As she was sentencing activist Jeremy Hammond to ten years in prison and three years of supervisory release for his involvement in hacking into the private intelligence firm Stratfor and various local, state and federal government websites, Federal District Court Judge Loretta Preska declared from her bench that there was a need to “promote respect for the rule of law.”
Preska further stated there was a need for a sentence that would act as a “public deterrence” and protect the public from “further harms.” Hammond had gone to prison for 24 months for a prior instance of hacking. She believed Hammond was an “unrepentant recidivist,” who would definitely engage in the same conduct at issue in this case again.
Defense attorneys for Hammond, Margaret and Sarah Kunstler, did their best to argue to the judge that what Hammond did was an act of civil disobedience. His motivation for breaking into the systems of Stratfor, they said, was the same motivation that drove him to teach students how to use computers, engage in tutoring, work at soup kitchens, help the homeless, etc, while living in Chicago. However, the judge rejected most, if not all, of Hammond’s lawyers’ arguments.
The judge—whose husband’s email address was actually released in one of the leaked Stratfor files yet she refused to recuse herself from this case—would not adopt a view that distinguished between good hacking and bad hacking. She would not do this for the same reason that judges have been reluctant to distinguish between good leakers or whistleblowers and bad leakers. Differentiating between the two would have set a precedent that created space for dissent, including space for acts taken by those who do not believe the system of checks and balances and the rule of law in American society is functioning properly.
Hammond stood in front of the judge and delivered a statement. He sought to clearly distinguish his actions from that of someone intent on committing a malicious act and committing fraud for personal gain:
The acts of civil disobedience and direct action that I am being sentenced for today are in line with the principles of community and equality that have guided my life. I hacked into dozens of high profile corporations and government institutions, understanding very clearly that what I was doing was against the law, and that my actions could land me back in federal prison. But I felt that I had an obligation to use my skills to expose and confront injustice—and to bring the truth to light.
Could I have achieved the same goals through legal means? I have tried everything from voting petitions to peaceful protest and have found that those in power do not want the truth to be exposed. When we speak truth to power we are ignored at best and brutally suppressed at worst. We are confronting a power structure that does not respect its own system of checks and balances, never mind the rights of it’s own citizens or the international community.
Hammond outlined how he had engaged in peaceful protest to try and stop the Iraq War. He had engaged in “civil disobedience on the streets of Chicago,” but, to him, that was not having the kind of impact he wanted. He decided to target the “computer systems of a right-wing, pro-war group called Protest Warrior, an organization that sold racist T-shirts on their website and harassed anti-war groups.” The FBI arrested him. He was prosecuted for violating the Computer Fraud and Abuse Act, and he was sentenced to two years in prison.
He described seeing the “ugly reality of how the criminal justice system destroys the lives of the millions of people held captive behind bars.” That solidified his “opposition to repressive forms of power and the importance of standing up for what you believe.” However, one must understand that Preska’s role is to consign some individuals to a life behind bars where their lives are “destroyed” and she could not adopt Hammond’s view of state repression.
For what it’s worth, Hammond suggested he was not interested in breaking the law again by hacking to spur social change. He engaged in “above-ground community organizing.”
“But over time,” he said, “I became frustrated with the limitations, of peaceful protest, seeing it as reformist and ineffective. The Obama administration continued the wars in Iraq and Afghanistan, escalated the use of drones, and failed to close Guantanamo Bay.” So, he followed the work of WikiLeaks and those organizing under the banner of Anonymous and was inspired.
He was moved by Chelsea Manning, who “exposed the atrocities committed by US forces in Iraq and Afghanistan.” She took enormous risk to release information, which she believed “that the public had a right to know.” She hoped her disclosures would “be a positive step to end these abuses.”
“If Chelsea Manning fell into the abysmal nightmare of prison fighting for the truth, could I in good conscience do any less, if I was able? I thought the best way to demonstrate solidarity was to continue the work of exposing and confronting corruption,” Hammond said in court.
How Hammond chose to go about “exposing and confronting corruption” occupies a gray area. It is illegal, but it also can be of great benefit to the public, particularly if the target is an entity like Stratfor.
Freedom of Information Act requests will not reveal the extent to which the United States has become a surveillance state. They will not show the extent to which the government contracts firms or businesses that profit off of selling amateurish or professional intelligence services. Government will keep such information concealed under a national security exemption, even if the information involves systematic violations of the privacy of citizens or implicates the civil liberties of individuals that should be protected.
Such “corruption” garners very little interest among members of Congress, who are supposedly expected to investigate the kind of questionable activities Hammond was interested in revealing. Judges are disinclined to sympathize with the concerns of defendants motivated to call attention to the inner workings of the national security state. They’ll even derisively address defendants, as Preska did to Hammond when she said he thought he was some kind of Robin Hood, who would “steal from the rich to give to the poor.”
