1 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CRIMINAL ACTION2:11-cr-470-SDW 2 3 4 5 6 7 UNITED STATES OF AMERICA, : TRANSCRIPT OF PROCEEDINGS : : T R I A L -vs: : ANDREW AUERNHEIMER, : Pages 1 - 85 : Defendant. : - - - - - - - - - - - - - - - 8 Newark, New Jersey November 15, 2012 9 B E F O R E: 10 HONORABLE SUSAN D. WIGENTON, UNITED STATES DISTRICT JUDGE and a Jury 11 A P P E A R A N C E S: 12 13 14 15 16 PAUL FISHMAN, ESQ., UNITED STATES ATTORNEY BY: MICHAEL MARTINEZ, ESQ. ZACH INTRATER, ESQ., ESQ. Attorneys for the Government TOR EKELAND, P.C. BY: TOR EKELAND, ESQ. MARK H. JAFFE, ESQ. Attorneys for the Defendant 17 18 19 20 ________________________________________________________ Pursuant to Section 753 Title 28 United States Code, the following transcript is certified to be an accurate record as taken stenographically in the above entitled proceedings. 21 22 23 24 25 S/Carmen Liloia CARMEN LILOIA Official Court Reporter (973) 477-9704 2 1 2 I N D E X Witnesses Direct Cross Redirect 3 For the Defense 4 ANDREW AUERNHEIMER 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 28 61 Recross 3 1 2 ANDREW AUERNHEIMER, Sworn. DIRECT EXAMINATION BY DEFENSE2: 3 THE COURT: Very well. Good morning, Mr. Auernheimer. 4 You can proceed, Mr. Ekeland 5 MR. EKELAND: Thank you, your Honor. 6 Q Mr. Auernheimer, how old are you? 7 A Twenty-seven. 8 Q Mr. Auernheimer, are you currently employed? 9 A I do disaster response part-time. 10 Q And could you describe your educational background for us. 11 A I dropped out of high school. 12 study anthropology and mathematics. 13 Q 14 called Goatse Security? 15 A 16 I was part of starting February-ish, 2010. 17 Q And what exactly did you do with Goatse Security? 18 A I sort of had a PR role in that people would come to me and 19 I would do press relations for various things that were 20 discovered. 21 in I think March -- February or March of 2010. 22 Q Did you ever make any money from Goatse Security? 23 A No. 24 Q Let's talk about the Safari exploit thing. 25 show you what is in evidence as Government's -- Government's I went to college briefly to Mr. Auernheimer, have you ever heard of an organization Yes. It was a roughly 9-person security research team that In addition, I helped developed a Safari exploit I'm going to 4 1 Exhibit 1003. 2 A Can you see that? Not on my monitor. 3 THE COURT: 4 A Q You got it? His is a blank screen. There it goes. 5 This thing doesn't work. 6 Okay. Do you recognize this? 7 A I do. 8 Q What is it? 9 A It is the website, the first version of the website for 10 Goatse Security. 11 Q Do you know who wrote this? 12 A Me and Samuel Hocevar, a doctoral student in Japan -- 13 France, rather, not Japan. 14 Q 15 where it says, right under the heading "Goatse Security 16 Advisories". 17 owners exposed"; correct? 18 A That's correct. 19 Q And underneath that you see "Safari XPS attack"? 20 A That's correct. 21 Q Was that the Safari exploit that you were just talking 22 about? 23 A That's correct. 24 Q And can you tell us what that Safari exploit was? 25 A It does something called interprotocol exploitation. And directing your attention to the top of the exhibit And underneath that you see the "114,000 iPad It 5 1 was a proof of concept, which means we used only our own 2 systems and it does something that allows a web browser to 3 speak another protocol. 4 voice over IP, SIP, the protocol that drives voice over IP 5 services. 6 Q Did you publish any -- did you publish this exploit? 7 A Yes. 8 industry standard sort of mailing list for security 9 vulnerabilities. In this case, e-mail. We also did a We had it speak, like telling those protocols. Yes, it was published on Bug Track, which is the 10 Q And what is Safari, by the way? 11 A Safari is the web browser that's used on Apple products. 12 Apple has this reputation of -- they sell themselves on 13 security and I was examining Safari because I do not believe 14 that Apple products are any more secure than Microsoft windows 15 or Linux. 16 Q 17 on Safari exploit? 18 A 19 top version of Safari about a week after it was released. 20 Q 21 was publicly available on the Internet? 22 A That's correct. 23 Q And directing your attention to the third bullet point 24 under the top heading on what's in evidence as Government 25 Exhibit 1003, do you see where it says "Firefox XPS Javascript It's all about relatively the same. And do you know if anyone at Apple saw what you published They undoubtedly did because they patched it in the desk And the information you published on the Safari exploit, it 6 1 Proof of Concept"? 2 A Yes. 3 Q What was that? 4 A That was a short Javascript payload that would allow a web 5 browser to speak the IRC protocol. 6 Q And did you publish that exploit? 7 A It was already in wide circulation when I posted it to a 8 website, yes. 9 Q And do you know if Firefox ever saw what you published 10 about the exploit? 11 A 12 not a security vulnerability at all. 13 Q 14 have occasion to hear about an account slurper script? 15 A 16 channel and he tells people that he has a new project of -- 17 he's found this thing in the iPad registration ap that would 18 allow the e-mail address to be published, open on the Internet. 19 Q 20 again. 21 A 22 been around since the early nineties and it's in widespread 23 use. 24 Q 25 the IRC? They did. And they said that it was expected behavior and Now, turning your attention to early June, 2010. Yes. Did you My co-defendant, JacksonBrown, he comes to an IRC And when you said IRC, could you remind us what an IRC is It's the earliest chat room protocol of the Internet. It's And you said that you learned about this account slurper on 7 1 A That's relatively correct. I'm not sure. I don't remember 2 where I first heard about it. 3 Q 4 identification as Defendant's Exhibit 601. 5 what's been in evidence as Defendant's Exhibit 601, pardon me. I'm going to show you what has been marked I believe for 6 THE COURT: This is actually Alright. 7 Q Can you see that document? 8 A Yes. 9 Q Do you recognize it? 10 A I do. 11 Q Well, is that you speaking in there? 12 A I can't recall. 13 out any line of thousands of lines of chat and authenticate it, 14 but it could be. 15 Q Well, did you use a handle in the IRC logs? 16 A Yes. 17 Q And what was the handle you used? 18 A Weev, W-E-E-V. 19 Q So why do you think that that might not be you speaking? 20 A Because my IRC client was one of 12 shared in a 21 screen-sharing software. 22 people use my IRC clients. 23 knocking, I wouldn't recall. 24 Q But this could be you speaking? 25 A Yeah. It's been two years, and I couldn't pick So it -- I delegated and I let other So it could be somebody else 8 1 Q But you're not sure? 2 A Yeah. 3 Q I'm sorry, could you just take a look at this for a second 4 and tell me what you think is going on here. 5 A 6 He's harvesting ICC-ID e-mail combinations and he's looking for 7 more of them. 8 Q You see the date there, it says June 5th on the top? 9 A Yes. 10 Q And do you know if you heard about Mr. Spitler's account 11 slurper before June 5th? 12 A 13 but, I mean, this is relatively the time I learned about it. 14 Q It's two years. This is JacksonBrown seemingly announcing his projects. No, I don't -- I mean, I couldn't put it to a specific date Okay. 15 Now, I just want to direct your attention to the 16 middle of the exhibit. 17 A Yeah. 18 Q Where -- can you see that? 19 A Yes. 20 Q The mark June 5th, at 13:03:33. 21 line that says -- well, 13:03:30 it says: 22 big media news". 23 A Yes. 24 Q What do you take that to mean? 25 A There's a common sort of practice of non-disclosure in the You say -- you see the "Weev: Now this is 9 1 security community. Many security firms, mainstream ones, keep 2 exploits secret if they find software bugs and they sell them 3 to entities, domestic and foreign. 4 it's become not as common place for somebody to come out and 5 inform people that there's a problem in software bug -- a piece 6 of software. 7 general, these exploits are sold for quarter of a million 8 dollars and upwards; 100-, $250,000. 9 it and keep it secret. They don't patch them. So And so it's -- the iPad specifically is -- IOS in So most people would sell And if you inform people, it's a big 10 story. 11 Q And do you agree with this policy of non-disclosure? 12 A I don't think that people should keep software 13 vulnerabilities secret. 14 informed when they're put at risk by a company. 15 not only a right as Americans to analyze things that 16 corporations publish and make publicly accessible, but perhaps 17 even a moral obligation to tell people. 18 Q 19 this exhibit. 