The Troll’s Lawyer
A virulent Jew-hating hacktivist and a burned-out, unemployed lawyer teamed up to challenge a sweeping computer crime law. Here’s how they
beat the Feds.
Tor Ekeland met his Client Number One at Trinity Place Bar, a downtown Manhattan watering hole built into an old bank vault, in 2011. The bar was across from Zuccotti Park, which was teeming with Occupy Wall Street protesters. Barricades lined the trash-strewn streets, but seated at the mahogany bar beneath glimmering chandeliers and flanked by 35-ton steel vault doors, Ekeland sipped rum and cokes and pitched himself to Andrew Alan Escher Auernheimer, also known as weev, the world’s most notorious Internet troll.
Ekeland was a burned out, hard-drinking lawyer trying to start his own firm. Five months earlier he had quit his $210,000-a-year job at one of the big boy global corporate law firms, where he had become intimately acquainted with Securities and Exchange Commission regulations and complex commercial litigation. Thus far, no clients had presented themselves. But the 42-year-old, sandy-haired, puffy-faced Ekeland aimed to change all that by winning over his elfin companion, an Arkansas native in town to stir up trouble at Zuccotti Park.
Weev, then 26, had been arrested and charged with violating the Computer Fraud and Abuse Act for a stunt he pulled with another member of his hacker group. Declared indigent by the court, he had been assigned a federal defender, who pressed him to accept a plea bargain. Weev didn’t like that idea, he confessed to Ekeland. He wanted to go to trial.
Neither man recalls much of their conversation that night, except that the two immediately hit it off. Ekeland told Auernheimer, “Listen, I’ll take this case on, man, but you have to know I’ve never done this before.” Other than a smidge of civil litigation and pro bono cases in Bronx family court, he had scarcely set foot in a courtroom. It didn’t bother Ekeland that his prospective client was famous for spewing a putrid blend of racist, anti-Jewish and homophobic squirm-inducing rhetoric, sometimes interspersed with razor-sharp critiques of American law enforcement and culture. If Ekeland waited for a squeaky clean boy scout to come his way, he’d never get into court, and that’s where he wanted to be. Tired of playing an extra in the movie that was his life, he wanted to escape the back room, dotting i’s and crossing t’s, and go where the action was.
Ekeland had never worked as counsel in a federal criminal trial, but he told Auernheimer he was itching to fight this affront to the Constitution all the way to the Supreme Court, if need be. Their partnership would forever change both of their lives: The unlikeliest of lawyers teaming with the unlikeliest, most unlikable of heroes in an unlikely case that would end up in the unlikeliest of outcomes. But it went far beyond the two of them.
Weev’s case would become a bulwark against prosecutorial overreach at a time when the government has been playing catchup with computer hacking. Frustrated by an inability to thwart highly visible cyber-attacks on American corporations, state-sponsored intrusions into government and private sector computers, or high profile protest hacks by groups such as Anonymous, prosecutors have often gone after low-hanging fruit. Unfortunately, they sometimes go too far, using a badly written law to swing the sledgehammer of felony charges against activities that amount to little more than pranks. The only way to stem the tide would be for someone courageous to fight rather than settle for a plea, despite the risk. That man was weev.
Although Ekeland didn’t know it, Auernheimer had already decided, even before meeting, that he would hire him. “As soon as I heard his name I had decided he was the attorney for me,” Auernheimer later told me, getting all mystical. “Tor is named after my god of thunder and I’ve always been a man of the Eddas. Given that I’d been guided to him by the runes, it seemed fitting.” I don’t know if Norse mythology really steered his juridical decision-making (though weev also claims that before meeting Ekeland he had given up searching for an attorney altogether), but “then runic divination had told me to go piss off Jews and one would come to me,” and one did.
The next day Ekeland bought the Westlaw Federal Trial Practice Handbook and Federal Discovery Handbook to acquaint himself with criminal law and keyed in Auernheimer as client number one in his client database.
Ekeland had traveled a circuitous route to becoming an attorney. At the University of California, Berkeley, he attended a couple of philosophy courses with John Searle, who was obsessed with artificial intelligence. Searle liked to argue that although many people tend to anthropomorphize computers, by saying, for example, that a machine “got confused” by a command or that it “wants” to behave a certain way, they don’t actually have mental states. Or as Ekeland put it: “You can’t fucking trick a computer, dude. It’s just a machine executing lines of code” — an insight that would prove useful in his criminal defense work.
