Well, there's a couple of technical problems with that. While I'm certainly not a lawyer, I have informally discussed the issue with a friend of mine that is a lawyer. He raised a few of the following points, which I've supplemented.
First, it's not clear that this is actually theft. The crime of theft typically denies the owner of the property access to the property, which isn't the case with electronic documents. Rather, it's more likely to be a violation of the No Electronic Theft (NET) act
. NET criminalizes copyright infringement. This may not be a bad approach given what kind of punishments
one sees for copyright infringement Massachusetts. More often, the punishment for copyright infringement is fines and I think the prosecutor was looking for jail time.
As far as breaking and entering goes, that seems doubtful. The networking closet he accessed was unlocked. In fact, a homeless man
used the area to store belongings. Again, I'm not a lawyer, but it seems to me that breaking and entering would be difficult to argue. Trespassing might be a more successful charge. Trespassing, though, is a relatively minor offense
that's unlikely to produce a lengthy jail sentence.