Courts, Criminal law, Lawyering, Society

Jeremy Hammond Given Maximum Sentence In Hacking Case

hammond_jeremy_nPreskaThere is a highly troubling case involving Jeremy Hammond,27, who was sentenced to 10 years for the December 2011 hacking of Strategic Forecasting. It was the maximum possible sentence that Chief US District Court Judge Loretta Preska could give him. The case involves a recurring controversy over the government’s effort to punish hackers and whistleblowers revealing a massive surveillance state and attacks on privacy in the United States. However, this case has the added disturbing element of an allegation of a conflict of interest by Preska who refused to recuse herself from the case despite the fact that her husband was an alleged victim of the hacking.

Hammond hacked into Texas-based Stratfor Global Intelligence Service and turned over 5 million emails to the anti-secrecy group WikiLeaks. The charges included allegations of electronic theft and distribution of credit card information. He was also accused of using credit card numbers to make charges of at least $700,000. Now there is the twist. Those stolen documents included communications by Preska’s husband, Thomas J. Kavaler, who worked for Stratfor client Cahill Gordon & Reindel LLP. Not only that but Preska herself worked for the international law firm as an associate before becoming a judge. It is the husband’s status (rather than her earlier employment) that raised the most concerns.

Preska ruled:

Upon review of the record, Defendant has failed to carry his substantial burden of showing that a reasonable observer, with knowledge and understanding of the relevant facts, would “entertain significant doubt that justice would be done absent recusal,” Lauersen, 348 F.3d at 334. Finding otherwise on a record as suspect as here would only encourage supporters of this defendant—or other defendants—to allege unsubstantiated conflicts of interest against any of my brothers and sisters of the Court until no judge remained qualified to hear his case. Therefore, accepting Defendant’s invitation for recusal in this case would actually undercut the very policy Defendant prays this Court to sustain-namely, promoting public confidence in the Judiciary. Accordingly, Defendant’s motion to disqualify is DENIED.

The judge concluded that there was no injury to her husband beyond having his public email disclosed and, according to the FBI report, a two-week subscription that he had no memory of having ever accepted. She noted “[a]ccording to Mr. Kavaler’s undisputed sworn affirmation, he never provided his credit card information or any other personal financial or identifying information to Stratfor.” However, the defendant was accused of releasing documents from the firm of her husband and the firm was a client of Stratfor. Her husband was a partner at that firm and this controversy likely caused considerable unease and expense to the firm in addressing any potential for compromised files. In his affidavit, the judge’s husband states categorically that he never gave Stratfor any personal information and the company was never a client of his or his firm.

I think some judges would agree with Preska but I would not denounce the allegation, as did the judge, as “rank hearsay.” Nevertheless, such hacking cases can encompass many thousands, if not millions, of users in some way. Preska views the simple inclusion of her husband’s email and the involvement of his firm to be too attenuated to amount to a basis for recusal.

What do you think?

42 thoughts on “Jeremy Hammond Given Maximum Sentence In Hacking Case”

  1. The plaintiff in this case was the “government”. Preska works for the “government”/plaintiff. Therefore, a conflict of interest exists.

  3. “The thing that bothers me also in this case is the discrepancy in the sentencing. One of the things that was said by Aaron Swartz’s father at his funeral was that the crime that Aaron or people like Jeremy, who got financial gain out of these things, they’re getting 10 years, whereas other titans of the tech industry who abuse in certain ways public property, taking government, you know, lists of students at universities, using free resources, these people, these titans of tech industry, they are celebrated by our society as innovators, as disruptors. Why the discrepancy? No charges against these people, yet 10 years for Jeremy—this is an unacceptable outcome for the tech sector. And I say, “Shame on the rest of the tech sector for not coming to Jeremy’s defense.”” -Roy Singham

    From Democracy Now!, this past Friday:

    http://www.democracynow.org/blog/2013/11/15/jeremy_hammond_sentenced_to_10_years_in

    Today in a federal courtroom in Manhattan, cyber-activist Jeremy Hammond was sentenced to 10 years in prison for hacking the private intelligence firm Stratfor. Watch a press conference with his attorneys.

    SARAH KUNSTLER: We fought the good fight. We talked about Jeremy’s motivations and why he did what he did. We talked about the life that he led. And, unfortunately, we were unable to persuade the judge to give him less than the maximum in this case, which was 10 years. I think when Jeremy took this plea with a 10-year maximum, that he understood that this was—this was a very likely outcome for him.

    MARGARET RATNER KUNSTLER: We have been in front of this judge on a number of appearances, and we have not found her to be particularly sympathetic to Jeremy. We don’t think that she has the beginning of an understanding of the hacker movement. And she certainly doesn’t have an understanding of the vocabulary used in chat rooms and by hacktivists online. I mean, she—it’s a very overstated vocabulary, and they use the word “kill.” They don’t mean “kill.” They use the word “havoc.” They use the word “mayhem.” But it’s—it’s the way they talk. And she used that against him to deny any social value to the actual work he did, and therefore—and really just used his words against him.

    SARAH KUNSTLER: The words that the judge used a lot and that the government used a lot in their sentencing submission were “maximum mayhem.” And the government and the judge felt that the idea of causing mayhem or causing destruction was incompatible with Jeremy’s stated political goals. And we disagree with that. You know, advocating for political change, struggling for political change involves being disruptive at times. It involves being destructive at times. These are some ways the—sometimes the only pathways to change.

    KEVIN GOSZTOLA: The key to this case is that we see that there is no willingness by judges to distinguish between acts of hacking for civil disobedience or political purposes and acts of hacking that are malicious. So there’s no recognition of hacktivism under the law.