After he turned 25, Ekeland moved to New York, started a production company specializing in experimental theater and managed several Off Broadway shows. One morning, after working all night, he was on stage by himself when he thought: This show sucks. The work was devoid of enjoyment and hard on his body. Sometimes he was forced to hoist thousand-pound hunks of steel sculpture 30 feet over the stage, build concrete walls, and strike whole sets by himself with power tools and on little sleep. What, he wondered, did he want to do with his life. He knew he liked to read, write and think about philosophy. Then it hit him: He’d become a lawyer.
Since he hadn’t actually graduated from UC-Berkeley, Ekeland enrolled in The New School to finish his bachelor’s degree, then talked his way into an internship with a federal judge. As any good hacker would do, Ekeland leveraged his access, parlaying this position into acceptance to Fordham Law School, where he thrived. He was named President of the American Constitution Society and a senior articles editor for the Fordham Law Review, graduating cum laude in 2006 and receiving an award for Excellence in the Study of Constitutional Law — another chunk of hard-earned wisdom that would later come in handy.
He landed a job at a big corporate law firm in Manhattan, where he specialized in mortgage-backed securities, hedge funds, and the rats’ nest of government regulation. He found the work brutal, requiring 18-hour days. He yearned to be in a courtroom, which was part theater and, he believed, would play to his strengths. This experience, he says, is why he became an alcoholic.
After five years he left his high-paying job. There wasn’t one moment, he says. It was more a slow burning unhappiness, which he tried to salve with booze. He took a long vacation, visited family in Norway, and ultimately considered starting his own law firm. The problem with hanging out your shingle is that you’re competing with 75,000 other lawyers in New York City, many of whom staff established firms. He didn’t have the slightest idea how to hustle for clients.
Then in the fall of 2011, his wife, a photojournalist, was covering Occupy Wall Street in Zuccotti Park when she encountered a man holding a sign that read, “Zionist Pigs Rob Us All.”
The guy was a magnet for trouble. Several protesters threatened him while others applauded his message. An Israeli man stood on one side of him, clenching a sign that read, “Fuck this guy,” with an arrow pointing right to him; on the other side were two Occupy women, including one who hailed from the Palestinian territories, with their own handmade sign that said, “We’d fuck this guy.” Cops were trying to convince him to leave. He refused, clearly relishing the ruckus.
Ekeland’s wife struck up a conversation with the man, who turned out to be none other than weev.
Auernheimer has made a name for himself by turning provocation into performance art, so it’s hard to know when he’s just messing with us. As I write this, his Twitter bio reports that he’s a “former political prisoner” as well as “President of the Tim McVeigh fan club.” Former president of the “Gay Nigger Association of America,” an amalgam of online trolls, he took credit for a hack on Amazon that delisted hundreds of titles with gay and lesbian themes. Spouting Malthus, he wondered aloud about the most efficient way to kill off 4 billion of the earth’s 6 billion people, and once compared trolling to “eugenics,” a way to purify the Internet by driving off the “filth” and “retards” (meaning bloggers). “I hack, I ruin, I make piles of money,” he boasted to a New York Times writer. “I make people afraid for their lives.”
One such victim was Kathy Sierra, a Java programmer and educator, who suffered a campaign of harassment she’s convinced Auernheimer orchestrated. She was threatened with rape, dismemberment, and was doxxed—her address and social security number posted online. A false narrative percolated, claiming Sierra was a former sex worker. It culminated in death threats, and convinced Sierra to leave the Internet for six years. Weev blustered about all this to the Times in 2008 but later claimed the reporter fabricated parts of the story.
Ekeland googled and wikipedia-ed all this before he met Auernheimer, as well as the basic facts of his case, which were never in dispute. In 2010, Daniel Spitler, a member of Goatse Security, a dodgy security firm whose name is derived from a famously off-putting photo of a naked man leaning over and pulling his butt cheeks apart for the camera, wanted to take advantage of an offer from AT&T for a $30-a-month unlimited data plan for the iPad without shelling out several hundred bucks for the tablet. After procuring a SIM card he logged into AT&T’s website to set up an unlimited data plan account, when he noticed that his email address auto-filled in the log-in window above the box asking for a password.
