Matthew Keys 5377 Vaca Station Road #283 Elmira, California 95625-0283

Sent via electronic mail To: The Honorable W. Neil Eggleston Counsel to the President The White House 1600 Pennsylvania Avenue Washington, D.C. 20502

Re: Appeal regarding USA vs Matthew Keys, Eastern District of California, Sacramento, D.C. No. 2:13-cr-00082

August 2, 2016

Dear Mr. Eggleston:

For the past decade, I have served the public as a journalist who documents and records events on a wide spectrum of issues, including technology, policy, the Internet, law and activism. I write to you today with less than a week of my liberty in hopes that you can make an appeal to President Barack Obama regarding a legal issue that immediately threatens my liberty and, thus, my ability to serve the public as a journalist.

Three years ago, federal prosecutors in Sacramento, California brought a criminal case against me alleging my culpability in a plan to commit a single instance of cyber vandalism against the website of the Los Angeles Times — a news organization that was once owned by the Tribune Company, my previous employer. The case proceeded to trial last October; I was found guilty on three felony criminal counts. I have repeatedly asserted my innocence — and, in fact, information has come to light over the last several months that exonerates me in connection with the alleged conspiracy.1

The case hinged on various interpretations of the Computer Fraud and Abuse Act (CFAA), which has been called the federal “anti-hacking” statute. That same law was used to prosecute prominent Internet prodigy Aaron Swartz for allegedly downloading a trove of scholarly articles and other works from an educational database in 2011. Facing more than three decades in prison and fines in excess of $1 million, Mr. Swartz committed suicide in January 2013. Prosecutors in Sacramento brought their case against me less than two months later.

That case alleged I had given someone in a chatroom access to a username and a password that enabled them to modify a single news article on the website of the Los Angeles Times. Prosecutors said the article was changed for no more than 40 minutes before an editor at the newspaper saw the modification and changed the article back to its original state — something

1 http://arstechnica.com/tech-policy/2016/04/mysterious-unverifiable-new-letter-surfaces-matthew-keys-is-innocent/ that took mere seconds. Prosecutors claim the alteration of the news feature cost the Tribune Company hundreds of thousands of dollars2.

Asserting my innocence, I took the case to trial. In October 2015, a 12-person jury found against me on all three counts. In April, I was sentenced to two years imprisonment, two years supervised release and ordered to pay restitution in the amount of $249,956. The restitution amount was based on figures that the probation office acknowledged needed “further clarification and documentation” from Tribune — documentation that was never produced3. Furthermore, prior to sentencing, U.S. Probation Officer Nisha Modica wrote in a letter dated December 30, 2015 that I faced "a significant term of imprisonment for a seemingly minor occurrence involving…silly changes to a website story."

Ms. Modica was not alone in her criticism of the proposed — and eventual — sentence. Numerous colleagues of mine at other news outlets expressed shock and disapproval at the two year custodial sentence handed down in April. Many compared the sentence to that of Ethan Crouch, a Texas teenager who was sentenced to two years in prison for violating the terms of his probation after killing four people during a drunken driving incident.

Even before the sentenced some in the journalism and tech communities said the case was an example of prosecutors abusing their discretion. The Electronic Frontier Foundation wrote that the case served as proof “that prosecutors can’t be trusted to not abuse their prosecutorial discretion. It is questionable whether this case should have been charged in the first place.”4 Jon Stewart of the Daily Show criticized the Obama administration’s priorities for being “tilted toward unusually harsh punishments for individuals who (alleged) crimes don’t really seem to merit them.”5

Last November, Wired’s Kim Zetter wrote prosecutors in my case apparently knew the actual identity of, but never criminally charged, the person responsible for the alleged alteration of the Los Angeles Times news article. When asked why they declined to pursue charges, a spokesperson for the U.S. Attorney’s Office in Los Angeles simply replied: “it’s kinda complicated.”6