20 A Yes. 21 Q Now, well, let's start with what is essentially the first 22 time -- date stamp line of June 5th, 3:09:12, where it says: 23 "Weev: 24 phishing operation." 25 I think the consumer has a right to be And we have Now, I want to direct your attention to the second page of And can you see that? JacksonBrown, this could be like a future massive What do you take that to mean? 10 1 A That's a true statement. It could be -- could have been a 2 future massive phishing operation. 3 this data and, you know, not stolen, I mean, it's published. 4 It's published. 5 this that noticed it before us to send e-mails to iPad 6 subscribers trying to get their account information. 7 that's a serious concern. 8 informed that a company has put you at risk. 9 somebody could use this for malicious, truly malicious means. It's out there. Somebody could have stolen But somebody could have used I mean, That's the reason why you should be Like, that's -- 10 Q And you mentioned data. What data are you talking about? 11 A The publication of iPad ICC-ID e-mail combinations. 12 Q Did you ever possess this data? 13 A I possessed the e-mails that were sent to media companies, 14 the employees of media companies. 15 to a journalist, but I never downloaded the data from the link 16 myself. 17 Q And what journalist did you give to it? 18 A Ryan Tate at Gawker. 19 Q Did you give -- did you give a link to any other 20 journalist? 21 A 22 the dataset. 23 he knew on the list and asking that other reporter at some 24 other media company to help him verify the story. 25 there's -- that only needs to be done once. But, I mean, I gave a link No, it was not necessary to give more than one journalist Ryan Tate verified the data by finding a reporter But 11 1 Q 2 Ryan Tate at Gawker? 3 A 4 before 2010, but Gawker posted an incorrect article that they 5 got something very factually off. 6 valleywag at the time, sort of the tech person there, he posted 7 a whole new story, like a whole new blog post with him in a 8 dunce cap apologizing. 9 they have a lot of integrity as, you know, if they're willing 10 And why -- is there any particular reason you contacted There was a thing, I can't remember the date. MR. INTRATER: A And it left an impression on me that Objection, your Honor, this is -- This is -- 13 THE COURT: Hey, wait. 14 15 THE WITNESS: 16 MR. INTRATER: When he objects, you don't have a conversation with him. 17 Alright. THE COURT: A I move to strike that last answer, it's Sustained. Alright, Gawker, I personally -- 20 21 Let me rule, okay? all been hearsay. 18 19 And Owen Thomas, who is the to -- 11 12 It was well THE COURT: Wait. Once he objects and I sustain, you have to wait for Mr. Ekeland to ask you another question. 22 THE WITNESS: 23 Q 24 data? 25 A Alright. Mr. Auernheimer, do you know if Gawker ever published the They published red acted like a couple e-mail address 12 1 ICC-ID combinations, but they never published the whole list. 2 If I thought they were going to, I wouldn't have brought it to 3 them. 4 Q 5 contacted other people in the press about this? 6 A Yes, that's correct. 7 Q I want to show you what is in evidence as Government's 8 Exhibit 5052. 9 unredacted version, your Honor. Did you -- did I hear you testify that you actually Excuse me, let me put it up. That is the Can you see that? 10 A Yes. 11 Q Is that one of your e-mails that you sent to the press? 12 A That's correct. 13 Q Okay. 14 Now, directing your attention to the bottom of this 15 e-mail, the last line right before you say, "have a good 16 evening". 17 A Yeah. 18 Q I'm referring to lines, "if a journalist in your 19 organization would like to discuss this particular issue, I 20 would be absolutely happy to describe the method of theft in 21 more detail." 22 What do you mean by method of theft? 23 A Well, that's rhetoric and hyperbole. I don't believe in 24 using, and Sherry Ramsey used the word "published" and she was 25 right on this. This information was available on any iPad, you 13 1 know. You could have very slowly manually stepped through on 2 an iPad or a group of people using iPads and you didn't need to 3 write a program to access this data, you just needed to use the 4 Safari web browser on the iPad. 5 to the entire Internet. 6 they don't get to -- if you publish something in a book, you 7 can't say it's wrong to check out that book from the library or 8 go buy a copy of that book. 9 accessible and I used it to issue comment and criticism on And this data was accessible Once somebody publishes something, And I'm a PR person. They made this data publicly 10 that. I'm doing marketing here. And it 11 sensationalizes the story to have an opener like this. 12 does. 13 as big as possible. 14 Q 15 else with this? 16 A No. 17 Q Did you -- so you didn't disclose this to AT&T? 18 A I expected a journalist to contact AT&T one of these 19 initial, in a few e-mails. 20 of these e-mails to write a story, so I figured I would either 21 be contacted by AT&T or they would say the ICC-I-D, or ICC-ID, 22 however you pronounce it, and AT&T would very quickly be able 23 to figure out where in their code the issue was. 24 want to have a direct dialogue with me. 25 to them. It And that's -- it's my role in this community to spin it So you went to the press with this. Did you go to anybody There wasn't really enough in any If they don't I don't want to come They can have everything transparent in the press or 14 1 we cannot have a dialogue. 2 Q 3 to AT&T first with the information in question here? 4 A 5 in the public not being informed. 6 might get hit with extortion charges or get an injunction and 7 not be able to tell people about, you know, what was available 8 publicly and perhaps with a cavalier disregard for consumer 9 safety. 10 Q But do you know if anyone disagreed with you with not going Perhaps a lot of people did. But that might have resulted I remember, you know, people Okay. 11 I want to circle back to the IRC logs for a moment. 12 I'm going to show you what is in evidence as Defendant's 13 Exhibit 600. 14 A Yeah. 15 Q Take a look at it and tell me what you think is going on 16 with that. 17 A 18 reading some papers on GSM underlying cyrptographic functions 19 that I thought that it would be possible to clone a SIM card. 20 It's definitely not an attack that could be done by anybody 21 with less resources than a nation state. 22 questions there. 23 I don't think anybody less than an informed Government would 24 have them. 25 Can you see that? I was describing -- I was describing a perception after But there are some I personally do not have these resources and But it's a potential for risk. MR. INTRATER: Your Honor, objection. The defendant 15 1 is testifying as an expert and he hasn't been qualified as an 2 expert. 3 A I was saying my belief. 4 5 THE COURT: It's tough to get used to. sustained. 6 MR. INTRATER: 7 THE COURT: 8 Thank you, your Honor. Alright. Now, Mr. Ekeland can ask you a question. 9 MR. INTRATER: 10 11 Alright, THE COURT: I move to strike that last answer. It is stricken. You are to disregard the last answer, ladies and gentlemen. 12 You can proceed, Mr. Ekeland. 13 Q 14 line of this exhibit where it's June 6th, 19:19:22. 15 "Jacksonbrown: 16 Mr. Auernheimer, just directing your attention to the first I wish the ICC-ID wasn't so useless." Do you know why he's saying that? 17 A There's not really anything that any of us -- anybody with 18 not a lot of resources could do with it. 19 now. 20 via ICC-ID. 21 there's not a security research team in the world that does not 22 consider routes of attack -- I do not believe that it is possible to clone a SIM card I was clearly incorrect on that statement. 23 MR. INTRATER: 24 THE COURT: 25 It's questionable Your Honor, object at this point. But Sustained. expert, Mr. Auernheimer. You can't testify as an You can only testify as to your 16 1 involvement and what you do. 2 You can proceed, Mr. Ekeland 3 MR. EKELAND: Your Honor, Defendant's Exhibit 600 4 hasn't actually been moved into evidence. 5 defense would like to move it into evidence. 6 THE COURT: 7 MR. INTRATER: 8 THE COURT: 9 At this time the Any objection? (Exhibit marked in evidence) No objection, your Honor. Alright, 600 will be in evidence. 10 Q I'm showing you, Mr. Auernheimer, what's in evidence as 11 Government's Exhibit 6001. 12 me real quick. 13 A Yes, I can see it. 14 Q Could you tell me just what's going on there. 15 A JacksonBrown is looking for more ICC-IDs. 16 Q Do you recall if this is -- whether or not this is you 17 speaking here? 18 A 19 mean, it could be. 20 Q Could you take a look at that for Can you see it? I couldn't recall anything that happened two years ago. Okay. 21 And moving on to what's in evidence as Defendant's 22 Exhibit 6 -- sorry, Government's Exhibit 6002. Can you just 23 take a look at that. 24 A Yeah. 25 Q And tell me what you think is going on there. I 17 1 A There's a discussion on the nature of ICC-IDs. 2 Q And can you recall if that's you speaking there? 