The criminal trial of Matthew Keys, a former web producer for Sacramento-based Fox affiliate KTXL and former social media editor for Reuters, began on Monday. Keys faces computer hacking charges under the Computer Fraud & Abuse Act (CFAA).
Keys left (prosecutors claim he was fired) his position at Fox 40 KTXL—which is owned by the Tribune Company—around October 2010. But he allegedly still had access to the Tribune online content management system (CMS) used to upload and edit stories. This was right before the notoriety of Anonymous and Anonymous-related groups like Lulzsec reached its height. According to federal prosecutors, in December 2010, someone using the handle AESCracked posted user credentials for the CMS to an Anonymous IRC channel, urging the others to "fuck shit up."
"And they did," James Silver, trial attorney for the Department of Justice Computer Crime and Intellectual Property Section, intoned solemnly in opening arguments on Monday.
Shortly afterwards, an article on the LA Times website, titled "Pressure builds in House to pass tax-cut package," was defaced. The new headline read, "Pressure builds in House to elect CHIPPY 1337."
Prosecutors say that Matthew Keys is the person behind AESCracked. Keys is being charged on three counts—conspiracy to cause damage to a protected computer, transmission of malicious code, and attempted transmission of malicious code.
According to the defense, the article was changed back in an hour. But prosecutors claim that the Tribune spent over $5,000 to fix the defacement. The amount is no coincidence—$5,000 is the jurisdictional requirement for them make the charges stick. But placing a $5,000 price tag on a weird and kind of embarrassing article being up on a website is, maybe, controversial.
"This is a case about online anonymous revenge," said Silver in his opening arguments. He alleged a series of anonymous harassing emails—signed "Fox Mulder," "Cancer Man," "Walter Skinner," and other characters from the X-Files—sent by Keys to Tribune employees after (prosecutors say) he was fired from his job.
Using the CFAA against vengeful ex-employees isn't anything new. But the $5,000 jurisdictional minimum is often a sticking point. Arguably, it's meant to keep the CFAA from being used against people who do annoying, but relatively harmless things. According to the defense's trial brief, "District courts across the country have sensibly held that where edited or deleted information was backed up, or remained available in other locations, that the edits or deletions did not constitute CFAA damage."
On top of that, it doesn't exactly seem fair if a company pays a consultant thousands of dollars an hour to "investigate" the problem, then relies on that to meet the CFAA jurisdictional minimum. It's unclear whether that's what Tribune did in this case, but the defense's brief indicates that they will be cross-examining the prosecution's witnesses on the question of whether the "alleged CFAA loss was 'reasonably' incurred."
The issues in this case are part of a larger universe of many controversial aspects of the CFAA—the bits and pieces of the law that some critics claim make the statute far too broad. What can pass for $5,000 worth of damage, after all, determines whether a defaced online article can turn into 10 years of prison.
The prosecution claims to have a recording of Keys confessing, "I did it," as well as a written confession. (Keys has not pled to anything.)
The defense will give its opening arguments on Tuesday morning. Keys is being represented by Tor Ekeland, Jason Leiderman, and Mark Jaffe. In 2013, Tor Ekeland represented Andrew "weev" Auernheimer in the CFAA case against him. He was also part of Auernheimer's defense team during his appeal, which eventually resulted in the vacating of his conviction for computer hacking.