Three MIT students, who contend they were hacking when caught, are facing felony charges after setting off a burglar alarm in the E52 Faculty Club last October in the middle of the night. The case, which was filed in the Middlesex County Cambridge District Court by the MIT Police, has raised concern among some in the MIT community who feel that students are being brought to court for an activity that in the past has generally been handled within the Institute.
Kristina K. Brown ’09, David Nawi G, and Matthew W. Petersen ’09 were found by two MIT Police officers responding to a burglar alarm activation on the sixth floor of Building E52, where the Faculty Club is located. The students were found near an open panel in the wall that leads to a crawl space, according to a narrative filed as part of the MIT Police incident report. The narrative states that Petersen was in possession of a slide, an L-shaped piece of metal that can be used to open certain doors.
The three students are being charged with trespassing, breaking, and entering with the intent to commit a felony. It is not listed in any court documents what felony the police are referring to. Petersen is also being charged with possession of burglarious tools for having the slide.
Brown, Nawi, and Petersen declined to comment citing the advice of their lawyers. The students face up to 20 years in prison if they are convicted, an article in today’s Boston Globe states. MIT Police Chief John DiFava said, “I don’t think this thing will end up in prison.”
“They had absolutely no intent to do any harm,” says a joint statement released yesterday by the attorneys for the three students. “They hope and expect that after conducting a thorough review of the facts, MIT will reach this same conclusion.” The statement also says that the students were “engaged in a longstanding tradition among MIT students of after-hours exploration of the university campus.”
Motions to dismiss have been filed for all three students on the grounds that there is no evidence the students broke into the building and that there is no evidence that the students intended to commit a felony. The students contend that they rode an elevator that opened into the Faculty Club and that they opened no locked doors.
“I support the officers’ decision at the time,” DiFava said. He said he believes all elements of an apparent felony breaking and entering were present that evening and that his officers were justified in issuing a summons.
The students were summonsed to court on Nov. 17, 2006 where their charges were read to them. A motion hearing, which is open to the public, will be held Feb. 28. Students and alumni involved in the hacking community have been helping to pay the legal bills of the three students. A contact address, email@example.com, has been established by friends of the students for others interested in contributing.
Student leaders have expressed disappointment that the case was taken outside of the Institute instead of having the Committee on Discipline alone handle the case, as is customary.
Referring to the current rooftop fine policy that should be in place, UA Senator Jessie Lowell ’07 said that she believed MIT should utilize “internal mechanisms designed to deal with certain situations” when those situations arise. The policy, put into effect January 2006, would require first-time offenders found in unauthorized areas of campus, such as rooftops, to do community service rather than pay fines. Lowell worked with administrators to define the rooftop policy last year.
“I find it quite disturbing that the Institute has been involved in pressing felony charges against a number of its own students for behavior that normally would be penalized by community service had the complaint been dealt with internally,” Undergraduate Association President Andrew T. Lukmann ’07 said.
CoD Chair George E. Apostolakis said he was unaware of the rooftop fine policy. “It was never communicated to us, we’re not really following that policy. … I don’t know that it’s an official MIT policy.” Apostolakis became CoD chair last year.
War on hacking?
Some students are concerned that this case is indicative of a change in internal policy regarding how students caught hacking are going to be treated.
“I have never heard of students being given a felony without something else involved,” either a violent activity or a theft, said Joseph T. Foley ’98 who is friends with the people involved. “This sets a really bad precedent at MIT. These people were not doing anything strange. They were just in the wrong place at the wrong time.”
DiFava also said that he could not remember the last time a student was charged with a felony for trespassing on MIT property.
“This seems very incongruous with policy,” Foley added, stating that the rooftop fine policy negotiated between the CoD and students is meant to be a middle ground that balances MIT liability and still protects people who are not being malicious.
“Is this a war on hacking?” Foley said. “If this is the policy now, why haven’t we been told?”
According to Lukmann, “from the information that I have received from the administration, it seems that this is an isolated incident and is not indicative of a change in policy.”
“How do we know a hacker from a thief?” DiFava said. “This whole issue of hacking or not hacking, that’s not a police matter.”
Lukmann said that the UA will work with the administration and the MIT Police to help officers be more sensitive to the difference between student hackers and criminal burglars.
Students may still be tried by CoD
Veronica Mendoza ’96, director for the Office of Student Mediation and Community Standards, confirmed that the CoD has not heard this case. Cases that go to the CoD are filed through Mendoza’s office.
Apostolakis said that in cases like these, even if the police take the case outside MIT, the CoD will still get involved and may impose sanctions on the students. “One does not preclude the other.”
“If a hack is successful, everybody’s laughing,” Apostolakis said. “But if you’re caught, you’re caught.”
Mendoza said that, by sending the case to the Cambridge district court, the MIT Police triggered a Massachusetts law, which places restrictions on what information they can then share with the CoD. “They would have to wait for the criminal process to reach a certain point or conclude before that restriction is lifted,” she said.
According to DiFava, as a matter of process, if the case comes up before the CoD, the officers involved could be called on to testify.
Student, police stories conflict
According to the police narrative, MIT Police Officers Sean Munnelly and Duane Keegan responded to a burglar alarm in the Faculty Club at approximately 1:50 a.m. on Oct. 22, 2006 and found Brown, Petersen, and Nawi in the kitchen.
The narrative, written by Munnelly, states that the elevator used to reach the sixth floor Faculty Club would only take the officers to fifth floor. The elevators are supposed to be locked so that they will not travel to the sixth floor when the Faculty Club is closed. “On the stairway door leading up to the sixth floor there is a no trespassing private property sign on the door,” the narrative states. “The door was also in the locked position when we got to it.”
Nawi’s motion to dismiss states that the elevator functioned without restriction that night, taking them to the sixth floor, and that there were no signs indicating that access to the sixth floor was not permitted after-hours. “Mr. Nawi and his friends did not access the 6th floor by a stairwell,” the motion states.
“In our presence, the MIT Police confirmed that the elevator did in fact go to the 6th floor where the Faculty Club was located,” Nawi said in the affidavit attached to his motion to dismissed.
The motion continues by saying that the students were engaged in hacking and describes what hacking is. “[T]he MIT Police Department is also familiar with the tradition and practice of hacking,” and “hackers are rarely, if ever prosecuted,” the motion claims.
Articles concerning the history and practice of hacking were included with more than one of the students’ motions, as were copies of the Hacker’s Code of Ethics and the rooftop fine policy.
The police narrative also adds that Brown had been found in restricted and no trespass areas twice before.
DiFava said that he received a call the day after the incident, Oct. 23, from someone at the Faculty Club who was angry that there had been a lapse in security.
“Do I feel bad that these kids face the threat of a record? You bet I do,” but a felonious act was committed, DiFava said. “What were they doing there?”
The MIT Police officer who filed the complaint was Sean C. Munnelly. The approving officer was Gerald P. Doyle. Heather V. Baer of Sally & Fitch LLP is the attorney for Nawi, Steven J. Sack for Brown, and John M. Moscardelli of Peters & Moscardelli for Petersen.
Court documents, including Brown’s docket and motions for dismissal filed by Brown, Nawi, and Petersen, are available online at http://www-tech.mit.edu/V127/N4/hackers/.
Benjamin P. Gleitzman, Michael McGraw-Herdeg, and Eric D. Schmiedl contributed to the reporting for this article.