3 A I mean, that doesn't look like speech. 4 points in it, lacks of spaces, capitalization, punctuation. 5 doesn't look like an IRC conversation. 6 Q I'm sorry, it doesn't look like an IRC conversation? 7 A I can't -- I can't recognize that line as part of any 8 flowing conversation. 9 capitalized and punctuated correctly. There's bullet It's definitely not my words. It It's 10 Q 11 Exhibit 6003. 12 A That's correct, yeah, I see that. 13 Q Can you tell me what you think is going on there. 14 A I'm -- there's a discussion about valleywag. 15 never been to a Gawker party or -- I didn't know -- I had never 16 met anybody from Gawker media. 17 Q Have you ever met Ryan Tate? 18 A I never met Ryan Tate. 19 Q But you did testify earlier that you did contact him about 20 this -- 21 A 22 ever had with him. 23 Q 24 25 Moving to item 6003, what's in evidence as Government's Do you see that? But I've Yes, I think that was probably the first conversation I Okay. Now, moving on to what's in evidence as Government's Exhibit 6004. You take a look at that. Can you see that? 18 1 A Yes. 2 Q Can you tell me what you think is going on there. 3 A I'm asking for e-mails from JacksonBrown's dataset that 4 belonged to figures in the press so that I may report the 5 story. 6 Q 7 people in the press? 8 A I did. 9 Q Moving on to what is in evidence as Government's Exhibit And did you ever take those e-mail addresses and e-mail 10 6006. Do you see that? 11 A Yes. 12 Q Can you tell me what's going on there? 13 A JacksonBrown has pasted an e-mail address for Arthur 14 Siskind at News Corporation and I'd begun -- I began writing a 15 letter. 16 Q 17 Mr. Siskind? 18 A I did, yes. 19 Q Moving on to what's in evidence as Government's Exhibit 20 6008. 21 A Yes. 22 Q Is that you speaking? 23 A It could be, yeah. 24 Q Can you tell me what's going on there. 25 A I am -- I appear to be pasting a list of domains from And do you recall if you sent that letter or your e-mail to Do you see that? 19 1 the -- that belonged to press organizations. I see the 2 Associated Press, Baltimore Sun, Asahi, the Japanese newspaper, 3 and I'm giving him this list so he may search his dataset for 4 those domains and give me the e-mail addresses for contact 5 points in the media. 6 Q 7 6010. 8 see that? 9 A I can see that, yes. 10 Q Can you tell me what's going on there. 11 A JacksonBrown is pasting various -- various results from the 12 list that I -- of domains that I gave him. 13 number of reporters' e-mails. 14 Q 15 6011. 16 A Yes. 17 Q Do you recognize that? 18 A I do. 19 Q Well, can you tell me what's going on there. 20 A I appear to be stating that I'm going to aggressively 21 e-mail the media. 22 Q And did you aggressively e-mail the media? 23 A Yes. 24 Q Okay. 25 Exhibit 6014. And moving on to what's in evidence as Government's Exhibit Can you see -- hold on a second. How's that? Can you He's pasting a Moving on to what's in evidence as Government's Exhibit Do you see that? I mean, from this trial. Yes, I did. Moving on to what's in evidence as Government's Can you see that? 20 1 A Yeah. 2 Q Do you recognize that? 3 A Yes. 4 Q And can you tell me what's going on there? 5 A JacksonBrown is stating, you know, that AT&T has patched 6 the hole and, you know, that there are no more e-mail addresses 7 that could be harvested. 8 Q Okay. 9 Now, moving on to what's in evidence as Government's 10 Exhibit 6015. Can you tell me what you think is going on 11 there? 12 A 13 work. 14 Q What is DCC? 15 A It is -- I don't remember what it stands for, but it is how 16 people send things on IRC. 17 point either -- I think he might have uploaded it to a shared 18 shell server or a paste bin, or something, and from there it 19 was relayed, the link was relayed to Ryan Tate at Gawker. 20 Q I tell JacksonBrown to DCC me the list, but that doesn't So I believe JacksonBrown at that Okay. 21 Moving on to what's in evidence as Government's 22 Exhibit 6017. Can you see that? 23 A Yes. 24 Q And can you tell me what you think is going on there? 25 A I'm telling JacksonBrown that we're going to -- valleywag 21 1 is -- wants to publish this story. 2 Q And who is valleywag again? 3 A Valleywag is a subsidiary or website of Gawker. 4 Q And moving on to what's in evidence as Government's Exhibit 5 6019. 6 A Yeah. 7 Q Can you tell me what you think is going on there? 8 A Ryan Tate at Gawker is letting me know that he's got the 9 data. Can you see that? 10 Q Was Ryan Tate on the IRC? 11 A No, that was a conversation on another medium. 12 Q So then -- but this is an IRC log; right? 13 A Yes. 14 Q Do you know how it ended up on the IRC log? 15 A It must have been pasted there. 16 Q And moving on to what's in evidence as Government's Exhibit 17 6026. 18 A Yeah. 19 Q Can you tell me what you think is going on there? 20 A I'm telling JacksonBrown that I was dissatisfied with 21 AT&T's notification to their customers. 22 completely honest. 23 letter to AT&T's customers of our own. 24 Q 25 where -- right there, you see where that red dot is? Can you see that? I felt it wasn't And I think that we should respond with a And directing your attention to the bottom of the exhibit 22 1 A Yeah. 2 Q Where it says -- JacksonBrown says: 3 it says: 4 say: "Um". And after that "I thought you didn't have the list any more?" You "Um, I may have, uh, incidentally stored it somewhere." 5 Is that accurate? 6 A That's not accurate. I do not -- I did not retain any data 7 and I did not possess the fullest of data. 8 Q Why are you telling him that then? 9 A It may have been a facetious comment, I'm not sure. I don't recall saying it. It may 10 have been a joke. But I don't 11 currently possess any data from AT&T and I -- I mean, the 12 Government has all my computers, I think they could verify 13 that. 14 Q Did you ever do a mass e-mail to any AT&T customers? 15 A No. 16 tad odious compliance requirements. 17 Q I looked at the canned spam legislation and it seems a Okay. 18 Now, through this entire period of all the IRC logs I 19 just showed you, throughout all of that, did you at any point 20 think that you were doing something illegal? 21 A 22 like theft because the underlying act of accessing public 23 information, it boggles my mind that it could be considered a 24 crime. 25 Q I was -- I felt I was free to use rhetoric and hyperbole Why does it boggle your mind? 23 1 A Because there, you know -- one second. Let me state this 2 correctly. 3 you send nude photographs of yourself to somebody and, you 4 know, let's say you're, you know, an important person, a 5 representative, and later that person discloses them and 6 embarrasses you. 7 kill the messenger that you were criticized. 8 AT&T's customers had to be, you know, had to be notified that 9 their company put them at risk. If you put something on the Internet. Let's say You don't get to -- you don't get to cry and It's sad that But it's better than not 10 knowing. And you should be able, in our -- with our common law 11 heritage, you should be able to comment and criticize. 12 are things the DMCA, the Digital Millennium Copyright Act, it 13 has exemptions for security research. 14 specifically for comment and criticism. 15 my understanding of our system, that when you're commenting and 16 criticizing somebody, you can transform public data and it is 17 public. 18 it shouldn't be -- it was not my comprehension that it was a 19 crime to give publicly accessible data to a journalist. 20 seemed ludicrous to me. 21 core. 22 Q 23 the data was publicly accessible? 24 A 25 and. It was published. These We have fair use, There's so many -- in You can transform public data and That The very idea of it shocks me to my I just want to circle back to that point. Why do you think I think that AT&T published it largely as an oversight, There are really good people there and, I mean, I've been 24 1 told great things about their team. And if the best people in 2 the world can't stay on top of it all the time, then it's up 3 to, you know, third parties to examine it and bring to it light 4 when there's a problem. 5 Q 6 that? 7 A 8 don't -- I don't think anybody in this room has written a 9 letter to Google or, you know, or Yahoo before they visit the You said AT&T published the data. It's a universal understanding. What do you mean by You don't ask -- you 10 website. When you put something on the Internet -- http, to my 11 understanding, is a publishing system. 