Most criminal defendants, whether fighting a DUI or fighting Computer Fraud and Abuse Act charges, have a small legal team, often just one overtaxed defense attorney. Matthew Keys, the social media editor who’s accused of helping Anonymous vandalize the Los Angeles Times’ website, has not just Tor Ekeland on his team, but also Jay Leiderman, another lawyer developing something of a reputation as a specialist in hackers charged by the government with violating the CFAA.
If Ekeland fell into this field almost by accident, Leiderman took a slightly more deliberate path. His first CFAA client was Commander X, an Anonymous-affiliated hacker—a job Leiderman retained by suggesting it on Twitter. It “sort of got picked up,” he says. “Once I represented X, he thrust me into the rest of it,” says Leiderman, “X’s opinion was — ‘Oh, you’re not just my lawyer. You’re the lawyer for Anonymous; you’re the lawyer for every hacker that ever lived.’”
But even if it’s increasingly exciting for lawyers like Ekeland and Leiderman to become go-to experts on the CFAA, it doesn’t guarantee them business. No matter how much they geek out about free speech and computer crime law, they’re not the only lawyers qualified to take these cases.
Back in 2000, Jennifer Granick was “the lawyer hackers call.” (That’s what Forbes called her, at least.) As a full-time defense attorney, she made computer crime one of her specialities. But when Aaron Swartz called her up after the federal government indicted him, she helped him find a different lawyer. Aside from a short stint at a boutique firm, from 2010 to 2012, she’s spent most of the past 12 years at Stanford’s Center for Internet and Society. What Swartz needed, she later wrote, wasn’t a CFAA expert but “good old criminal defense advocacy, something that I haven’t done for years.” Swartz’s lawyers—he was represented by three different firms over the course of his trial—worked, broadly, in criminal defense.
These lawyers weren’t part of the small subset who obsess over the CFAA. These were lawyers that represented clients like Lance Armstrong, not Anonymous hackers. But they were good—excellent—attorneys. They knew how to introduce evidence and work a jury and raise the right arguments on appeal. And that’s useful. When I asked Orin Kerr, a George Washington University law professor who works on the CFAA, who a person charged with related violations should call, he said, simply: “Find the best defense attorney you can.”
That’s one service that the Electronic Frontier Foundation helps provide. “We get a lot of calls after the feds have come with their search warrant,” says staff attorney Hanni Fakhoury. The organization can’t take all those cases but will help defendants find a lawyer who can. A good lawyer will know at least a little bit about computer crime law. “I think any lawyer who’s practicing needs to be up to date and needs to have a sophisticated understanding of this law,” says Fakhoury.
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Still, legal expertise does count for something: Even if a defendant need not call one of these lawyers who specializes in the CFAA, her lawyer probably will.
“Once you’re in this space, you begin to get phone calls,” says Kerr. EFF attorneys will help other lawyers brainstorm strategy and facilitate testimony from technologists. Ekeland says he’s gotten phone calls seeking advice on the CFAA from multibillion-dollar firms who never would have hired him.
But more important—particularly when you’re looking to serve a community that’s suspicious of outsiders and harbors a healthy antipathy towards authority figures—is the cache in being known as an ally, someone who gets it. It takes a certain type of person to get excited about representing a client like Andrew Auernheimer, known as weev, who has a ream of less-than-popular views, or like Commander X, who led a group of hackers, who, displeased with businesses like PayPal and Mastercard for blocking donations to Wikileaks, crashed their websites with denial-of-service attacks in 2010.
Especially when this sort of work doesn’t pay.
“I don’t make a lot of money off of CFAA cases,” says Ekeland. While defending Auernheimer, he says, he had almost no money to spend on it (although later donations helped cover some costs). “People think I was joking when I said I didn’t know how I was going to afford PATH fare to the trial,” he says. “I almost lost everything doing that trial. I almost lost my house, my car. It cost me at a lot.”
Most lawyers don’t risk their houses for their clients. EFF, for instance, has a list of collaborating attorneys that the organization’s lawyers will feed cases to. Some of those lawyers will work pro bono. Some take a fee. “Once they’ve worked with us before, they want to work for us again,” says EFF’s Fakhoury. “I think there are a lot of people interested in the work we do.”
In other words, there are plenty of people who recognize the rewards of this work and could take it on. But there are only a few who are true believers.
Both Ekeland and Leiderman say they do this work because they believe in it and find it fascinating. While the work is getting them attention in certain communities, it doesn’t necessarily boost their regular practice. “A lot of the regular clients don’t necessarily know I do this type of stuff,” says Leiderman. “They know me as a hard-charging advocate here.” (One exception: his medical marijuana clients, who “love the crossover,” Leiderman says. “There’s a congruence between those two sets of clients.”)
“I’ve gotten myself targeted by the FBI and NSA and all of that,” says Leiderman. “For what? For no money, for no financial reward. That’s why people think I’m nuts. That’s what’s exciting about all of this to me…It does make the government uncomfortable, as well it should.”
Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.