This story has been updated throughout with further information from the sentencing.
On Wednesday, the former Reuters journalist Matthew Keys was sentenced to two years in prison for computer hacking.
Keys, who once worked for Tribune Company-owned Sacramento television station Fox 40, left that job in 2010 and went on to copy and paste login credentials for the Tribune Company's content management system (CMS) into a chatroom where members of the hacking collective Anonymous planned out their operations. (Keys still denies all allegations.)
An unknown person under the username "sharpie" then went on to log into the CMS and deface a Los Angeles Times article. The article's headline and dek (the subtitle beneath the headline) remained defaced for about forty minutes before an editor noticed and changed it back.
In October 2015, a jury found Keys guilty of three counts of the Computer Fraud and Abuse Act (CFAA), a conviction that carried with it a maximum sentence of 25 years. A pre-sentence report prepared by the probation office recommended 87 months. In its sentencing memorandum, the US Attorney's Office ended up seeking a lower sentence of five years.
Keys's attorneys asked for probation instead, claiming that the defacement did not result in enough loss to the Tribune Company to warrant any prison time. Their contention goes to one of the most controversial aspects of the case. In order to be convicted of felony under the particular provisions of the Computer Fraud and Abuse Act which prosecutors used to charge Keys, the conduct must exceed a threshold of $5,000.
But the evidence brought at trial with respect to the total loss—and which was likely cited in the sealed presentence report prepared by the probation office—is tied to the Tribune Company's reaction in the wake of the hack, including an extensive assessment of the entire CMS, as well as emails, phone calls, and meetings made by both journalists and highly-paid executives.
In the still-sealed pre-sentence report (PSR), loss to the Tribune Company was placed at about $249,000. At trial, prosecutors presented evidence of loss ranging between $10,206 and $13,147. All of these numbers are lowballs compared to the numbers that were tossed out at various stages before trial. One document calculated loss at $929,977.
In an unexpected twist, while going over the defense's objections to the PSR, Judge Kimberly Mueller limited the amount of loss (for purposes of sentencing) to whatever had been presented at trial, thus drastically reducing the amount of prison time recommended by the sentencing guidelines. In the end, by the judge's own determination, the appropriate range for sentencing was between 37 and 46 months.
Prosecutors said in their sentencing recommendation that a "sentence of five years imprisonment reflects Keys's culpability and places his case appropriately among those of other white collar criminals who do not accept responsibility for their crimes." But when pressed to provide a recommendation within the judge's guidelines, Assistant US Attorney Matt Segal asked for 42 months. "We have not gone overboard on this case, and a midrange recommendation doesn't go overboard either," he said to the judge.
Although Keys's lawyers said that the defacement was a prank borne out of the "spirit of the time," AUSA Segal said that Keys's actions weren't motivated by mischief (or as one would have it, the lulz), but rather a vindictive desire to harm his former employer. "This is not just a prank. We might be talking about a prank if this were sharpie's sentencing," Segal said, adding that "This was rage driven by profound narcissism."
Segal pointed to chat transcripts that showed that sharpie had planned to deface the entire front page of the LA Times website the next day, a plan that had come to nothing because the Tribune Company was on high alert after the first defacement, and had taken steps that cut off Keys's access to the CMS. "The only thing that limited his crime was that sharpie didn't want to hurt the LA Times as much as Keys did," said Segal in court.
The story that the prosecution told at trial was not of a one-off, regretful copy/paste into a chatroom, but rather of a weeks-long harassment campaign launched at a former employer. In a taped confession, the validity of which Keys contests, Keys admitted to sending a series of harassing emails under various pseudonyms taken from the TV show The X-Files. Pseudonymous emails were also were sent to viewers who had signed up for emails from the television station—some of whom were elderly, and reacted very poorly. Only later did he contact Anonymous.
In court, Segal read out a victim statement written by Brandon Mercer, Keys's former supervisor at Fox 40. Mercer spoke on behalf of Fox 40. Mercer said that as a journalist who had broken "the sacred trust of his employment," Keys should be held to a higher standard.
Dan Gaines, formerly of the LA Times, also gave a victim statement on behalf of that paper. Gaines said that Keys's actions posed a dire threat to the LA Times, due to how difficult it was to differentiate between fake and real news on the web today. "We are one of the few points of stability on the web. The risk is real, and for our industry, it's crucial that we be a beacon in a confusing world," he said.
The sentencing recommendation memo suggests that if anything, both the prosecution and the ultimate recommended sentence were at least partly spurred on by how little Keys endeared himself to law enforcement. "Keys's characteristics include narcissism and an arrogant indifference to the suffering of innocent and vulnerable people," prosecutors wrote in the memorandum.
Keys has said that he was targeted for his work as a journalist, and that the prosecution was politically motivated. In the sentencing recommendation, prosecutors denied this, stating outright, "Keys was not targeted because he was a journalist."
Prosecutors said that these statements amounting to lying and promoting "cynicism about the justice system," pointing out numerous statements that Keys had made on Twitter and to news outlets after the verdict.
Defense attorney Jay Leiderman defended Keys's statements, saying that even if the record did not show that Keys had been targeted for being a journalist (something the judge acknowledged very clearly), their client was still entitled to believe that he had been targeted for that reason. Leiderman also said that Keys's unapologetic stance could hardly be held against him, since their view was that Keys had been charged and convicted under an unjust and overbroad law, and they were planning on appealing.
"Congress is regressive not progressive," said Leiderman. "And in fact they are completely inactive nowadays. Although there have been proposals for remediation, no action has been taken." He said that the CFAA was a "buggy law" that did not fit the present day, and "with that, the punishments do not fit the crime."
Judge Mueller showed a keen interest in contextualizing the Keys case within the larger universe that it inhabits. She asked both sides to compare the Keys case to other cases involving members of Anonymous (including the case against the Paypal 14 and the case against Jeremy Hammond), and to justify variances from the sentences that those people had received. "Is Keys himself a hacker?" she asked the prosecutor at one point. "Or is he an instigator with modest computer skills?"
"I think the parties agree, it's not the crime of the century," said Judge Mueller. In the end, she went below the guidelines she had calculated out, considering mitigating factors such as Keys's otherwise clean record, his history of complying with law enforcement, and the unlikeliness that he would reoffend. She sentenced him to 24 months in prison, with 24 months supervised release following.
In sentencing Keys, Judge Mueller said that the effect of the defacement was "relatively modest and did not do much to actually damage the reputation of that publication," but that she could not ignore that his "intent was to wreak further damage which could have had further consequences." She said that his actions had harmed his former supervisor, coworkers, successors, as well as viewers of the TV station. "The mask that Mr. Keys put on appeared to allow a heartless character to utter lines that are unbecoming of the professional journalist that he holds himself to be, and is, in most respects, in fact."
Outside the courtroom, Leiderman expressed disappointment with the decision, saying, "We walked in today facing an 87 month sentence, we walked out with 24. I suppose we should be heartened by that. But I'm not."
Keys is to surrender to a facility—likely a prison in Lompoc, California—on June 15, 2016. His defense team plans to appeal, and to stay his sentence pending that appeal.