12 something on the open Internet and you didn't protect it with a 13 password or a firewall, you've made it a part of the public 14 record. 15 "publish". 16 and say, you know, when somebody uses it to embarrass you, you 17 can't kill the messenger and say: 18 have that. 19 that's true. 20 Q Turning your attention back to the account slurper script. 21 A Yeah. 22 Q Did you write any of the account slurper? 23 A No, it was complete -- I don't write in PHP, I find it a 24 despicable language. 25 was -- JacksonBrown first introduced me to it. And when you put And Sherry Ramsey did use correctly the word And when you publish something, you can't sit there Well, I didn't want you to Well, you shouldn't have made it available if And it was complete by the time that You know, 25 1 there's -- apparently, I don't fully remember, but from what 2 that log shows, he introduced it to me by, you know, "hey, I've 3 got this new project. 4 be many more." 5 Q Did you ever run the script? 6 A No. 7 URL to verify it was a public web server, but I never ran the 8 script. 9 Q Did you make any money off the incident in question here? 10 A No. 11 Q Did anyone ever offer you money for the list of the e-mail 12 paired with ICC-ID? 13 A 14 e-mail. 15 Q 16 identification as Government's Exhibit 5137. 17 A Yeah. 18 Q Can you tell me what it is? 19 A Someone is e-mailing me asking to buy the data. 20 saying that it has been destroyed and we're not going to 21 violate principles for money. 22 copy of the data at all. 23 Q So that's an e-mail you received and replied to? 24 A That's correct. 25 I'm looking for ICC-IDs. There should I mean, I sort of poked at it, looked at one of the Yes. No, I did not attempt to monetize off of this. There were a number of offers that came in via I'm going to show you what has been marked for Can you see that? And I am And none of our people have a MR. EKELAND: The bottom half is the person e-mailing -I'm sorry. Your Honor, the defense 26 1 would like to move what's been marked as Government's Exhibit 2 5137 into evidence. 3 MR. INTRATER: 4 THE COURT: 5 (Exhibit marked in evidence) Okay. No objection, your Honor. Alright, 5137 will be in evidence. 6 Q I just want to -- well, could you read for me the 7 e-mail that was sent to you, starting on -- 8 A 9 half? "Hello. How much could I buy for the whole database or Tell me please. Or if any way possible, to chat and 10 discuss. If you sell, please contact me ASAP. Any price is 11 okay. 12 Q And could you read your reply? 13 A "We destroyed the data as a matter of policy. 14 more purpose to us and we are uninterested in violating our 15 principles for money. 16 copy of the data left." 17 Q And could you read for me the date of this e-mail? 18 A It is June 10th, 2010, at 8:31 p.m. 19 Q Do you have any reason to doubt that date? 20 A No, that looks accurate. 21 Q I just want to show you one more of the Government's 22 Exhibits. 23 A Yes. 24 Q What is it? 25 A Someone is saying to me: Thanks." It served no No members of Goatse Security have a Can you see that? "Hello guys. Would it be 27 1 possible to share with me the iPad users e-mailing list, 2 please? 3 And I am replying: 4 Q And that's an e-mail you received and that you replied to? 5 A That's correct 6 Many thanks for your response. 7 Best regards, Reda." "No, not under any circumstances." MR. EKELAND: Your Honor, the defense would like to move what's been marked as Exhibit 5143 into evidence. 8 THE COURT: Any objection? 9 MR. INTRATER: No objection, your Honor. 10 THE COURT: Alright, 5143 will be in evidence. 11 (Exhibit marked in evidence) 12 Q And can you read me the date on that, Mr. Auernheimer. 13 A That is June 11th, 2010, at 1:12 a.m. 14 Q And do you have any reason to doubt -- 15 A No, that's an e-mail that I sent. 16 Q Did you know who -- the name of signature blocked out Reda 17 El Ourouba. 18 A 19 I couldn't -- I have trouble remembering their names, though. 20 I couldn't say one way or another. 21 Q In the month of June, 2010, do you recall where you were? 22 A I was in my home at Fayetville, Arkansas, which is where I 23 was born. 24 Q 25 ever in New Jersey? Do you know that person? You know, I know a lot of people, Arab people. I'm not -- Not in that house. In June, 2010, or any of the events in question, were you Auernheimer-cross 1 A I had never been to New Jersey prior to this. 2 28 dragged here in leg irons for the first time 3 MR. EKELAND: 4 THE COURT: 5 Cross. 6 MR. INTRATER: I was No further questions, your Honor. Alright. Yes, your Honor, thank you. 7 CROSS EXAMINATION BY MR. INTRATER: 8 Q Good morning, Mr. Auernheimer. 9 A Good morning, Zach. 10 Q On direct examination, you said that the information that 11 was taken from AT&T servers was publicly accessible? 12 A 13 URL to the address bar of any iPad. 14 Q 15 accessible. 16 A That is, to the best of my knowledge, that is correct. 17 Q So we know what you said on direct today. That's correct. You could have accessed it by typing in So that's what you said on direct, it was publicly 18 Right? I want to talk to you about what you said and wrote in 19 June of 2010. 20 A Okay. 21 Q In June of 2010, you weren't under indictment for a federal 22 crime; is that right? 23 A That's correct. 24 Q And in June of 2010, you weren't in the middle of a trial 25 which you're the only defendant facing two criminal counts. Is Auernheimer-cross 29 1 that correct? 2 A That's correct. 3 Q In June of 2010, you weren't on the witness stand in front 4 of a jury of your peers? 5 A That's correct. 6 Q Trying to persuade them that you didn't commit a crime. 7 that right? 8 A That's correct. 9 Q So we know what you said today. Is Now, let's go back to June 10 of 2010. 11 A Alright. 12 Q And see what you said and you did at that point. 13 A Okay. 14 Q I want to show you what's in evidence first as Government 15 Exhibit 5049. 16 gluttony@gmail.com e-mail account while you were on direct 17 examination. 18 A Yes. 19 Q You said that those e-mails -- 20 A Yeah, these are accurate. 21 recognize this letter. 22 Q 23 dispute that you sent this e-mail? 24 A That's correct. 25 Q Okay. And you were shown several e-mails from the You recall that? This e-mail is accurate. Could you show this to the jury? Okay. I So you don't You don't dispute that e-mails that come from G Auernheimer-cross 1 mail -- 2 A Yes. 3 Q Gluttony@gmail.com are yours? 4 A Yes, that's my e-mail. 5 Q 30 Okay. 6 The subject of this e-mail, you just tell me if I'm 7 reading this correctly. "AT&T privacy leak. Your iPad can be 8 hijacked, frank". 9 A Yes. 10 Q I read that, right? 11 A Yes. 12 Q And this is being sent to somebody at the San Francisco 13 Cronicle; right? 14 A Yes. 15 Q And in this e-mail you tell Mr. Vega, who you address it 16 to, I think. 17 A Yes. 18 Q You tell Mr. Vega what his ICC-ID is. 19 there in the e-mail; correct? 20 A Correct. 21 Q And you write that the ICC-ID is a shared secret. 22 A Yes. 23 Q That should indicate physical proximity to the iPad. 24 A I wrote that, yes. 25 Q And you wrote: Right? You put it right "I would be absolutely happy to describe Auernheimer-cross 31 1 the method of theft in more detail." Right? That's what you 2 wrote? 3 A I was trying to sensationalize the story. 4 Q Wait -- 5 A I'm a PR person, yes, that's absolutely -- 6 Q Those were your words in June of 2010; right? 7 A It's hyperbole. 8 Q But that's what you wrote? 9 A That's absolutely what I wrote. But that's not an accurate 10 assessment of what happened here. 11 reporter's attention. 12 Q 13 you and Goatse Security did a theft; right? 14 A It's hyperbole, yes. 15 Q You describe it a shared secret and you called what you did 16 a theft. 17 A 18 I grab one, it's not really theft, you know, it's -- 19 Q So you describe the ICC-ID as a secret. Now, if I say: Hey, bro, can I steel that cigarette? And Look, I didn't write the e-mail. MR. EKELAND: Q And you call what Right? 20 21 I'm trying to get a Objection. You wrote the e-mail. 22 THE COURT: Alright. The question is a yes or no 23 question. The objection is overruled. It's a yes or no 24 question. So to the extent that you can say yes or no, Mr. 25 Auernheimer, try to limit your answers to that. Auernheimer-cross 1 THE WITNESS: 2 THE COURT: 3 32 Alright. Mr. Ekeland can certainly come back on redirect and ask any further questions. 4 THE WITNESS: Yes. Yes. 5 Q But this e-mail, 5049 to Mr. Vega, that's not the 6 only time then, not now, then -- 7 A Yes. 8 Q In June of 2010. 9 A Correct. 10 Q That you refer what you and Goatse Security did as a theft? 11 A Absolutely 12 Q I want to show you Government Exhibit 5050. 13 this is a gluttony@gmail.com account e-mail. 14 e-mail. 15 A Correct. 