawyer, Mike Keifer, who only entered an appearance in order to read the grand jury transcripts, did not immediately respond to TIME’s request for comment.
Meanwhile, the Office of the Indiana Attorney General says in a statement obtained by TIME that “we respectfully disagree with the federal court’s decision. We believe the Indiana courts handled this case appropriately. We continue to carefully review this ruling and will vigorously pursue justice.”
The office also said that it will review the case to determine whether or not they will retry Myers.
While wrongful convictions are frequently overturned, Molly J. Walker-Wilson, a law professor at Saint Louis University School of Law, tells TIME that it is “very rare” for murder convictions to be vacated due to ineffective counsel.
“The burden for defendants seeking to overturn a conviction on the grounds of ineffective assistance of counsel is substantial,” she says. “Statistically speaking, the vast majority of such attempts fail.”
Anne Geraghty-Rathert, a professor of legal studies at Webster University in St. Louis, tells TIME that she is “very surprised,” at Sweeney’s decision.
“It looks like the judge granted a writ of habeas corpus based on an ineffective counsel that is almost a non-starter in the United States,” she says. “The standard for the ineffectiveness of counsel are almost impossible to meet, so even for cases where we have lawyers falling asleep at the counsel table and all these things people challenge that as ineffectiveness of counsel and they never win-so for this decision it must be really egregious.”
According to Geraghty-Rathert, most murder convictions are overturned by exculpatory DNA evidence, so Myers’ case is unique.
“The Sixth Amendment guarantees you an attorney in all criminal matters. However, up to this moment it’s been basically if there is a counsel, an attorney, sitting next to you—that’s almost good enough to count no matter what that person is doing,” she tells TIME. “So there have been a lot of wrongful conviction cases that have been brought to life by DNA exoneration in the last 10 years, but it’s highly unusual to have an ineffective assistance of counsel case.”
Behrman’s murder was one of the most high-profile murder cases Indiana had seen in years, but the case against Myers was not that straightforward.
According to court documents, the case initially had many false leads, including a woman named Wendy Owings who confessed to police in 2002 that she was in a car that struck Behrman. Owing told police that the driver of the car, Uriah Clouse, stabbed Behrman in the chest then wrapped her body in plastic and dumped her in a creek. She later recanted her statement.
When Behrman’s body was found, authorities determined her cause of death was a shotgun wound to the back of her head.
Myers drew the attention of investigators in 2001 when he contacted authorities to report finding a bone and women’s underwear near where he had gone fishing.
While serving jail time in 2002 for unrelated charges, Myers also told a correctional officer that he found letters in a food tray that contained information regarding Behrman’s disappearance, and then provided authorities with a list of locations where Behrman could be found.
Additionally, witnesses placed Myers near the area where Behrman went missing, and Myers repeatedly alluded to Behrman’s disappearance to friends, family members, and co-workers, raising their suspicions, investigators said.
Myers is currently incarcerated in Indiana State Prison.
In his order, Sweeney acknowledged that a possible retrial would be difficult for Behrman’s family.
“A new trial will likely come only at considerable cost — to the State, yes, but, more important, to the victim’s family and community still wounded by their tragic loss,” the judgment read. “Such cost do not enter into the constitutional analysis; and yet, the Court cannot help but express its empathy for those who must bear them for the sake of our Constitutions and its protections.”
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neptunecreek · 5 years
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Shareholders Demand To Know How Northrop Grumman Will Protect Human Rights While Building Massive DHS Database
Over the next few years, the Department of Homeland Security (DHS) plans to implement an enormous biometric collection program which will endanger the rights of citizens and foreigners alike. The agency intends to collect at least seven types of biometric identifiers, including face and voice data, DNA, scars, and tattoos, often from questionable sources, and from innocent people.
But DHS isn’t building all of the technology: Northrop Grumman, a defense contractor, won the nearly 100 million-dollar, 42-month contract to “develop increments one and two” of the project, named HART (Homeland Advanced Recognition Technology). Now, a group of concerned investors are demanding that the Board of Directors of the company explain how they will protect human rights while building the tech behind the massive, privacy-invasive database.
It’s unsurprising that shareholders are recognizing the serious harm to civil and human rights the company will be linked to through its work on this project.
The Tri-State Coalition for Responsible Investment (Tri-CRI) filed the shareholder resolution in November after discussions with company management failed. The resolution asks the board to explain how the company will abide by its human rights policy, which reflects the U.N.’s Universal Declaration of Human Rights, while building a database that will greatly expand DHS’s ability to surveil innocent people. Their fears are well-founded: as EFF reported, HART will chill and deter people from exercising their First Amendment protected rights to speak, assemble, and associate—all rights also recognized under the UN’s Declaration of Human Rights, and presumably, by Northrop Grumman’s policy. If it is serious about its commitment to human rights, the shareholders say, the company must step up and explain how it squares that commitment with the harms inherent in this project. Voting on the resolution will take place May 15.
According to Northrop Grumman’s press release, “HART will offer a more accurate, robust way to identify adversaries” using “advanced, proven technologies.” But far from being proven or accurate, face recognition—one of the first components of HART to be built, and which DHS intends to rely on to identify people across a variety of its mission areas—has a high rate of inaccuracy, even according to DHS’s tests of its own systems, and is known to misidentify people of color and women at higher rates than others. In their shareholder resolution, Tri-CRI lay this out in addition to other harms posed by the technology:
There are concerns that the algorithms used to identify facial images that may be stored in the database have inherent racial bias. The HART database will amplify the surveillance capabilities of government agencies, presenting risks to privacy and First Amendment rights and causing harm to immigrant communities. Through the provision of services through the DHS contract, Northrop Grumman may be linked or contribute to these adverse human rights impacts.
Shareholders aren’t alone in their concerns with this technology: a coalition of over 85 groups across a spectrum of civil society recently demanded that other companies, including Amazon, Microsoft, and Google halt all governmental sales of face recognition technology. Amazon faces similar shareholder action later this month. And the pushback isn’t just coming from advocacy groups. Senators have asked DHS to pause at least one aspect of the HART program—the use of facial recognition in airports—until a proper rulemaking. The OIG is investigating the proposal as well, to “assess whether biometric data collected at pilot locations has improved DHS's ability to verify departures.” The Government Accountability Office has criticized the reliability of DHS’s data, and Congress even withheld funds in previous years from DHS’s Office of Biometric Identity Management. Even major cities, including San Francisco and Oakland, are considering permanent bans on any city department utilizing facial recognition technology—an indicator of how dangerous the technology is.
Facial recognition isn’t the only problem with HART. EFF filed comments criticizing DHS’s plan to collect, store, and share the biometric and biographic records it receives from external agencies, and to exempt this information from the federal Privacy Act, making it difficult if not impossible for individuals to review the data collected. In addition, the broad, vague scope of DHS’s proposal makes it exceedingly difficult for the American public to track and comment on the over-collection and overuse of biometric data.
Other data DHS is planning to collect—including information about people’s “relationship patterns” and from officer “encounters” with the public—can be used to identify political affiliations, religious activities, and familial and friendly relationships. These data points are also frequently colored by conjecture and bias. This, combined with the fact that the biometric data will be shared with federal agencies outside of DHS, as well as state and local law enforcement and foreign governments, poses a very real threat to First Amendment-protected activities. DHS must do more to minimize the threats to privacy and civil liberties posed by this vast new trove of highly sensitive personal data—and Northrop Grumman should look carefully at these and other criticisms when responding to shareholders’ concerns.
