Is former Sacramento media employee Matthew Keys a victim of overzealous, misguided cybercrime prosecution?
 Some say the U.S. Department of Justice’s priorities are out of whack when it comes to cyberterrorism prosecutions. ILLUSTRTAION BY BRIAN BRENEMAN |
 |
The trial of former KTXL Fox40 Web producer Matthew Keys in Sacramento federal court appears to be approaching its anticlimax.
The 27-year-old blogger and journalist is accused of helping hackers break into the Los Angeles Times website, where they changed the headline of a story. Keys has even confessed to the substance of the crime, though it hardly qualifies as misdemeanor vandalism. So why make a federal case out of it? Couldn’t Department of Justice resources be better directed elsewhere?
It’s a question of priorities, according toSurviving Cyberwar author Richard Stiennon. “For those in justice, your career path is to get a whole bunch of successful prosecutions and get noticed,” Stiennon says. “So you’re going to go after the low-hanging fruit.”
Lately, prosecutors have been taking advantage of the wide latitude afforded them by the Computer Fraud and Abuse Act to press cases involving “network security.” And they press hard.
Last January, Internet entrepreneur and activist Aaron Swartz killed himself while under felony prosecution for downloading academic journals. Swartz, who helped create the crowdsourced entertainment site Reddit, was facing 50 years and $1 million in fines.
“The days of ’Let’s haul this kid in front of the judge, scare him and send him home with a warning’ are long since gone,” says attorney Jay Leiderman, who represents Keys. “Prosecutorial discretion is a great thing if it’s exercised, but it doesn’t happen in any meaningful way these days, because prosecutions are so politicized.”
That’s the crux of the problem for Keys, the former Reuters social-media editor and possessor of 23,000 Twitter followers. In December 2010, he crossed paths with Hector Xavier Monsegur, a.k.a. Sabu, the eventual leader of AntiSec, a more mischievous offshoot of hacktivist group Anonymous. Keys passed them the credentials he once used to log into KTXL’s computers, which were linked to the Tribune Company network.
Keys left KTXL two months earlier, and he’s since expressed surprise that the credentials still worked. An AntiSec member used them to access the L.A. Times website and change a story headline from “Pressure Builds in House to Pass Tax-cut Package” to “Pressure Builds in House to Elect CHIPPY 1337,” a reference to another hacker group. Within 30 minutes, the hacker was frozen out and the headline corrected.
Keys might have expected, at worse, a stiff warning and small fine. But he literally messed with the wrong guy. Sabu had been an FBI informant since his arrest in June 2011, right around the time he started AntiSec.
For months, Monsegur encouraged his followers to commit cybercrime while under the FBI’s control. He was the “honeypot” attracting would-be perps into an operation seemingly designed to intimidate future hackers and anyone who might associate with them, like Keys.
“Part of this is [the feds’] broader push to send a message that anything and everything is going to go punished that appears to suggest that the control of the Internet is up for grabs,” says Hanni Fakhoury an attorney at Electronic Frontier Foundation in San Francisco. “It is not a coincidence that this was linked to behavior undertaken in the name Anonymous.”
It wasn’t always like this. Keys and Swartz were charged under CFAA, a 28-year-old law whose contours, like the shore, have worn away with time, yielding to much wider application.
The CFAA was conceived in the wake of the Matthew Broderick movie WarGames, about a hacker who inadvertently almost starts a nuclear war. The original drafters focused narrowly on government computers and the intent of the intrusion.
But changes in the law and vague wording have turned “unauthorized access” to a computer into a prosecutorial blank check.
Eleven years ago, nearby Fiddletown resident Bret McDanel was jailed under the CFAA for a crime the government later admitted he hadn’t really committed.
McDanel noticed a security flaw in his firm Tornado Development’s Web-based communications software. He told his supervisors, but his concerns went unaddressed. After leaving their employ, he sent an email to all the software’s users informing them of the issue. The Amador County resident was charged with undermining the “integrity of a computer system.”
By the time the feds admitted the law wasn’t meant to protect a software company’s reputation, he had already served his 16-month sentence. He’d lost his fiancée and was living with his parents, while his former employer had gone out of business. But McDanel can surely tell you which way the railroad runs.
As Keys has discovered, the feds lean hard and wear you down. He faces up to $750,000 in fines and 25 years in prison.
