The Techno-Criminal’s Public Enemy Number One

 

“I knew I wanted to be a trial lawyer. I didn’t know Tom at the time but had heard about him and thought, what a neat deal. He had been at a big commercial litigation firm like me, had gone down to the U.S. Attorney’s office and had tried cases. He did it at about the same age I was. I thought, that’s what I want to do,” says Yarbrough.

 

He decided to take a risk — and a steep pay cut — and left McKool Smith in 1995. At the U.S. Attorney’s office, he headed up the first Cybercrimes Task Force in the nation, which focused on criminal and intellectual property cases as well as computer crimes. His training involved a trip to Washington and a top-level computer course with representatives from the Department of Defense, the Air Force and NASA. For Yarbrough, it was like summer camp. “They put me in a room on a machine and taught me how to hack into a UNIX box and other different types of computer systems.”

 

As excited as Yarbrough was to be getting trial experience and working on groundbreaking technology cases, he found himself in a relatively small minority among his colleagues. One fellow prosecutor who did share his interest in computer crimes was Reid Wittliff, now an attorney with Graves Dougherty Hearon & Moody in Austin. When Yarbrough needed extra help with the task force, he brought in Wittliff. “Most other attorneys wanted to stick with traditional fare like bank robberies and drug cases,” Wittliff remembers. “There was not a huge interest at that point in doing computer crimes, and maybe some resistance to the new stuff.”

 

The challenges of the new technology inspired Yarbrough, especially in the courtroom. “It’s kind of easy to win a case in front of a jury if you’ve got a big bag of white powder and an AK-47 on the table,” he jokes. “But when there’s nothing you can show them, no tangible tool of the crime that was used and there was no act of violence, that’s a pretty difficult white-collar crime to prove and make come alive.”

 

But for five years at the U.S. Attorney’s office Yarbrough did just that, successfully prosecuting the 1999 Phonemasters case, in which a ring of computer hackers sold stolen long-distance calling cards to members of organized-crime families. For this, Yarbrough presented before a judge a unique bit of digital evidence: a wiretap that captured a hacker’s keystrokes. He also worked on the 1998 Global Hell case involving a group of hackers who converted a Dallas community college teleconferencing line into an after-hours hacker chat room and hacked White House, U.S. Senate and Army Web sites.

 

Yarbrough’s litigation also included many immigration cases. Operation Seek and Keep put him in contact with Janet Reno, who announced his case on CNN.

 

“I had a lot of respect for her,” he says. “I remember being in the meeting before we were about to go before the cameras to make the announcement. This was an international operation in which we had simultaneously taken down 32 people in something like six different countries, we were running in aliens in airplanes from all over the world. I remember the shaking of her one hand with the script because of Parkinson’s disease, and her holding it with the other hand. And then she went out to the podium and you couldn’t tell it was shaking.”

 

By 2000, Yarbrough began to think about moving on from the U.S. Attorney’s office. “I can remember I got a case for $25,000 worth of stolen hamburger meat, and I thought, ‘It’s time. I think I’ve done it all now.’”

 

He went back into private practice, joining Vinson & Elkins for about a year. When Yarbrough placed a call to Melsheimer to recruit him to the firm, Melsheimer offered a counterproposition and asked him to come handle intellectual property and other technology-related cases for the newly opened Fish and Richardson office in 2001.

 

In the last few years, Yarbrough has litigated some of the most challenging cases of his career. They’re not all hacker cases — after all, he says, he’s never met a 16-year-old who could pay the firm’s bill — but many of the intellectual property cases he does deal with involve some type of cyber violation. In 2002, he represented Houston-based BMC Software in a copyright lawsuit against a Chicago computer consultant known as “The Crabby Hacker.” As part of his prosecution, Yarbrough requested and received a rarely granted civil search warrant, or the authority from the presiding judge to run his own search, with the help of U.S. marshals, to seize pirated software. “If I didn’t have a pretty good feeling that I knew the stuff was there, I couldn’t have asked for it,” says Yarbrough. His creativity and confidence impressed Patrick Tagtow, senior legal counsel for BMC. “I was very curious to see if we were going to successfully convince the court to allow that sort of measure, and we did. And it proved to be invaluable.”

 

Melsheimer credits this particular success in part to Yarbrough’s sideline in law school selling Hickey Freeman suits to fellow students. “Being a salesman like that, to people with limited funds, I think was very good training for him. It forced him to hear ‘no’ a lot, but it also forced him to come up with persuasive and effective ways of making a sale.” He also believes Yarbrough’s reputation closed the deal in the civil search warrant request. “You have to have a lot of credibility with the court to do that. I think they’re much more comfortable authorizing something that might seem a little intrusive, even in the current days of the Patriot Act, because Matt dots his i’s and crosses his t’s. The judges trust him and believe him because he does have a lot of credibility, both as a former prosecutor and as someone who’s seen as an upright and ethical lawyer.”

 

 

Back in Yarbrough’s corner office, he turns on a desk lamp as the gray late-afternoon light gives way to a dark, dismal evening. A thick fog has settled over downtown Dallas, obscuring from view all but the nearest skyscrapers. Commuters’ brake lights are barely visible from his window as rush-hour traffic winds its way among slick city blocks 50 stories below.

 

A draft of Yarbrough’s most recent SMU syllabus lies on top of a pile of papers. He says he hopes to continue to teach, but Madeleine’s increasing homework requirements may bring an end to all but the most essential extracurricular activities. Even without the benefit of a classroom full of eager pupils three or four months away from taking the bar exam, Yarbrough insists he’ll always encourage prospective lawyers to take risks, much as he has in his own career. “Take chances, go do something different, don’t always take the traditional path,” he counsels.

 

A muffled vibration interrupts him. Yarbrough pauses, glancing down at his ever-present BlackBerry.

 

Duty calls.