16 Q Okay. 17 at News Corp.? 18 A Absolutely 19 Q Subject, you tell me if I'm reading this right, okay. 20 "AT&T privacy leak. 21 to say that -- you give him his ICC-ID. 22 shared secret that should indicate physical proximity to the 23 iPad." 24 A Yes. 25 Q And you wrote: And, again, You wrote this Right? This is to somebody at News Corp, right, Mr. Siskind Your iPad's identifier stolen." You write: You go on "It's a Right? "I'd be absolutely happy to describe the Auernheimer-cross 33 1 method of theft in more detail." Your iPad identifier stolen 2 and you would be happy to discuss the method of theft in more 3 detail. 4 A That's what I said. 5 Q Those are your words; right? 6 A My words. 7 Q In June of 2010? 8 A Yes. 9 Q Not under indictment. 10 A Yes. 11 Q Not facing criminal charges. 12 A Yes. 13 Q Not sitting here on the witness stand trying to get this 14 jury to believe your version of events now. 15 A 16 public information. 17 Q This is what you said then. 18 A This what I said then. 19 information then at other times. 20 Q 21 gluttony@gmail.com account. 22 A I sent many e-mails to press, yes. 23 Q "Veronica. 24 privacy". 25 A Right? Right? Right? Right? I also said when I wasn't under indictment that it was Let's go to 5052. But I also said it was public I don't want to belabor the point, You wrote the e-mail? AT&T leaked your iPad SIM ID and violated your That's an accurate statement. Auernheimer-cross 34 1 Q You told Miss Dillon from the Washington Post what her 2 ICC-ID was. 3 A Yes. 4 Q And you wrote: 5 indicate physical proximity to the iPad". 6 A Yes. 7 Q Again, "I'd be absolutely happy to discuss the method of 8 theft in more detail". 9 A Absolutely. 10 Q June, 2010. 11 A Yes. 12 Q Let's go to 5054. 13 Thomson Reuters, right? 14 customer information can be compromised. 15 A Yeah, absolutely 16 Q "I'd be absolutely happy" -- absolutely. 17 A Correct. 18 Q Absolutely is what you said? 19 A Absolutely happy, for sure. 20 Q "Method of theft"? 21 A That's what I said. 22 Q Now, you were here for the opening statements in this case. 23 Right? 24 A Yeah, I was. 25 Q And you heard your attorney, Mr. Ekeland, "say that all Mr. Right? "The ICC-ID is a shared secret. Should Your words; right? Right? This e-mail is to a bunch of posts at "Hello, Reuters. Your iPad 3G Shared secret". Auernheimer-cross 35 1 Spitler did", it was Mr. Spitler not you who wrote that script, 2 "all Mr. Spitler did was copy the e-mail addresses and 3 ICC-IDs". 4 A Yeah. 5 Q Who chose the word "theft", Mr. Auernheimer, was it you? 6 A Yes, it was. 7 Q Who chose the word "stole", Mr. Auernheimer, was it you? 8 A That was me. 9 Q It's not once, it's not twice, it's not three times, it's Right, you heard him say that? 10 four times. You showed the victims their stolen e-mails and 11 there ICC-IDs and you call it a theft. 12 A 13 I said. 14 Q 15 addresses and ICC-IDs were stolen. 16 referred to what you did when you were talking to other Goatse 17 Security members back in June of 2010. 18 A 19 hyperbolized to the extreme, yes. 20 Q Everything is hyperbolized to the extreme; right? 21 A Yes. 22 Q But not here, not today; right? 23 A I mean, no, not today, this is not the time or the place 24 for hyperbole. 25 Q I don't think those people were victimized, but that's what But you didn't just tell these iPad users that their e-mail It's the same way that you Right? IRC is a very aggressive rhetorical place. You wouldn't hyperbolize today; right? Everything is Auernheimer-cross 36 1 A That's correct. 2 Q Because you're under indictment today, right? 3 trying to convince the jury. 4 A It's not about convincing, it's about telling the truth. 5 Q It's one or the other? 6 A No, it's not one or the other, it's about telling the 7 truth. 8 Q You're It is about telling the truth. 9 Let me show you Government Exhibit 6005. This is in 10 your private channel in IRC. It's in the Pound Dominion. This 11 is the channel that Goatse Security uses; right? 12 A Yes. 13 Q June 6, 17:58:15. 14 A Well, that's me saying what I'm going to say to the media, 15 so that is actually what I said to the media. 16 reasonable representation. 17 Q 18 members? 19 A 20 is to say: 21 representation of what I'm going to say to the press, yes. 22 Q 23 Dominion channel; right? 24 A But I'm describing what I'm going to say to the press. 25 Q No one from the media is in the Pound Dominion channel? This is not to the media; right? So it's a Is this the media or is this to other Goatse Security I'm saying the best way to have a lead on it to the press "Hi, I stole your e-mail from AT&T". That's a But nobody from the media, as far as you know, is in Pound Auernheimer-cross Yes. 37 1 A I'm going to describe what I'm going to say to the 2 press in that document. 3 Q 4 Right? 5 A Yes. 6 Q This is what you're saying to your fellow Goatse Security 7 members, not to the media? 8 A Yes, describing what I'm going to say to the press. 9 Q "I stole your e-mail, want to know how"; right? 10 A Yes. 11 Q Your words? 12 A My words. 13 Q So you came here today, you told this jury that what you 14 did was not a theft, it was not a crime. 15 A 16 public web server. 17 Q That's now? 18 A That's then, that's period. 19 Q Well, then you call it a theft. 20 your e-mail." 21 A 22 media. 23 reasonable representation short of what I did for -- what I did 24 send to members of the press. 25 Q No one from the media is in the Pound Dominion channel. I'm describing what I'm going to say to the press. Right? That's correct, it is not theft to take information from a Then you say: "I stole Yes, I'm trying to get the attention of an agent in the That's exactly what I'm -- you know, that's a By the way, this is, what you said, this chat, is this you? Auernheimer-cross I couldn't recall, you know. 38 1 A But it is what I said to the 2 press. 3 Q You can't recall whether or not this is you; right? 4 A It's been two years and I've probably seen millions of 5 lines of IRC in my life. 6 not. 7 Q 8 Right? 9 A It's been two years. 10 Q Let's compare and contrast a couple things. 11 you Government Exhibit 6004. 12 You were here for the testimony of Mr. Spitler, right, where we 13 went over, on the left side of IRC chats is date, timestamp. 14 Right? 15 A Yes. 16 Q I think you said that to Mr. Ekeland too, date and 17 timestamp, and that's the date and timestamp for each message; 18 right? 19 A Yeah. 20 Q Okay. It would be hard to say what is or is I cannot authenticate anything. So you can't tell the jury whether or not this was you. I couldn't -I want to show And we've also talked about IRC. 21 So June 6th, 17:59:03. JacksonBrown sends an ICC-ID 22 to this sfchronicle.com e-mail address. 23 A Yes. 24 Q June 6, 17:59:31. 25 "E-mailing him now". You see that? Somebody with the handle weev writes: You see that? You see that? Auernheimer-cross 1 A Yeah. 2 Q 39 Okay. 3 Let's go back to 5050, 17:59:31. "E-mailing him now". 4 A Looks good. 5 Q No, no, I'm sorry, 5052. 6 wrong. 7 that's you; right? 8 A Yes. 9 Q 6/6/2010. 10 A Yes. 11 Q 6:45 p.m. 12 A That's correct. 13 Q E-mail is sent to Mr. Vega? 14 A Yes. 15 Q At sfchronicle.com? 16 A Yes. 17 Q Right? 18 That's when the e-mail was sent. 19 second. 20 named weev says: 21 A 22 just don't recall this conversation. 23 Q Well, is it a reasonable representation or is it you? 24 A I'm going to say reasonable representation. 25 know -- I don't understand the process that these logs were I need 5049. Is that 5052? Here you go. Great. I got the number Gluttony@gmail.com, Same day as that chat; right? Right? Okay. Let's go back to 6006 for a second, 645 p.m. Sorry, 6004. Let's go back to 6006 for a Okay, 15:59:31. Somebody -- somebody "E-mailing him now". I think it's a reasonable representation. I'm not -- I I don't Auernheimer-cross 40 1 acquired. I don't know what the integrity of them are. 2 going to say what is shown so far is a reasonable 3 representation of events that have occurred. 4 Q 5 not you writing them? 6 A 7 these conversations. 8 Q 9 gluttony@gmail.com, e-mailed the guy, whose e-mail address and I'm sorry, that was a long answer. I'm Is that you or is that I told you, it's been two years, I don't recall any of But a few minutes later on the same day you, from 10 ICC-ID was just provided to you, provided to somebody named 11 weev in the IRC channel for Goatse Security, your organization, 12 a few minutes earlier. 13 A 14 absolutely. 15 Q Do you fully admit participating in these IRC chats? 16 A I believe they are, what has been shown so far in snippets, 17 is a reasonable representation. 18 conversations. 19 Q 20 whether you're telling me that -- 21 A I don't -- I'm telling you -- 22 Q This is you or it's not you? 23 A I don't recognize these snippets of conversations. 