DHS’s legacy IDENT fingerprint database, which HART builds off of, contains information on 220-million unique individuals—an enormous increase from 20 years ago when IDENT only contained information on 1.8-million people. Between IDENT and other DHS-managed databases, the agency already manages over 10-billion biographic records and adds 10-15 million more each week. Northrop Grumman is set to help the agency—which includes the Transportation Security Administration (TSA), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE)—expand the scope of this unimaginably vast data trove exponentially, with new, questionable data sources gathered from ineffective and dangerous technology.
Private companies aren’t subject to the same pressure as elected officials and government agencies, but it’s unsurprising that shareholders are recognizing the serious harm to civil and human rights the company will be linked to through its work on this project. Transparency is often the first step towards accountability, and we are glad to see shareholders holding the company to account, and pressing it to publicly report how it applies its human rights policy to its work building technology that endangers human rights.
Read the shareholder proposal [.pdf].
from Deeplinks http://bit.ly/2PSChRT
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centuryassociates · 5 years
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Litigation Options For Post-Cyberattack ‘Active Defense’
[This article also was published in Law360.]
In March 2017, Rep. Tom Graves, R-Ga., introduced a draft bill titled the Active Cyber Defense Certainty Act. The bill would amend the Computer Fraud and Abuse Act to enable victims of cyberattacks to employ “limited defensive measures that exceed the boundaries of one’s network in order to monitor, identify and stop attackers.”[1] More specifically, the ACDC would empower individuals and companies to leave their own network to ascertain the perpetrator (i.e., establish attribution), disrupt cyberattacks without damaging others’ computers, retrieve and destroy stolen files, monitor the behavior of an attacker, and utilize beaconing technology.[2] An updated, bipartisan version of the bill was introduced by Rep. Graves and Rep. Kyrsten Sinema, D-Ariz., in October 2017.[3]
There has been significant debate on whether the types of “self-help” measures that the ACDC expressly authorizes — sometimes referred to as “active defense” — are currently prohibited by the CFAA. While no court has yet ruled on the issue, several commentators (and the U.S. Department of Justice) have long argued that because the CFAA prohibits accessing computers without “authorization,” cyberattack victims expose themselves to criminal liability if they venture outside their network to unmask an attacker and disrupt, disable or destroy the attacker’s system.[4] The purpose of the ACDC is to reduce legal uncertainty by, in effect, providing a statutory safe harbor for victims of cyberattacks to “hack back” — under the right circumstances, and subject to limitations.
In addition to the legal question of whether active defense is currently barred by the CFAA, the desirability of active defense as a policy matter has also been debated. Advocates of the ACDC have argued that companies, no matter how sophisticated their preventive cyber defenses, continue to suffer major breaches, and that the number of cyberattacks far exceeds the government’s ability to identify and prosecute criminals. They argue that in a lopsided cyber battlefield, victims need additional tools to actively respond to ongoing attacks. In critics’ view, however, the bill will promote cyber-vigilantism by victims who are overeager to aggressively strike back at cyber intruders and thieves — thereby creating tit-for-tat patterns of retribution and a significant risk of collateral damage to innocent third-party computer systems.
While the legal and policy debates raised by the ACDC are important, they often overlook the fact that victims of hostile cyber activity may already be able to avail themselves of the judicial process to lawfully engage in the types of “active defense” measures that the ACDC would expressly authorize. Several such techniques of “active defense through litigation” are relatively well-established; others are untested. Because active defense through litigation necessarily involves the judicial process, moreover, it can be relatively time-consuming (particularly in comparison with the more immediate responsive measures contemplated by the ACDC). Although courts can provide certain forms of expedited relief in a matter of days or even less, this time frame may be prohibitive in some cases. Nevertheless, for victims of cyberattacks that are weighing an active response, it may be worth considering one or more of these options.
The most established and typical form of active defense through litigation is using third-party discovery to obtain information about the perpetrators of a cyber-intrusion and, potentially, establishing “attribution” of the culprit. In Liberty Media Holdings LLC v. Does 1-59, for example, hackers unlawfully accessed copyrighted materials on a company’s protected website.[5] The company brought suit against the unknown culprits — named “John Does” in the complaint — for violating the CFAA, the Electronic Communications Privacy Act and the Copyright Act.[6] It then provided the court with the internet protocol addresses of each defendant.[7] The court granted the company’s motion that it be allowed to serve subpoenas on the defendants’ internet service providers and cable providers to compel them to “produce all documents and/or information sufficient to identify the users of the IP addresses.”[8]
A more sophisticated form of active defense through litigation involves victims obtaining injunctions and restraining orders to combat ongoing cyberthreats. In Luxottica Group SpA. v. The Partnerships and Unincorporated Associations Identified on Schedule “A,” an owner of eyewear brands brought a Lanham Act action against hundreds of defendants alleged to infringe on its trademarks via a thousand domains and 50 online marketplaces.[9] Just over a week later, Luxottica obtained from the court an order mandating that domain-name registries transfer the defendants’ domain names to Luxottica.[10] The order further instructed a host of third parties who serviced defendants — marketplaces, web hosts, search engines, banks, third-party processors, etc. — to immediately cease all interactions with them and provide Luxottica expedited discovery as to the defendant’s identities, locations and operations.[11]
Through similar mechanisms, technology companies have invoked the courts’ equitable powers to craft injunctive relief enabling them to disrupt large-scale cybercrime. In 2010, for example, Microsoft Corp. brought suit in federal court in the Eastern District of Virginia against 27 John Doe defendants registered as the owners of domain names used for botnet communications.[12] Charging that defendants utilized a global illegal network of millions of computers infected with malware — a botnet named “Waledac” — to send spam email and steal information, account credentials, and funds, the complaint asserted violations of the CFAA, the CAN-SPAM Act, the ECPA, false designation of origin and trademark dilution under the Lanham Act, trespass to chattels, conversion, and unjust enrichment.[13] Microsoft obtained from the court a sealed temporary restraining order that ordered the defendants’ domain registry, VeriSign, to “lock” their domains, hold them in escrow, and preserve evidence of misconduct.[14] In subsequent years, Microsoft pursued similar actions against other botnets and malicious actors.[15]
Because both Microsoft and the Luxottica plaintiffs alleged trademark infringement, they were able to take advantage of a powerful tool in the Lanham Act: a provision that empowers courts to grant ex parte orders for the seizure of equipment involved in the production of counterfeit trademarks.[16] The Lanham Act is not the only statute that contains this remedy, however. Notably, the recently enacted Defend Trade Secrets Act permits a party to seek, on an ex parte basis, an order providing for the seizure of property “necessary to prevent the propagation or dissemination of the trade secret that is the subject of the action.”[17] The DTSA’s ex parte seizure procedure sets a high bar for obtaining the remedy, and few motions for ex parte seizure thus far have been successful.[18] But for cyber-victims that have lost trade secrets as part of a cyber-intrusion, the DTSA is an additional potential tool to consider as part of an active defense strategy.
Even outside the statutory contexts of the Lanham Act and the DTSA, there are potential vehicles to enlist the courts’ assistance in undertaking an active defense strategy. Courts have broad powers to grant equitable relief in connection with other statutory or common-law causes of action. As the U.S. Supreme Court has explained, “once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”[19] Indeed, the CFAA — in play whenever a computer has been accessed without authorization — expressly contemplates “injunctive relief or other equitable relief.”[20] Such relief is also available to plaintiffs who assert claims under state computer-crime laws or common law claims for computer trespass and conversion.
