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How The Tribune Company And The DOJ Turned A 40 Minute Web Defacement Into $1 Million In 'Damages'

from the fudging-the-numbers dept

Tue, Oct 13th 2015 9:32am — Mike Masnick

Last week we wrote about Matthew Keys being found guilty of three CFAA charges which will likely lead to some amount of jailtime for him (the prosecution has suggested it will ask for less than 5 years). While Keys still denies he did anything he's accused of, the prosecution argues that he took a login to the Tribune Company's content management system, handed it off to some hackers in an internet forum and told them to mess stuff up. And... so they made some minor vandalism changes to an LA Times article. It took the LA Times all of 40 minutes to fix it. Even if we assume that Keys did do this, we still have trouble seeing how it was any more than a bit of vandalism that deserves, at best, a slap on the wrist. Its ridiculous to say that it's a form of felony hacking that requires a prison sentence. As we noted in our original article, the Tribune Company and the feds argued that the damage cost the company $929,977 in damage, well above the $5,000 threshold for the CFAA to apply. We still have trouble seeing how the $5,000 could make sense, let alone nearly a million dollars. And it's important to note that the sentencing guidelines match up with the dollar amount of the "damages" so this actually matters quite a bit for Keys.

Sarah Jeong, who's been doing an awesome job covering this for Motherboard, has a deep dive article looking at the case, which is totally worth reading. I wanted to dig in, though, just on the craziness of the $929,977 number and how that came about. First off, it appears that the feds pushed the Tribune Company to inflate the numbers. The original estimate from the Tribune Company turned out to be well below the $5,000 threshold, let alone the $900k+ number:

That's obviously not going to cut it, so they had to ratchet things up a bit.

For what it's worth, Brandon apparently said on the stand that he was just joking, and he realizes that's not the best thing to joke about, but who are we to say anything about jokes who miss their mark? What we can say, however, is that the final numbers look absolutely ludicrous:

Let's dig in a bit here, because suddenly I feel underpaid. Those emails are pricey! In case you're wondering the X Files references have to do with another thing that Keys apparently did: sending some nasty emails to people at the TV station after he left that job. From the look of it they were pretty obnoxious/childish behavior on the part of Keys (who eventually admitted to sending them), but they had absolutely nothing to do with the supposed CFAA violation. They were just nuisance emails, not any kind of hacking. However, to make the dollar value go up, the DOJ decided to lump this and some other incidents all together and asked the Tribune Company to add up all the time it was dealing with that issue, and so they did. Even to the point that they blamed ratings drops at the Fox channel that Keys used to work for on him as well, and put a dollar value on that.

Again, assuming Keys actually did all these things, it would make him something of an immature jerk. But it still seems like a huge stretch to turn that into nearly a million dollars in damages, directly due to a CFAA violation. Either way, it's yet another reminder that when the DOJ decides it wants to take you down, it can find almost anything to use against you.

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Filed Under: cfaa, cfaa reform, damages, doj, matthew keys
Companies: tribune company

22 Comments

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Anonymous Coward, 13 Oct 2015 @ 9:52am

Judges rarely hand out damages that are requested by the aggrieved party and the one million dollar figure is outrageous and no judge will even agree to that and see this as an extreme overreach.
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- Moonkey, 13 Oct 2015 @ 11:08am
  
  Re:
  Not only that but the nonsense logic could apply to everyday life.
  
  Critic A: LA Times is bad
  
  DOJ: That's about $20 million in damages for that comment. $10 million of it because somehow Fox news is related. CFAA applies.
  
  That's a jail sentence.
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- That One Guy (profile), 13 Oct 2015 @ 7:27pm
  
  Re:
  The point of inflating the numbers wasn't to increase the amount that they would ask for in damages, it was to get them high enough for the CFAA to kick in, drastically boosting the possible charges.
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David, 13 Oct 2015 @ 9:55am

What kind of judge lets this stand?
I mean, if the prosecution is of the opinion that its job is throwing as much as it can at the wall and see what sticks, I don't see it as the job of the judge to do the job of the prosecution and figure out the actually prosecutable conduct and its amount.

If the prosecution does not do its job, the judge should just throw out the case completely and see what sticks (namely see whether the prosecution bothers doing its job at the appellate court).

The prosecution has a job that's more serious than that of a court jester, and it should take its job more seriously than that. It represents the government's interest in letting courts find justice, and apparently this prosecutor cannot be interested in finding justice.
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- Anonymous Coward, 13 Oct 2015 @ 10:09am
  
  Re: What kind of judge lets this stand?
  I would literally throw the prosecution at the wall and if they should happen to stick then their case sticks but if of all miracles they don't stick and fall to the ground due to gravity then their case doesn't stick at all.
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- Uriel-238 (profile), 13 Oct 2015 @ 7:41pm
  
  Some judges are more interested in seeing "bad guys" go to jail than seeing justice done.
  Such judges will favor the testimony of a police officer over video to the contrary, or favor an aggressive prosecutor in order to get a conviction.
  
  We've seen a lot of truly lame rulings here on TD. So we're kinda used to stupid or biased judges.
  
  It happens all the time.
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  - Atkray (profile), 13 Oct 2015 @ 7:53pm
    
    Re: Some judges are more interested in seeing "bad guys" go to jail than seeing justice done.
    It's nearly impossible too become a judge if you are stupid, bias is whats we are looking at.
    