AT&T, he realized, was using the number on a SIM card (called an ICC-ID; it stands for integrated circuit card identifier and links a SIM card with a mobile device) to identify the customer and prepopulate the email address. By randomly tweaking the numbers displayed in the URL, Spitler was presented with other customers’ emails, and only then did the system demand a password. No matter how many times a number didn’t match a customer in the system, it never locked him out. It was god-awful computer security. For the lulz he clued in weev, another Goatse member. Auernheimer found it “hilarious” and the two deployed an “account slurper” to automate the process, generating 114,000 ICC-ID numbers and their corresponding email addresses. Then, after informing AT&T of the problem, they handed over the entire file to Ryan Tate, a reporter at Gawker.
Tate pored over the file and anointed it “Apple’s Worst Security Breach,” exposing “thousands of A-listers in finance, politics and media, from New York Times Co. CEO Janet Robinson to Diane Sawyer of ABC News to film mogul Harvey Weinstein to Mayor Michael Bloomberg. It even appears that White House Chief of Staff Rahm Emanuel’s information was compromised.” Gawker redacted any identifying information, and Auernheimer and Spitler never shared the file with anyone; they destroyed it. Nevertheless, the two were arrested and charged under the Computer Fraud and Abuse Act (CFAA). In essence, as weev would claim later, he and Spitler were being prosecuted for doing arithmetic.
Auernheimer directed much of his ire at the CFAA, a law passed 30 years ago before every home — indeed, every person’s pocket or purse — held a computer. The CFAA is an anti-hacking statute that makes it a crime to obtain information from a computer “without authorization.” Since lawmakers never spelled out exactly what they meant by that, prosecutors have, over the years, stretched the law to encompass all sorts of harmless activities. Violate a website’s terms of service by lying about your identity, for example, and you could be charged under the Act. Same goes for misusing your employer’s computer at work. Prosecutors used the CFAA to bully Internet activist Aaron Swartz, who ended up hanging himself.
The government was offering Auernheimer a plea bargain that would have landed weev in prison for two years. But he was adamant about taking his case to trial.
This was a “gift,” as far as Ekeland was concerned. Few cases ever get to a jury, with 97% of defendants pleading guilty; of those who don’t, federal prosecutors boast a 93% conviction rate. Ekeland shared weev’s aversion to plea bargains on principle. “You get some points for cooperating, which I think is bullshit because of the way the system is set up,” he says. “It’s like if you exercise your constitutional right to a trial, you’re penalized in the sentencing phase, which is fucked up.”
More to the point, Ekeland believed the case was winnable on appeal as long as he raised the issues at trial and etched his objections into the official record. Ekeland figured prosecutors would make weev out to be a monster based on all the unsavory things his client had said and done over the years. But judges on appeal courts would be much more likely to rule on the basis of the law, not personalities.
Sometimes the most loathsome, even murderous human beings are responsible for landmark legal precedents, the kind that protect all Americans from overzealous police, overreaching prosecutors, and ill-conceived laws. One such Supreme Court case, decided this past summer, led to a sweeping victory for privacy rights advocates. In a rare unanimous decision, the court found that police cannot search cellphones, and by extension tablets and other digital communication devices, without first obtaining a warrant. Smartphones, Chief Justice John Roberts wrote, hold “the privacies of life,” and “the fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”
Hailed as the digital age’s first computer search case, it originated with a traffic stop involving a San Diego, California gang member. A policeman confronted David Leon Riley for expired tags on his license plate, and when he learned that Riley had been driving with a suspended license, ordered him out of the car so he could impound the vehicle. Riley was arrested after a search turned up two loaded handguns secreted under the hood.
Another officer snatched Riley’s smartphone out of his pants pocket and sifted through his contacts and messages, noticing the frequent use of the letters “CK,” which he believed stood for “Crip Killers,” slang for Bloods street gang members. At the police station a detective discovered additional evidence on the phone, including damning videos and photos. Eventually Riley was convicted of attempted murder and, based on his gang activities, received a stiffer prison sentence than he would have for his driving infraction. His lawyers appealed, claiming that police had violated their client’s Fourth Amendment rights protecting against illegal search and seizure. The Supreme Court agreed.
