Andrew Auernheimer, a 'trailer-park troll' from the same web community as Aaron Swartz, faces 10 years in jail for data breaches. Why is the US prosecuting in such draconian fashion?
Andrew "Weev" Auernheimer is a hacktivist from the same internet community that has lionised Aaron Swartz as a free information hero. They are polar opposites: Swartz, who became a martyr to the cause after his suicide on January 11, was a highly-regarded, Ivy League-educated liberal from Illinois. Auernheimer is a self-confessed internet troll and a "mean-mouthed southern libertarian" from a trailer park in Arkansas.
But before Swartz's death, the young men shared a similar plight: the threat of a long prison sentence under a system which lawyers, academics and other supporters believe leads to prosecution that are out of all proportion to the alleged cyber crimes.
Neither Swartz, 26, nor Auernheimer, 27, hacked into any computer, yet were charged with offences aimed at hackers. Neither were motivated by profit, but by different brands of political activism.
Yet they each faced multiple charges and prosecutions of such magnitude that they contributed to Swartz's death, according to his family. Auernheimer said he has shared the same "suffering and miseries" as Swartz after being "hounded by the FBI".
"I've never broke into anyone's computer," Auernheimer told the Guardian. "We were accessing public resources. It's like they printed a book and I flipped open the pages and we criticised what they put in the book."
"Like Aaron Swartz, I've no faith in the justice system," he added.
His case is proof that while Swartz attracted worldwide attention, his prosecution was by no means unique. A number of internet activists, computer security experts and whistleblowers who have taken action online to highlight a flaw in the established order or as a form of political protest, have found themselves charged with multiple counts of cyber-crime, carrying draconian prison terms.
Critics of the prosecutions say they are being bought by over-zealous prosecutors using outdated and flawed laws.
Both men were being prosecuted under the Computer Fraud and Abuse Act, a statute written in the 1980s which has come under fire for being too broad. Last week, a congresswoman from Silicon Valley proposed an amendment called "Aaron's law" to try to stop such prosecutions.
Auernheimer was convicted in November of conspiracy to access a protected computer without authorisation, as well as identity fraud. He faces 10 years in jail for collecting 114,000 email addresses of iPad users stored by AT&T, and passing some of this information to Gawker. The actual harvesting of the emails was carried out by a friend, Daniel Spitler.
Auernheimer passed the information to Gawker to expose AT&T's security flaws and embarrass them, he said.
"When you publish something, you don't have the right to whine and moan and cry: 'He's breaking and entering,'" said Auernheimer, who plans to appeal his conviction after his sentencing hearing on 25 February. "That's what AT&T and the federal government are claiming. It's a dishonest and seditious claim."
He said the idea that what he and Swartz did amounted to a felony was "ludicrous".
"When the FBI came for Aaron, he lost everything. The difference between my case and Aaron's is: I'm a broke kid from a trailer park in Arkansas. I'm disaffected, poor and clever. If you put me in prison, at least my food will be paid for."
Jay Liederman, an attorney who has represented a number of high-profile hackers, accused the government of employing the act to stifle dissent.
"It's as if with the explosion of hacktivists and activism, this is the government's new toy. It seems like they took a new look at the CFAA and realised they can chill this type of activism that they don't like," he said.
Liederman has represented Commander X, a hacker who is on the run from the FBI for an attack on a website in Santa Cruz, California, and Raynaldo Rivera, a suspected hacker from LulzSec, accused of stealing information from Sony last year. He has described illegal hacker activities such as Distributed Denial of Service attacks (DDoS) as "digital sit-ins" or " the equivalent of occupying the Woolworth's lunch counter during the civil rights movement" and has called for the law to be changed.
He sees a common thread running through prosecutions of activists for DDoS attacks and those of Swatrz, Auernheimer and Barrett Brown, a former affiliate of hacktivist collective Anonymous currently in prison facing charges under the CFAA, whose prosecution has also attracted criticism.
"They are very closely related," said Liederman. "It is one rich tapestry of prosecutorial overreach and government oppression."
Brown faces 45 years in prison and $3m in fines for charges relating to a Christmas Day attack in 2011 against Stratfor, a US intelligence-gathering firm, in which Anonymous hackers stole 5.5m emails, some of which were later published on WikiLeaks.
Brown was not involved in the hack, but allegedly facilitated it by posting a link in a chatroom, thereby providing others with credit card information and identities of thousands of individuals in the Stratfor database.
He has also been charged with internet threats to FBI agents, relating to his Twitter and YouTube feed. All three were "popular, free-thinking information activists" facing "stunningly abusive" prosecutions, according to Liederman.
"With Swartz, with Weev with Barrett, there was no hacking, yet they are being prosecuted by statutes that were made for hackers."
Each took a "contrarian notion" against established principles, he said.
"Aaron Swartz had the outrageous notion that information should be free, and that future generations should be allowed to enjoy and learn from academic articles. Weev had the outrageous notion that companies like AT&T, because they are sloppy with your information, should be called out on it. Barrett had the outrageous notion that governments and those private security companies that act like the black hand of the government should be transparent and the public should have the right to know.
"These were virtues extolled by our forefathers in this country and all of a sudden they are lost to us."
Gabriella Coleman, an anthropologist who spent three years living among hackers in San Francisco for her book, Coding Freedom: The Ethics and Aesthetics of Hacking, said that the US has historically been tougher on hackers than other countries.
"Hackers have been given stiff sentences in the US compared to most of Europe and Australia," she said, citing the case of Gary McKinnon, a British hacker the US sought to extradite. McKinnon faced US charges of causing thousands of dollars' worth of damage to military computers, which carried a prison sentence of up to 60 years if convicted.
However, his extradition to the US was blocked in October on human rights grounds after reports showed he would have been a suicide risk. The case against him in the UK was dropped in December.
Asked whether the hardline prosecutions were a result of the CFAA itself or its interpretation by overzealous prosecutors, Coleman, who works at McGill University in Montreal, said: "It's a deadly mix. The way the CFAA is worded is extremely vague, and when you put that into a legal context, with the way hackers are dealt with in the US, it comes down hard. The two together becomes a problem."
Jennifer Granick, an attorney and the director for civil liberties at the Center for Internet and Society at Stanford law school, writing after Swartz's death, said that ordinary prosecutorial tactics, such as the "horse-trading" that is plea-bargaining, become "extraordinary mistakes when the case is bogus or overcharged".
In her blog, she identified many problems with sentencing in computer crime cases, including the low burden of proof for loss calculations. She wrote that the CFAA should be amended and that prosecutors must be "extremely careful and measured when bringing these cases".
"When so many thoughtful people, including former prosecutors, disagree with US attorney's conduct in these cases, we need to stop," she wrote.
Auernheimer believes the CFAA should be "completely repealed". He said: "The CFAA is a broken law, but it is the seditious lies of prosecutors [that] were put out to make sure I didn't get a fair trial."
He said what he did was a "a big deal to the Feds because I embarrassed rich people. What we are doing is magic they don't approve of, so burn the witches – kill them and throw them in prison."
In a "statement of responsibility", published on Monday in a response to a request from the government that he accept responsibility before sentencing, Auernheimer wrote: "Ivy-League educated and wealthy, Aaron dealt with his indictment so badly because he thought he was part of a special class of people that this didn't happen to. I am from a rundown shack in Arkansas. I spent many years thinking people from families like his got better treatment than me. Now I realize the truth: The beast is so monstrous it will devour us all. None will be spared."