Swartz initially faced only 35 years, but four months before his death (20 months after his initial arrest), they added nine more felony counts, raising his jeopardy to 50 years. The idea, critics say, was to squeeze a plea out of him; Swartz found a different way out.
Swartz’s act of martyrdom generated a firestorm of protest. It caught the attention of Bay Area Congresswoman Zoe Lofgren, who sponsored (still-stalled) legislation known as Aaron’s Law to change some CFAA provisions.
“In talking to Aaron’s family and others who were involved in his situation, it was a real eye-opener to what happens in the criminal-justice system,” says Lofgren. “What they felt was very abusive was this sort of thing where you more or less try to extort concessions through the use of overprosecution.”
Keys’ odyssey appears to be drawing to its close, for better or worse. His last court appearance, on April 2, was accompanied by news that the case had gone to “reverse proffer.” This involves the prosecution sharing their case with the defense, generally with an eye toward an agreement.
Nearly all those swept up in the feds’ Anonymous-related enforcement actions have been processed. The sole remaining exceptions are Keys and cooperating ringleader Monsegur. In January, Monsegur’s sentencing was delayed for a third time, so it’s not difficult to believe he’s the bow on the whole operation.
Keys is certainly guilty of something, but probably not a felony. In that respect, he’s perhaps a victim of cybercrime’s intrigue and a prosecutor’s desire to leverage that publicity.
“Any case that has the word ’cyber’ in it brings headlines, because it’s interesting. There’s a degree to which careers are made this way,” says Leiderman. “’Cyber prosecutor blah-blah-blah.’ Nobody reads the ’blah-blah-blah.’ They just go, ’They caught a cybercriminal. Fantastic.’”
Lofgren continues to push changes in the law to make it less prone to abuse. Unfortunately, there’s precious little to be done about overzealous prosecutors.
“You really can’t impose good judgment legislatively,” Lofgren says, “but we do need to have better oversight over the Department of Justice.”
“These unwritten amenities have been in part responsible
for giving our people
the feeling of independence and self-confidence, the feeling of creativity.
These amenities have dignified the right of dissent and have honored the right
to be nonconformists and the right to defy submissiveness. They have encouraged
lives of high spirits rather than hushed, suffocating silence.”
— Justice William O. Douglas
(1898-1980), U. S. Supreme Court Justice
Source: Papachristou v. City of Jacksonville (1972)
“The great and invigorating influences in American life
have been the unorthodox: the people who challenge an
existing institution or way of life, or say and do
things that make people think.”
William O. Douglas
(1898-1980), U. S. Supreme Court Justice
Source: Interview, 1958
Royal Canadian Mounted Police – RCMP
The Royal Canadian Mounted Police (RCMP) is the Canadian national police service and an agency of the Ministry of Public Safety Canada. The RCMP is unique in the world since it is a national, federal, provincial and municipal policing body, providing a total federal policing service to all Canadians and policing services under contract to the three territories, eight provinces (except Ontario and Quebec), more than 190 municipalities, 184 Aboriginal communities and three international airports.
URL: http://www.rcmp-grc.gc.ca/index-eng.htm
Sourcebook of Criminal Justice Statistics
Sourcebook of Criminal Justice Statistics is an on-line version (28th) of the largest compilation of criminal justice statistics available. This site is run and continuously updated by the State of New York at Albany.
URL: http://www.albany.edu/sourcebook/
Put not your trust in money, but put your money in trust.
Oliver Wendell Holmes
Source: The Autocrat of the Breakfast Table
Stop Prisoner Rape – Just Detention International
Stop Prisoner Rape seeks to end sexual violence committed against men, women, and children in all forms of detention.
URL: http://www.justdetention.org/
Unconstitutional Law
[Justices do not have the right to declare] “a law unconstitutional
simply becasue they considered a law unwise.” [The court] “is not
to decide whether the view taken by the legislature is a wise view,
but whether a body of men could reasonable hold such a view.”
Lousis D. Brandeis
Source: The Supreme Court and It’s great Justicies
State and Federal Governments
“That distinct sovereignties could exist under one government, emanating from
the same people, was a phenomenon in the political world, which the wisest
statesmen in Europe could not comprehend; and of its practicability many in our
own country entertained the most serious doubts. Thus far the friends of
liberty have had great cause of triumph in the success of the principles upon
which our government rests. But all must admit that the purity and permanency
of this system depend on its faithful administration. The states and the
federal government have their respective orbits, within which each must
revolve. If either cross the sphere of the other, the harmony of the system is
destroyed, and its strength is impaired. It would be as gross usurpation on the
part of the federal government, to interfere with state rights, by an exercise
of powers not delegated; as it would be for a state to interpose its authority
against a law of the union.”
