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Reprieve for Weev: Court disowns AT&T hacker's conviction

Appeals court strikes down landmark sentence

Internet Security Threat Report 2014

Andrew "Weev" Auernheimer has had his troubling conviction and sentence under the Computer Fraud and Abuse Act reversed and vacated.

The Third US Circuit Court of Appeals announced on Friday [PDF] that Weev's conviction was being vacated due to it being tried in an improper venue, following an appeal by Weev.

Weev had been convicted and jailed for three years and five months in March 2013 after being found guilty for leaking the private email addresses of around 114,000 early adopters of Apple's 3G-equipped iPad to online magazine Gawker. Weev had gained the emails after codefendant Daniel Spitler wrote a script to slurp them off insecure servers operated by AT&T. (Spitler plead guilty in 2011, while Weev unsuccessfully contested the charges.)

The leak caused huge embarrassment to both AT&T and Apple as the leaked email addresses included those of then–White House Chief of Staff Rahm Emanuel, New York Mayor Michael Bloomberg, film mogul Harvey Weinstein, among others.

Charging Weev in New Jersey meant that the government's prosecutors could apply that state's laws to increase the severity of the sentence.

"To enhance the potential punishment from a misdemeanor to a felony, the Government alleged that Auernheimer's CFAA violation occurred in furtherance of a violation of New Jersey's computer crime statute," the court wrote.

This was improper, the Court said, and argued that New Jersey had little to do with the case, seeing as how the defendants resided outside of the state, as did the AT&T servers. The prosecution had claimed that because around 4,500 of the leaked emails were of New Jersey residents, that constituted sufficient grounds to hold the trial there and expose Weev to the Garden State's laws.

"Auernheimer was hauled over a thousand miles from Fayetteville, Arkansas to New Jersey," the Court wrote. "Certainly if he had directed his criminal activity toward New Jersey to the extent that either he or his co-conspirator committed an act in furtherance of their conspiracy there, or performed one of the essential conduct elements of the charged offenses there, he would have no grounds to complain about his uprooting. But that was not what was alleged or what happened."

The legal case has become a flashpoint for civil liberties campaigners and information security professionals who saw it as a test case for just how far prosecutors could push the Computer Fraud & Abuse Act.

"We're thrilled the Third Circuit reversed Mr. Auernheimer's conviction," said Electronic Frontier Foundation lawyer Hanni Fakhoury in a statement emailed to The Register. "This prosecution presented real threats to security research. Hopefully this decision will reassure that community."

Weev's lawyers had frequently argued that Weev's conviction relied on an improper application of the CFAA, stating that there was no "unauthorized access" by him as the data had been held on a publicly accessible server.

By vacating his case on grounds of improper venue, the Appeals court stopped short of commenting on the validity of Weev being charged under the CFAA, but did state that the government's decision to put him on trial in New Jersey was unconstitutional.

By vacating the conviction, Weev will shortly be a free individual, though he could be charged again.

"Venue issues are animated in part by the 'danger of allowing the [G]overnment to choose its forum free from any external constraints.' The ever increasing ubiquity of the Internet only amplifies this concern," the Court wrote. "As we progress technologically we must remain mindful that cybercrimes do not happen in some metaphysical location that justifies disregarding constitutional limits on venue." ®

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