WASHINGTON, DC – On November 15, political activist and programmer Jeremy Hammond was sentenced to 10 years in prison for hacking the internal servers of the private intelligence firm Strategic Forecasting, Inc. in 2011. The 28-year-old admitted to having wiped out files and databases and stealing 5 million private email messages and 60,000 customer credit card numbers. The emails went to WikiLeaks, while the credit cards were used for donations to non-profit groups. Elizabeth Fink, Hammond’s defense attorney, asserted that Hammond had been a victim of FBI entrapment. Presiding Judge Loretta Preska was unmoved by that argument and went on to impose the maximum sentence allowed by law. Fink’s contention was that the U.S. government used hackers to garner information on foreign governments.
Hammond’s supporters are accusing the FBI of entrapment after Hector Xavier Monsegur – known online as “Sabu” – who was arrested by the FBI and turned informant, had provided Hammond with lists of vulnerable websites. It remains unclear whether the targets provided by Sabu were actually of interest to U.S. national intelligence, what is evident, however, is that without government assistance, a number of illegal hacks would not have been carried out as they were. “The government celebrates my conviction and imprisonment, hoping that it will close the door on the full story. I took responsibility for my actions, by pleading guilty, but when will the government be made to answer for its crimes?”
Hammond’s legal team plans to appeal. The inevitable question arising from this is whether the FBI is allowed to entrap suspected computer criminals? In an attempt to answer that question the online magazine Information Week asked sentencing expert Jeff Ifrah, an attorney who previously chaired American Bar Association criminal justice and white collar crime committees, for his opinion. It appears that the FBI is standing on solid legal ground here. “Unfortunately, there are numerous cases holding that the government has no obligation to mitigate damages, or intervene in a criminal investigation to mitigate the fallout or consequences,” explains Ifrah. “There have been cases that have held in different contexts that the government may have been a contributing factor or intervening factor in the loss, but that type of logic … has not been applied in a loss calculation scenario at a federal criminal sentencing proceeding,” he said.
Jeff Ifrah cut his teeth as a trial lawyer and officer in the U.S. Army’s Judge Advocate General’s Corps and as trial counsel to the U.S. Army Communications-Electronics Command at Fort Monmouth, followed by an appointment as special assistant U.S. attorney in the U.S. Attorney’s office in New Jersey. He went on to become of counsel to the global law firm Paul Hastings and then a shareholder in the litigation department of another global firm, Greenberg Traurig. Often litigating cases against the federal government, he achieved a string of victories in cases involving criminal and civil antitrust laws, securities laws and the Civil False Claims Act. Ifrah was recognized by Chambers USA for three years in a row as one of America’s leading lawyers for litigation in the areas of White Collar Crime and Government Investigations.