But all of this evidence was circumstantial. There were hundreds of people who might fit this description. The Granada Hills raid in 2007 had ended with both Cassim and his mother in handcuffs, but the evidence obtained from the search warrant was not overwhelming. The only computer the Feds had found was a laptop, with nothing incriminating on it. They had found a bong, too, and marijuana, but nothing that would make a charge stick. In his audience with Vu, Cassim had said little, and, alone among those hit in the RNS raids, he did not admit to being a participant in the group.
Glover suspected that Cassim had dumped the evidence in the wake of their final phone call. But if so, it seemed he had not managed to do so completely. On a burned compact disc from his bedroom, the FBI found a copy of Cassim’s résumé, and there, in the “Properties” tab, Microsoft Word had automatically included the name of the document’s author: “Kali.” Plus, his subscriber records showed he had called Dell Glover hundreds of times, and, sure enough, his mobile phone contained Glover’s cell number. The contact’s name was listed only as “D.”
Cassim maintained his innocence. While he provided no explanation for the phone calls to Glover, his lawyer would later contest that the CD alone was not enough to tie the ethereal screen name “Kali” to the actual human being Adil Cassim. And although Glover’s FTP logs showed that someone at his mother’s IP address had been uploading pirated material, that didn’t mean Cassim was responsible. It could have been anyone. After all, when the Feds took his wireless router, it wasn’t even password protected. Cassim was using the “unsecured wireless” defense—the same one Glover had talked about on the phone with Kali.
Matthew Chow was fighting the case too. Even the Feds conceded that his involvement in RNS was minimal. He hadn’t been an active participant in the group for years, and the CDs he had ripped had been purchased legally from stores. Chow’s main contribution to RNS had been his design of the ASCII marijuana leaf on the group’s old NFOs—not exactly evidence of active participation in a criminal conspiracy to defraud. But the case against him was strong. In his first interview with the FBI, he had signed an affidavit confessing that he was a member of the group.
The two would be tried together. Cassim was represented by Domingo Rivera, a self-described “Internet Lawyer” who specialized in defending hackers. For an attorney, Rivera had an unusual amount of technical expertise: he had served in the U.S. Navy as a computer engineer and later worked as a cybersecurity expert for the Department of Homeland Security. He had used the unsecured wireless defense several times before, and had an impressive track record of acquittals.
Chow had his own lawyers, a pair of Houston locals by the names of George Murphy and Terry Yates. In the Texas criminal defense scene, Murphy and Yates were local legends, revered as much for their charisma as their unorthodox legal approach. Yates in particular was great with juries, a lifelong Houstonian with a thousand-lumen smile and a pleasant Texas drawl. Immediately, Yates and Murphy focused on changing the case’s jurisdiction from Virginia. They weren’t impressed by the FBI’s assertion that a single microsecond electronic impulse was enough to establish jurisdiction. A federal judge agreed, and the case was moved to Houston. Although the two did not know how to program computers, and this was their first intellectual property case, they were now playing on home turf.
During jury selection, the prosecution struck down any jurors who had ever downloaded music online, even legally. Rivera, Murphy, and Yates did the same, and everyone under the age of 40 was recused from the jury pool. The most important music piracy case in the history of American criminal justice would be decided by a rarefied group of middle-aged Texans still stranded in the compact disc era.
The trial began on March 15, 2010, at a federal courthouse in Houston. When Glover was called to testify he performed poorly. Although he believed Kali and Cassim to be the same person, when cross-examined by Rivera he was forced to admit that he had no concrete evidence to show this was true. If Cassim were to talk in court, Glover could maybe identify his voice. But Cassim didn’t have to talk; the Fifth Amendment guaranteed his protection against self-incrimination, and Rivera could invoke it on his behalf. Amazingly, the FBI did not present recordings of Cassim’s voice as evidence, and, in five days of trial, Cassim never said a word.
Saunders went next. He performed poorly as well—he knew even less than Glover. He couldn’t tie Kali to Cassim, and they had never even talked on the phone. During testimony, Rivera presented the “unsecured wireless” argument, which Saunders found preposterous. The two got into a heated geek-off about how IP addresses were assigned, until the judge told them to cool it.
After this inauspicious beginning, Glover was unsettled. He was still sure that Kali and Cassim were the same person, but now he was beginning to wonder if a jury could be convinced. Could Cassim actually beat this thing? If so, could Glover have beaten the case too? He began to have second thoughts about his own irrevocable decision to plead guilty, and his decision to testify.
The trial continued for four more days. DOJ trial attorney Tyler Newby, one of Jay Prabhu’s deputies, called a dozen more witnesses, including Peter Vu. He entered many pages of server logs into evidence. He presented a paper trail of leaked compact discs. He presented the phone records showing that Glover had called Cassim’s cell phone hundreds of times, the same cell phone Cassim had had on him when he was arrested. Rivera repeatedly disputed this evidence, but for some things—like why Adil Cassim had for several years felt the need to carry on a long-distance relationship with a CD packaging plant employee—he didn’t seem to have good answers.
The trial concluded on March 19. After five hours of deliberation, the jury returned a verdict. Cassim was not guilty. Out of the hundreds of cases brought in Operation Fastlink, it was the first nonconviction. Glover couldn’t believe it. He was going to jail and Cassim was going free, based on an argument over wireless routers. Glover became angry—not with Cassim, but with himself. He never should have signed the deal. He never should have talked to the Feds. He should have gotten a better lawyer. He should have taken the risk. The “unsecured wireless” defense had worked.
Or had it? After all, it wasn’t just Cassim on trial. Matthew Chow had been found innocent as well, even after admitting to being a member of the group. And if Chow wasn’t guilty, the jury must have had something besides router security on their minds. Even as Rivera and Saunders were arguing the finer points of IP address assignment, Yates and Murphy had tried a different approach. Not wanting to bore the jury with technobabble, they instead had focused on the legal definition of the word “conspiracy.” Typically, a conspiracy benefited the conspirators in some obvious way, but in Chow’s case that didn’t seem to have been true. There was no evidence to show that Chow had ever made any money off his participation in RNS. In fact, it seemed he was losing money, spending a portion of his paycheck buying CDs in exchange for—what, exactly? Pirated movies that were in most cases already freely available elsewhere? Yates explained to the jury that Chow wasn’t engaged in a conspiracy. He was just hanging out online with friends.
This argument proved effective. In conversations after the trial, several jurors had said that, while they understood the defendants were probably guilty, they didn’t agree with the severity of the potential punishment, so they had instead decided on acquittals. The legal term for this was “nullification.” It referred to an unusual feature of the American legal system, one that prosecutors and judges tried to keep quiet. Nullification was the prerogative of juries, while accepting a preponderance of evidence, to override laws they saw as unjust. This was the real reason for Chow’s not guilty verdict, and probably Cassim’s too.