Forty years before Riley ran afoul of the law, another despicable human being, Al Goldstein, the famously dyspeptic publisher of Screw Magazine and host of Midnight Blue on Manhattan Cable, fended off obscenity charges levied against his pornographic media properties dozens of times by wrapping himself in the cloak of the First Amendment. Goldstein was a troll before the digerati coopted the word. The original doxxer, he used Screw and his TV show to settle scores with anyone who crossed him, publishing names, addresses and home phone numbers of business owners, ex-wives and lovers and politicians, and encouraging readers and viewers to harass them.
As a first amendment crusader, Goldstein’s finest hour occurred in 1974, when federal agents busted into his Upper East Side townhouse with an arrest warrant. Within 24 hours he and his Screw cofounder were languishing in a jail cell in Wichita, Kansas, confronting a 12-count indictment and facing up to 60 years in prison for mailing obscene material to Kansas, one of 14 states at the time that banned the sale of Screw. There, Goldstein learned that federal agents, using false names, had mail-ordered issues of Screw and Smut, an even cheaper spinoff. “In other words,” Goldstein wrote in his autobiography, I, Goldstein, “once we sent them what they asked us to send them, they accused us of sending it to them.” Prosecutors chose Kansas as the venue for the trial, Goldstein figured, because that was where two New York pornographers would be most hated by a jury pool.
His legal team argued that Goldstein’s anticensorship screeds had redeeming social value and were, as such, protected under the Constitution as political speech. Even Goldstein found that a ridiculous defense, maintaining that a reader’s erection “is its own redeeming value.” Three years, one guilty verdict, one successful appeal, and one hung jury later, Goldstein’s company paid a $30,000 fine in exchange for having all the charges dropped.
Though they set out to battle different laws, Auernheimer is practically
They both took on the government over laws that federal prosecutors had kneaded into catchall statutes to go after citizens they despised for doing things they didn’t like. The two pranksters reveled in laying bare cultural hypocrisies. They courted controversy and pushed the boundaries on what is considered culturally acceptable.
What’s more, they both made strategic mockery of the legal proceedings against them, attacking their judges during their trials. Once mooning reporters on the steps of a New York City courthouse, Goldstein taunted an Asian-American judge by telling reporters he made tasty pork lo mein but put too much starch in his shirts, and ran the phone numbers of the judge and DA on the cover of Screw. Weev also trolled his judge, telling Adrian Chen of Gawker, “She’s a mean bitch, I hear. I can see it in her eyes, she’s a black Baptist Bush appointee and I don’t think she’s a fan of the [Gay Nigger Association of America].”
Where they differ is on religion. Goldstein was a self-loathing Jew and Auernheimer, who was raised Mormon but converted to Asatru in prison, hates Jews. Above his right hairy nipple weev sports a Swastika tattoo — a gift from his Syrian Alawite girlfriend. Jews, he postulates, have created “an empire of wickedness the likes the world has never seen,” and says the first phrase he learned in Arabic was “death to the Jews.” They are, he argues, “genocidal, thieving scum” who “run this country” and “subjected me to false imprisonment in retaliation for my lawful exercise of speech.” What’s more, one of the government prosecutors, Zach Intrater is “a Brooklyn Jew from an old money New York family” who invited “a yarmulke-covered audience of Jewry” to stare at him “from the pews of the courtroom,” inviting “his whole synagogue to spectate.”
Though Goldstein would die a pauper and near the end of his life had to work as a greeter at the Second Avenue Deli, he was for most of his life a millionaire many times over, and could afford to pay his lawyers handsomely. Auernheimer, on the other hand, though famous to a small circle of likeminded trolls frequenting 4chan and Reddit, was flat broke, despite claims he once owned a Rolls Royce and the hacker organization he worked for had reaped $10 million. He blames his penury on prosecutor Zach Intrater, who he claims kidnapped him from his home in Arkansas when Federal agents busted down his door, leading to false imprisonment and even torture. When he couldn’t work, he says, his house was repossessed by the bank and eventually razed to the ground.
