Our system of justice was a poor tool for digging out a rich truth. What was really needed, it seemed to me, was for Serge Aleynikov to be forced to explain what he had done, and why, to people able to understand the explanation and judge it. Goldman Sachs had never asked him to explain himself, and the F.B.I. had not sought help from someone who actually knew anything at all about computers or the high-frequency-trading business. And so over two nights, in a private room of a Wall Street restaurant, I convened a kind of second trial. To serve as both jury and prosecution, I invited half a dozen people intimately familiar with Goldman Sachs, high-frequency trading, and computer programming.
All of these people were authorities on our abstruse new stock market; several had written high-frequency code; one had actually developed software for Goldman’s high-frequency traders. All were men. Among them, they’d grown up in four different countries, but all now lived in the United States and worked on Wall Street. Like most Wall Street people, they were naturally cynical, of both Goldman Sachs and Serge Aleynikov. They’d followed his case in the newspapers and noted the shiver it had sent down the spines of Wall Street’s software developers. Until Serge was sent to jail for doing it, Wall Street programmers routinely took code they had worked on when they left for new jobs. “A guy got put in jail for taking something no one understood,” as one of them put it. “Every tech programmer out there got the message: Take code and you could go to jail. It was huge.”
Still, they assumed that if Serge had been sentenced to eight years in jail he must have done something wrong. They just hadn’t bothered to figure out what that was. Now they would.
...[deleted]...
His new jurors began, interestingly, by asking him lots of personal questions. They wanted to figure out what kind of guy he was. They took an interest, for example, in his job-market history and noted that his behavior was pretty consistently that of a geek who had more interest in his work than how much money he made from it. They established fairly quickly—how, I do not know—that he was not just smart but seriously gifted. “These guys are usually smart in one small area,” one of them later explained to me. “For a technologist to be so totally dominant in so many areas is just really, really unusual.”
They then began to probe his career at Goldman Sachs. They were surprised to learn that he had “super-user status” inside Goldman, which is to say he was one of a handful of people (roughly 45, in a firm with more than 32,000 employees) who could log in as an administrator to the system. Such privileged access would have enabled him, at any time, to buy a cheap USB flash drive, plug it into his terminal, and take all of Goldman’s computer code, without anyone having any idea that he had done so. That fact alone didn’t prove anything to them. As one pointed out to Serge directly, lots of thieves are sloppy and careless; just because he was sloppy and careless didn’t mean he was not a thief. On the other hand, they all agreed, there wasn’t anything the least bit suspicious, much less nefarious, about the manner in which he had taken what he had taken. Using a subversion repository to store code and deleting your bash history were common practices, especially if you typed your password into command lines. In short, Serge had not behaved like a man trying to cover his tracks. One of those assembled stated the obvious: “If deleting the bash history was so clever and devious, why had Goldman ever found out he’d taken anything?”
The story the F.B.I. found so unconvincing—that Serge had taken the files because he thought he might later like to parse the open-source code contained within—made complete sense to the new jurors. As Goldman hadn’t permitted him to release his debugged or improved code back to the public—possibly in violation of the original free licenses, which often stated that improvements must be publicly shared—the only way to get his hands on these was to take the Goldman code. That he had taken, in the bargain, some code that wasn’t open source, which happened to be contained in the same files as the open-source code, surprised no one. Grabbing a bunch of files that contained both open-source and non-open-source code was an efficient, quick, and dirty way to collect the open-source code, even if the open-source code was the only part that interested him. It would have made far less sense for him to hunt around the Internet for the open-source code he wanted, as it was scattered all over cyberspace. It was entirely plausible to them that Serge’s interest was confined to the open-source code because that was the general-purpose code that might be re-purposed later. The Goldman proprietary code was written specifically for Goldman’s platform; it would have been of little use in any new system he wished to build. (Two small pieces of code Serge had sent into Teza’s computers before his arrest both came with open-source licenses.) “Even if he had taken Goldman’s whole platform, it would have been faster and better for him to write the new platform himself,” said one juror.
Several times he surprised them with his answers. They were all shocked, for instance, that from the day he arrived at Goldman he had been able to send Goldman’s source code to himself weekly without anyone at Goldman saying a word to him about it. “At Citadel if you install a USB drive into your workstation, someone is standing next to you within five minutes, asking you what the hell you are doing,” said one. Most were surprised by how little he had taken in relation to the whole: eight megabytes in a platform that consisted of an estimated one gigabyte of code. The most cynical among them were surprised mostly by what he had not taken.
“Did you take the strats?” asked one (meaning Goldman’s trading strategies).
“No,” said Serge. That was one thing the prosecutors hadn’t accused him of.
“But that’s the secret sauce, if there is one,” said the juror. “If you’re going to take something, take the strats.”
“I wasn’t interested in the strats,” said Serge.
“But that’s like stealing the jewelry box without the jewels,” said another juror.
“You had super-user status!” said the first. “You could easily have taken the strats. Why didn’t you?”
“To me, the technology really is not interesting,” said Serge.
“You weren’t interested in how they made hundreds of millions of dollars?” asked someone else.
“Not really,” said Serge. “It’s all one big gamble, one way or another.”
Because they had seen it before, in other programmer types, they were not totally shocked by his indifference to Goldman’s trading, or by how far Goldman had kept him from the action. Talking to a programmer type about the trading business was a bit like talking to the house plumber at work in the basement about the card game the Mafia don was running upstairs. “He knew so little about the business context,” one of the jurors said upon leaving the informal trial. “You’d have to try to know as little as he did.” Another added, “He knew as much as they wanted him to know about how they made money, which was virtually nothing. He wasn’t there for very long. He came in with no context. And he spent all of his time troubleshooting.”
At least some part of the reason he remained oblivious to the nature of the trading business, they all noticed, was that his heart was elsewhere. “I think passion plays a big role,” said a juror who himself had spent his entire career writing code. “The moment he started talking about coding his eyes lit up.” Another added, “The fact that he kept trying to work on open-source shit even while he was at Goldman says something about the guy.”
They didn’t all agree that what Serge had taken had no value, either to him or to Goldman. But what value it might have had in creating a new system would have been trivial and indirect. “I can guarantee you this: he did not steal code to use it on some other system,” one said, and none of the others disagreed. For my part I didn’t fully understand why some parts of Goldman’s system might not be useful in some other system. “Goldman’s code base is like buying a really old house,” one of the jurors explained. “And you take the trouble to soup it up. But it still has the problems of a really old house. Teza [the new high-frequency-trading firm for which Serge left Goldman] was going to build a new house, on new land. Why would you take 100-year-old copper pipes and put them in my new house? It isn’t that they couldn’t be used; it’s that the amount of trouble involved in making it useful is ridiculous.” A third added, “It’s way easier to start from scratch.” (Their conviction grew even stronger when they learned—later, as Serge failed to mention it at the dinners—that the new system Serge planned to create was likely to be written in a different computer language than the Goldman code.)
