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CASE COMMENT -------------- UNITED STATES v. RIGGS: JACKING INTO THE NET WITH THE ILLINOIS DISTRICT COURT -by Jay Wood ********************************************************************* The following article is a candidate for publication in the Rutgers Computer and Technology Law Journal, therefore it is (c) copyright 1992 by the author. You may re-post this file freely (as long as you don't make any changes), but you may not publish the text or a substantial portion thereof in any form (i.e., print it up and sell it, include it in your newsletter, etc.). If you mention this article, you must mention that it is a candidate for publication in the Rutgers Computer and Technology Law Journal (for the 1992-93 academic year); if you wish to quote from or reproduce a substantial part of the article, please contact me. Comments on the text are extremely welcome. -Jay Wood InterNet: [email protected] CompuServe: 70540,1252 AOL: JayW9 ********************************************************************** (FOOTNOTES ARE AT END OF TEXT) I. INTRODUCTION The rapid pace of technological innovation has given many creative individuals the ability to work mischief without violating any statutes. The range of possible "offenses" often exceeds the imagination of the legislature. Prosecutors and courts who are faced with these individuals must make a difficult choice: they must either let these "criminals" go free, or attempt to stretch existing laws to cover the (purportedly) culpable conduct. Efforts to avoid this dilemma have frequently focused on criminalizing activities at the periphery of the undesirable conduct. Some legislatures have approached the problem (in the area of narcotics) with so-called "designer drug" laws.\1\ A United States District Court presented its solution to the problem in the area of "computer crime" in the case of United States v. Riggs.\2\ The facts of the case are deceptively simple. Robert Riggs was a computer enthusiast (a "hacker") who was able to gain access to a computer that was owned and operated by the Bell South telephone company. He accomplished this feat from his home, using a personal computer and a modem to connect with the Bell South computer over ordinary telephone lines.\3\ His access, although unauthorized, went undetected by the phone company, and he was able to find and copy a text file detailing the operations and maintenance of Bell South's Emergency 911 response system to a disk in his home.\4\ While pursuing his interest in computer and communication technology, Riggs had become acquainted with Craig Neidorf, an amateur journalist whose magazine "Phrack"\5\ was distributed by modem to computer and telecommunications hobbyists through an informal network of computer bulletin boards.\6\ Riggs and Neidorf agreed that the Emergency 911 information would be of interest to Phrack's readers, and made plans to include it in an upcoming issue.\7\ So that the document could be readied for publication, Riggs uploaded (transferred) a copy of the text file from his home in Georgia to a bulletin board system in Illinois, enabling Neidorf to retrieve it in his home in Missouri.\8\ Neidorf edited the report to remove features that would identify it's source, and sent the edited document (via telephone) to the Illinois BBS for Riggs' approval.\9\ At some point during this transaction, the operator of the Illinois bulletin board became concerned that potentially sensitive information was being exchanged through his equipment. Fearing that this might subject him to some sort of liability, he notified the appropriate authorities.\10\ As a reward for his diligence, his computer was confiscated by the Secret Service and his bulletin board was shut down.\11\ Neidorf and Riggs were located, and the instant prosecution began. The pair was charged with wire fraud,\12\ Interstate Transportation of Stolen Property,\13\ and one violation of the Computer Fraud and Abuse Act.\14\ Robert Riggs plead guilty to the charge of wire fraud, on the basis of his activities in gaining the unauthorized access to Bell South's computer.\15\ Craig Neidorf challenged the validity of the charges against him, and moved that they be dismissed.\16\ His challenge cited several grounds for dismissal, relying principally on the contention that he could not be charged under the National Stolen Property Act when nothing tangible had ever been removed from Bell South's possession, and nothing tangible had moved in interstate commerce.\17\ Based on its reading (by analogy) of the relevant precedents,\18\ the court found that the indictment was valid and denied Neidorf's motions for dismissal.\19\ Although the charges were dropped only a few days into the trial (when it became apparent that the document in question was neither very secret nor very valuable),\20\ the Riggs court's holdings (that the National Stolen Property Act and wire fraud statutes can apply to the computerized acquisition and dissemination of text information) remain good law and are likely to be persuasive to other judges as they attempt to map out the contours of criminal sanctions for computer activity. II. BACKGROUND For their efforts in making the Bell South documents available to the world, Robert Riggs and Craig Neidorf were charged with violating the Computer Fraud and Abuse Act of 1986,\21\ the National Stolen Property Act,\22\ and the wire fraud statute.