One such equitable remedy is the writ of replevin, a traditional prejudgment process involving the seizure by U.S. marshals of property alleged to have been illegally taken or wrongfully withheld. This historic common-law writ, now often governed by state statutes, has been commonly used to take property from an individual wrongfully in possession of it and return it to its rightful owner. Subject to variations in state statutory law, plaintiffs invoking the writ generally must establish that they are the owner of the property, that they have a right to immediate possession of it, and that the defendant wrongfully took or detained the property.[21] In some states, a plaintiff who can show an urgent risk that the defendant will destroy or conceal the property is eligible to obtain an ex parte seizure order without prior notice to the defendant.[22]
Although historically the writ of replevin has been used to recover only tangible goods and chattels, some courts have recently held that plaintiffs can invoke replevin statutes to recover stolen or wrongfully withheld electronic data. For instance, in SEIU Healthcare v. Evergreen, the court held that a nonprofit organization could obtain seizure via replevin of electronic spreadsheets that it alleged another nonprofit had illegally purchased from a former employee.[23] The court reasoned that Washington’s replevin statute “does not distinguish between tangible and intangible property,” and that what matters instead is “whether the property can be taken back from the defendant and returned to the plaintiff.”[24]
To be sure, in many cases of cyber theft the replevin remedy would likely be unavailable, insofar as data stolen via a cyberattack may be difficult to trace and locate and may not qualify as a “specific, identifiable item of personal property,” as required by some replevin statutes.[25] But even then, this traditional, well-established mechanism for seizure of wrongfully taken property could still prove a useful reference point for courts assessing the scope and types of injunctive relief that they have authority to issue pursuant to their broad equitable powers.
Ultimately, the writ of replevin, like the ex parte seizure provisions of the Lanham Act and DTSA, illustrate the diversity of mechanisms through which plaintiffs may enlist the assistance of the courts in engaging in the type of active defense measures contemplated by the ACDC.
Alexander A. Berengaut is a partner and Tarek J. Austin is an associate at Covington & Burling LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio​​ Media Inc., or any of its​​ or their respective affiliates. This article is for general info​​rmation p​​urposes an​​d is​​ ​​not ​​intended to be and​​ should not be taken as legal advice.
[1] Active Cyber Defense Certainty Act: Bipartisan Bill Empowers Americans to Develop New Defenses Against Cyber Attacks, https://tomgraves.house.gov/uploadedfiles/acdc_expaliner.pdf
[2] Id.
[3] H.R. 4036, 115th Cong. (2017), https://www.congress.gov/bill/115th-congress/house-bill/4036
[4] Office of Legal Education, Department of Justice, Prosecuting Computer Crimes (2010), https://www.justice.gov/sites/default/files/criminal-ccips/legacy/2015/01/14/ccmanual.pdf
[5] Liberty Media Holdings, LLC v. Does 1-59, No. 10-1823, 2011 WL 292128 (S.D. Cal. 2011).
[6] Id. at *1.
[7] Id. at *2.
[8] Id. at *1.
[9] Amended Complaint, Luxottica Grp. S.p.A. v. The Partnerships and Unincorporated Associations Identified on Schedule “A,” No. 1:16-cv-08322 (N.D. Ill. Aug. 25, 2016), 2016 WL 8577031.
[10] Sealed Temporary Restraining Order, Luxottica Grp. S.p.A. v. The Partnerships and Unincorporated Associations Identified on Schedule “A,” No. 1:16-cv-08322, at 12 (N.D. Ill. Sept. 1, 2016), ECF No. 30.
[11] Id. at 12-15.
[12] Complaint, Microsoft Corp. v. John Does 1-27, No. 1:10-CV-00156 (E.D. Va. Feb. 22, 2010), ECF No. 1.
[13] Id. at 1, 7-10, 14.
[14] Ex Parte Temporary Restraining Order and Order to Show Cause re Preliminary Injunction, Microsoft Corp. v. John Does 1-27, No. 1:10-CV-00156, at 5 (E.D. Va. Feb. 22, 2010), ECF No. 13.
[15] E.g., Complaint, Microsoft Corp v. John Does 1-11, No. 2:11-cv-00222 (W.D. Wash. Feb. 9, 2011) (Rustock botnet); Complaint, Microsoft Corp. v. John Does 1-39, 1:12-cv-01335 (E.D.N.Y. March 19, 2012) (Zeus botnet); Complaint, Microsoft Corp. v. John Does 1-18, 1:13-cv-00139 (E.D. Va. Jan. 31, 2013) (Bamital botnet).
[16] 15 U.S.C. § 1116(d)(1)(A).
[17] 18 U.S.C. § 1836(b)(2)(A)(i).
[18] 18 U.S.C. § 1836(b)(2)(A)(ii); Beusse Wolter Sanks & Maire, PLLC, How Has the Defend Trade Secrets Act Fared Two Years After Enactment? (July 9, 2018), http://www.bwsmiplaw.com/blog/2018/07/09/how-has-the-defend-trade-secrets-act-fared-two-years-after-enactment/
[19] Hills v. Gautreaux, 425 U.S. 284, 297 (1976).
[20] 18 U.S.C. § 1030(g).
[21] E.g., Cornelio v. Stamford Hosp., 717 A.2d 140, 143 (Conn. 1998).
[22] E.g., Conn. Gen. Stat. Ann. § 52-278e; Kan. Stat. Ann. § 60-1005.
[23] SEIU Healthcare Nw. Training P’ship v. Evergreen Freedom Found., No. 76220-6-I, 2018 WL 4691593 (Wash. Ct. App. Oct. 1, 2018).
[24] Id. at *7; see also Chefs Diet Acquisition Corp. v. Lean Chefs, LLC, No. 14-cv-8467, 2016 WL 5416498, at *7 (S.D.N.Y. Sept. 28, 2016) (replevin of electronic customer lists).
[25] Chefs Diet, 2016 WL 5416498 at *7.
Litigation Options For Post-Cyberattack ‘Active Defense’ posted first on https://centuryassociates.blogspot.com/
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forensiceyes · 6 years
Text
Litigation Options For Post-Cyberattack ‘Active Defense’
[This article also was published in Law360.]
In March 2017, Rep. Tom Graves, R-Ga., introduced a draft bill titled the Active Cyber Defense Certainty Act. The bill would amend the Computer Fraud and Abuse Act to enable victims of cyberattacks to employ “limited defensive measures that exceed the boundaries of one’s network in order to monitor, identify and stop attackers.”[1] More specifically, the ACDC would empower individuals and companies to leave their own network to ascertain the perpetrator (i.e., establish attribution), disrupt cyberattacks without damaging others’ computers, retrieve and destroy stolen files, monitor the behavior of an attacker, and utilize beaconing technology.[2] An updated, bipartisan version of the bill was introduced by Rep. Graves and Rep. Kyrsten Sinema, D-Ariz., in October 2017.[3]
There has been significant debate on whether the types of “self-help” measures that the ACDC expressly authorizes — sometimes referred to as “active defense” — are currently prohibited by the CFAA. While no court has yet ruled on the issue, several commentators (and the U.S. Department of Justice) have long argued that because the CFAA prohibits accessing computers without “authorization,” cyberattack victims expose themselves to criminal liability if they venture outside their network to unmask an attacker and disrupt, disable or destroy the attacker’s system.[4] The purpose of the ACDC is to reduce legal uncertainty by, in effect, providing a statutory safe harbor for victims of cyberattacks to “hack back” — under the right circumstances, and subject to limitations.
In addition to the legal question of whether active defense is currently barred by the CFAA, the desirability of active defense as a policy matter has also been debated. Advocates of the ACDC have argued that companies, no matter how sophisticated their preventive cyber defenses, continue to suffer major breaches, and that the number of cyberattacks far exceeds the government’s ability to identify and prosecute criminals. They argue that in a lopsided cyber battlefield, victims need additional tools to actively respond to ongoing attacks. In critics’ view, however, the bill will promote cyber-vigilantism by victims who are overeager to aggressively strike back at cyber intruders and thieves — thereby creating tit-for-tat patterns of retribution and a significant risk of collateral damage to innocent third-party computer systems.
