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Attorneys representing Matthew Keys have filed their formal appeal to the 9th Circuit. Keys is the California journalist who was convicted of hacking-related crimes in 2015.
As Keys told Ars before he was sentenced, the appeal largely focuses on the argument that the government “constructively amended” the second count that he was charged with: 18 U.S.

Code § 1030 (a) (5) (A).

That law declares a crime has been committed if someone “knowingly causes the transmission of a program, information, code, or command, and, as a result of such conduct, intentionally causes damage without authorization, to a protected computer.”
During closing arguments at trial, one of Keys’ lawyers, Jay Leiderman, said that Keys’ December 2010 defacement of one Los Angeles Times article lasted only 40 minutes and therefore caused no damage.
Keys has never been charged with the actual short-lived “hack.” Instead, he was accused of handing over a login and password that accesses the content management system of the Tribune Company, which owns the Los Angeles Times.

The Department of Justice accuses Keys of handing this information to a British man who used it to create a new Tribune Company account.

The man, named George David Sharpe, used this account to access the Times’ own CMS and deface its headline. Post-conviction, Keys told Ars that he, in fact, did not hand off the login and password to the Tribune Company’s CMS.

In the appeal brief filed Wednesday evening, Leiderman’s co-counsel Tor Ekeland made a similar argument: “For there to be CFAA Damage, there must be actual harm to a computer system, whether through the deletion of data or rendering it inaccessible.”
He continued:

There was no testimony at trial that conclusively established that any files were deleted. Rather, the trial testimony is consistent with the proposition that the changes to the latimes.com website story simply constituted a new saved version of the story, one that was easily restored to its prior version via the CMS, a CMS system that did not have its functionality impaired in any way and functioned at all relevant times as it was programed to do.

Ekeland also said that prosecutors engaged in “constructive amendment” of the charges that Keys faced, which biased the jury.
In other words, prosecutors raised extraneous accusations—but did not formally file charges—that, prior to the Times defacement, Keys was involved in sending taunting e-mails to viewers of his then-employer, Fox 40.
Plus, Ekeland argued, even if he did send the e-mails (which Keys has denied), copying the company e-mail list also did not constitute damage.
Keys is currently serving a 24-month sentence at the United States Penitentiary in Atwater, California, 120 miles southeast of San Francisco.
The government’s reply is due September 23, 2016.

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