\23\ No previous case had ever applied these statutes to a purely electronic transaction of the sort engaged in here. The closest analogies the court was able to find in the area of electronic communications were those dealing with the wire transfer of illegally acquired funds.\24\ Another sstrain of cases on which the court relied for guidance related to the theft of trade secret information.\25\ The trade secret cases are similar in that the value of the item stolen is frequently negligible (often nothing more than a sheet of paper), although the value of the information may be quite significant. In addition to these parallels, the court drew support from its understanding of the legislative intent behind the statutes under which Riggs and Neidorf were charged, and the appropriate construction that implies.\26\ A proper understanding of the history and purpose of these acts is therefore required in order to effectively evaluate the court's decision. A. The Computer Fraud and Abuse Act of 1986 The Computer Fraud and Abuse Act of 1986\27\ is an amended version of a 1984 statute entitled the Counterfeit Access Device and Computer Fraud and Abuse Act of 1984.\28\ The 1984 Act was intended to protect consumer credit records and computers in which the government had an interest, and proscribed the unauthorized access or use of a computer operated by or on behalf of the government of the United States.\29\ The amendment was occasioned by the great volume of criticism which the 1984 Act received, both for its narrowness and for what was perceived as poor drafting.\30\ Harsh criticism was leveled at the 1984 Act for its failure to define a number of key terms, such as "access," "authorization," and "use."\31\ It was also strongly suggested by the Justice Department and the National District Attorney's Association that a fraud offense (modelled after the federal mail and wire fraud statutes) be included in any amendment to the Act.\32\ This was attributable to a belief that existing statutes were insufficiently adaptable to many computer-related crimes,\33\ as well as to concerns, similar to those which motivated the passage of the National Stolen Property Act, that jurisdictional problems would prove insurmountable for states that are attempting to address these problems through local legislation.\34\ The 1986 Act attempted to address these concerns by defining some of its more ambiguous terms and expanding the scope of the prohibited activities.\35\ Congress refused, however, to include the fraud offense urged by the District Attorneys\36\ or to fully federalize computer-related crime.\37\ The most important change in the 1986 Act, as it relates to Riggs, is the addition of a provision prohibiting the trafficking in computer passwords.\38\ This section of the statute, intended to address the perceived problem of computer hackers trading passwords over "pirate bulletin boards,"\39\ directly implicated the questions that arose in applying the National Stolen Property Act to Riggs. In other words, does the electronic transmission of information to individuals in other states constitute interstate commerce? Apparently, by passing this Act, Congress intended to answer that question in the affirmative. B. The National Stolen Property Act The National Stolen Property Act (or NSPA) finds its origin in the National Motor Vehicle Theft Act,\40\ a 1919 law designed to fill the jurisdictional gap that is created when a criminal takes a stolen car to another state for its ultimate disposal.\41\ Because an automobile is a valuable thing that is uniquely suited for removal to another jurisdiction,\42\ it was felt that special federal legislation (based on the commerce clause power) was needed to aid the states in what are otherwise essentially local efforts at law enforcement.\43\ Demonstrating their continued concern that "criminals have made full use of the improved methods of transportation and communication, and have taken advantage of the limited jurisdiction possessed by State authorities in pursuing fugitive criminals,"\44\ Congress extended the NMVTA in 1934 to include property other than vehicles. The National Stolen Property Act\45\ prohibited the transportation in interstate commerce of "any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud."\46\ The statute has been successfully applied in several cases to criminalize the wire transfer of stolen funds.\47\ The statute has also been applied in cases where the bulk of the value of the stolen property comes from its status as a trade secret (e.g., stolen geophysical maps, the intrinsic value of which (the paper and ink) is negligible).