While the legal and policy debates raised by the ACDC are important, they often overlook the fact that victims of hostile cyber activity may already be able to avail themselves of the judicial process to lawfully engage in the types of “active defense” measures that the ACDC would expressly authorize. Several such techniques of “active defense through litigation” are relatively well-established; others are untested. Because active defense through litigation necessarily involves the judicial process, moreover, it can be relatively time-consuming (particularly in comparison with the more immediate responsive measures contemplated by the ACDC). Although courts can provide certain forms of expedited relief in a matter of days or even less, this time frame may be prohibitive in some cases. Nevertheless, for victims of cyberattacks that are weighing an active response, it may be worth considering one or more of these options.
The most established and typical form of active defense through litigation is using third-party discovery to obtain information about the perpetrators of a cyber-intrusion and, potentially, establishing “attribution” of the culprit. In Liberty Media Holdings LLC v. Does 1-59, for example, hackers unlawfully accessed copyrighted materials on a company’s protected website.[5] The company brought suit against the unknown culprits — named “John Does” in the complaint — for violating the CFAA, the Electronic Communications Privacy Act and the Copyright Act.[6] It then provided the court with the internet protocol addresses of each defendant.[7] The court granted the company’s motion that it be allowed to serve subpoenas on the defendants’ internet service providers and cable providers to compel them to “produce all documents and/or information sufficient to identify the users of the IP addresses.”[8]
A more sophisticated form of active defense through litigation involves victims obtaining injunctions and restraining orders to combat ongoing cyberthreats. In Luxottica Group SpA. v. The Partnerships and Unincorporated Associations Identified on Schedule “A,” an owner of eyewear brands brought a Lanham Act action against hundreds of defendants alleged to infringe on its trademarks via a thousand domains and 50 online marketplaces.[9] Just over a week later, Luxottica obtained from the court an order mandating that domain-name registries transfer the defendants’ domain names to Luxottica.[10] The order further instructed a host of third parties who serviced defendants — marketplaces, web hosts, search engines, banks, third-party processors, etc. — to immediately cease all interactions with them and provide Luxottica expedited discovery as to the defendant’s identities, locations and operations.[11]
Through similar mechanisms, technology companies have invoked the courts’ equitable powers to craft injunctive relief enabling them to disrupt large-scale cybercrime. In 2010, for example, Microsoft Corp. brought suit in federal court in the Eastern District of Virginia against 27 John Doe defendants registered as the owners of domain names used for botnet communications.[12] Charging that defendants utilized a global illegal network of millions of computers infected with malware — a botnet named “Waledac” — to send spam email and steal information, account credentials, and funds, the complaint asserted violations of the CFAA, the CAN-SPAM Act, the ECPA, false designation of origin and trademark dilution under the Lanham Act, trespass to chattels, conversion, and unjust enrichment.[13] Microsoft obtained from the court a sealed temporary restraining order that ordered the defendants’ domain registry, VeriSign, to “lock” their domains, hold them in escrow, and preserve evidence of misconduct.[14] In subsequent years, Microsoft pursued similar actions against other botnets and malicious actors.[15]
Because both Microsoft and the Luxottica plaintiffs alleged trademark infringement, they were able to take advantage of a powerful tool in the Lanham Act: a provision that empowers courts to grant ex parte orders for the seizure of equipment involved in the production of counterfeit trademarks.[16] The Lanham Act is not the only statute that contains this remedy, however. Notably, the recently enacted Defend Trade Secrets Act permits a party to seek, on an ex parte basis, an order providing for the seizure of property “necessary to prevent the propagation or dissemination of the trade secret that is the subject of the action.”[17] The DTSA’s ex parte seizure procedure sets a high bar for obtaining the remedy, and few motions for ex parte seizure thus far have been successful.[18] But for cyber-victims that have lost trade secrets as part of a cyber-intrusion, the DTSA is an additional potential tool to consider as part of an active defense strategy.
Even outside the statutory contexts of the Lanham Act and the DTSA, there are potential vehicles to enlist the courts’ assistance in undertaking an active defense strategy. Courts have broad powers to grant equitable relief in connection with other statutory or common-law causes of action. As the U.S. Supreme Court has explained, “once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”[19] Indeed, the CFAA — in play whenever a computer has been accessed without authorization — expressly contemplates “injunctive relief or other equitable relief.”[20] Such relief is also available to plaintiffs who assert claims under state computer-crime laws or common law claims for computer trespass and conversion.
One such equitable remedy is the writ of replevin, a traditional prejudgment process involving the seizure by U.S. marshals of property alleged to have been illegally taken or wrongfully withheld. This historic common-law writ, now often governed by state statutes, has been commonly used to take property from an individual wrongfully in possession of it and return it to its rightful owner. Subject to variations in state statutory law, plaintiffs invoking the writ generally must establish that they are the owner of the property, that they have a right to immediate possession of it, and that the defendant wrongfully took or detained the property.[21] In some states, a plaintiff who can show an urgent risk that the defendant will destroy or conceal the property is eligible to obtain an ex parte seizure order without prior notice to the defendant.[22]
Although historically the writ of replevin has been used to recover only tangible goods and chattels, some courts have recently held that plaintiffs can invoke replevin statutes to recover stolen or wrongfully withheld electronic data. For instance, in SEIU Healthcare v. Evergreen, the court held that a nonprofit organization could obtain seizure via replevin of electronic spreadsheets that it alleged another nonprofit had illegally purchased from a former employee.[23] The court reasoned that Washington’s replevin statute “does not distinguish between tangible and intangible property,” and that what matters instead is “whether the property can be taken back from the defendant and returned to the plaintiff.”[24]
To be sure, in many cases of cyber theft the replevin remedy would likely be unavailable, insofar as data stolen via a cyberattack may be difficult to trace and locate and may not qualify as a “specific, identifiable item of personal property,” as required by some replevin statutes.[25] But even then, this traditional, well-established mechanism for seizure of wrongfully taken property could still prove a useful reference point for courts assessing the scope and types of injunctive relief that they have authority to issue pursuant to their broad equitable powers.
Ultimately, the writ of replevin, like the ex parte seizure provisions of the Lanham Act and DTSA, illustrate the diversity of mechanisms through which plaintiffs may enlist the assistance of the courts in engaging in the type of active defense measures contemplated by the ACDC.
Alexander A. Berengaut is a partner and Tarek J. Austin is an associate at Covington & Burling LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio​​ Media Inc., or any of its​​ or their respective affiliates. This article is for general info​​rmation p​​urposes an​​d is​​ ​​not ​​intended to be and​​ should not be taken as legal advice.
[1] Active Cyber Defense Certainty Act: Bipartisan Bill Empowers Americans to Develop New Defenses Against Cyber Attacks, https://tomgraves.house.gov/uploadedfiles/acdc_expaliner.pdf
[2] Id.
[3] H.R. 4036, 115th Cong. (2017), https://www.congress.gov/bill/115th-congress/house-bill/4036
[4] Office of Legal Education, Department of Justice, Prosecuting Computer Crimes (2010), https://www.justice.gov/sites/default/files/criminal-ccips/legacy/2015/01/14/ccmanual.pdf
[5] Liberty Media Holdings, LLC v. Does 1-59, No. 10-1823, 2011 WL 292128 (S.D. Cal. 2011).
[6] Id. at *1.
[7] Id. at *2.
[8] Id. at *1.
[9] Amended Complaint, Luxottica Grp. S.p.A. v. The Partnerships and Unincorporated Associations Identified on Schedule “A,” No. 1:16-cv-08322 (N.D. Ill. Aug. 25, 2016), 2016 WL 8577031.
