BREAKING: Weev sentenced to 41 months followed by three years of supervised release.

— Tim Pool (@Timcast) March 18, 2013

Just moments before sentencing, Auernheimer (also known as Weev), was cuffed by court officers in a struggle over his tablet and phone. Auernheimer, who was not permitted to use computers with keyboards, was asked to surrender his devices, but tried to hand them to his lawyer.

“It looks like Andew got slammed into a desk by federal agents while trying to hand his phone to his lawyer after the court asked for his phone,” his publicist told me via email.

Auernheimer is, by all accounts, a controversial figure, which became abundantly clear in a Reddit AMA (ask me anything) conducted yesterday.

He’s a founder of GNAA (Gay N*iggers Association of America), a group that probably has no actual gay or black members and seems, much as many other online trolling groups, to be devoted to causing as much online damage and destruction as possible. He’s also a member of Goatse Security, a grey-hat organization that focuses on finding and exploiting computer and website vulnerabilities. And he has done things online that most of us would consider morally reprehensible and ugly, if not precisely illegal, such as taking a leading role in the massive online harassment that caused usability expert Kathy Sierra to abandon the Internet.

But the specific charges that he was convicted of and has now been sentenced for seem tame by comparison. Essentially, he queried a public server with exactly the same kind of request your browser sent to the servers that run this website, aggregated the results, and sent them to a news agency, Gawker.

Auernheimer got a harder sentence than the #Steubenville rapists. One journalist equated the prosecution of hackers to the Red Scare.

— Tim Pool (@Timcast) March 18, 2013

The charges were based on the same law that federal prosecutors used against Matthew Keys, Aaron Swartz, and Stephen Watt: the Computer Fraud and Abuse Act, which opponents have decried as vague and Swartz’s lawyers have said was misused by federal prosecutors to overly-aggressively pursue Swartz, who ended up committing suicide.

Auernheimer knows he is not exactly a lovable figure.

“I’m a nutjob from Arkansas,” he told me yesterday. “That’s any sane person’s perspective.”

But the question today is whether his exact actions in the AT&T case were illegal. And if they were, how many other actions of ordinary Americans are now being criminalized?

Auernheimer told me yesterday that he already plans to appeal the sentence, and the EFF is helping with the appeal.

photo credit: Funky64 (www.lucarossato.com) via photopin cc

Who’s committing these crimes?

Most of them are between 29 and 49 years old, and three-quarters are male. They work in organized groups, half of which have six or more members. And they live all over the world, but especially in Asia, notably China and Indonesia.

That’s according to online payments company Jumio – one of the companies that Facebook founder Eduardo Saverin has invested in. Jumio has put together an infographic highlighting who is attacking companies and people.

To do what they do, cyber criminals need access to the interwebs. That means Internet service providers and website hosting providers are critical, and most of the ones criminals work through are based in Russia and China.

This won’t make victims of identify theft, hacking, or online fraud feel any better, but only 0.0019 percent of cybercrimes in the U.S. in 2010 were tried in court and saw the hackers convicted.

Here’s all the data, in visual form:

Image credits: Jumio

“Prosecutors do not acknowledge nuance,” Watt told me today. “They turn everything into a very clear-cut moral issue, where everything is nicely packaged into a premeditated act.”

Swartz, of course, downloaded almost 5 million academic articles from JSTOR, a nonprofit that provides access to academic journals. It was probably illegal, although JSTOR decided not to pursue legal action. Heymann did, however, and very aggressively. Swartz, who had a history of depression, committed suicide just five days ago.

“If you look at the sorts of cases that [Heymann] prosecutes, he does seem to very much enjoy being the first one to accomplish something in a legal sense,” Watt said. “He seems to push the envelope … and I have certainly heard the word ‘bully’ used to describe Heyman. It was a common label.”

That’s something that legal activist Lawrence Lessig highlighted on his blog post about Swartz’s suicide as well.

Watt was convicted of helping a criminal group steal 40 million credit cards from TJX and various retailers after creating a data-sniffing software tool for his best friend. According to Watt, he wasn’t in the conspiracy and didn’t know exactly how his software would be used; he just shared it, as is common in the hacker/cracker community. And he didn’t receive any of the ill-gotten gains.

“I acknowledge I’m a much less sympathetic character, simply because of the company I kept,” says Watt, a fitness addict who now runs a sports supplement store but is still negotiating with his probation officer over whether he can use computers. “What I do know is that in both cases you have actions taken by the defendants which are not in any way criminal … and actions which are not overtly criminal need to precipitate a much more nuanced investigation, and a much more appropriate sentence.”

When it comes to Aaron Swartz’s case, Watt says that prosecutors used the same damage and punishment matrix they had used for him. Based on the number of files and the calculated damages, Swartz was facing half a lifetime in jail and a million-dollar fine.

“But if you look at Aaron’s history, any reasonable person would assume he was not going to sell this information … he wanted to free this information,” Watt told me. “And yet you have this insinuation that he might have wanted to profit from it.”

When Heymann spoke in court about Watt, he highlighted Watt’s supposed “sociopathic tendencies” by finding quotes from Mike Tyson and the movie Fight Club on Watt’s MySpace page, he told me, insinuating that Watt had created his data-sniffing code as part of an attempt to “bring down the end of the country’s financial institutions.” Then, in closing comments, Watt says that Heymann said that he was “not someone to feel sorry for,” had enjoyed a “privileged background,” and that “his parents had read to him as a child.”

That kind of take-no-prisoners prosecution, Watt feels, contributed to Swartz’s suicide. And it’s something that doesn’t advance the pursuit of justice.

“In both situations there was a very compelling case that nothing illegal had been done,” Watt said to me. “To face those sorts of overwhelming odds … it’s just not justice.”

Watt, who will be speaking about his experiences with the law in April at Infiltrate 2013 in Miami, says the waiting is the hardest part.

“When I think of the stress that Aaron was feeling … that was absolutely the most psychologically debilitating time of the process,” he says. “It’s worse than being behind bars: You’re in limbo, you’re unable to work, and you’re financially hamstrung.”

Jonathan James, one of the other hackers investigated in the TJX investigation for which Watt did time, committed suicide, leaving a note that said in part:

I have no faith in the ‘justice’ system. Perhaps my actions today, and this letter, will send a stronger message to the public. Either way, I have lost control over this situation, and this is my only way to regain control.

There is a petition up on WhiteHouse.gov to fire Assistant U.S. Attorney Steve Heymann. It currently has 7,969 signatures and says:

We should not destroy the lives of human beings for crimes against computer systems that harm no one and provide no benefit to the perpetrator. Such actions should be treated as forms of protest and civil disobedience. To prosecute these actions the same as rapes and murders is a savage abuse of the criminal justice system which continues to destroy the lives of peaceful, productive members of society.

Photo credit: RageSoss/Flickr