\48\ No court, however, had ever held that section 2314 was applicable when nothing tangible had been taken from the possession of the "crime victim." Indeed, the Court of Appeals for the Second Circuit noted that "where no tangible objects were ever taken or transported, a court would be hard pressed to conclude that 'goods' had been stolen and transported within the meaning of 2314"\49\ and suggested that "the statute would presumably not extend to the case where a carefully guarded secret formula was memorized, carried away in the recesses of a thievish mind and placed in writing only after a boundary had been crossed."\50\ Such a case had never reached the bar, and the Riggs court appears to have been unconvinced by the Second Circuit's reasoning. C. Wire Fraud As the NMVTA begat the NSPA, the laws prohibiting frauds through the mail grew to produce the wire fraud statutes.\51\ The original impetus for the mail fraud legislation appears to have been the fear that the increased accessibility of remote and innocent country dwellers (resulting from the efficient national mail routes) would dramatically multiply the opportunities for unscrupulous inhabitants of large cities to prey upon them.\52\ As the technology of communication advanced, however, the mail was no longer the most efficient means of contacting remote citizens. The number of activities that the legislature wished to proscribe increased, and the wire fraud statute\53\ was born. Somewhere in the process, the rationale for the prohibitions seemed to change. Although the mail fraud statutes were originally justified as a way to prevent "thieves, forgers, and rapscallions generally"\54\ from exploiting the "innocent people of the country,"\55\ the prohibitions against using the interstate wire system for fraudulent purposes are generally accepted for reasons similar to those underlying the NSPA. Criminals, it is argued, have made such excellent use of the advances in technology that "new law enforcement tools" are required to combat their increasingly sophisticated crime. As a result, the statute requires a very minimal use of the wire system to become applicable.\56\ The primary importance of the use of interstate wires is that it provides a mechanism (through the commerce clause) for the Federal government to gain jurisdiction over the offense. Wire communication has never been held to be an integral part of the offense itself.\57\ Of course, the government may not simply rest after showing that a defendant used the interstate wire system. If their application of the statute is to be successful, the prosecution must demonstrate that the use of the wires was in furtherance of a scheme to defraud.\58\ However, that requirement has never been very demanding. Fraud, defined broadly, includes "anything calculated to deceive,"\59\ and the term has been construed quite liberally in the context of mail and wire fraud statutes.\60\ III. ANALYSIS The Riggs court approached the issues in this case sequentially, addressing the application of each statute in turn as they were listed in the indictment. In the interest of clarity and consistency, the discussion below will be arranged in the same manner. A. Wire Fraud In Neidorf's motion for the dismissal of the charges against him, he argued that the wire fraud claim was defective because it failed to allege the existence an actual scheme to defraud.\61\ The allegations that Neidorf received and later transferred a computer text file did not show proof of a scheme to defraud, he argued, and in the absence of a fiduciary relationship between himself and Bell South, Neidorf could not be held to have violated any of the telephone company's intangible rights.\62\ Furthermore, Neidorf claimed, his role in the situation was more akin to that of an "innocent tippee" in a securities case than to that of a coconspirator.\63\ This argument, if accepted, would mean that the only relevant question should have been whether or not he had a duty to disclose the proprietary information which he had (through no wrongdoing of his own) come into possession of.\64\ Not surprisingly, considering the broad sweep of section 1343, the court gave little credence to either of these arguments. Neidorf's role in formulating a plan to publish the E911 document, and his efforts at editing it to disguise its source, were themselves acts taken in furtherance of a scheme to defraud, according to the court.\65\ This scheme, as described by the court, was the plan "to steal the E911 text file from Bell South and to distribute it to others via the PHRACK newsletter."\66\ The fraud was nothing more than a "wronging [of] one in his property rights."\67\ The wrong in this case, apparently, was the dissemination of proprietary information without it's owners consent. In rejecting Neidorf's arguments, the court held that the fraud statute did not require a fiduciary relationship between Neidorf and Bell South, in part because the wrong that was alleged was not a violation of an intangible right.\68\ The opinion noted that a wire fraud charge based solely upon the deprivation of an intangible right would not stand, even if a fiduciary relationship could be demonstrated.