[10] Sealed Temporary Restraining Order, Luxottica Grp. S.p.A. v. The Partnerships and Unincorporated Associations Identified on Schedule “A,” No. 1:16-cv-08322, at 12 (N.D. Ill. Sept. 1, 2016), ECF No. 30.
[11] Id. at 12-15.
[12] Complaint, Microsoft Corp. v. John Does 1-27, No. 1:10-CV-00156 (E.D. Va. Feb. 22, 2010), ECF No. 1.
[13] Id. at 1, 7-10, 14.
[14] Ex Parte Temporary Restraining Order and Order to Show Cause re Preliminary Injunction, Microsoft Corp. v. John Does 1-27, No. 1:10-CV-00156, at 5 (E.D. Va. Feb. 22, 2010), ECF No. 13.
[15] E.g., Complaint, Microsoft Corp v. John Does 1-11, No. 2:11-cv-00222 (W.D. Wash. Feb. 9, 2011) (Rustock botnet); Complaint, Microsoft Corp. v. John Does 1-39, 1:12-cv-01335 (E.D.N.Y. March 19, 2012) (Zeus botnet); Complaint, Microsoft Corp. v. John Does 1-18, 1:13-cv-00139 (E.D. Va. Jan. 31, 2013) (Bamital botnet).
[16] 15 U.S.C. § 1116(d)(1)(A).
[17] 18 U.S.C. § 1836(b)(2)(A)(i).
[18] 18 U.S.C. § 1836(b)(2)(A)(ii); Beusse Wolter Sanks & Maire, PLLC, How Has the Defend Trade Secrets Act Fared Two Years After Enactment? (July 9, 2018), http://www.bwsmiplaw.com/blog/2018/07/09/how-has-the-defend-trade-secrets-act-fared-two-years-after-enactment/
[19] Hills v. Gautreaux, 425 U.S. 284, 297 (1976).
[20] 18 U.S.C. § 1030(g).
[21] E.g., Cornelio v. Stamford Hosp., 717 A.2d 140, 143 (Conn. 1998).
[22] E.g., Conn. Gen. Stat. Ann. § 52-278e; Kan. Stat. Ann. § 60-1005.
[23] SEIU Healthcare Nw. Training P’ship v. Evergreen Freedom Found., No. 76220-6-I, 2018 WL 4691593 (Wash. Ct. App. Oct. 1, 2018).
[24] Id. at *7; see also Chefs Diet Acquisition Corp. v. Lean Chefs, LLC, No. 14-cv-8467, 2016 WL 5416498, at *7 (S.D.N.Y. Sept. 28, 2016) (replevin of electronic customer lists).
[25] Chefs Diet, 2016 WL 5416498 at *7.
Litigation Options For Post-Cyberattack ‘Active Defense’ posted first on http://ronenkurzfeld.blogspot.com
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libertariantaoist · 7 years
Link
Like the child who innocently asks “Where are the Emperor’s clothes?” Donald  Trump has once again blurted out a truth that none of the “adults” in the room  are supposed to acknowledge. In an interview with Reuters, the President averred:
“On the THAAD system, it’s about a billion  dollars. I said, ‘Why are we paying? Why are we paying a billion dollars? We’re  protecting. Why are we paying a billion dollars?’ So I informed South Korea  it would be appropriate if they paid. Nobody’s going to do that. Why are we  paying a billion dollars? It’s a billion dollar system. It’s phenomenal. It’s  the most incredible equipment you’ve ever seen – shoots missiles right out of  the sky. And it protects them and I want to protect them. We’re going to protect  them. But they should pay for that, and they understand that."
Ah, but they don’t understand it – and  neither does H. R. McMaster, Trump’s newly-appointed National Security Advisor,  who rushed  to assure Seoul that the President didn’t really mean what he clearly said.  And the South Koreans, who are in the midst of a presidential election – the  vote is on May 5 – are in a uproar.
Moon Jae-in, the liberal candidate who is favored to win, opposes the antimissile  deployment, and criticizes the decision by his impeached  predecessor to go ahead with it without seeking parliamentary approval.  He is the author of a recent book wherein he writes that South Korea must learn  to “say  no to the United States.”
Installation of the system began in March, under  the agreement between Washington and Seoul, but now Moon is raising questions  about the nature of that agreement. The New York Times reports  that “The gap between Mr. Trump’s comments  and what South Koreans have been told by their government about the cost of  the deployment ‘makes it clear that there was a serious flaw in the decision  to deploy Thaad,’ [Moon spokesman] Mr. Youn said on Friday.”
Another candidate, Ahn Cheol Soo, Moon’s chief  rival, raised the possibility of a secret clause to the deal, demanding that  the interim government make clear whether Trump’s remarks are just “unilateral  wishful thinking” or whether the truth about who’s paying is being withheld  from the South Korean people.
The headline in the South China Morning Post really said it all: “South  Korea’s presidential favorite Moon may force Trump to withdraw demand Seoul  pay for ‘$1 billion THAAD missile system.’” We’re protecting them – but  they’re “forcing” us! Funny how that works. The article cited Moon’s top foreign  policy advisor, Kim Ki-jung, who says Seoul footing the bill for its own defense  is “an impossible option.” Of course it is: after all, South Korea is essentially  under US military occupation, a province of the Empire, and we are practitioners  of a unique form of imperialism where everything goes out and nothing comes  in. However much of an ingrate Mr. Ki-jung may be, he gets at the core issue:  this is a matter of South Korean sovereignty. “Even if we purchase THAAD,” he  says, “its main operation would be in the hands of the United States.” Because  that’s what being an American protectorate is all about.
If the leaders of South Korea are worried about  preserving their sovereignty, then why won’t they defend it – and shell out  the necessary cash? If Moon Jae-in is so opposed to THAAD, then why must we  impose it on him? It’s high time we cut these ingrates loose.
Unlike the colonial empires of the past, which  extracted wealth in the form of raw materials from their satraps, the American  imperium is a Bizarro World version of this arrangement: in exchange for allowing  us to occupy their territory, and dictating their foreign policy, we give Seoul  relatively free access to our markets while they impose tariffs on our products.  Trump brought this up in his Reuters interview, announcing that he would be  reviewing the trade agreement with the two countries:
“It’s unacceptable. It’s a horrible deal made by Hillary. It’s a horrible  deal. And we’re going to renegotiate that deal, or terminate it.
“QUESTION: When will you announce it?
"Very soon. I’m announcing it now. By the way, with South Korea, just  so you know. They’re ready for it. Mike Pence was representing me, he was just  over there, he’s told them. And we have the five-year anniversary coming up  very shortly. And we thought that would be a good time to start … It’s a great  deal for South Korea. It’s a terrible deal for us.”
What’s a terrible deal for us is the policy of Bizarro imperialism, which not  only drains us financially but also puts us at risk of war, from the DMZ to  the Russo-Polish border. During the presidential campaign, Trump seemed to understand  this on some level: once in office, however he reversed himself  – e.g., on  NATO, declaring that it’s “no longer obsolete” – and yet still his “America  First” impulse continue to reassert itself. With this schizophrenic administration,  however, it’s only a matter of time before US trade officials rush to “reinterpret”  the President’s remarks on our trade relations with Seoul.
As I recently argued  in the Los Angeles Times, Trump has reversed himself on every major foreign  policy stance. We bombed Syria despite Trump’s earlier insistence that we stay  out, a NATO that was “obsolete” is suddenly “no longer obsolete,” and now  –    mere months after candidate Trump opined “Wouldn’t it be nice if we could get  along with Russia?”  –  his administration has taken up Russia-baiting.  On Korea, Trump once told us that Seoul would have to start defending itself,  and yet he told Reuters “There’s a chance  that we could end up having a major, major, conflict with North Korea, absolutely.”
