Keys’ lawyers file an emergency motion with the 9th Circuit Court of Appeals (source), allowing Keys to stay out of prison. The request is filed just hours after the federal judge who presided over Keys’ trial and sentencing, US District Judge Mueller denied a similar motion for release pending appeal. Keys’ defense attorney says that because the defacement that occurred at the Times was ultimately corrected from a backup, no damage was actually inflicted.
The damage minimum is a jurisdictional requirement of a CFAA charge. Without damage, there can be no conviction. Courts across the country have denied damage findings even in more extreme cases where files were deleted but recoverable.
Judge Mueller sentences Keys to 24 months in prison, with 24 months supervised release following. The judge limits the amount of loss (for purposes of sentencing) to whatever had been presented at trial, determining that the appropriate range for sentencing was between 37 and 46 month Her final judgement, considering mitigating factors such as Keys’s otherwise clean record, his history of complying with law enforcement, and the unlikeliness that he would reoffend, is lower than her own recommendation. Mueller:
I think the parties agree, it’s not the crime of the century. [The effect of the defacement was] relatively modest and did not do much to actually damage the reputation of that publication [but that she could not ignore that his] intent was to wreak further damage which could have had further consequences…The mask that Mr. Keys put on appeared to allow a heartless character to utter lines that are unbecoming of the professional journalist that he holds himself to be, and is, in most respects, in fact.
[W]e’re not only going to work to reverse the conviction but try to change this absurd computer law, as best we can.
Those who use the internet to carry out personal vendettas against former employers should know that there are consequences for such conduct.
Keys is to surrender to a facility—likely a prison in Lompoc, California—on June 15. His defense says it is planning an appeal.