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Prosecutors admit error in whistleblower conviction

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Federal prosecutors in Los Angeles will ask a court to set aside the conviction of a man who served 16 months in federal prison for blowing the whistle on an ex-employer's cybersecurity holes, officials said Tuesday.

Without providing details, a spokesman for the U.S. Attorney's Office in Los Angeles confirmed that the office's appellate division will move this week to vacate Bret McDanel's felony conviction.

McDanel, 30, was convicted last year under the Computer Fraud and Abuse Act for sending 5,600 e-mail messages to customers of his former employer, the now-defunct e-mail provider Tornado Development, Inc., warning about a security hole in Tornado's service that left private messages vulnerable to unauthorized access.

After a court trial, federal judge Lourdes Baird found McDanel guilty of unauthorized access, accepting prosecutors' arguments that McDanel abused Tornado's e-mail servers to send the messages. The judge found that McDanel caused the statutorily-required $5,000 in damage in part by bogging down those servers, and in part by harming the company's reputation by disclosing the bug.

McDanel appealed last August, arguing that the judge misconstrued the Computer Fraud and Abuse Act.

A federal prosecutor said Tuesday that the government was conceding that point, and would file a rare "Confession of Error" acknowledging that McDanel was convicted through an incorrect reading of the law. "The Confession of Error says we don't believe that simply disclosing the fact of the vulnerability itself constitutes damage," said the official.

McDanel's appellate attorney, Jennifer Granick at Stanford University's Center for Internet and Society, could not be reached for comment Tuesday.

A government press release issued at the time of McDanel's sentencing colored him a "computer spammer," and touted the case as the first to go to trial in Los Angeles under the Computer Fraud and Abuse Act. McDanel has already served his full 16-month prison term.

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