A “major, major conflict” has already  broken out – within the mind of this President. Pulled this way and that by  the various factions within his administration, and by his own mercurial nature,  Trump has set the foreign policy of the United States adrift, without any clear  direction. What is clear, however, is the danger this poses for the world: veering  drunkenly from one extreme to another, he could stumble into a “major, major  conflict” at any moment.
When it came to foreign policy, Trump 1.0 was interesting  albeit problematic: Trump 2.0 is menacingly unpredictable. Those of us who saw  in him some hope that the “America First” agenda he gave voice to would be implemented,  at least to some degree, neglected to take into consideration the vital question  of character. I ignored the protestations of some of his critics, who said Trump  was unstable, without core principles, and therefore perfectly capable of reversing  himself in the name of making a supposedly smart deal. The first one-hundred  days of his administration have proved them right.
This doesn’t mean the Trump presidency is a  total wash: far from it. As I’ve written  in this space on previous occasions,  the value of Trump 1.0 is that his campaign mobilized a constituency that is  hostile to foreign wars and converted  several leading conservatives into staunch opponents of interventionism. That’s  fine, but one has to wonder if the price we may have to pay is worth it.
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iwritethat · 5 years
Text
Jason Todd: Badass
A/N: Jason Todd back in his Robin day’s, inspired by the Titans TV Series to be quite honest.
>>>>——————————>
They couldn't understand it, no one could. There was Jason Todd, Robin 2.0, renowned for his fiery temper and street thug background - which on his own was perfectly normal - but then there was you. Innocent, kind hearted and pure, beautiful you with a moral conscience to rival Supermans'.
It wasn't supposed to be a viable match but anyone could blatantly see Jason had a thing for you whereas you continued to be unreadable much to the surrounding heroes frustration. According to their knowledge, you were an extension of the Batfamily albeit not in the vigilante game but rather an associate and closest to Jason in particular. Origins remain unknown.
.
In retrospect they shouldn't have underestimated you from the start, possibly even delved deeper into why their resident cold hearted Robin was enamoured with a holy angelic soul such as yourself. Regardless, it was too late and as soon as you'd heard whispers of Robins capture echoing throughout Young Justice you found yourself standing before Nightwing and his selected Team within the hour demanding you go with them. Wally laughed, and Artemis immediately slapped him whilst Dick shook his head in disappointment.
"I'm going."
"I get you wanna protect Robin (Y/n), but it'd be safer for you here." West justified despite how adamant you were.
"Thanks for the concern KF but I can handle myself. When do we leave?"
"They’re right, it’s too dangerous, we’ll bring back Robin. There’s too many men to risk your life (Y/n).” Nightwing was correct, his tone more of an order even though you were not under his supervision by any means.
However, the one thing about knowing Nightwing was that he was Team Leader, essentially whatever he says goes - and this time that didn’t fall in your favour.
That's not how you found yourself staring up at Bane with Robin tied up a few paces behind you with blood dripping from his lips - no, you did that by disobeying orders and tailing the Team. It hadn't surprised you that Jason’s reckless headstrong attitude had gotten him stuck here in the first place but you couldn’t chastise him when you’d reinacted the same choices in order to save him. Meanwhile the rest of your unwilling squad were withheld by the threat of your safety - you're sure you could hear Batgirl and Kid Flash curse at your behaviour but you’d do anything to protect the people you care about.
.
"Bane right? How about I propose a deal, if I beat you senseless then we all go free and if you win, then you can do whatever you want." You playfully suggested, the less than intimidating stature you held and cherished smile encouraging his confidence. Even though he had the upper hand, it wouldn't be displaying the correct image to his employees if he turned down a challenge from the weakest opponent out there.
"I wouldn't Bane." It was a cough, a splutter from a smug Robin despite the unanimous glares/protests from the rest of your team.
"Bring it Pipsqueak!"
It was painful for all of them to watch, Kid Flash making visible movements towards you every time you took a hit only stopping himself when guns were aimed at your figure. You heard Artemis and Nightwing desperately call your name as you were slammed to the ground again, Banes hand tightly around your throat as you were pushed further into the floor with a groan.
"Stupid bet to make kid, but you and your friends will pay for it." He released his grip, allowing you to slowly get back onto your feet and wipe away the blood from your nose with a giggle. The villain immediately snapped to you, expressions of shock littered the room - all except the relieved smile of Jason because he knew you better than anyone ever could under the kindest smile known to man.
"I haven't lost yet~"
“Wha-“
“Did you know that you pivot your right foot 45 degrees away from your target when you go for a left uppercut?” Your head tilted as he came at you, performing the perfect counter thus silencing the room.
“And you do not have your anger under control, therefore your movements become desperate and easier to predict. Much like now.” Your tone was informative, analytic and upbeat as you sent Bane to the floor again.
It was like something flipped, reality had been warped or some other inconceivable explanation was required - your movements had changed, now quicker and stronger than ever as you anticipated Banes every offence, mapped him out like a book and within 57 seconds the huge male was knocked unconscious on the cold concrete of the warehouse with you elegantly crouched on his chest with an innocent grin. In the midst of their awe, Nightwing managed to take an advantage whilst the guards were distracted enabling his team to make a clean escape too.
.
You delicately walked over to Jason, slicing his restraints with the male practically falling into your arms.
"I warned him, that was badass doll." Robin lowly chuckled, forehead resting against yours which displayed how grateful he was to see you. Normally affection would never be displayed in front of anyone else unless it was playful flirting but this? This was meaningful.
"You okay dork? You're bleeding a bit." You softly replied, thumb brushing across his lower lip to remove the crimson liquid and looking back up to be met with his admiring gaze.
It was no secret that he liked you, it was in the way he spoke or rather flirted - a characteristic of Robins as you'd discovered but it was genuine, you knew because he opened up to you - whether he had meant to or not. There were the sweet gestures where he forgot himself and the momentary lapses, where he remembered that he was Robin and dating you would be dangerous.
Yet in this instance he couldn't care, because danger was exhilarating and you would make everything worth it so he closed the distance a little further as if silently asking if you felt the same. You noticed, being attune to the way he thought made the whole ordeal easier and you couldn't help the sincere smile gracing your features at the action, taking it as a sign of approval his lips met yours in a slow chaste kiss.
It was over as soon as it got started, Robin not even thanking you as you glared up at the boy wonder before rolling your eyes and brushing past Kid Flash who could barely make sense with his frantic gestures. Artemis' gaze followed you out, opting to comment on what they were all thinking as Jason stood beside Nightwing.
"No wonder you like (Y/n) so much."
"Tch, yeah right. That badass nerd - hell no." Robin laughed, smirking proudly at his brother.
"You literally just kissed-" Dick began, already confused by Little Wings’ contradicting displays.
"Bro, you kiss girls all the time. Doesn't mean anything."
"You what?!" Barbara practically radiated rage at Jasons’ haphazard statement, Nightwing instantly paling at the revelation.
"Ah no, Batgirl not like that I - Robin!!"
"See ya, thanks for the assisted save because let's be honest (Y/n) woulda just come alone anyways!" Before his brother could finish, Jason had offered a salute and disappeared into the night leaving the ‘adults’ to resolve their issues.
.
Later that night, you found yourself in one of Gotham's many local bars leaning against the counter simply minding your own business when a bottle was slid in your direction. You directed your irises toward the origin, finding none other than Jason wearing his favourite hoodie under a casual jacket with a beer bottle in his hand.