24 seem so far to be a reasonable representation of what has 25 occurred, period. I fully admit sending e-mails to the press about this, I do not remember these It's been a long time. I'm sorry, I'm having trouble. I just don't understand They Auernheimer-cross 1 Q Okay. 2 41 Let's just do one more. Could we look at 6006? And I promise I'll have the 3 right number. Six thousand six for a second. Alright. 4 18:02:16, June 6. 5 asiskind@newscorp.com? 6 A Yes, I wrote Arthur Siskind at News Corporation. 7 Q Somebody named weev also said -- 8 A So for -- 9 Q "Let me write a fuckin letter, that is going to be so JacksonBrown sends ICC-ID e-mail address to 10 good." 11 A 12 recall this conversation, but I'm not disputing it. 13 don't remember this particular part of the log. 14 remember, you know, one of thousands, millions of lines of IRC 15 that I've seen from two years ago. 16 talk. 17 Q 18 that is going to be so good." 19 for one minute? 20 A I think so far these logs are a reasonable representation. 21 Q I'm actually wrong again, could we do 5050? 22 A I did in fact send mailings to the media that corresponds 23 to those times. 24 Q 6/6/2010 6:50 p.m. 25 A That's correct. This seems like a reasonable representation, yes. Someone named weev writes: I do not I just I can't That's just -- that's crazy "Let me write a fuckin letter, 18:02:41. Can we look at 5052 You send an e-mail? Auernheimer-cross 42 1 Q Same e-mail address that was just received by weev, 2 somebody named weev in the IRC channel of Goatse Security, your 3 organization? 4 A That's, you know -- 5 Q I'll let it go. 6 A That's -- I agree I sent an e-mail that corresponds -- 7 Q But you don't agree you wrote these IRCs? 8 A I'm not saying that. 9 seen snippets of IRC. I'm saying I don't remember. I only It's a reasonable representation of what 10 happened. I don't -- I can't authenticate these logs 11 completely. 12 seems, you know, relatively accurate. 13 Q I'm saying what I've been shown so far in snippets Okay. 14 On direct you said an ICC-ID -- well, you were shown a 15 chat. "ICC-ID, I wish it wasn't so useless," which is what 16 somebody named JacksonBrown said. 17 A Yes. 18 Q That is Daniel Spitler, JacksonBrown? 19 A Yes. 20 Q "I wish it wasn't so useless." 21 when Mr. Ekeland gave his opening argument? 22 A Yeah. 23 Q Mr. Ekeland said ICC-ID numbers are not significant, 24 important information. 25 on microchips. And, again, you were here They're just inventory tracking numbers This is much ado about nothing." He said: Auernheimer-cross 43 1 "You're going to learn you really can't do anything with an 2 ICC-ID e-mail address, period". 3 A Correct. 4 Q You agree with what Mr. Ekeland -- 5 A Yes, that was technically accurate. 6 represent otherwise. 7 Q So you agree with what Mr. Ekeland said now? 8 A Yes. 9 Q And you were wrong to represent otherwise before? 10 A That's correct. 11 expert on GSM technology. 12 Q That's what Mr. Ekeland said? I was wrong to I was technically inaccurate. I'm not an Okay. 13 Let's go back to June of 2010. And not to beat a dead 14 horse, but June, 2010, you're not indicted? 15 A Yes, that's correct. 16 Q June, 2010, you're not sitting in the witness stand. 17 Right? 18 A Yes, that's correct. 19 Q I want to show you what your lawyer marked yesterday as 20 Defense Exhibit 601. 21 And this again is when you first found out about this? 22 A Yes. 23 Q 13:03, you say, "big media news"; right? 24 A Yes, that's correct. 25 Q Let's go to the second page of this exhibit. You find out about this June 5th, 13:03. 13:09:15: Auernheimer-cross 44 1 somebody named weev says: "Seriously, this is valuable data". 2 A 3 value from it, but it was bad for it to be published on the 4 open Internet. 5 that. 6 Q 7 your attorney. 8 A Yes. 9 Q Gluttony@gmail.com. It could potentially be valuable data. I generated no And I believe that people should be informed of So you were just shown a couple of e-mails on direct by And that's something you don't deny. 10 That's something you admit that is you? 11 A Yes, that is, absolutely 12 Q So you're shown a couple of e-mails. 13 could, show you those e-mails. 14 A That's correct. 15 Q "How much could I buy the whole database," DB, database; is 16 that right? 17 A Yes. 18 Q "How much could I buy the whole DB or half?" 19 And I'd like to, if I So the first one is 5137. And then you were shown another one, 5143, I believe, 20 but I want to show you 5145, which is not in evidence. 21 to show you and see if you recognize it. 22 A I want You recognize 5145? There is -- so he sends that initial e-mail, I reply no -- 23 THE COURT: Just say yes. 24 Q Just, do you recognize that? 25 A Yes. Auernheimer-cross 45 1 Q Do you recognize it? 2 A Yes. 3 Q What is it? 4 A He asks how much again and I say, "there is no price on our 5 principles". 6 Q This is an e-mail between you and somebody else? 7 A Yeah. 8 Q Okay. 9 evidence. 10 A I just need to know because I want to get it into Alright. 11 12 MR. INTRATER: Your Honor, the Government offers Government Exhibit 5145. 13 THE COURT: Any objection? 14 MR. EKELAND: 15 THE COURT: 16 (Exhibit marked in evidence) No objection. Alright, 5145 will be in evidence. 17 Q 18 the jury. 19 after Reda El Ourouba says: 20 the iPad user e-mailing list?" 21 means by "share"; right? 22 he clarifies: 23 I want to get it in evidence because I want to show it to And I want to see -- I want the jury to see that "Is it possible to share with me That person makes clear what he Because Friday, June 11th, 4:55 a.m., "How much" -- MR. JAFFEE: Objection, your Honor. The attorney is 24 testifying as to what a non-declarant, not here, means by a 25 statement. Auernheimer-cross 1 THE COURT: Alright, rephrase. 46 Sustained. 2 Q On Friday, June 11th, at 4:55 a.m., could you please read 3 for the jury what Reda El Ourouba writes? 4 A "How much?" 5 Q What did you understand that to mean? 6 A He wanted to buy the data. 7 Q And you replied: 8 our principles." 9 A That's correct. 10 Q That's a different person than the person that offered to 11 buy the list from you on 5137? 12 quick? 13 A Yes. 14 Q Can we see 5137 real quick? 15 A Yes, this a different person. 16 Q So two different people? 17 A Yes. 18 Q This e-mail is on 6/10, 5145 is on 6/11; right? 19 A Yes. 20 Q And the vulnerability, all the data, is published. 21 Gawker article comes out right around June 9th; right? 22 A Yes. 23 Q So June 10th somebody offers to buy it from you, and June 24 11th somebody offers to buy it from you; right? 25 A "Not under any circumstances, no price on Right? That's correct. You want to see 5137 real That Auernheimer-cross So, Mr. Auernheimer, let me ask you this. 47 1 Q If this 2 information is freely available on publicly accessible web 3 servers, how come these two different people offered to buy it 4 from you? 5 A 6 not freely accessible any longer. 7 Q 8 public. 9 A Well, it is no more freely available at that point. It was You said on direct that your motivation was to protect the Right? My motivation is to comment and criticize, that's my 10 primary motivation. 11 Q You said on direct -- 12 A The public benefit is a side effect, but -- 13 Q -- that the consumer has a right to be informed when put at 14 risk. 15 A That's correct. 16 Q You characterized that perhaps even a moral obligation to 17 tell people? 18 A That's correct, yes. 19 Q That's your motivation? 20 A I didn't say that was my motivation, I'm saying that's -- 21 there's perhaps a moral obligation. 22 comment and criticize large companies. 23 Q You said the consumer has a right to be informed, right? 24 A That's correct. 25 Q Who's going to inform the consumer? My motivation is to Auernheimer-cross 48 1 A Somebody needs to. 2 Q Who? 3 A I informed the consumer, that's correct. 4 Q Your motivation in going to the press was to fulfill that 5 moral obligation? 6 A 7 effect. 8 Q You even got an award for what you did; right? 9 A Yes, we were awarded a crunchy. 10 Q A crunchy award. 11 A Yes. 12 Q You get a statue? 13 A I did not get the statue, I think they're holding one more 14 me. 15 Q Who did it here? No, my motivation was to criticize AT&T. That was a side That's from Tech Crunch? Alright. 16 So let's go back to March of 2010. Alright? 17 A Yeah. 18 Q It's three months before the intrusion into AT&T. 19 again, March, 2010, you're not under indictment? 20 A Yes. 21 Q In March, 2010, you're not a defendant in a criminal case. 22 Right? 23 A That's correct. 