Matthew Keys talks to reporters after he was sentenced to two years in prison.Cyrus Farivar
Reporter Matthew Keys will not be going to federal prison today as he was scheduled to. His attorney, Jay Leiderman, tweeted the news today after he and the other lawyers on Keys’ legal team filed an emergency motion with the 9th Circuit Court of Appeals last night.
An automatic stay has issued in the @MatthewKeysLive case. He will not be reporting to prison today.
— Jay Leiderman (@JayLeidermanLaw) June 15, 2016
The Tuesday filing automatically triggers a temporary stay, according to the 9th Circuit’s Federal Rules of Appellate Procedure.
So the California journalist convicted in 2015 of hacking-related crimes will remain out of custody for now.
Keys was convicted at trial under the Computer Fraud and Abuse Act (CFAA), the notorious anti-hacking federal law that dates back to the 1980s.
An effort to reform that law has languished in Congress.
The 29-year-old was scheduled to begin serving his two-year sentence beginning Wednesday at 2pm Pacific Time at a federal prison camp in Atwater, California, about 120 miles east of San Francisco.
Even post-conviction, Keys has maintained that he did not hand over any login information that led to the 40-minute alteration of a Los Angeles Times headline in 2010. Hours before Keys’ sentencing hearing, Ars received a letter from someone under the pseudonym “Sam Snow,” who claimed that he, and not Keys, was the one who actually handed over the login details.
This new claim by Snow will likely have no impact on the appeal.
What is “damage,” anyway?
The new filing to the appellate court came just hours after the federal judge who presided over Keys’ trial and sentencing, US District Judge Kimberly J. Mueller, denied a similar motion for release pending appeal. The motion to the 9th Circuit largely reiterates many of the same points that the defense team argued previously.
Tor Ekeland, who authored the Tuesday filing, wrote that Keys is “not a flight risk nor a dangerous threat to the community.” He continued:
His case raises significant questions on appeal regarding the proper scope of the Computer Fraud and Abuse Act’s (CFAA) damage and loss provisions.
At trial, the district court also raised the possibility of a variance because the proof presented to the jury was for a different crime.
Despite this, the district court denied the Defendant’s motion for bail pending appeal on June 14, 2016.
Because these are substantial appellate issues that could meet any one of the factors listed in 18 U.S.C. 3143(b), this Court should reverse the denial and grant his release pending appeal.
The defense attorney went on to say that because the defacement that occurred at the Times was ultimately corrected from a backup, no damage was actually inflicted.
“The damage minimum is a jurisdictional requirement of a CFAA charge. Without damage, there can be no conviction,” he wrote. “Courts across the country have denied damage findings even in more extreme cases where files were deleted but recoverable.”
In her Tuesday order, Judge Mueller found this argument unconvincing:
Defendant also argues that because the data was backed up, there was no damage; the court finds this argument unpersuasive.
The inability of an employee such as Samantha Cohen to log in to work, and the employer’s inability to promptly change usernames and passwords, and resecure the compromised system all constitute damage.
Shurgard Storage Ctrs., Inc. v.
Safeguard Self Storage, Inc., 119 F.
Supp. 2d 1121, 1126–27 (W.D. Wash. 2000).
Defendant further argues the court improperly allowed testimony and instructions that supported and provided an overbroad definition of loss.
Defendant does not identify any testimony with particularity.
Leiderman told Ars that the 9th Circuit will want the issue to be fully briefed both by Keys’ side and by government prosecutors before rendering a decision in the coming weeks.