Justice John McLean
(1785-1861) U.S. Congressman for Ohio (1813-16), U.S. Postmaster General,
Associate Justice of the U.S. Supreme Court (1830-61),
presidential candidate for the Whig and Republican parties
Source: Craig v. Missouri, 4 Peters 410 (1830) [29 U.S. 410, 464]
Great cases like hard cases make bad law.
Oliver Windell Holmes
Source: Northern Securities Co v. US 1904
In view of the Constitution, in the eye of the law, there
is in this country no superior, dominant, ruling class of citizens.
There is no caste here. Our Constitution is colorblind,
and neither knows nor tolerates classes among citizens.”
John Marshall Harlan
Source: Plessy v. Ferguson, 1896
American Sociological Association – ASA
The American Sociological Association (ASA) provides a unique set of services to its members and promotes the vitality, visibility and diversity of the discipline.
URL: http://www.asanet.org/
Since when have we Americans been expected to bow submissively to authority
and speak with awe and reverence to those who represent us?
William O. Douglas
Source: http://www.brainyquote.com/quotes/authors/w/william_o_douglas.html
!
2000 Election (Selection)
It is confidence in the men and women who administer the judicial system
that is the true backbone of the rule of law. Time will one day heal the
wound to the confidence that will be inflicted by today’s decision. One
thing, however, is certain. Although we may never know with complete
certainty the identity of the winner of this year’s Presidential
election, the identity of the loser is perfectly clear. It is the
Nation’s confidence in the judge as an impartial guardian of the rule of
law. I respectfully dissent.
Justice John Paul Stevens 12-12-2000
Justice is the tolerable accommodation of the conflicting interests of society, and I don’t believe there is any royal road to attain such accommodation concretely. ~Judge Learned Hand, in P. Hamburger, The Great Judge, 1946
An earthquake achieves what the law promises but does not in practice maintain — the equality of all men. ~Ignazio Silone
When you go into court you are putting your fate into the hands of twelve people who weren’t smart enough to get out of jury duty. ~Norm Crosby
The more laws the more offenders. ~Thomas Fuller, Gnomologia, 1732
Justice is open to everyone in the same way as the Ritz Hotel. ~Judge Sturgess
“… if one is to rely on human judges, it is very important that they never admit to error.”
― David S. Landes, Revolution in Time: Clocks and the Making of the Modern World
“If you are a winner by the judgements of few judges and not by your performance, you are not a real winner.”
― Amit Kalantri
“The merciful precepts of Christ will at last suffuse the Code and it will glow with their radiance. Crime will be considered an illness with its own doctors to replace your judges and its hospitals to replace your prisons. Liberty shall be equated with health. Ointments and oil shall be applied to limbs that were once shackled and branded. Infirmities that once were scourged with anger shall now be bathed with love. The cross in place of the gallows: sublime and yet so simple.”
― Victor Hugo, The Last Day of a Condemned Man
Male verum examinat omnis
Corruptus judex.
A corrupt judge does not carefully search for the truth.
Horace—Satires. II. 2. 8.
Lee “Scratch” Perry’s song “Set Them Free” would be a good one. In it, Perry pleads the case of three young (alleged) thiefs before a judge…
“I don’t think it’s fair to sentence these men to 500 years…”
“Are you suggesting that I am unfair?”
“No, your honor. But as you see, they are from a poor generation, having no education, no qualification, so they are driven to desperation.”
NWA – Fuck tha Police (I can’t believe no one said this yet)
Sublime – Get Ready (“Load up the bong, crank up the song, and let the informa’ call 9-1-1!”)
Queens of the Stone Age – Regular John (Because its probably the awesomest song about phones ever)
side note: QOTSA is the most underrated band ever. They have B-sides that blow away anything released in a while (ex: Infinity, Mexicola, Everybody Knows That You’re Insane)
We Can Work It Out – The Beatles
Think of what you’re saying.
You can get it wrong and still you think that it’s all right.
Think of what I’m saying,
We can work it out and get it straight, or say good night.