What isn’t complicated is what lies ahead for me without intervention from President Obama: A two-year prison sentenced that many feel is completely unwarranted — over allegations that even federal prosecutors with a direct connection to this case acknowledge “did

2 Throughout the course of this case, the amount has fluctuated between $17,000 and nearly $1 million based on dubious claims made by prosecutors. During the trial, and again at sentencing, Tribune never provided a bill, receipt or contract showing any cost in responding to the alleged alteration of the news article. 3 Two documents at trial suggested the Tribune Company manufactured monetary figures in order to compel a prosecution. One e-mail sent from a news manager to his subordinates stated that “the FBI cannot prosecute a case unless there is $5,000 in damage.” That same news manager later wrote to Tribune’s in-house counsel asking that he bill the company at $1,000 an hour because “that would help us get this prosecuted.” http://motherboard.vice.com/read/why-the-government-went-after-matthew-keys 4 https://www.eff.org/deeplinks/2015/12/punishment-should-fit-crime-matthew-keys-and-cfaa 5 http://usavkeys.tumblr.com/post/105259675965/at-this-point-administration-priorities-seem-to 6 https://www.wired.com/2015/11/matthew-keys-case-feds-know-who-the-real-hacker-sharpie-is/ no lasting damage,”7 alleged conduct that the lead prosecutor in the case conceded did not amount to “the crime of the century.”8

Xeni Jardin, the editor of the popular tech publication Boing Boing, wrote9 that the sentence I received was the same as Ethan Couch, a Texas teenager who killed four people during a drunken driving incident. Sarah Jeong, a reporter with the Vice website Motherboard — and one of the few journalists to attend the majority of my court cases — wrote “it’s hard to see how a computer hacking prosecution came out of it…a 40 minute defacement that was reverted in three minutes is not exactly the scariest thing.”10

Fortune writer Jeff John Roberts, though one of my most-vocal critics, said the case was “yet another example of federal prosecutors swinging a sledgehammer of a law in order to punish relatively minor offenses,” adding that prison sentences “should be reserved for acts like major espionage or large-scale vandalism. Invoking such laws against people like Keys simply discredits the Justice Department and contributes to America’s larger problem of overly- ambitious prosecutors.”11

There are indications that the case was brought against me because investigators wanted access to some of my source material. Cyrus Farivar, a reporter for the website Ars Technica, wrote that “in April 2011, the FBI contacted Keys, asking for his notes pertaining to his research into Anonymous. Keys refused to hand over his information and declined to respond to continued overtures by the FBI…months later, when reviewing a computer image in an Anonymous-related case, the feds set their sights back on Keys. A leaked FBI memo shows that [the prosecutor] ‘really wants to indict Keys.’”12

In the three years since the case began, I have — albeit with great difficulty — continued my practice as a journalist. For fourteen months, I investigated cellphone surveillance devices known as “Stingrays” that culminated in a disclosure cited by the A.C.L.U. in a September 2014 letter sent to the F.C.C. Also in 2014, I investigated claims by then-Ferguson, Missouri Police Chief Thomas Jackson leading up to his eventual resignation.13 Just last year, an investigation I conducted for the news organization Grasswire revealed the names of two police officers under investigation for the beating of a man at the end of a pursuit.14 Those deputies, now fired, are facing both criminal charges and civil lawsuits. These stories — and hundreds more — were published with the public’s interest in mind. In some cases, as with the Grasswire investigation, they were made available online for free because I felt the public’s interest in these stories far outweighed my ability to sell them for financial gain.