Fortunately for Auernheimer, Ekeland took his case pro bono, despite being so broke himself that some days he claims he didn’t know how he would scrounge up train fare to the courthouse. And Ekeland, it would turn out, was lucky that Auernheimer hired him, despite his notable lack of criminal trial experience.
As Ekeland began building his case, one of his first steps was to look into the AT&T subsidiary that house the servers that prosecutors claimed his client had hacked. The company listed in the original complaint didn’t seem to exist. Government lawyers took a few days to get back to him with an AT&T entity incorporated in Delaware and headquartered in Texas. Yet the case was being tried in New Jersey.
Why Jersey, Ekeland wondered. Newbie that he was, he began pulling at threads, to see what might unravel.
In many bank wire fraud cases, if electronic money starts in the Caymans, touches a bank in New York, then ends up in Geneva, Switzerland, prosecutors could choose New York City as the trial venue. Ekeland figured prosecutors must have electronic traffic data of some sort that involved New Jersey. They didn’t. Instead, they had based their choice of venue on the fact that 4,000 of the 114,000 email addresses that weev and Spitler scraped — about 3.5 percent of the total — belonged to New Jersey residents.
That was ridiculous, Ekeland thought. As with Goldstein and his misadventures with Kansan authorities, federal prosecutors were trying to grab home field advantage. Ekeland suspected the government had gone “forum shopping,” which is what lawyers do to try and find the place for a trial that offers the best chance to win or, for prosecutors, extract the harshest penalty. They picked New Jersey because the CFAA included a provision that, in certain states, could transform a misdemeanor violation into a felony if the act had been committed in furtherance of another crime or violation in that state. Prosecutors alleged that because weev had violated New Jersey’s unauthorized access statute, the government could charge him with a felony. Another reason was likely one of convenience: the feds had a major crime lab there.
Government lawyers were treating venue as a mere technicality, but Ekeland took it dead seriously. In law school he had learned that the nation’s founders viewed venue as a vital procedural right and had inserted it in the Constitution twice: in Article III and in the 6th Amendment. That was a time when the British were arresting revolutionaries in Philadelphia and transporting them to London to stand trial. “If you don’t think there’s a difference between a jury in Philadelphia and London, think again,” Ekeland says.
Ekeland attacked on two constitutional fronts: The first was venue. The second focused on the vague wording of the CFAA. As computers have become ubiquitous the law has been so broadly interpreted that “unauthorized access” could mean just about anything. As such, the CFAA failed to both adequately describe what is prohibited and provide clear guidelines for law enforcement, in violation of the constitutional requirement of due process of law. Harkening back to the philosophy training he had received at Berkeley under John Searle, Ekeland also argued that AT&T’s servers weren’t “deceived,” so there couldn’t have been unauthorized access and therefore no crime had occurred. The servers had done what AT&T had programmed them to do when a correct URL was entered, and that was to publish email addresses.
Fielding a flurry of aggressive motions and counter-motions, government lawyers and law enforcement officials didn’t know what to make of their untried, untested, hyper-aggressive legal foe. Even the name Tor seemed to throw them for a loop. When an FBI agent found out the name was real, he told him, “No way. I thought you changed your name to fuck with us at trial.”
“‘Tor’ is my real goddamn fucking name given to me by my fucking parents, okay?” says Ekeland, whose family roots trace back to Norway. “I didn’t adopt it because I wanted to be a fucking hacker lawyer or anything like that. I didn’t even know what The Onion Router was before I got into the scene.” Actually, his father was part of the Norwegian Resistance, tortured by Nazis in World War II and sent to a concentration camp. Ekeland says he keeps a Gestapo torture device used for breaking bones on his desk to remind him of the power of the state.
As the case dragged on through the summer and fall of 2012 Ekeland started running out of money. His bank was about to foreclose on his house in Brooklyn when Hurricane Sandy hit, delaying the proceedings. Because the roof sustained damage he was able to line up a mortgage modification and could hold off paying his mortgage for a while, staving off financial ruin.