Life is very short, and there’s no time
For fussing and fighting, my friend.
We can work it out,
We can work it out.
Songs about Theft
Bandit, The – Bobby Thompson (2008)
Beg, Borrow and Steal – Ohio Express (1967)
Breaking and Entering – Carroll Baker (1981)
Burglar Man – Claude Boone (1949)
Cops and Robbers – The Destroyers (1993)
Desperado – Johnny Rodriguez (1977)
Desperadoes Waiting for a Train – The Highwaymen (1985)
Drink, Swear, Steal and Lie – Michael Peterson (1997)
Getaway Car – The Jenkins (2004)
Getaway Driver – Paul Bellows (2001)
Great Filling Station Holdup, The – Jimmy Buffett (1973)
Great Mail Robbery, The – Rex Allen, Jr. (1974)
Gypsies, Tramps and Thieves – Cher (1971)
Highway Robbery – Tanya Tucker (1989)
Holdup, The – David Bromberg (1971)
Horsethief Moon – Ian Tyson (1884)
Masked Marauder – Country Joe and the Fish (1969)
Possession’s Nine-Tenths of the Law – Lonesome Standard Time (1995)
Prisoner’s Song, The – Terri Williams (1999)
Robbery Suspect – Stan Pope (2008)
Run Like a Thief – J.D. Souther (1972)
Rustler’s Fate, The – The Carlisle Brothers (1933)
Somebody Stole My Dog – Rufus Thomas (1964)
Somebody Stole My Watermelon – The Fireballs (1965)
Stolen Horses – Ray Wylie Hubbard (2003)
Stolen Wine – Tommy Overstreet (1979)
Stop, Thief – Carla Thomas (1967)
Thievin’ Stranger, The – Walter Brennan (1960)
This is a Holdup – Bill Wence (2001)
Thou Shalt Not Steal – Kaleidoscope (2006)
Too Lazy to Work, Too Nervous to Steal – BR5-49 (2001)
We Robbed Trains – The Smoky Mountain Boys (1981)
Who Stole the Lock? – The Wiyos (2006)
Songs about Prison and Jail
All Night in Jail – The Twisters (1957)
Allentown Jail – Billy Strange (1966)
Arkansas State Prison – Bobby Womack (1970)
Back on the Chain Gang – The Pretenders (1983)
Ballad of Attica Prison, The – Tiny Tim (1971)
Beaufort County Jail – Hazel Dickens and Alice Gerrard (1975)
Birmingham Jail – Lead Belly (1948)
Blackjack County Chain – Willie Nelson (1967)
Chain Gang – Sam Cooke (1960)
Cold Grey Bars – Ned Miller (1970)
Convict and the Rose, The – Chet Atkins and Hank Snow (1964)
Dark as a Dungeon – Maddox Brothers and Rose (1950)
Death Row – Bob Seger (1969)
Five Years in Prison – Roy Hall (1949)
Folsom Prison Blues – Johnny Cash (1968)
Fort Worth Jail – Lonnie Donegan (1959)
Hutchinson Jail – Nancy Sinatra (1966)
I Got Stripes – Johnny Cash (1959)
I’d Rather Go to Jail – Mitch Ryder (1969)
In the Jailhouse Now – Sonny James (1977)
Jailhouse Blues – Sleepy John Estes (1960)
Jailhouse Rock – Elvis Presley (1957)
Just Came to Get Buford Outta Jail – Don Bowman (1969)
Last Hour on Death Row – Johnny Wakely (1979)
Nashville Jail – The Country Gentlemen (1990)
Orange Jumpsuit – 77 ElDeora (2006)
Prison Song, The – Curly Putman (1960)
Prison Without Walls, A – Eddy Arnold (1950)
Prisoner in Disguise – Souther Hillman Furay Band (1975)
Prisoner’s Song, The – The Timberliners (1962)
Shackles and Chains – Montana Slim (1949)
Should I Tie a Yellow Ribbon? – Connie Francis (1973)
Sound of My Man Working on a Chain Gang, The – Theola Kilgore (1960)
Stone Walls and Steel Bars – The Clinch Mountain Boys (1963)
Suicide Watch – Dawn DeKrell and Jon Dittert (2004)
Texas Jail Cell – Jon Wayne (1994)
There Ain’t No Good Chain Gang – Johnny Cash and Waylon Jennings (1978)
Tie a Yellow Ribbon Round the Old Oak Tree – Johnny Carver (1973)
Tijuana Jail, The – The Kingston Trio (1959)
Tupelo County Jail – The Stonemans (1966)
Week in a County Jail, A – Tom T. Hall (1970)
Wichita Jail – The Charlie Daniels Band (1976)
I can’t keep up with what’s been going on
I think my heart must just be slowing down
Among the human beings in their designer jeans
Am I the only one who hears the screams
And the strangled cries of lawyers in love
God sends his spaceships to America, the beautiful
They land at six o’clock and there we are, the dutiful
Eating from TV trays, tuned into to Happy Days
Waiting for World War III while Jesus slaves
To the mating calls of lawyers in love
Last night I watched the news from Washington, the capitol
The Russians escaped while we weren’t watching them, like Russians do
Now we’ve got all this room, we’ve even got the moon
And I hear the U.S.S.R. will be open soon
As vacation land for lawyers in love
Steve Earle’s “Billy Austin”. A taste:
But there’s twenty-seven men here
Mostly black, brown and poor
Most of em are guilty
Who are you to say for sure?
