Is the FBI allowed to entrap suspected computer criminals? That question is at the heart of a request for leniency by Jeremy Hammond, who's due to be sentenced on November 15 for hacking private intelligence contractor Stratfor, among other business and government sites.
Hammond, appearing in a Manhattan federal courtroom in May, pleaded guilty to one related count of computer fraud and abuse, as part of a plea agreement. "For each of these hacks, I knew what I was doing was wrong," Hammond told judge Loretta Preska, the Chicago Sun-Times reported. He now faces up to 10 years in jail, and the prospect of paying up to $2.5 million in restitution to Stratfor.
But in advance of his upcoming sentencing by Judge Preska, Hammond's supporters are asking for leniency, noting that Hammond hacked for ethical reasons, rather than to make a profit. They've also accused the FBI of entrapment, referring to tricking someone into committing a crime for the purpose of then arresting them. Hammond, notably, has accused former LulzSec leader turned FBI informant "Sabu" -- real name: Hector Xavier Monsegur -- of inciting participants of the Anonymous Operations (AnonOps) IRC channel, including himself, to hack into a number of systems, including Brazilian government servers for which Sabu reportedly distributed stolen access credentials.
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"Sabu was used to build cases against a number of hackers, including myself. What many do not know is that Sabu was also used by his handlers to facilitate the hacking of targets of the government's choosing -- including numerous websites belonging to foreign governments," Hammond said in an August statement.
What proof can Hammond offer? Attorney Margaret Ratner Kunstler, who's a member of Hammond's defense team, told me via email that "all but publicly filed documents are covered by [a] protective order," meaning related evidence has been sealed, at the request of prosecutors. Accordingly, "proof is only in the form of failure of government to deny" Hammond's allegations, she said.
An FBI spokeswoman, reached by phone, declined to comment on Hammond's allegations.
This wouldn't be the first time that the bureau's computer crime investigators have been accused of employing these types of tactics. "The FBI intended to entrap me via Sabu for as long as possible to incriminate my activities at the highest level," said former LulzSec participant Jake Davis last month, in an ongoing Q&A session on the Ask.fm website. Davis, who used the handle "topiary," handled the LulzSec's PR, but didn't take part in any of its actual hacking activities. He was arrested by British police in July 2011.
"One week I told Sabu that I had no intention of involving myself in any more crime -- organized by him -- and that I wanted to switch to helping the activist movement solely through art and writing," said Davis, who's now served related jail time in the United Kingdom and been released. "That same week my home was raided. It's nothing new, we were just another set of pawns in the FBI's strategy."
If that was the FBI's strategy, however, what may surprise is that the bureau wouldn't have broken any laws or investigation guidelines. "Unfortunately, there are numerous cases holding that this type of scenario -- very common in child pornography cases where agents pose as either children or brokers of child pornography -- does not constitute impermissible entrapment," sentencing expert Jeff Ifrah, an attorney who's previously chaired American Bar Association criminal justice and white collar crime committees, told me via email.