When the judge denied his motions to dismiss the case, Ekeland knew he would lose. So did Auernheimer, and on November 20, 2012, after the jury found him guilty of one count of identity fraud and one count of conspiracy to access a computer without authorization, he tweeted:
In January 2013, while Auernheimer was awaiting sentencing and out on supervised release, Ekeland noticed that donations were flooding into weev’s legal defense fund, which up to then had scarcely attracted any money. Then he heard that 26-year-old Aaron Swartz, who had also been prosecuted under the CFAA, had hanged himself. People were starting to pay attention. The fund only raised $17,000 — but it was enough to keep the lights on.
In the lead up to his sentencing hearing in March 2013, weev started a campaign to troll the court.
He announced on Reddit, in an Ask Me Anything, “My regret is being nice enough to give AT&T a chance to patch before dropping the dataset to Gawker. I won’t nearly be as nice next time.” On the courthouse steps, before a crowd of supporters and members of the press, he held a wide-ranging press conference. He complained that America is a country in decline, and the feds can take your freedom and never give it back. “I added one to a number on a URL on a public server, and I aggregated that data, and gave it to a fucking journalist at that man’s publication. And this is why I’m going to prison! If they understood what they were doing to the rule of law, to the fucking Bill of Rights and to the free and open Internet, they would die in their own goddamn shame.”
Auernheimer didn’t temper his behavior inside the courtroom either. He had packed the visitor’s gallery with supporters while outside protesters were chanting about Internet freedom.
Ekeland was taking in all the weirdness when Auernheimer told him, “Tor, listen. We don’t want to get a small sentence here. Because if we get a big sentence, it’s going to be better for the press, for the cause, for everything.” He wanted the maximum publicity and that meant he must martyr himself.
“Okay, dude,” Ekeland replied. “You’re hardcore. All right.”
“And I want to go to jail immediately.”
Ekeland was sure that could be arranged.
It was time for Auernheimer to address the court. “I don’t come here today to ask for forgiveness,” he said. “The Internet is bigger than any law can contain. Many, many governments that have attempted to restrict the freedoms of the Internet have ended up toppled. I’m here to tell this court, if it has any foresight at all, that it should be thinking about what it can do to make amends to me for the harm and the violence that has been inflicted upon my life.” Weev heaped scorn on the CFAA, ending with “Hail, Eris,” the Greek god of chaos, strife and discord.
When it was prosecutor Michael Martinez’s turn to address the court he chided Auernheimer for blaming AT&T and not accepting responsibility for his actions. “He says that the reason we’re here is because we don’t like his ideas,” Martinez said. “The reason that we’re here is that he wrote a code and engaged in a clear trespass.”
While the prosecution spoke, weev had his Android tablet out. A linebacker-sized marshal approached from behind and demanded he hand it over.
“No,” Weev replied.
“You want to fuck with me, motherfucker?” the marshal said.
He slammed Auernheimer headfirst into the table, prompting gasps from onlookers as a posse of other marshals surrounded him.
Ekeland sat impassively, eyeing his client with his nose and face smooshed into the table.
“Mr. Ekeland,” U.S. District Judge Susan Wigenton said, “would you please take his phone?”
Now wasn’t the time to correct her. He grabbed weev’s tablet out of his hand and tried to act as if people slam his clients into courtroom tables every day. During a brief recess marshals brought Auernheimer to a side room. A few minutes later they returned with weev in shackles. He grinned at supporters in the visitors’ gallery and some responded with raised fists.
The judge said, “While you consider yourself to be a hero of sorts, without question the evidence that came out at trial reflected criminal conduct. You’ve shown absolutely no remorse. You’ve taken no responsibility for these criminal acts whatsoever. You’ve shown no contrition whatsoever.”
To almost nobody’s surprise, she sentenced Auernheimer, now 27 years old, to 41 months, the maximum under federal guidelines, and ordered him to pay AT&T restitution of $73,167.
Even before sentencing, Ekeland had begun working on the appeal, lining up the Electronic Frontier Foundation (EFF) and George Washington University law professor Orin Kerr, a leading legal expert on computer crime. Kerr didn’t believe that Auernheimer (and Spitler, who pleaded guilty and received three years probation and the same 73 grand in restitution as weev) had committed unlawful access. He also questioned why the case warranted a felony conviction. They didn’t pilfer passwords or hack into any servers. They found a gaping security flaw in AT&T’s network. He disagreed with the restitution, which by law was supposed to cover AT&T’s losses, yet the company had never claimed any. Also joining Ekeland’s team were Hanni Fakhoury from Electronic Frontier Foundation; Marcia Hofmann, a former EFF staff attorney who had gone into private practice; and penning a brief in support was Jennifer Granick, Director of Civil Liberties at the Stanford Center for Internet and Society. Without them, Ekeland says he could never have marshalled the resources and knowhow he needed to launch the appeal.
