On June 13, 2017, Mark Jaffe is set to appear before the 9th US Circuit Court of Appeals in San Francisco to argue on behalf of his client, journalist Matthew Keys. And at the most recent Ars Live event , Jaffe spoke to David Kravets and me about this case and broader issues around what it's like to defend accused hackers.

As Ars reported in August 2016, the 29-year-old journalist began his two-year sentence in Atwater, California, about 120 miles east of San Francisco. Earlier in 2016, Keys was convicted at trial under the Computer Fraud and Abuse Act (CFAA), the notorious anti-hacking federal law that dates back to the 1980s. An effort to reform that law has languished in Congress. Keys told Ars, even post-conviction, that he did not hand over any login information that led to the 40-minute alteration of a Los Angeles Times headline in 2010. So Jaffe and Keys' other attorneys will reprise an argument that they made at trial: that Keys' alleged actions did not cause actual damage (the defaced article was quickly changed back), and therefore, Keys did not violate the CFAA.

Jaffe told Ars that the Keys case came to him through a former client, Andrew "weev" Auernheimer, whose own hacking conviction was overturned on appeal. Jaffe explained that he and his law partner, Tor Ekeland, first got into this area of law by representing Auernheimer.

When [Ekeland] started it, he didn’t know anything about the CFAA, we had no affiliations with hackers. We were not coders, we didn’t know any cool coder speak, but he did have this premonition that this would be something big.

We took that case pro bono, on the theory that this would pay off in the attention that we get from it, which turned out to be true."

"Tor had a hunch that this would be something big," he said. "

Auernheimer told Ekeland and Jaffe about Keys—soon the two lawyers offered to represent Keys, and the young journalist agreed. "Turned out to be a fascinating thing for us, we’re going to get an opportunity to shape the law," Jaffe said.

It was weev's case that set Jaffe on the path to representing people suspected of violating the CFAA. "At the time what we knew about hacking came from Matthew Broderick in the movie War Games," Jaffe added. "The statutes haven’t changed much since we drafted a law signed by Ronald Reagan. There have been many more hacker movies since then that we can learn from!"

From Auernheimer's case—which involved obtaining and disclosing personal data of about 140,000 iPad owners from a pulicly available AT&T website—Jaffe internalized a lesson first taught to him by his own father, who was also a criminal defense attorney. Even though weev did "a lot of things and said a lot of things that are offensive and gross and horrible," what he was actually accused of "was not that awful a thing."

"You can’t do criminal law at all and say 'I’m only going to defend the innocent or the good'—you can’t do it, it’s impossible," the lawyer said. "Whatever you do, you think you’re fighting the good fight, and you’re going to find out they’re not a good person, but they’re your client. We’re really fighting for all of you. We’re fighting for what protects all of you under the US Constitution and whatever state constitution of the state in which you were charged. It’s so important that anybody charged with a crime—regardless of what it is and regardless of who they are—has a lawyer fighting for them. It’s one of the most important things that we put in the Constitution.”

For more from Jaffe, check out the full interview above in either video or audio form. And don't forget to come to the next Ars Technica Live at Eli's Mile High Club in Oakland, California, on May 17. Our guest will be Norman Chan, the editor of Tested.com, Adam Savage's website and YouTube channel that covers the intersections of technology, science, art, and pop culture.

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