    ROY SINGHAM: The thing that bothers me also in this case is the discrepancy in the sentencing. One of the things that was said by Aaron Swartz’s father at his funeral was that the crime that Aaron or people like Jeremy, who got financial gain out of these things, they’re getting 10 years, whereas other titans of the tech industry who abuse in certain ways public property, taking government, you know, lists of students at universities, using free resources, these people, these titans of tech industry, they are celebrated by our society as innovators, as disruptors. Why the discrepancy? No charges against these people, yet 10 years for Jeremy—this is an unacceptable outcome for the tech sector. And I say, “Shame on the rest of the tech sector for not coming to Jeremy’s defense.”

  4. Nice post. Code of Conduct for United States Judges of course she can’t and won’t go against her masters. she has seen first hand what happen\s to those who’ve tried.

  6. I sat up on a Cloud for awhile when I was in between this life and my last incarnation. There were Angels hanging around and we were both curious as to the content of the spools of internet material up there. One guy did show up with a hack saw but we did not watch what he did with the spools. He said that he was God’s Little Hacker. Like that was his name.

  7. Seamus’ point a few comments up where he quotes the Congressman is spot on. Your privacy is not invaded if you know it is invaded.

    We all know that all of our apCray on the internet goes up to a Cloud and sits. It is available to many. This Judge needs to go to jail for a year to see what its like. She dishes this sentence out like its nothing.

  8. of course she can’t and won’t go against her masters. she has seen first hand what happen\s to those who’ve tried. not just in her life time. but is well aware of what happened to others long before her and what might happen after….. if the people don’t begin to stand up and fight back. and violence is not the answer…. violence is what they want. its what they need to implement the last part of their owg

  10. This is a disturbing sentencing case. This judge should have recused herself, but instead she “got even” for Mr. Hammond’s hacking into her husband’s firm. What is especially disturbing to me is the restrictions placed on Hammond after he has served his sentence. I smell an unconstitutional reach there.

  12. anonymously posted 1, November 18, 2013 at 2:12 pm

    Erik Prince’s new book:

    “Civilian Warriors: The Inside Story of Blackwater and the Unsung Heroes of the War on Terror Hardcover”
    ========================
    That is like Dick Cheney writing a book “The Inside Story of How Terrorists Being Waterboarded Disrespected Me”

  13. If you read his entire sentencing statement, it seems there’s a possibility the FBI was suggesting specific sites to Jeremy Hammond in order to see if allied governments’ networks could be hacked. I remember laughing at Dick Cheney and Co. a few years ago when the sentiment was expressed that if the president orders it for security reasons, nothing is illegal. So remember boys and girls, your not allowed to break the same laws your Uncle Sam is allowed to break. Late last month during hearings on the NSA’s data mining Intelligence Committee Chair Rep. Mike Rogers (R) insisted that “you can’t have your privacy violated if you don’t know your privacy is violated, right?”

    http://www.huffingtonpost.com/2013/10/31/jon-stewart-congress-nsa-spying_n_4180996.html

  15. “The Code of Conduct provides guidance for judges on issues of judicial integrity and independence, judicial diligence and impartiality, permissible extra-judicial activities, and the avoidance of impropriety or even its appearance.”

    Thanks, Dredd.

  16. There is some misunderstanding of the code of conduct for judges.

    Some think there must be an actual conflict, but that is not the case:

    Code of Conduct for United States Judges

    Federal judges abide by the Code of Conduct for United States Judges, a set of ethical principles and guidelines adopted by the Judicial Conference of the United States. The Code of Conduct provides guidance for judges on issues of judicial integrity and independence, judicial diligence and impartiality, permissible extra-judicial activities, and the avoidance of impropriety or even its appearance.

    Judges may not hear cases in which they have either personal knowledge of the disputed facts, a personal bias concerning a party to the case, earlier involvement in the case as a lawyer, or a financial interest in any party or subject matter of the case.

    Many federal judges devote time to public service and educational activities. They have a distinguished history of service to the legal profession through their writing, speaking, and teaching. This important role is recognized in the Code of Conduct, which encourages judges to engage in activities to improve the law, the legal system, and the administration of justice.

    (U.S. Courts Website). The appearance of impartiality is the criterion, not simply actual impartiality.

  17. Tard.Detector 1, November 18, 2013 at 12:18 pm

    It, of course, seems that fertile grounds for appeal have been well plowed and sown, but since this appears to a be a politically motivated vendetta more than an attempt to establish justice and the rule of law, it is doubtful that any such appeal would succeed.
    …
    ==========================
    There may be no appeal, since it was a plea bargain.

    Boilerplate usually says that there can be no appeal by the defendant.

  18. Erik Prince’s new book:

    “Civilian Warriors: The Inside Story of Blackwater and the Unsung Heroes of the War on Terror Hardcover”

  19. Hammond obtained these items from the Cloud. Do people have expectations of privacy when they send their emails up on the cloud and let it sit there next to some non guardian Angel? No. If the obtaining of emails from the Judge’s hubbypoo was not a crime then where are the other crimes? And if the obtaining of hubbypoo’s email or dogma was a crime then she is unfit to pass judgment over Hammond. “The Cloud Defense” needs to be explored further. The Angels would appreciate it if we did not impune them for sitting next to our emails up on the Cloud.

  20. Speaking of Xe (now Academi, once Blackwater), Prince has penned a new book. Some interesting reading over at emptywheel:

    Weep for the Spurned Billion Dollar Mercenary!

    Posted on November 18, 2013 by emptywheel

    http://www.emptywheel.net/2013/11/18/weep-for-the-spurned-billion-dollar-mercenary/

    “In what is sure to be some interesting book publicity, Erik Prince has gone sobbing to the WSJ about the shoddy treatment the government that paid him billions treated him. In the piece, he continues to reveal new details about some of the operations CIA paid him to do, including the kill team training first revealed in 2009.” continues…

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