What that means for citizens is that the only way they can be certain they are getting the truth anymore is if whistleblowers decide to come forward with information or hacktivists decide to extract information. (Note: Sometimes isolated acts of investigative journalism occur and they do provide some truth as well.)
As Hammond was concluding his statement to the court, he said:
The US hypes the threat of hackers in order to justify the multi billion dollar cyber security industrial complex, but it is also responsible for the same conduct it aggressively prosecutes and claims to work to prevent. The hypocrisy of “law and order” and the injustices caused by capitalism cannot be cured by institutional reform but through civil disobedience and direct action. Yes I broke the law, but I believe that sometimes laws must be broken in order to make room for change.
In the immortal word of Frederick Douglas, “Power concedes nothing without a demand. It never did and it never will. Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them, and these will continue till they are resisted with either words or blows, or both. The limits of tyrants are prescribed by the endurance of those whom they oppress.”
Preska did not buy any of the nods to past honorable dissenters. She specifically said, when sentencing him, Hammond was no MLK Jr., Nelson Mandela and John Adams. He especially was no Daniel Ellsberg (even though Ellsberg himself submitted a letter of support to the court saying he released information just as Hammond did).
It is because Hammond and his lawyers cast his acts as a part of a tradition of resistance in America that the judge gave him the maximum prison sentence under the CFAA.
Under the judge’s sentence, Hammond will serve ten years in prison. He will be put under supervisory release for three years. He will not be allowed to be on the Internet or use any electronic devices without having them monitored. He will be prohibited from using any kind of encryption. He will be prohibited from using anonymity tools (the judge specifically mentioned “the Tor”). He will have to allow applications to be installed that will keep track of all his activity. He will have to consent to warrantless searches or inspections. And, for three years, he will not be allowed to affiliate with any “hacking-related” or “civil disobedience-related organization.”
Jay Leiderman, an attorney who has represented cyber activists accused of computer crimes and was present at Hammond’s sentencing, explained that this type of treatment after one immediately gets out of prison is standard. It is believed by the government that this will stop “recidivism” and “build rehabilitation.” Yet, Leiderman said he is not sure that it “necessarily achieves either goal.” People who commit these crimes often “make their living off of computers” and this takes away that ability to have a “productive livelihood,” once one gets out of prison.
He also said the prohibition on affiliating with “civil disobedience-related” organizations is “objectionable in the abstract and unconstitutionally vague and overbroad.” And, “You can conceive of that term banning him from the ACLU, PETA or Amnesty International.” Basically, it could consign him to life devoid of political activism for three years. It is punishment on top of the punishment of doing time in prison.
Neville Roy Singham, an executive chairman and vice president of ThoughtWorks who submitted a letter of support for Hammond to the court, told Firedoglake, “We thrive in the United States on this idea of tech innovation as being part of our culture, part of our economic abilities. To me, a ten-year sentence to somebody like this is a very strange discrepancy between the treatment he receives and the treatment of so-called titans of industry,” who found lists at universities or absorbed government property with no charges and went on to be worshipped.
On the contrary, Hammond was targeted by the FBI in an apparent sting operation to catch hackers. The FBI turned Hector Xavier Monsegur, a leading figure of the Anonymous-affiliated LulzSec group who went by the name of “Sabu,” into an informer, who was working to orchestrate hacks against websites, including the websites of foreign governments.
The FBI was unable to control or permitted “Sabu” to break into many of the websites and release personal identifying information and credit card details. The operation caused damage, which the judge cited to justify sentencing Hammond to ten years in prison. Stratfor was destroyed because they allowed a hacking operation to be completed rather than stopping it before it occurred. And the FBI apparently was unaware that the obtained information—hundreds of thousands of emails eventually provided to WikiLeaks—might be on other servers other than the centrally located server they had “Sabu” setup to track all the operations and log evidence for charging individuals with committing crimes.
Not only is Hammond going to prison because the system cannot allow for a space to legally be created for those who engage in this type of dissent but also because the counter-subversive operations of the FBI intended to ensnare “hacktivists” resulted in collateral damage of which the government decided to hold Hammond responsible.
The “need to promote respect for the rule of law” is one the judge must strive to protect in the face of citizens willing to commit civil disobedience to advance social change because she is a part of a system that could be destabilized if people like Hammond are too effective at what they do.
In the same way that Manning’s defense could not expect to move a military judge to empathize with her desire to take an action intended to make the world a better place, Hammond’s defense could not expect to be successful in moving Preska either. What Hammond and his defense could do was maintain their dignity in front of a person given the power to execute the law in an unjust manner by doing the government’s bidding and making examples out of people, who dare to defy and continue to defy them. Through Hammond’s statement to the court and his lawyers statements, they did exactly that, knowing full well that there would be harsh punishment before the day was over but it was worth it to hold their heads high and accept what was coming.