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Why Hackers Should Be Defended in Court

By William Vogeler, Esq. | Last updated on

James Donovan, portrayed by Tom Hanks in Bridge of Spies, was a real-life insurance attorney who volunteered to defend a Russian spy in the 1950s.

His true story is stranger than the fictional account, but the message of the movie is just as true for lawyers today. "Everyone deserves a defense," Donovan said. "Every person matters."

It's a surprising truth for some, especially when a high-profile defendant seems really guilty. Matthew Keys, who is in prison for hacking, is one of those defendants. Mark Jaffe, who learned that sometimes it pays to work for free, is one of his lawyers,

"Everyone Deserves a Defense"

"You can't do criminal law at all and say 'I'm only going to defend the innocent or the good' -- you can't do it, it's impossible," Jaffe told ArsTechnica.

The tech site featured Jaffe on its broadcast, headlining a program about why it's important to defend hackers. Cyrus Farivar, a senior business editor and radio producer, introduced the attorney to explain how he became the hacker defender.

Jaffe said he and his partner Tor Ekelund took their first criminal case pro bono for Andrew Auernheimer, who had been convicted of hacking. The lawyers knew nothing about hacking or hacking law, but they won an appeal that set aside the conviction.

Sometime later, they learned about Keys and offered to take his case for free. The firm will appear on Keys' behalf at a hearing before the U.S. Ninth Circuit Court of Appeals on June 12.

"This Would be Something Big"

Ekeland had a hunch that the hacker niche "would be something big," Jaffe said.

"Turned out to be a fascinating thing for us," he said. "We're going to get an opportunity to shape the law."

Keys, a former employee of the Tribune Company, was prosecuted under the Computer Fraud and Abuse Act, a controversial anti-hacking law from the 1980s. He was convicted of giving the company's log-in credentials to hackers who used them to temporarily change a headline on the Los Angeles Times, which is owned by the Tribune Co.

His attorneys at the time argued it was a prank, but the trial judge sentenced him to two years in federal prison. On appeal, Jaffe will argue that the conviction should be overturned because the Times did not suffer any damage.

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