So when the preacher comes to get me
And they shave off all my hair
Could you take that long walk with me
Knowing hell is waitin’ there?
Could you pull that switch yourself sir
With a sure and steady hand?
Could you still tell youself
That you’re better than I am?
Frank Sinatra:
Sue me sue me – what can you do me ?
This is about a troubled youth visiting Cuba who writes home to his father for help.
The reference to “I’m hiding in Honduras” may refer to the short exile of famous American short story writer O. Henry (Will Porter). In 1894, while working as a bank teller in Austin, Texas, Porter embezzled $5,000. He fled to New Orleansand then Honduras to avoid prosecution. At that time, US companies began their major export of Bananas from Honduras to the US, so the New Orleans-Honduras route was a well traveled one. Porter stayed in Honduras 11 months but returned to Austin to be near his terminally ill wife. He was arrested an served time in jail. >>
Zevon once stated that this was based on a true story. He and his manager were partying in Mexico, when the “party” decided to take to the road and it looked liked it was “about to hit the fan.” Zevon’s manager feigned a phone call: “Send lawyers.” Zevon jumped in: “And guns… and money.” >>
This was used as the theme song for producer Jerry Bruckheimer’s short-lived TV series Justice
As they take on similar cases, Rifkin said he considers the challenge of dubious copyright claims an important part of the copyright system. He and Newman, he said, are trying to hit the balance referred to by Justice Elena Kagan in an opinion in a Supreme Court case involving legal fees in copyright cases.
The purpose of the Copyright Act—”enriching the general public through access to creative works”— is served by “striking a balance between two subsidiary aims: encouraging and rewarding authors’ creations while also enabling others to build on that work,” Kagan said.
“I think the three cases all have that common element, to restore the balance to those two aims,” Rifkin said.
Justice Douglas in Griswold v. Connecticut, 381 U.S. 479 (1965):
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.
Articles of Impeachment
Definition from Nolo’s Plain-English Law Dictionary
The formal document filed to impeach a publich official. The articles of impeachment state the charges against the official and the reasons why the official should be removed from office. Articles of impeachment must be brought by the appropriate legislative body, such as a senate, state legislature, or city council.
Attorney of Record
Definition
1) A lawyer who appears in court or receives pleadings and other formal documents on a party’s behalf. Also known as counsel of record.
2) In patent and trademark law, a lawyer or agent named in a power of attorney filed by a patent or trademark applicant.
Illustrative case law
See, e.g. Mason v. City of New York, 67 A.D.3d 475 (N.Y. App. Div. 2009).
Attorney at Law (or Attorney-At-Law)
Definition
Someone authorized to practice law; a lawyer. Also called attorney and public attorney.
Illustrative caselaw
See, e.g. Supreme Court of Virginia v. Consumers Union of U.S., Inc., 446 U.S. 719 (1980).
Attorney
Definition
1) Someone authorized to practice law; a lawyer. Also called attorney-at-law and public attorney.
2) Less commonly, an agent authorized to act on behalf of another person, but not necessarily authorized to practice law, e.g. a person authorized to act by a power of attorney. Also called attorney-in-fact and private attorney.
Illustrative caselaw
See, e.g. Savings Bank v. Ward, 100 U.S. 195 (1879).