[ISN] Prosecutors admit error in whistleblower conviction

From: InfoSec News (isn@private)
Date: Wed Oct 15 2003 - 01:22:28 PDT

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    http://www.theregister.co.uk/content/55/33393.html
    
    By Kevin Poulsen, 
    SecurityFocus
    Posted: 14/10/2003
       
    Federal prosecutors in Los Angeles will ask a court to set aside the
    conviction of a man who served 16 months in federal prison for blowing
    the whistle on an ex-employer's cybersecurity holes, officials said
    Tuesday.
    
    Without providing details, a spokesman for the U.S. Attorney's Office
    in Los Angeles confirmed that the office's appellate division will
    move this week to vacate Bret McDanel's felony conviction.
    
    McDanel, 30, was convicted last year under the Computer Fraud and
    Abuse Act for sending 5,600 e-mail messages to customers of his former
    employer, the now-defunct e-mail provider Tornado Development, Inc.,
    warning about a security hole in Tornado's service that left private
    messages vulnerable to unauthorized access.
    
    After a court trial, federal judge Lourdes Baird found McDanel guilty
    of unauthorized access, accepting prosecutors' arguments that McDanel
    abused Tornado's e-mail servers to send the messages. The judge found
    that McDanel caused the statutorily-required $5,000 in damage in part
    by bogging down those servers, and in part by harming the company's
    reputation by disclosing the bug.
    
    McDanel appealed last August, arguing that the judge misconstrued the
    Computer Fraud and Abuse Act.
    
    A federal prosecutor said Tuesday that the government was conceding
    that point, and would file a rare "Confession of Error" acknowledging
    that McDanel was convicted through an incorrect reading of the law.  
    "The Confession of Error says we don't believe that simply disclosing
    the fact of the vulnerability itself constitutes damage," said the
    official.
    
    McDanel's appellate attorney, Jennifer Granick at Stanford
    University's Center for Internet and Society, could not be reached for
    comment Tuesday.
    
    A government press release issued at the time of McDanel's sentencing
    colored him a "computer spammer," and touted the case as the first to
    go to trial in Los Angeles under the Computer Fraud and Abuse Act.  
    McDanel has already served his full 16-month prison term.
    
    
    
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