As a couple of people have already said, the key to this is "intent". To get a successful prosecution, they would have to prove beyond doubt that the intent was malicious and I can't see that this will be easy (even given the nature of the "software").

I would be suprised if this is the sole reason T0rn was arrested or as someone suggested maybe this was an excuse to get access to his machines to find evidence or further ill-doing. Maybe more will come to light as time goes on.

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Link to this comment: http://www.securityfocus.com/comments/articles/813/16594#16594