But it was Kerr who would argue the case before the court, which was fine by Ekeland. “When you have Mariano Rivera to come in and close your game, you don’t go out and fucking pitch yourself,” he says. They faced an uphill battle: only 8.7% of cases on the Third Circuit are reversed on appeal.
In addition to his objections with the CFAA, Kerr was disturbed by the government’s choice of venue — transporting Auernheimer from his Arkansas home to stand trial more than a thousand miles away from his family, friends and resources, adding tens of thousands of dollars to his trial expenses at a whim. A mere fraction of the email addresses he had scraped from the servers belonged to Jersey residents; the harm to the state was, at most, circumstantial.
During this time Ekeland’s drinking had become an even bigger problem. His allegiance with EFF and Kerr got him invited to conferences and attracted media attention. Weev’s case had become front-page news. But none of his newfound fame had translated into income. Until the EFF stepped he couldn’t even scrounge up enough money to cover photocopying all the briefs. Ekeland appeared on Al Jazeera hung over.
He says this period, when he was leading a “rock-n-roll, hacker lawyer lifestyle,” is a blur. His marriage, already tenuous, was in tatters. He didn’t blame his wife “for being pissed,” he says. “It was rough. I bet everything on this case.”
I asked if he and his wife were arguing a lot.
“What do you think? We’re about to get divorced.”
Then he said he’d rather talk about his work.
Over the summer he caught a game at Yankee Stadium with a friend. Drinking heavily, he was standing on line to buy more beer when on the TV monitor he watched Alfonso Soriano hit a homerun for his 2,000th Major League hit. The ball landed right next to his empty seat. The person who grabbed it received a signed bat and season tickets in exchange for the ball. And Ekeland realized how much of life he was missing. The next day, he says, he quit drinking.
As Ekeland continued to advocate for his client, Auernheimer found ways to troll (or exercise his right to free speech, as he saw it) inside prison. While at Brooklyn Metropolitan Detention Center, where he was waiting to be taken to the Lewisburg penitentiary in Pennsylvania, he managed to tweet from jail by using the prison’s internal email service to contact a friend, who accessed his Twitter account and posted his messages — until his privileges were suspended. Then he posted to Soundcloud voicemail messages (Titled: “Weev — Live from Prison”) with the help of another friend. In Lewisburg he antagonized guards and was placed in solitary confinement and cut off from any books and letters because, as he said, “I do not take any shit from anybody, and told all the corrections workers what I think of them.”
On March 19, 2014, Ekeland was in Philadelphia to appear with Kerr and lawyers from EFF before the Third Circuit, which covers New Jersey and other Eastern states. The courtroom was packed, and a crowd watched on a monitor in the hallway. Security was tight. U.S. marshals brought a box of plastic handcuffs and some explosive-sniffing dogs. Kerr had just begun his remarks when one of the justices cut him off, telling him he wanted to discuss the issue of venue. The three justices wanted to know why the trial was held in New Jersey.
Ekeland couldn’t believe it. They were parroting lines from his own briefs from the trial, as well as Kerr’s. As the proceedings dragged on, it was clear they were hostile to the government’s arguments. One even reminded the government lawyer that venue is mentioned in two places in the United States Constitution.
It sure is, baby! Ekeland thought.
Afterward, as the room cleared of weev’s supporters, one of the judges joked, “We have other interesting cases today, you know.”
A colleague called and Ekeland learned that FBI agents had visited his office in Brooklyn.
“Classic 1950’s shit,” he says. “No call, no advance warning. They just show up to intimidate you.” To get under their skin, Ekeland tweeted a message:
When he returned to New York, Ekeland contacted the agents to arrange a meeting at a nearby café and learned that weev had trolled the FBI. To confirm they had been opening his mail with Ekeland, which should be protected by attorney-client confidentiality, Auernheimer had inserted fake terrorist threats, signing off one by telling Ekeland to set off bombs at the Federal Building at dawn. The agents told Ekeland that they didn’t really believe he was terrorist, because if they had, his life would already be hell.