24 Q I want to show you what's in evidence as Government Exhibit 25 5036. And, March, 2010, you're not facing two federal charges? And you testified earlier that gluttony -- you're not Auernheimer-cross 49 1 sure about the IRCs, whoever weev was, it could be you? 2 A This e-mail was sent by me. 3 Q This e-mail? 4 A You can skip to the bottom and we'll talk about it. 5 Q This e-mail was sent by you? 6 A That's correct. 7 Q And you wrote this e-mail to girlvinyl? 8 A That's correct. 9 Q You talk about Goatse Security, which on direct you 10 admitted you were a part of; right? 11 A That's correct, yes. 12 Q You were a security organization? 13 A Yes. 14 Q And you write, at the bottom of this e-mail. 15 want to pull it up so the jury can read along with us. 16 write: 17 fighting cyberterrorism, or cyber crime, or whatever". 18 A Yes. 19 Q "We are pioneering new classes of exploits, new methods of 20 evading IDS, and new ways to use computers as tools to make 21 shit happen. 22 ethics, but they are for rent to any God or Government or 23 corporation or criminal organization that will write a check of 24 sufficient size. 25 about making things more secure and just admit that you're too And I just You "At Goatse Security, we don't really care about Our minds won't be owned by some liar's system of We invite you to stop pretending you care Auernheimer-cross 50 1 unskilled to be a real mercenary." 2 A 3 cultural complex connotation -- 4 Q Your method is to comment and criticize? 5 A That's correct, absolutely. 6 Q That's what you're saying? 7 A That's always been my motive. 8 Q That's what you want this jury to believe today? 9 A No, that's -- 10 Q When you're under indictment today -- That was for publication on a satire website. 11 MR. EKELAND: 12 THE COURT: There's Objection, your Honor. One has to speak one at a time. Okay? 13 Sustained. 14 Q 15 motive is comment and criticism. 16 A 17 website? 18 Q I can't answer the question, that's not how it goes. 19 A On the top of the e-mail -- 20 Q Today you said your motive was commenting and criticism. 21 Right? 22 A That's correct. 23 Q That's what you said today? 24 A At the top of the e-mail is a link to Encyclopedia 25 Dramatica that promoted itself as a satire website, there's -- That's what you want the jury to believe today that your Right? Are you disagreeing that Encyclopedia Dramatica is a satire Auernheimer-cross 51 1 Q I want to show you in evidence -- 2 A If you want me to explain -- 3 Q No, I don't. 4 A Okay. 5 Q When you're under indictment on the witness stand, what 6 your motive was. 7 54. I just want to ask you what you said today. I want to show you Government Exhibit 5150 -- Thank you, Miss Santos. 8 Again, gluttony@gmail.com, that's you? 9 A Yeah. 10 Q You get an e-mail on Thursday, June 10th, at 8:34 p.m. from 11 somebody name Suraj Viswanathan? 12 A That's correct. 13 Q A day after the Gawker article is published? 14 A Yes. 15 Q And a small business owner. 16 A Yes. 17 Q "Since you made headlines, I thought you could do something 18 good for us." 19 He says: "I need your help". Now, I'd like to show you the message that's up above 20 this one. 21 A 22 I was talking about using a court order -THE COURT: Just one second. 23 Q 24 I'm just commenting and criticizing. 25 criticizing"? Wait for him. Why didn't you reply to Mr. Viswanathan and say: "Listen I'm commenting and Auernheimer-cross 1 MR. JAFFEE: 2 THE COURT: 52 Objection to this question, your Honor. Rephrase. Sustained. 3 Q Did you reply to Mr. Viswanathan: 4 criticizing"? 5 A 6 criticism, doesn't mean I don't do other things. 7 criticism doesn't pay bills. 8 Q 9 sorry, but my motive is comment and criticism"? This is unrelated. "I'm just commenting and Just because I engage in comment and Did you reply to Mr. Viswanathan: Comment and "Mr. Viswanathan, I'm It's yes or 10 no. 11 A No, I did not. 12 Q Okay. 13 gOspykluiz@gmail.com. 14 Security; correct? 15 A 16 getting a court order. 17 Q 18 at Goatse Security? 19 A He is a lawyer, yes. 20 Q And you write: 21 leverage a default judgment into some sort of court order to 22 hijack the domain or make bgp announcements the for IPl? 23 should I quote him on retainer for our time? 24 retainer? 25 A Instead, you wrote an e-mail to That's right. And that's other member of Goatse He's a lawyer, and I was asking about He's another member of Goatse Security. He's your lawyer "What can we do for this guy? It's advanced payment for future hours. Can we What's a What Auernheimer-cross So I just want to clarify. 53 1 Q You didn't respond: "I'm sorry 2 I'm a commentor, I'm a criticizer? 3 A That's correct. 4 Q Instead, you wrote to your lawyer asking how much you can 5 charge him for your service; correct? 6 A Correct. 7 Q Now, you're here on Tuesday, you hear your lawyer's opening 8 arguments, right? 9 A That's correct. 10 Q And I want to read one more thing your lawyer said. 11 said: "Mr. Auernheimer has been open the entire time about 12 this. You'll see that he always spoke openly and honestly 13 about what happened here because he didn't believe a crime had 14 occurred." 15 A That's correct. 16 Q And you agree with that, right, you agree with your 17 lawyer's representation? 18 A Yes. 19 Q FBI came to your house on June 15th, 2010. 20 A Yes, they did. 21 Q It was early in the morning. 22 A Yes. 23 Q You remember about what time? 24 A I couldn't recall. 25 Q About 7 o'clock, does that sound right? You remember him saying that? Right? Right? He Auernheimer-cross 54 1 A I don't recall. 2 Q We've gone over the structure of IRC chats maybe too much. 3 But, again, IRC chats have time date on the left; right? 4 A Yes. 5 Q The time each message is written. 6 time someone is sending these messages? 7 A That's correct. 8 Q I want to show you what's been marked for identification as 9 Government Exhibit 6027. 10 A Yes. 11 Q This an IRC chat? 12 A And so you can see what That's correct. 13 14 MR. INTRATER: in evidence. 15 THE COURT: 16 MR. EKELAND: 17 THE COURT: 18 MR. INTRATER: 19 Your Honor, I would offer Exhibit 6027 Any objection? No objection. It's not on my log, Mr. Intrater, 6027. I'm sorry, your Honor. I have a copy for you. 20 THE COURT: 21 (Exhibit marked in evidence) 22 Q Mine stops at 2026. Thank you. Miss Santos, could you put that up on the screen, please. 23 And June 19th is the date the FBI comes to your house 24 in the morning; right? 25 A Yes. Auernheimer-cross 55 1 Q It was light out? 2 A I think so, yeah. 3 Q About 7 o'clock in the morning, that sound about right? 4 A I didn't see a clock. 5 Q But it wasn't 3 o'clock in the morning? 6 A No. 7 Q It wasn't? 8 A No, it wasn't. 9 Q June 15th, 03:03:07. "Weev: Well, we have won in the 10 court of public opinion. 11 actual court." 12 have a really solid leg to stand on here. 13 script." 14 the data." 15 "A journalist almost. 16 say I'm a fucking journalist, a blogger journalist." 17 "JacksonBrown: 18 A 19 light should have journalistic privileges extended to them. 20 think that's reasonable. 21 Q Several hours later the FBI is in your home? 22 A Yes. 23 Q And what are you doing? 24 source? 25 drive; right? Yes. Now we will find out if we win in "JacksonBrown: Lol. JacksonBrown interjects. Free Weev." JacksonBrown interjects: "Weev: "Weev: I didn't write the I didn't collect "Weev's gonna snitch." No, I'm not gonna snitch. Looool." I I'm going to "And I get to protect my source." I believe that people who brings things to public Bloggers should have it. How are you protecting your You're trying to enter commands to delete your hard I Auernheimer-cross I don't remember any of that. 56 1 A I don't recall. It's been 2 two years. 3 Q Are you telling the jury that you didn't enter commands? 4 A No, I'm saying I don't really recall. 5 at all. 6 Q 7 apartment or house? 8 A Once. 9 Q Okay. It's not what I said So the FBI, how many times has the FBI searched your I understand you saying -- well, you say I've done 10 so much IRC, I've done millions of lines of IRC chats, I just 11 can't tell you. 12 representation, but I just can't tell you whether this IRC is 13 accurate or not because I've done so many lines I mean, I'll tell you it's a reasonable 14 MR. EKELAND: 15 THE COURT: Objection, your Honor. Overruled. 16 Q But the FBI has only been in your house once; right? 17 A I've had lots of unique experiences happen to me. 18 recall the details of all events. 19 Q I don't But you can continue. Thank you. 20 The FBI served exactly one search warrant on your 21 house; right? 22 A Yes. 23 Q But it didn't really make an impression on you, it didn't 24 create -- 25 A Right. Auernheimer-cross 57 1 Q -- any memories for you? 2 A I remember being, you know, shocked. 3 It's sort of a hazy event when somebody kicks in, you know, 4 comes to your house and points guns at you. 5 adrenalin flowing, you know. 6 Q 7 you're entering commands into a shell server? 