Federal agents accused of unwarranted search through journalist's computer

Attorney for journalist Matthew Keys, indicted for conspiring with hackers, contests the legality of investigators' tactics

• Eoin Reynolds in Sacramento
• theguardian.com, Wednesday 29 January 2014 14.52 EST

Federal agents have been accused of carrying out an improper search of documents contained on the computer of a former Reuters journalist who has been charged with conspiring with hackers to deface the website of the Los Angeles Times.

Matthew Keys, 26, has been indicted for providing a username and password to the hacker group Anonymous that allowed it to hack into the Los Angeles Times website and alter a headline.

At the US district court in Sacramento on Wednesday, an attorney for Keys, Jay Leiderman, said federal agents carried out a trawl of files on Keys's computer in 2012 that was not allowed under their search warrant. He asked that information taken from the computer be suppressed by the court.

"The warrant did not give the power to rummage through the journalist's files," Leiderman said, adding "there is no indication of why all this information needed to be seized".

The computer in question was used by Keys to send files regarding his own case to another journalist who was writing a book about Anonymous in 2012. It is not clear what the prosecution intends to do with the information agents found during the search or if any of it will be used in an upcoming trial.

The prosecution argued that agents carried out a broad search of the computer because they were concerned relevant files could have been moved or hidden. They further argued that child pornography cases, in which entire hard drives are seized and used as evidence, set a precedent for such indiscriminate searches.

Leiderman responded by saying, as a journalist, Keys would be unlikely to move or tamper with files relating to an ongoing story and rejected the idea that child pornography cases are analogous to this case.

Judge Kimberly Mueller is expected to give her decision on the legality of the search on 26 February.

The case against Keys has caused a stir in the online media community, where many are concerned he is the victim of over-stringent action by law enforcement. He faces three charges in total under the 1984 Computer Fraud and Abuse Act. Each charge carries a potential fine of $250,000 and potential jail terms of five years on one count and 10 on each of the other two.

Supporters of Keys point out that his actions caused little disruption to the LA Times. The hackers used the password to change one headline from "Pressure Builds in House to Pass Tax-Cuts" to "Pressure Builds in House to Elect CHIPPY 1337." CHIPPY 1337 is a reference to another hacking group.

The headline was quickly amended and the password changed to avoid further breaches. The company that owns the LA Times spent $5,000 updating security measures to avoid a recurrence, according to the indictment.

The alleged offences occurred in 2010 when Keys was working for KTXL Fox 40, a Sacramento-based television station owned by the Tribune Company, which also owns the LA Times.

Keys later moved to Reuters where he worked as a social media editor before being put on paid leave once the charges were brought against him. He was later dismissed. He will appear in court again on 26 February when Mueller will giver her decision on the application to suppress.

HERE IS THE RUSSIA TODAY VERSION OF THE SAME STORY

IT HAS SOME ADDITIONAL BACKGROUND: 

US federal agents illegally obtained evidence against a former Reuters journalist when they scoured his computer for documents that were not mentioned in the search warrant they were granted, the reporter’s attorney argued in court Wednesday.

Matthew Keys, 26, was charged in 2012 with conspiring with hackers from Anonymous, providing them with a username and password that allowed them access to the Los Angeles Times website and subsequently change a headline. When federal agents investigating Keys examined the computer in question they accessed files Keys had sent about his own case to another journalist who was at work on a book about the anonymous hacking collective.

Keys’ attorney, Jay Leiderman, asked the US district court in Sacramento to suppress any evidence the police obtained from that computer.

“The warrant did not give the power to rummage through the journalist’s files,” he said Wednesday, nothing “there is no indication of why all this information needed to be seized.”

How the prosecution plans to use the information investigators obtained is unclear, however authorities said the search needed to be conducted because files relevant to the investigation may have been deleted by Keys. Attorneys cited child pornography investigations, in which entire hard drives are often seized, provide a precedent for this case.

According to the Guardian, Leiderman responded by saying that a child porn example is irrelevant to this case and asserted that Keys, being a journalist, would not destroy files that were part of an ongoing story.

The Justice Department claims that Keys, dejected over being fired from his job at KXTL Fox 40, a Tribune Company subsidiary, gave his log-in information to hackers in an Anonymous chat room and told them to “go f**k some shit up.” They then infiltrated the site of the Los Angeles Times, another Tribune company, and changed a headline from “Pressure builds in House to Pass Tax-Cuts” to “Pressure Builds in House to Elect CHIPPY 1337,” a reference to another hacker group.

Prosecutors explained that the plan was designed to “make unauthorized changes to web sites that the Tribune Company used to communicate news features to the public; and to damage computer systems used by the Tribune Company.”

Leiderman said that Keys was acting as an embedded journalist when the alleged criminal activity occurred in 2010. Keys faces up to 25 years in prison and a $750,000 fine if convicted, although prosecutors told the Associated Press last year that Keys would likely be sentenced to between 10 and 27 months behind bars because he has no criminal record. Keys has refused a plea bargain.