"How was your night?"
"I saved a guy tonight, didn't get much thanks mind you." There was a tinge of venom in your voice but it was more exasperated than anything.
"Oh? A kiss and a beer not good enough, what sort of thanks were you expecting?" Jason was sarcastic on the other hand, leaning on the bar beside you.
"I don't know Jaybird, now Arty, Wally and Babs know what I'm capable of. I'm an asset to them."
"You're not, Dick wouldn't let that happen and you don't have to join the Team. But hey seeing you kick butt up close and personal was an experience." He was serious now, your companionship was important to him and he’d never let them use your abilities when you didn’t want part of his lifestyle. He’d promised that many moons ago.
"Oi! What the heck are you two doing in here, you aren't 21!" You both flicked to the outraged voice of Dick Grayson, the male standing at the doorway with Barbara in tow. It was a shock to Dick and Barbara when they caught you both at the bar, underage - how'd you even get in?Instantly Jason grabbed your hand, intertwining your fingers with his own as you both laughed whilst dancing through the crowd toward the fire exit.
"Don't even think about it or I'm using this as blackmail!" Babs echoed, not so fluently managing to evade bodies due to her taller stature.
.
You ran, and you laughed, staggering onto his favourite rooftop of all Gotham - the one adorned with Gargoyles, his favourite perched proudly at the centre. You’d managed to lose the other two more experienced Bats much to your amusement. The wind graced your skin and your gaze shifted to the night sky admiring the rare clarity of the stars, however Jason came to a halt beside you, finding your fascination to be much more beautiful.
"It's funny, we're just a streetrat who needs adult supervision and a misguided teenager who can barely function in society. How did we make it this far?" You mindlessly stated, eyes embarrassingly directed toward the ground as you smiled.
Jason moved closer to you, lifting you chin with his finger to meet his irises before he spoke.
"Isn't it obvious? Because it's us, we're here together despite whatever our connection is." He was so gentle despite his contrasting occupation, closing the distance between your bodies as he went.
"I shouldn't have kissed you tonight." Your tone was lower, halting his actions and you missed the brief glimpse of heartbreak cross his features. However his tone was more confident yet soft as he replied working to hide his disappointment.
"I'm pleased you did."
"Ah classic Robin behaviour." You rolled your eyes, but he sensed the playfulness behind your comment.
"If you haven't noticed... I've got a little thing for you, it's been us as a team for a while that somewhere along the line I thought about 'us' as more. Sure you're no vigilante, but you're my friend and that means more than anything." It was enough, you could allow yourself moments like these to be forgotten with the wind. And you let him in once more, like you had done on multiple occasions before, you let him kiss you, with as much admiration he could display in such an intimate act.
You pulled away, breathless, enjoying the time you had knowing that every night he left could be your last - but for now, you had him.
"I'm glad it's you Jason."
"Me too (Y/n). Me too, until death rips us apart."
.
Little did you know how soon that would be.
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centuryassociates · 5 years
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Litigation Options For Post-Cyberattack ‘Active Defense’
[This article also was published in Law360.]
In March 2017, Rep. Tom Graves, R-Ga., introduced a draft bill titled the Active Cyber Defense Certainty Act. The bill would amend the Computer Fraud and Abuse Act to enable victims of cyberattacks to employ “limited defensive measures that exceed the boundaries of one’s network in order to monitor, identify and stop attackers.”[1] More specifically, the ACDC would empower individuals and companies to leave their own network to ascertain the perpetrator (i.e., establish attribution), disrupt cyberattacks without damaging others’ computers, retrieve and destroy stolen files, monitor the behavior of an attacker, and utilize beaconing technology.[2] An updated, bipartisan version of the bill was introduced by Rep. Graves and Rep. Kyrsten Sinema, D-Ariz., in October 2017.[3]
There has been significant debate on whether the types of “self-help” measures that the ACDC expressly authorizes — sometimes referred to as “active defense” — are currently prohibited by the CFAA. While no court has yet ruled on the issue, several commentators (and the U.S. Department of Justice) have long argued that because the CFAA prohibits accessing computers without “authorization,” cyberattack victims expose themselves to criminal liability if they venture outside their network to unmask an attacker and disrupt, disable or destroy the attacker’s system.[4] The purpose of the ACDC is to reduce legal uncertainty by, in effect, providing a statutory safe harbor for victims of cyberattacks to “hack back” — under the right circumstances, and subject to limitations.
In addition to the legal question of whether active defense is currently barred by the CFAA, the desirability of active defense as a policy matter has also been debated. Advocates of the ACDC have argued that companies, no matter how sophisticated their preventive cyber defenses, continue to suffer major breaches, and that the number of cyberattacks far exceeds the government’s ability to identify and prosecute criminals. They argue that in a lopsided cyber battlefield, victims need additional tools to actively respond to ongoing attacks. In critics’ view, however, the bill will promote cyber-vigilantism by victims who are overeager to aggressively strike back at cyber intruders and thieves — thereby creating tit-for-tat patterns of retribution and a significant risk of collateral damage to innocent third-party computer systems.
While the legal and policy debates raised by the ACDC are important, they often overlook the fact that victims of hostile cyber activity may already be able to avail themselves of the judicial process to lawfully engage in the types of “active defense” measures that the ACDC would expressly authorize. Several such techniques of “active defense through litigation” are relatively well-established; others are untested. Because active defense through litigation necessarily involves the judicial process, moreover, it can be relatively time-consuming (particularly in comparison with the more immediate responsive measures contemplated by the ACDC). Although courts can provide certain forms of expedited relief in a matter of days or even less, this time frame may be prohibitive in some cases. Nevertheless, for victims of cyberattacks that are weighing an active response, it may be worth considering one or more of these options.
The most established and typical form of active defense through litigation is using third-party discovery to obtain information about the perpetrators of a cyber-intrusion and, potentially, establishing “attribution” of the culprit. In Liberty Media Holdings LLC v. Does 1-59, for example, hackers unlawfully accessed copyrighted materials on a company’s protected website.[5] The company brought suit against the unknown culprits — named “John Does” in the complaint — for violating the CFAA, the Electronic Communications Privacy Act and the Copyright Act.[6] It then provided the court with the internet protocol addresses of each defendant.[7] The court granted the company’s motion that it be allowed to serve subpoenas on the defendants’ internet service providers and cable providers to compel them to “produce all documents and/or information sufficient to identify the users of the IP addresses.”[8]
A more sophisticated form of active defense through litigation involves victims obtaining injunctions and restraining orders to combat ongoing cyberthreats. In Luxottica Group SpA. v. The Partnerships and Unincorporated Associations Identified on Schedule “A,” an owner of eyewear brands brought a Lanham Act action against hundreds of defendants alleged to infringe on its trademarks via a thousand domains and 50 online marketplaces.[9] Just over a week later, Luxottica obtained from the court an order mandating that domain-name registries transfer the defendants’ domain names to Luxottica.[10] The order further instructed a host of third parties who serviced defendants — marketplaces, web hosts, search engines, banks, third-party processors, etc. — to immediately cease all interactions with them and provide Luxottica expedited discovery as to the defendant’s identities, locations and operations.[11]
Through similar mechanisms, technology companies have invoked the courts’ equitable powers to craft injunctive relief enabling them to disrupt large-scale cybercrime. In 2010, for example, Microsoft Corp. brought suit in federal court in the Eastern District of Virginia against 27 John Doe defendants registered as the owners of domain names used for botnet communications.[12] Charging that defendants utilized a global illegal network of millions of computers infected with malware — a botnet named “Waledac” — to send spam email and steal information, account credentials, and funds, the complaint asserted violations of the CFAA, the CAN-SPAM Act, the ECPA, false designation of origin and trademark dilution under the Lanham Act, trespass to chattels, conversion, and unjust enrichment.[13] Microsoft obtained from the court a sealed temporary restraining order that ordered the defendants’ domain registry, VeriSign, to “lock” their domains, hold them in escrow, and preserve evidence of misconduct.[14] In subsequent years, Microsoft pursued similar actions against other botnets and malicious actors.[15]
Because both Microsoft and the Luxottica plaintiffs alleged trademark infringement, they were able to take advantage of a powerful tool in the Lanham Act: a provision that empowers courts to grant ex parte orders for the seizure of equipment involved in the production of counterfeit trademarks.[16] The Lanham Act is not the only statute that contains this remedy, however. Notably, the recently enacted Defend Trade Secrets Act permits a party to seek, on an ex parte basis, an order providing for the seizure of property “necessary to prevent the propagation or dissemination of the trade secret that is the subject of the action.”[17] The DTSA’s ex parte seizure procedure sets a high bar for obtaining the remedy, and few motions for ex parte seizure thus far have been successful.[18] But for cyber-victims that have lost trade secrets as part of a cyber-intrusion, the DTSA is an additional potential tool to consider as part of an active defense strategy.
