Marcus Hutchins, the Word of God

Motherboard obtained the hearing transcript from Marcus Hutchins (AKA MalwareTech) court hearing on August 4. It reveals precisely the oblique language Prosecutor Dan Cowhig actually used, which got reported very differently, to explain Hutchins’ alleged admission to have authored the Kronos malware.

In his interview following his arrest, Mr. Hutchins admitted that he was the author of the code that became the Kronos malware and admitted that he had sold that code to another.

Compare that to this allegation, in Hutchins’ indictment.

It’s a very different thing to create code that may make up part of a package that would be sold on AlphaBay as malware and to write code that makes up part of the code ultimately packaged and sold as malware. It seems likely the government overstated what they had evidence of in the indictment (and, one wonders, to the grand jury), which might, in turn, significantly alter questions of intent.

Even with the government’s claim that Hutchins discussed getting paid for his code in chat logs (we’ll see about their provenance and accuracy after Hutchins goes broke trying to pay the bills in WI without a job, I guess), it’s not entirely clear the government even claims to have evidence that Hutchins wanted to sell a tool to rip off banks.

Which means that any eventual trial (assuming Hutchins doesn’t plea out of desperation) may turn on textual analysis of what it was some agents in WI bought off the dark web and what Hutchins coded years ago.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

2 replies
  1. earlofhuntingdon says:

    Yes, the government has left itself a bit of a gap in defining its crime, one it would traditionally fill through intimidation-into-plea-bargain. It’s not a gap the s/w community could likely tolerate. Were Donald Trump to write his first complete sentence and say, “Call me Ishmael”, would he be responsible for the rest of Moby Dick?

  2. Evangelista says:

    PROSECUTOR ONE: Hey! Can you believe this? Here is the guy who invented the self-adjusting mechanism for pipe-wrenches!

    PROSECUTOR TWO: Yeah? So what?

    PROSECUTOR ONE: The guy who clubbed his wife to death with a pipe-wrench and then suicided out so we couldn’t prosecute him! He used a Self-Adjusting Pipe-Wrench!

    PROSECUTOR TWO: Oh, Wow! We can prosecute the Inventor for the murder!

    PROSECUTOR ONE: For both murders! He invented the element of the pipe-wrench that attracted the husband to it, so he provided the murder weapon, inducing the murderer to buy one —

    PROSECUTOR TWO: — Right, Attractive Weapon Theory, extends from Attractive Nuisance!

    PROSECUTOR ONE: — And for his pipe-wrench being at hand to induce the husband to pick it up and wallop his wife with it —

    PROSECUTOR TWO: — And so commit the murder —

    PROSECUTOR ONE: –And the murder being directly contributory to the murderer’s remorse —

    PROSECUTOR TWO: — And that remorse being directly responsible for the husband’s suicide —

    PROSECUTOR ONE: — The inventor through his invention was directly contributory to the suicide!

    PROSECUTOR TWO: We can prosecute this inventor for both the murders!

    PROSECUTOR ONE: [INTO INTERCOM] Sally, send us in a paralegal. One who knows how to do all that detail stuff for a murder indictment…

    [CUT TO CLOSEUP FRONT PAGE ‘LEGAL NEWS’ HEADLINE “INVENTOR INDICTED FOR MURDER” BACK, CIRCLE TO MEDIUM FEDERAL PROSECUTOR DAN COWHIG, FEET ON DESK, READING]

    DAN COWHIG: Hey! That’s my Precedent!

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