“He met these people in chat rooms, they knew he was a journalist and knew where he used to work,” Leiderman told the Huffington Post, adding that the credentials Keys provided were incapable of gaining access to the LA Times site. “There’s an incongruity to all of this that we’re hoping to get to the bottom of in the next couple months.”

Protest Speech and the Digital Revolution

The unpolished draft of the op-ed written for the Guardian

There is no weapon on the planet more powerful than speech.  In recent years, the digital revolution has led to new and unique ways for people to express themselves.  Speech has flourished around the globe, and brought the world closer together.  As a lawyer and as someone who promotes the advancement of individual liberties, I was fascinated by the advent of online speech, and then the advent of online protest. 

While affixing your e-signature to an online petition is a new and somewhat direct way to “petition your government for a redress of grievances,” I am most concerned with advocating for more immediate and effective manners of protest.   Accordingly, I was quite interested in December 2010 when the hacktivist collective Anonymous took to the internet to voice their displeasure with PayPal over their part in the banking blockade of Wikileaks.  A reported 10,000 protestors around the world voiced their displeasure with PayPal by using a protest method known as DDoS.  DDoS is the functional equivalent of hitting the refresh button on a computer repeatedly.  With enough people refreshing enough times, the site is flooded with traffic and slowed or even temporarily knocked offline.  No damage is done to the site or backing computer system, and when the protest is over, the site resumes business as usual. 

This is not “hacking.”  It is protest.  It is speech. 

True, customers of the site are temporarily inconvenienced, but democracy is often messy and inconvenient. Moreover, to hear the voice of your fellow citizen for a moment should always be worth slowing down for.  Exposure to new or differing views enriches us all.  Such was the case with the 2010 PayPal DDoS protest.

Or, at least, it was until the United States Government decided to serve 42 warrants and indict 14 protesters.  While protest crimes have typically been seen as tantamount to nuisance type behavior, like trespassing or loitering, these were different.  The 14 PayPal defendants, some of whom were teenagers when the protest occurred, find themselves looking at 15 years in federal prison.  For exercising their free speech rights.  For redressing their grievances to PayPal, a major corporation.  For standing up for what they believed was right.  Instead of facing a $50 fine, like one would face for traditional protest crimes like a sit-in, the PayPal defendant’s freedoms are in real jeopardy. 

To address this situation, there was some more traditional, yet still-modern speech aimed at the White House.  An online a petition has been launched asking that DDoS be treated as speech.  I wholeheartedly support this concept.  Being mindful that all protest must be reasonable in time, place and manner, I believe that there is room in cyberspace, indeed in the world, for this type of protest activity. 

The example used above, that of the PayPal protest, is again apt to analogize why DDoS is speech.  Just like civil rights protestors who went to the Woolworth’s lunch counter in the segregated American South of the 1960’s to seek a simple meal, people went to PayPal to express their desire to make a donation to WikiLeaks.  In Woolworth’s the protestors made plain their goal: “If you serve me a meal, I will eat it, pay for it and then I will leave.”  This simple concept was lost on the Jim Crow South.  And so protest became necessary.  Certainly this situation is a lesser evil.  No one suggests it is not.  But the analogy is apt nonetheless.  Thousands of PayPal protestors said, via their protest speech in DDoS form: “I want to make a donation to WikiLeaks, I’ll take up my bandwidth to do that, then I’ll leave, you’ll make money, I’ll feel fulfilled, everyone wins.”  But alas, PayPal, and their parent company eBay were not in the win-win business.  They were in the censorship business.  Censorship is not something Anonymous suffers lightly.  PayPal will take donations for the Ku Klux Klan, other racist and questionable organizations, but they won’t process donations for WikiLeaks.  So it came to pass that thousands of displeased people around the globe voiced their displeasure via a DDoS protest.   All the PayPal protesters did was take up some bandwidth.  PayPal claimed – almost as a cry of victory – that their site never even went offline.  In that example, DDoS was used as an almost pure form of protest expression.  Accordingly, it was speech, it should absolutely be recognized as such and protected as such.   The law should be changed. 

The Computer Fraud and Abuse Act is being used to stifle new and creative forms of online expression.  This type of harmless creative protest should be encouraged.  Our nation was built upon the principles of free speech.  If the founders of this great nation saw the abuses of the laws as applied to these minor protests I think they would be shocked and offended. 

Our best and brightest should be encouraged to find new methods of expression.  Direct actions in protest should be encouraged, not stifled.  The dawning of the digital age should be seen as an opportunity to expand our knowledge and collectively work together to enhance our communication.  Government should have the greatest interest in promoting speech, especially unpopular speech.  If new and contrary methods of speech became mainstream, they would need no protection.  The majority, the corporatocracy and the oligarchs are, no doubt, displeased by dissent.  Such is the nature of dissent.  When the world becomes perfect, no one will ever have need to protest.  Until then, the Government should never be used to stifle the new and creative – not to mention effective – methods of speech and expression.   Since the PayPal prosecution there has been no DDoS protests on that scale.  Speech has been chilled.  

Supreme Court Justice William O. Douglas said: “Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.”  Toward that end, let’s begin a conversation about carving out some room for DDoS to be seen as protest speech deserving of First Amendment protection.