8 A 9 in my life. It's been two years. It's a lot of I don't remember. At lot of adrenalin flowing and it's a possibility that I don't recall. There's lots of unique events that happened 10 Q You just don't remember one way or another? 11 A I don't recall. 12 Q Do you deny that you entered a command into your hard 13 drive? 14 A I say I don't recall. 15 Q Do you deny it? 16 A I don't -- 17 MR. JAFFEE: Objection 18 MR. EKELAND: 19 MR. INTRATER: 20 THE COURT: Asked and answered. No, it's not asked and answered. Right. Overruled. 21 A I don't remember. 22 Q But that's a different question -- that's a different 23 answer then you either deny it or you don't deny it. 24 A 25 I do not remember. MR. INTRATER: Your Honor, could I get an answer? Auernheimer-cross 1 2 THE COURT: Yes. 58 You deny doing it, or you don't remember doing it, or not doing it? 3 THE WITNESS: 4 THE COURT: I don't remember at all. Okay. Alright. 5 Q Do you remember Special Agent Frigm's testimony? 6 A Yes. 7 Q Do you remember him testifying about why -- about asking 8 you why those commands were entered into your computer? 9 A I remember him, but I didn't even recognize him when he was 10 on the stand. I don't remember. 11 Q 12 into your computer. He testified that you acknowledged entering those commands 13 MR. JAFFEE: 14 THE COURT: Objection. Sustained. 15 Q Okay. 16 A Rephrase. I saw him testify -- 17 THE COURT: Wait, he didn't ask the question yet. Let 18 him ask. 19 A Continue. 20 Q It's a transcript from Tuesday. 21 that he spoke to you about why those commands were entered. 22 And that you replied, you didn't want anything on your computer 23 implicate yourself or others. 24 A 25 Special Agent Frigm said Do you deny that that happened? I don't recall. MR. EKELAND: Excuse me, you Honor. Auernheimer-cross 1 A 59 I did not recognize -- 2 THE COURT: Wait, your attorney. 3 MR. EKELAND: 4 MR. INTRATER: It's 60? It's 60. 5 A I did not recognize Phillip Frigm on the stand. 6 remember speaking to him. 7 Q 8 you, "what were you likely to find on your computer?" 9 Agent said that he did ask you. Special Agent Frigm was asked: I don't "Did you ask him," meaning Special You deny that he asked you 10 what would be found on your computer? 11 A 12 Phillip Frigm. 13 Q Do you deny you talked to the FBI at all? 14 A I think I might have. 15 Q Can I ask you one more question? 16 were open and honest with the FBI in his opening; right? 17 said you were open and honest with the FBI. 18 A Reasonably open, yes. 19 Q Reasonably open? 20 A Yes, I believe -- 21 Q Open and honest, or no? 22 A I believe that I was reasonably open and honest. 23 recall the events of that morning. 24 speak at a grand jury. 25 Q I do not recall the events up to -- I did not recognize Your lawyer said that you He I don't I volunteered, I offered to How could you be open and honest? How could your lawyer Auernheimer-cross 60 1 say you were open and honest with the FBI if now you don't 2 recall what you said at all? 3 were honest or dishonest? 4 A 5 statements on record, and I was not brought to a grand jury, so 6 I don't -- 7 Q 8 your house on June 15th, 2010? 9 A How could you know whether you Because I volunteered to be at a grand jury to get my Were you open and honest with the FBI when they were in I barely recall talking to the FBI. It was a long time 10 ago. 11 Q 12 your house or not? 13 A 14 said. 15 people could get my statements on record. 16 don't understand, you know, how I can be more -- I don't trust 17 what's on a form 302, you know. 18 what's not. 19 Q 20 honest? 21 A I think it is. 22 Q You were open and honest with the FBI. 23 testified that when he asked you what he was likely to find on 24 your computer, you said that the FBI probably wouldn't find 25 anything. Were you open and honest with the FBI when they were in I don't recall talking to the FBI. I don't recall what was But I volunteered to be at a grand jury so that you Like that was -- I I don't know what's real or But I think that that's a reasonable statement. What's a reasonable statement, that you were open and Special Agent Frigm "He had in fact actually deleted his hard drive and Auernheimer-cross 61 1 shredded it the night before." 2 A 3 perception of the FBI, to protect people unrelated to this case 4 from harassment by federal authorities. 5 Q 6 you're protecting your source? 7 A I don't recall the events of that morning. 8 Q That's what weev said to JacksonBrown, "I'm going to 9 protect my source. 10 your story; right? 11 A I don't -- 12 Q That's the story that you're telling here today, right, you 13 were a journalist? 14 A I'm -- 15 Q A journalist who shredded his hard drive the day before the 16 FBI comes; right? 17 A I feel that it's reasonable, given the -- what my And that's how you're protecting your source? I'm a journalist." That was going to be I don't recall. 18 MR. INTRATER: 19 THE COURT: 20 MR. EKELAND: 21 That's how I have nothing further, your Honor. Any redirect? I have a brief redirect, your Honor. REDIRECT EXAMINATION BY MR. EKELAND: 22 MR. EKELAND: 23 THE COURT: May I proceed, your Honor. You may. 24 Q Mr. Auernheimer, you were just shown a bunch of exhibits 25 that are in evidence which were e-mails of you talking to the Auernheimer-redirect 62 1 press. Right? 2 A Yes, that's correct. 3 Q And not to beat a dead horse, but in all those e-mails you 4 were using language like: 5 theft; and what not. 6 A 7 hyperbole. 8 Q 9 outside of the press -- I stole your ID; the manner of Why were you talking like that? To sensationalize and spin the story. It's rhetoric and And did you send any other e-mails like that to anyone 10 A Yes, nobody outside of the press. 11 Q Okay. 12 And I want to just real briefly turn to what's in 13 evidence as Government's Exhibit 5036. 14 isn't working. 15 working, your Honor. 16 an exhibit that's already in evidence. 18 THE COURT: 19 MR. EKELAND: I just need a second. MR. EKELAND: A 21 Apparently this I'll switch this to the overhead. 17 20 Okay? I'll just show him Is that okay? What was that? Okay. Miss Santos is going to help you. Oh, okay. I've had trouble in that case, iPad trouble -THE COURT: 22 Q A No question. No question. There we go. 23 This is not Alright. 24 MR. EKELAND: 25 THE COURT: May I proceed, your Honor? You may. Auernheimer-redirect 1 Q 63 Thank you. 2 This is what's in evidence as Government's Exhibit 3 5036. And I just want to get clear on what's going on here. 4 Can you tell us who girlvinyl is? 5 A 6 itself as a satirical website. 7 Q What are you guys talking about here? 8 A I'm pasting her the advisory that I wrote that covered the, 9 what I'll call scripting. She's the owner and Encyclopedia Dramatica, which bills It was a semantic image or overflow. 10 It's difficult to explain in a short period of time why this is 11 notable. 12 is not completely serious. 13 satire website. 14 Q 15 see that? 16 believe that's not accurate? 17 A I believe that's accurate. 18 Q And at this point in time you didn't know anything about 19 Daniel Spitler's account slurper script? 20 A I don't think he knew about it then. 21 Q And I want to just quickly turn to what's in evidence as 22 Government's Exhibit 5150. 23 here. 24 A That is Gregg Keizer, a journalist with Computer World. 25 Q What are you guys talking about? But, as you can see, where I credit my cat, like this In fact, it's being posted on a It is not meant to be taken quite seriously. And looking at the date at the top of this e-mail, do you It says March 20th, 2010? Do you have any reason to Can you tell me what's going on Auernheimer-redirect 1 A 2 contacted me? 3 comments. 4 Q 5 64 It looks like he's asking me some questions. wrong exhibit. Okay. What's your take on the liability? Has the FBI Any other 6 I wanted to withdraw that exhibit because that's the I just want to turn real quickly to the June 15th, FBI 7 raid when you were sleeping. 8 A 9 remember screaming: No, get on the floor. 10 Somebody has a gun. Like it was a crazy day. 11 don't remember a lot from it. 12 I still, you know -- it's -- it definitely has a long-term 13 impact, somebody busting in your house with a gun. 14 frightening thing and I just -- you know, I don't remember much 15 that day. I remember somebody, you know --, I remember -- like I 16 MR. EKELAND: 17 THE COURT: 18 MR. INTRATER: 19 THE COURT: 20 Mr. Auernheimer. It was stressful and, you know, Nothing, your Honor. Alright. Very well. It's a (Witness excused) Thank you. You can step down, Watch your step. 22 25 It's like -- I Any recross? THE WITNESS: 24 Get on the floor. No further questions, your Honor. 21 23 What do you recall from that? Thank you, your Honor.