Three weeks later, Ekeland was walking down the cobblestones streets near his office on his way to pick up a morning latte, when he got the news: Auernheimer’s appeal had been reversed and vacated. The judges in their decision didn’t touch the constitutionality of the CFAA. It was the issue of venue that carried the day.
Ekeland bristles if anyone claims he got weev off on a technicality. “That’s what the government said, ‘This is a technicality and a joke,’ and the Third Circuit said, ‘No, it’s not. It’s a substantial constitutional right.’”
Now Ekeland had to figure out how to get a guy out of prison. It doesn’t happen very often. He called the Department of Justice and convinced an attorney to cut the paperwork, obtained a court order from the same judge who had presided over the trial, and jumped in a Zipcar and drove to the prison, which was located between Scranton and Pittsburgh.
And weev, who says he lost 17 pounds while in prison, was a free man. On the ride home, he asked for bacon, cream cheese and alfalfa sprouts.
Not long after his release, Auernheimer fled to Lebanon, which does not have an extradition treaty with the U.S. He has been noodling around with starting a hedge fund he calls TRO LLC (get it?). The idea is to short stocks of companies with crappy computer security. When he or someone he works with finds a hole, his firm would take a short position then blab about it to the media. If he can push a company’s share price down, he stands to reap a windfall. At least, that’s what he has sketched out in his head.
Who does he hold responsible for his three-year ordeal?
Why, Jews, naturally, claiming they persecuted him, namely the prosecutor, Zach Intrater. Weev sent him an invoice to compensate him for the time he spent in prison, but Intrater has ignored him. Just thinking about it, his rage bubbles over. “If [Jews] will not compensate me for the harm and violence that they have done to me in reducing me to poverty and destitution and homelessness, one day I will take up arms to kill as many Jews as possible. Death to the Jews, down to the last woman and child.”
Once a troll, always a troll. I emailed weev back to ask if his personal jihad would include Orin Kerr, whose father was a Holocaust survivor.
Weev backed off a bit. “No, lol. Orin is an asset to his people and managed to mitigate a large additional swath of the blood debt that would be owed to me. He has done his people a great service.”
As for Tor Ekeland, Auernheimer offers his highest praise. Tor, he says, “is a very competent legal scholar and theorist [and] also a relentless motherfucker that takes no bullshit and can hold his own in a street fight.”
Ekeland is reaping the benefits of his pro bono gambit, which has turned him into the go-to guy for computer crime defense. His firm is growing. He’s added two partners, two associates, an office manager and interns while his client list has ballooned to 248. Ekeland’s offices are on the fifth floor of an old brick building on a cobblestone street in Vinegar Hill, on the East River in Brooklyn. A trendy theater sits at one end of the street, an electric generating station on the other. Cars and subway trains thunder along the nearby Manhattan and Brooklyn Bridge overpasses. After giving up booze for a stretch Ekeland lost 35 pounds and hits the gym. He looks a lot better than the first time I met him, when over lunch he downed four pints of microbrew ale in an hour. (Now, he says, he sticks to wine.)
Contract work, mostly corporate transactions, pays the bills while Ekeland defends other hackers, most of whom can’t pay him for a defense that would run, if he charged full freight, between $500,000 to a million dollars. His client roster includes Matthew Keys, the former Reuters social media editor accused of conspiring with the hacking group Anonymous to hack the Los Angeles Times; Deric Lostutter, the Anonymous activist who outed two high school football players in Steubenville, Ohio, who raped a 16-year-old girl; and Matt DeHart, a former soldier and hacktivist. One of his clients, Fidel Salinas, was charged with 44 counts of computer fraud and cyberstalking, each count carrying a maximum of 10 years. Last month, Ekeland managed to knock 440 years off the potential sentence when Salinas pleaded guilty to a misdemeanor and a $10,000 fine.
As we walk the stony streets near his office, Ekeland marvels at the twists and turns his life has taken.
Suddenly, he stops.
“Did you know that hackers have groupies?” he asks, shaking his head, a smile smeared on his face. “What the fuck?”