Gonzalez Wants To Be Cleared, Hints That The Secret Service Wanted TJX Broken Into

Albert Gonzalez—the cyberthief extraordinaire who is now serving prison time after he pled guilty to breaking into the systems of TJX, Target, 7-Eleven, JCPenney and Sports Authority, among many other major retail chains—has asked a federal judge to let him withdraw his guilty plea. His stated reason is that, as an undercover informant for the U.S. Secret Service, he was legally authorized to break into those networks. But his court filings don't seem to support his claim.

Gonzalez doesn't allege that any government employee ever asked—or authorized—him to do any of the break-ins for which he pled guilty. His position is more generic, that he needed to do these types of break-ins to maintain his skills so he would be of continued use to the government. In other words, he broke into those retail networks because he's a patriot.

His precise position is that he did not knowingly plead guilty, because he didn't know that a possible defense was that the government authorized him to engage in those actions—something known as the Public Authority defense.

"I was asked to commit acts I knew were illegal, but I complied in order to please the agents who had shown me such respect and friendship," Gonzalez wrote in his federal filing. "When I commented on something being illegal, they told me, 'Don't worry. We got your back.'"

Gonzalez claimed in his filing that, ironically, he was a victim of identity theft and that the perpetrator was a Secret Service employee. He wrote of "an incident where a Secret Service employee out of the Washington, D.C., headquarters was fraudulently using my [confidential informant] number to steal confidential informant funds for her own personal use. The person was fired from the Secret Service and criminally prosecuted."

He also argued that a fellow cyberthief, Maksym Yastremskiy, was beaten and tortured by Turkish National Police. As a result of that torture, Gonzalez wrote, Yastremskiy revealed a pass phrase that was needed to access files on his laptop.

"Gonzalez's arrest and prosecution started as the result of the information obtained from the encrypted containers in Yastremskiy's laptop computer. Without the information retrieved from Yastremskiy's laptop, there would be no case against Gonzalez," Gonzalez wrote. "Prior to obtaining the information through the torture and beating of Yastremskiy, Albert Gonzalez's name and participation in Yastremskiy's cybercrime organization was unknown" to Secret Service agents.

Although that claim is the strongest legal argument Gonzalez makes, it also sharply undercuts his chief argument about Public Authority. It's strong because, if it can be proven, there could be grounds to suppress that evidence and anything that came from it. That might be helpful to Gonzalez, if he can prove that the Secret Service would not have discovered him any other way.

But it also sharply contradicts his core argument.But it also sharply contradicts his core argument that the Secret Service ordered him to attack TJX and the other retailers. How could they have authorized it and simultaneously be unaware of it?

Gonzalez's argument seems to be that even though government agents had no specific knowledge about TJX and others, they knew that he was still breaking into systems to raise money.

Mark Rasch, the former head of the U.S. Justice Department's computer crimes division and the current Legal Columnist for StorefrontBacktalk, reviewed Gonzalez's filing and doesn't see it getting close to supporting a Public Authority defense.

"Essentially, Gonzalez is arguing that, because the Secret Service told him he could commit some crimes, he was authorized to commit the crimes of hacking into TJX and other companies and that his lawyers unreasonably failed to tell him [Public Authority] was a possible defense," Rasch said. "Therefore, he argues he should be permitted to withdraw his guilty plea and go to trial. His motion hints at, but never actually says, that he was specifically authorized to commit the crimes to which he pled. Rather, he argues that when he told the Secret Service he needed money, they essentially told him to 'do his thing,' because the U.S. government wasn't going to pay his debts."

Even if that actually happened, Rasch said, it wouldn't support a Public Authority defense. "That defense is when some government agent tells someone that what they are doing is perfectly legal and the defendant believes it. Gonzalez never says that the Secret Service told him it was legal to hack into TJX. The most they said was, in authorizing other activity, 'we have your back.'"

Rasch offers an example from his federal prosecutor days, when he authorized a confidential informant to rent a car so he could appear at a Miami trial. The informant did rent a car, and then he stole that car and sold it. That informant could not have used Rasch's rental car authorization as federal permission for the theft.

"While there is evidence supporting Gonzalez's claim that he was a paid informant and that he was authorized to do some things, there is no factual support for the claim that he was authorized by the government to break into these retail outlets or that he was told this activity was legal," Rasch said.

There is another possible explanation for these legal maneuvers. Gonzalez has plenty of time on his hands, and being transported to various courtrooms to make arguments is a lot more interesting than sitting in prison waiting for the years to pass.