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Encryption Blog

Biting the Hand That Feeds

Created: 15 Sep 2008 • Updated: 05 Nov 2012
Doug McLean's picture
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Damon Patrick Toey plead guilty Friday to his role in the TJX breach. The legal strategy being pursued by the prosecution here is pretty clear. Get one or more of the minor players to roll over by promising leniency if they testify against the "bigger fish". In this case the big fish is the purported ring leader, Albert Gonzalez.

We'll be able to tell just how much confidence the government has in its case based on the number of guilty pleas they'll extract from the co-conspirators before they take Gonzalez to trial. If they're highly confident that the body of evidence can get them a conviction, they'll probably only offer deals to one or two others and they'll take Gonzalez to trial rather quickly. If there are holes in the evidence, they'll negotiate with the other perpetrators to see who they can get the best data from in exchange for reduced sentences.

Based on just a few of the facts of this case that have already come to light, my guess is that the federal prosecutor is highly motivated to put Gonzalez away for life. Evidently Gonzalez was on the government payroll as an informer on other cybercrime cases while he was perpetrating the crimes of which he's accused. Worse he used some of the information he obtained from his government handlers to conceal the criminal side of his life. If you're going to perpetrate crimes like this, it's generally not a good idea to mock the guys whose job it is to capture and convict you.

As one of the primary charges against Gonzalez is conspiracy, the government will need irrefutable proof that his actions meet the legal requirements to qualify under U.S. law. Toey's testimony will be critical in the government's ability to make it's case as he was evidently physically with Gonzalez when they planned exactly how they were going to breach their target's network. So, getting Toey to turn state's evidence was key in the way this case will play out. My guess is that the government will want one more co-conspirator to verify Toey's version of events and we'll see at least one more perpetrator plead out before we see Gonzalez go to trial.