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Bret McDanel already served his 16 months in federal prison for violating the Federal Computer Fraud and Abuse Act. Now he wants to clear his record, writes Deborah Radcliff of SecurityFocus.

McDanel was wrongly convicted under the federal computer fraud statute, criminal code 18 U.S.C. 1030, claims a 62-page appeal filed on McDanel's behalf by his new attorney, Jennifer Granick, clinical director for the Center for Internet and Society at Stanford Law School. The criminal code was misinterpreted to bring about his conviction, and McDanel's public defender denied him a fair trial, asserts the brief, filed Wednesday in the Ninth Circuit Court of Appeals.

Between August 31 and September 5th, 2000, the 29-year-old McDanel, under the moniker, "Secret Squirrel," sent 5,600 e-mail letters to customers of his former employer, Tornado Development, Inc., a Los Angeles-based unified messaging business that provided Web-based e-mail, voice mail and other communications. McDanel's e-mails informed Tornado's customers of a serious vulnerability in the e-mail system which left e-mail login credentials, called Network Identifiers or NIDs, in plain view in their Web browser address boxes, which could then be scooped up by Web sites that harvest surfing information from visitors' browsers.

According to prosecutors, McDanel intended to cause damage to Tornado's mail server by overloading it with too many messages, and caused a costly public relations problem by making public confidential information that was damaging to Tornado's reputation.

But the appeal brief claims that the e-mails did not cause a denial of service. Instead, the systems were taken down to repair the security flaw, which McDanel had pointed out a year earlier at Tornado.

The government's other argument was that McDaniel impaired system integrity by exposing the vulnerability publicly. Granick says that doesn't fly under existing law.

"This is a matter of interpretation of Federal law. The Federal anti-hacking statute prohibits the transmission of data that causes damage to the integrity and availability of a system," Granick said in a phone interview. "The government's argument is that he transmitted harmful data by exposing the security flaw. That argument is not supported by case law."

Cindy Cohn, legal director at the San Francisco-based Electronic Freedom Foundation, thinks McDanel's conviction sends a chilling effect on free speech.

"We're seeing more cases like this here at the EFF, for example, the Felten case, in which a security professional was threatened by the RIAA for proving its watermarking system for DVD's was completely breakable," she explained. "Just like the Felten case, McDanel attempted to inform users the system they were using is insecure. For the American government to throw someone in jail for that is particularly troubling."

The appeal also contends that the trial judge improperly threw out the testimony of an expert witness who proved that McDanel's mails did not cause a denial of service; and that McDanel himself was denied the right to testify on his own behalf because of the failure of his court-appointed defense attorney.

It also claims that the jury was prejudiced by knowledge of McDanel's past history with a former employer three years prior, in which McDaniel gained unauthorized access to the employer's system after being denied his salary for his final few days working there.

The U.S. attorney's office will not comment on the brief, said Assistant U.S. Attorney Jeremy Matz. He added that the office will respond only through its own answering brief, which is due on August 28th.

McDanel needs to clear his record to regain basic rights taken away because of his criminal conviction, said Cohn.

And the courts also need to turn around such a dangerous interpretation of the computer crime laws, added Granick.

"Why are we doing this after Bret's served his time? The point is to make the point that the First Amendment doesn't allow this," said Granick. "This appeal will take the conviction off his record and send a message to prosecutors and citizens that it's okay to talk about computer security flaws, even if they are embarrassing to the company that has the problem."

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