Even outside the statutory contexts of the Lanham Act and the DTSA, there are potential vehicles to enlist the courts’ assistance in undertaking an active defense strategy. Courts have broad powers to grant equitable relief in connection with other statutory or common-law causes of action. As the U.S. Supreme Court has explained, “once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”[19] Indeed, the CFAA — in play whenever a computer has been accessed without authorization — expressly contemplates “injunctive relief or other equitable relief.”[20] Such relief is also available to plaintiffs who assert claims under state computer-crime laws or common law claims for computer trespass and conversion.
One such equitable remedy is the writ of replevin, a traditional prejudgment process involving the seizure by U.S. marshals of property alleged to have been illegally taken or wrongfully withheld. This historic common-law writ, now often governed by state statutes, has been commonly used to take property from an individual wrongfully in possession of it and return it to its rightful owner. Subject to variations in state statutory law, plaintiffs invoking the writ generally must establish that they are the owner of the property, that they have a right to immediate possession of it, and that the defendant wrongfully took or detained the property.[21] In some states, a plaintiff who can show an urgent risk that the defendant will destroy or conceal the property is eligible to obtain an ex parte seizure order without prior notice to the defendant.[22]
Although historically the writ of replevin has been used to recover only tangible goods and chattels, some courts have recently held that plaintiffs can invoke replevin statutes to recover stolen or wrongfully withheld electronic data. For instance, in SEIU Healthcare v. Evergreen, the court held that a nonprofit organization could obtain seizure via replevin of electronic spreadsheets that it alleged another nonprofit had illegally purchased from a former employee.[23] The court reasoned that Washington’s replevin statute “does not distinguish between tangible and intangible property,” and that what matters instead is “whether the property can be taken back from the defendant and returned to the plaintiff.”[24]
To be sure, in many cases of cyber theft the replevin remedy would likely be unavailable, insofar as data stolen via a cyberattack may be difficult to trace and locate and may not qualify as a “specific, identifiable item of personal property,” as required by some replevin statutes.[25] But even then, this traditional, well-established mechanism for seizure of wrongfully taken property could still prove a useful reference point for courts assessing the scope and types of injunctive relief that they have authority to issue pursuant to their broad equitable powers.
Ultimately, the writ of replevin, like the ex parte seizure provisions of the Lanham Act and DTSA, illustrate the diversity of mechanisms through which plaintiffs may enlist the assistance of the courts in engaging in the type of active defense measures contemplated by the ACDC.
Alexander A. Berengaut is a partner and Tarek J. Austin is an associate at Covington & Burling LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio​​ Media Inc., or any of its​​ or their respective affiliates. This article is for general info​​rmation p​​urposes an​​d is​​ ​​not ​​intended to be and​​ should not be taken as legal advice.
[1] Active Cyber Defense Certainty Act: Bipartisan Bill Empowers Americans to Develop New Defenses Against Cyber Attacks, https://tomgraves.house.gov/uploadedfiles/acdc_expaliner.pdf
[2] Id.
[3] H.R. 4036, 115th Cong. (2017), https://www.congress.gov/bill/115th-congress/house-bill/4036
[4] Office of Legal Education, Department of Justice, Prosecuting Computer Crimes (2010), https://www.justice.gov/sites/default/files/criminal-ccips/legacy/2015/01/14/ccmanual.pdf
[5] Liberty Media Holdings, LLC v. Does 1-59, No. 10-1823, 2011 WL 292128 (S.D. Cal. 2011).
[6] Id. at *1.
[7] Id. at *2.
[8] Id. at *1.
[9] Amended Complaint, Luxottica Grp. S.p.A. v. The Partnerships and Unincorporated Associations Identified on Schedule “A,” No. 1:16-cv-08322 (N.D. Ill. Aug. 25, 2016), 2016 WL 8577031.
[10] Sealed Temporary Restraining Order, Luxottica Grp. S.p.A. v. The Partnerships and Unincorporated Associations Identified on Schedule “A,” No. 1:16-cv-08322, at 12 (N.D. Ill. Sept. 1, 2016), ECF No. 30.
[11] Id. at 12-15.
[12] Complaint, Microsoft Corp. v. John Does 1-27, No. 1:10-CV-00156 (E.D. Va. Feb. 22, 2010), ECF No. 1.
[13] Id. at 1, 7-10, 14.
[14] Ex Parte Temporary Restraining Order and Order to Show Cause re Preliminary Injunction, Microsoft Corp. v. John Does 1-27, No. 1:10-CV-00156, at 5 (E.D. Va. Feb. 22, 2010), ECF No. 13.
[15] E.g., Complaint, Microsoft Corp v. John Does 1-11, No. 2:11-cv-00222 (W.D. Wash. Feb. 9, 2011) (Rustock botnet); Complaint, Microsoft Corp. v. John Does 1-39, 1:12-cv-01335 (E.D.N.Y. March 19, 2012) (Zeus botnet); Complaint, Microsoft Corp. v. John Does 1-18, 1:13-cv-00139 (E.D. Va. Jan. 31, 2013) (Bamital botnet).
[16] 15 U.S.C. § 1116(d)(1)(A).
[17] 18 U.S.C. § 1836(b)(2)(A)(i).
[18] 18 U.S.C. § 1836(b)(2)(A)(ii); Beusse Wolter Sanks & Maire, PLLC, How Has the Defend Trade Secrets Act Fared Two Years After Enactment? (July 9, 2018), http://www.bwsmiplaw.com/blog/2018/07/09/how-has-the-defend-trade-secrets-act-fared-two-years-after-enactment/
[19] Hills v. Gautreaux, 425 U.S. 284, 297 (1976).
[20] 18 U.S.C. § 1030(g).
[21] E.g., Cornelio v. Stamford Hosp., 717 A.2d 140, 143 (Conn. 1998).
[22] E.g., Conn. Gen. Stat. Ann. § 52-278e; Kan. Stat. Ann. § 60-1005.
[23] SEIU Healthcare Nw. Training P’ship v. Evergreen Freedom Found., No. 76220-6-I, 2018 WL 4691593 (Wash. Ct. App. Oct. 1, 2018).
[24] Id. at *7; see also Chefs Diet Acquisition Corp. v. Lean Chefs, LLC, No. 14-cv-8467, 2016 WL 5416498, at *7 (S.D.N.Y. Sept. 28, 2016) (replevin of electronic customer lists).
[25] Chefs Diet, 2016 WL 5416498 at *7.
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