Although Swingler's FAQ reads: "If you decide to use one of these modems to get free internet, then you're committing theft of service and we will take no responsibility for what may happen to you if you're caught," the FBI was not convinced. Allegedly, agent Milan Patel bought one of Swingler's boxes. The FBI determined that it had been changed. The accused hacker was charged in New York's federal court on Thursday with trafficking unlawful access devices.
Until now, the government hasn't prosecuted many cases of hacked modems; some think that selling modified modems is legal, as there are legitimate uses for them. Although nearly everyone agrees that stealing services (i.e. Internet) is illegal.
The entire case may hang on Swingler's intent. The FBI alleges that Swingler texted a government informant confirmation that he knew his modems would be used for illegal purposes. If verified, texts like, "The modem steals the [i]nternet," from Swingler seem pretty damning.
Before you start feeling too bad for the dude, keep this in mind: According to the FBI, Swingler's previous career was managing botnets, those clandestine cabals of computers used to steal consumer information and launch DOS attacks. Plus, his name almost rhymes with "Swindler." That's not proof of guilt, but it casts a +3 Web of Suspicion in my mind.