    You are affording them a benefit of doubt they are unwilling but are in fact sworn to grant others.
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Anonymous Coward, 13 Oct 2015 @ 10:18am

Not about the punishment meeting the crime, its about making an example with them, which means however small the crime, where they decide what IS a crime, the punishment will more likely then not, be disporpotionate.......and when a "crime" is against a government or corporation, even perhaps when deserved, the punishment seems ALWAYS disporportionate to the crime, unless offcourse, the public is 1) aware of it and 2)kicks up ENOUGH stink
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Anonymous Coward, 13 Oct 2015 @ 10:22am

Among other absurdities, it appears that Brandon Mercer joking about Chuck Sennet billing $1000/hr was included in the email & cost estimates. So now Keys is responsible for causing Mercer to make jokes?
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Anonymous Coward, 13 Oct 2015 @ 10:34am

Its sad to see that the below-the-belt tactics that were the stock-in-trade of ambulance-chaser attorneys and related bottom-feeders in the legal profession have now infected the top law-enforcement agency in the land.

... and what is that #9 item in the bill? -- Charging thousands of dollars for sending a single email?

On the other hand, maybe Tribune Company was thinking about getting into the military contracting business, and was just practicing on the billing end.
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- Anonymous Coward, 13 Oct 2015 @ 5:28pm
  
  Re:
  No clue what #9 is but I'd take that job.
  
  My personal favorite is #23 FOX Mulder to Jerry.
  Imagine a viewer sends them an email, never gets a reply because it went straight to the spam folder and then the viewer gets a bill for $150.
  I assume Mulder never got a reply because it is 2nd last on the list and "straight to spam folder" because there is not time.
  Thinking about it... forget the #9 job. I want to get paid $150 for every email I ignore!
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Anonymous Coward, 13 Oct 2015 @ 10:43am

No wonder Keys quit They probably used to same formula in reverse to pay him
year salary $60,000.
1. 1/2 lunch breaks -$5000.
2. Bathroom Break - $10,000.
3. Toilet paper -$5000.
4. Hand washing- (water/soap/electric hand dryer)-$5000
5. Breathing Company Air -$5000.
6. Recycling of Breathed Air -$5000.
7 Seating/Desk -$5000.
8. Lighting -$5000
9. Internet Service -$20,000
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JoeCool (profile), 13 Oct 2015 @ 11:29am

Easy to see what happened
The first bill came from the news department and reflected an accurate account of the charges. Since that wasn't enough for the prosecution, they passed the job back to the movie division accountants who worked that Hollywood magic on the incident. Hollywood math at its finest!
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DB (profile), 13 Oct 2015 @ 12:31pm

The defense should be asking if there was any other indication that the email exchanges included jokes.

If not, the claim that the "$1000 per hour" should be viewed as a serious suggestion, especially since this is a criminal trial.
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tom (profile), 13 Oct 2015 @ 12:41pm

The DOJ had best be careful about setting precedents like this. If they lose the Kim Dotcom case and he uses a similar formula for calculating what the government has cost him, could be a sovereign bankruptcy generating event.
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Uriel-238 (profile), 13 Oct 2015 @ 12:59pm

Keys admitted to sending the emails UNDER DURESS
This isn't to say that he didn't send them, but that a coerced admission (and scribbled confession) is dubious evidence to that affect.

I would still say, he allegedly sent the x-files emails.
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David, 13 Oct 2015 @ 2:12pm

Reminds me of another case
A few decades ago, there was a case about a stolen document and the damages where in the hundreds of thousands. Turns out they included the full cost of a secretary, the full cost of the VAX used in processing it, etc. Pretty much everything but the kitchen sink (and the cost of the house it was in) to inflate the damages as much as possible.

Personally, I think the Tribune ought to be sanctioned for fraud on the court for providing testimony, under oath, that those are the true and factual damages.
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Anonymous Coward, 13 Oct 2015 @ 2:20pm

the prosecution have obviously been given lessons by the entertainment industries. they always manage to 'lose' millions because of illegal downloading, even if only one copy of something is downloaded and they then manage to keep all the monies, using 'Hollywood Accounting', with the artists, who the law suits are supposed to be done for, never receiving a dime!!
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Anonymous Coward, 13 Oct 2015 @ 5:33pm

Sounds like the Tribune Company is getting desperate, glad I don't have any money invested there.
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Anonymous Coward, 13 Oct 2015 @ 5:34pm

we don't need no stinking badges we can do what we want.
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PaulT (profile), 14 Oct 2015 @ 12:30am

"For what it's worth, Brandon apparently said on the stand that he was just joking, and he realizes that's not the best thing to joke about"

"Joke" about having a bomb in your suitcase at the airport and you can be locked up, even if you clearly didn't have any such thing on you. The joke is often enough to prosecute.

"Joke" about lying to law enforcement specifically in order to get someone else locked up, and apparently that's fine. As long as you were joking, you're apparently not presenting falsified figures and you can get away with perjury.
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John Fenderson (profile), 14 Oct 2015 @ 7:21am

And some people wonder
And some people wonder why I consider the justice system in the US to be dangerously corrupt.
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