In separate stories, the DoJ has announced that it has no interest in prosecuting Dan Bernstein or Bret McDaniel. The stories are a nice illustration of the range of discretion that prosecutors have in our system. More inside . . .
Dan Bernnstein is the crypto researcher who has been challengeing the State Department's export regulations on strong crypto since 1994. He's had two earlier versions of the regulations struck down as unconstitutional; he's directly responsible for the legal precedent that computer code is speech protected under the First Amendment. The DoJ said it doesn't plan to sue Bernstein for violating the regulations; in the absence of any concrete threat to him, the judge dismissed the case.
Bret McDaniel is the computer-security professional who warned his former employer's customers about a security breach, in exchange for which said employer had him thrown in the pokey. He was convicted at trial on a legal theory under which the mere revelation of true but embarassing facts "impaired the integrity" of a comptuer network (as required by thee section of the Computer Fraud and Abuse Act he was convicted under). The DoJ decided that this theory is such a loser that there's no point defending it on appeal, and has asked the appeals court to set aside McDaniel's conviction.
So, two very interesting things here. First, prosecutors have immense discretion to make your legal troubles go away. They can do so far in advance of an actual prosecution (Bernstein), or even far after one (McDaniel). Prosecutors don't bring cases they don't think they can win
And second, prosecutors did extremely different things in these two cases. With Bernstein, they're trying to save as much as they can of the export regulations. Bernstein is such a sympathetic defendant that they don't want the regulations tested on anyone who looks like him. If they prosecuted him -- or let him bring his declaratory judgment action -- they'd be likely to get even more precedent established against them.
But with McDaniel, the government went all the way to stating that the legal theory they'd convicted him under was wrong. This wasn't just a tactical retreat to avoid an adverse ruling. They could have found a way to moot the question and let McDaniel run free, as they did with Bernstein. Instead, the DoJ showed why that J stands for "Justice:" they thought the conviction was unjust, and they're not trying to salvage the theory under which he was convicted.