7 https://www.justice.gov/usao-edca/pr/former-fox40-web-producer-sentenced-prison-attack-media-sites 8 http://www.latimes.com/local/lanow/la-me-ln-matthew-keys-convicted-hacking-la-times-20151007-story.html 9 https://twitter.com/xeni/status/720384932795670528 10 http://motherboard.vice.com/read/why-the-government-went-after-matthew-keys 11 http://fortune.com/2015/10/12/matthew-keys-hacking/ 12 http://arstechnica.com/tech-policy/2016/04/even-after-conviction-journalist-maintains-denial-of-aiding-hack-on- news-site/ 13 http://www.huffingtonpost.com/2014/09/05/ferguson-chief-lied-about-michael-brown-tape_n_5773420.html 14 https://medium.com/grasswire-blog/grasswire-investigates-alameda-county-deputies-involved-in-november- beating-named-d0ca44d399e2#.353er6tke

This is a practice I cannot continue if incarcerated. Last week, a federal judge ordered me to voluntarily surrender at the Federal Prison Camp in Atwater, California no later than Thursday, August 4 at 12 p.m. local time (3 p.m. Eastern Time). Absent presidential intervention, I will have no choice but to surrender for the start of a sentence that many consider to be egregious and unwarranted — one that will prevent me from continuing my work in the public’s interest.

It is for this reason that I write to you today. As counsel for the White House, I am hoping you will bring this urgent matter to his attention. Although I do not understand the nuances of law, I am aware that at this point only presidential intervention in the form of a commutation of sentence or a presidential pardon can prevent the execution of this draconian sentence.

Therefore, I respectfully request your assistance in advocating on my behalf for President Obama to review my case and consider using any and all executive powers afforded to him in preventing my scheduled incarceration and any other provision of the sentence for his he feels is unjustified and unwarranted. Doing so would not only reverse what many consider to be an unwarranted sentence triggered by an overzealous prosecutor based on a draconian and outdated law, it will allow me to continue serving the public as a journalist.

I also ask that you encourage President Obama to advocate for reforming our outdated and broken computer crime laws. I share President Obama’s desire for tough punishments against individuals and groups who steal and sell millions of credit card numbers online, invade personal privacy and disrupt the free speech and expression of enterprises who create films and other media of which they may disagree. But the CFAA — written by lawmakers in the 1980s who could not have envisioned what the Internet would bring to society today — paints these very real cyber terrorists with the same brush as those who engage in lesser or harmless, benign behavior.

As I have previously written, the CFAA today makes a federal crime out of sharing a Netflix username and password — something that is so ubiquitous it has been baked in to the company’s operating procedures.15 Nonetheless, a federal prosecutor who wanted to could — without Netflix’s involvement at all — bring felony charges against anyone for doing just that. Worse, criminal charges under the CFAA are defined by statute as crimes of terrorism16 — meaning investigators can use techniques meant to be reserved for serious homeland security investigations against activists, journalists and other individuals who work with sensitive sources and materials — potentially stifling free speech, free expression and whistleblowing alike.

If it seems ridiculous that prosecutors might bring criminal charges against a journalist for sharing a Netflix username and password merely to get to that journalist’s source material, consider that at least one prosecutor has already brought what many consider to be an egregious and overzealous prosecution against a journalist for an alleged edit of a news story that — by

15 http://www.cnet.com/news/netflix-is-cool-with-you-sharing-your-account/ 16 https://tinyletter.com/matthewkeys/letters/how-sharing-a-netflix-password-could-land-you-on- a-federal-terrorism-watchlist their own admission — was online for no more than 40 minutes and did no lasting damage. And that journalist, who wasn’t even accused of editing the article, will begin serving a two-year prison sentence on Thursday absent presidential intervention.

I respectfully request your assistance on this matter. Should you need to contact me after Thursday, please note a change in address for me:

Matthew Keys, #70041-097 USP Atwater U.S. Penitentiary P.O. Box 019001 Atwater, California 95301

Contact information for Tor Ekeland and Jay Leiderman, my retained pro bono counsel, is as follows:

Tor Ekeland, P.C. 195 Plymouth Street Brooklyn, New York 11201 Phone: 718-737-7264

Jay Leiderman, Esq. 770 County Square Drive, Suite 101 Ventura, California 93003 Phone: 805-654-0200

Thank you for your attention to this matter.

Warmest regards,

Matthew Keys [email protected] (415) 857-2407