Okay, I'm looking at the indictment.
I see lots of IRC conversations about things the defendants, Auernheimer and Spitler, could do with the email addresses they were getting... but no concrete plans to actually do those things. Yes, the downloading of the addresses itself was an overt act, but I see no overt act alleged that specifically reveals fraudulent intent or acts in furtherance of a plan to commit fraud. The only overt acts alleged, other than the downloading itself, were (1) they sent some email messages to some of the victims, and (2) they gave all the email addresses to Gawker. I see nothing in here alleging concrete steps toward extorting the victims, or stealing their bank accounts, or deceiving them in any way, or indeed anything by which they would actually profit. Again, they discussed various possibilities, but I see no evidence here that they actually undertook any of them.
I'm sure it didn't help their case that they figured that what they were doing was illegal or at least tortious, and that they attempted to destroy evidence.
But the crux of your response to Rob is that they had the intent to commit fraud, and frankly, reading this indictment, I still don't see any evidence of that beyond some IRC banter.
There's also, seems to me, an odd circularity to the government's argument. They're alleging conspiracy, and among the overt acts that demonstrate this alleged conspiracy, they include the scraping of the email addresses. But the crime that that overt act is supposedly in furtherance of is... conspiracy. Seems to me this recursion is missing a base case :-)
Count 2 of the indictment has a slightly different thrust. Even though it's titled "Fraud in connection with personal information", it references USC 18 § 1028 (a) (7), which says: "Whoever ... knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law [shall be punished, etc.]." What they seem to be saying here is that the ICC-IDs themselves count as a "means of identification" and that the fraud consisted simply of using said IDs to access the AT&T accounts. But this is also circular. The "unlawful activity" is the violation of the CFAA itself. The demonstration that the CFAA was violated rests on the assertion that it was violated.
If this indictment reflects the strongest arguments the prosecution has, I must respectfully disagree with this jury.