\69\ However, the court found, "valuable, confidential information is 'property,' the deprivation of which can form the basis of a wire fraud charge under 1343."\70\ Since all of the rights in and value of a piece of proprietary information arise from its confidentiality, and Riggs' and Neidorf's activities had indisputably deprived Bell South of that confidentiality, their actions presumably constituted deprivation.\71\ In a final blow, the Court rejected Neidorf's contention that his role was like that of an innocent tippee. They did this on the grounds that Neidorf had been completely aware of Riggs' activities from their inception, and had agreed to help conceal the theft. This concealment, if effective, would have made the fraud complete.\72\ In order to qualify himself as an innocent tippee, Neidorf would have had to acquire the information legally. Since his activities constitute participation in the "theft," he was held not to have done so.\73\ B. The National Stolen Property Act The prosecution's application of the National Stolen Property Act to Neidorf's activities led the court further into uncharted waters. Neidorf contended, among other things, that the government's interpretation of section 2314 was faulty because electronic impulses, which were all that he had actually caused to cross state lines, did not fit within the definition of "goods, wares, or merchandise" as set forth in the statute.\74\ Relying on an analogy to the wire transfer of illegally obtained money, the court rejected this argument.\75\ Several cases, notably United States v. Gilboe,\76\ have held that section 2314 applies to the electronic transfer of stolen money, since the "[e]lectronic signals in this context are the means by which funds are transported. The beginning of the transaction is money in one account and the ending is money in another."\77\ Similarly, "the information in the E911 text file was accessible at Neidorf's computer terminal in Missouri before he transferred it, and the information was also accessible at the Lockport, Illinois computer bulletin board after Neidorf transferred it."\78\ The manner in which the transmission occurred does not affect the result. The more important question, according to the court, is whether or not the information is a "good, ware, or merchandise" for purposes of the statute.\79\ Citing several cases holding that information fixed in a tangible medium can constitute a "good" for section 2314 purposes,\80\ the court reasoned that if the information had been contained on a floppy disk, or was printed out by Neidorf, and the disk or printout had been transported to another state, the NSPA would apply because the disk or paper would clearly be "good."\81\ There was no reason to hold differently, they concluded, merely because in this case the information stayed inside the computer.\82\ The Riggs court continued by specifically declining to hold that tangibility was a requirement of the "goods, wares, or merchandise" language in the National Stolen Property Act.\83\ As an alternative, they found that a text file would be sufficiently tangible to meet such a requirement if it were imposed, since this kind of information is easily accessible to anyone who "simply presse[s] the right buttons on their computer."\84\ An additional barrier to applying the NSPA against Craig Neidorf is the Act's requirement that the transferred goods have in fact been stolen. Relying on Dowling v. United States,\85\ Neidorf argued that the thing he had transferred, like an illegal recording, was nothing more than an image of the thing to which the ownership attached, and not that thing itself. The necessary conclusion is that Neidorf had merely infringed upon the owners rights to control the reproduction of the information, which is not the same thing as theft or conversion.\86\ The court rejected the metaphysical subtleties of this argument, distinguishing the instant case from Dowling on the grounds that "[t]he owner of confidential, proprietary business information, in contrast [to the holder of a copyright], possesses something which has clearly been recognized as an item of property."\87\ Although Congress has specifically legislated on the subject of copyrights, and thereby precluded the application of section 2314 to copyright infringement, there has been no similar ruling regarding proprietary information. Therefore, they conclude, section 2314 may properly be applied.\88\ C. The Computer Fraud and Abuse Act "In his final gasp,"\89\ Neidorf attempted to argue that the Computer Fraud and Abuse Act, like the Copyright Act in Dowling, precludes the application of other statutes against actions that fall under its jurisdiction.\90\ The rationale for this is that the Congress, by passing the CFAA, has indicated its intent to fully address computer-related crime. Based on its inability to find support for this contention in the legislative record, and Neidorf's failure to provide any, the court dismissed this argument as well.\91\ IV. EVALUATION The court's analysis of the issues raised by Riggs, although in many respects quite astute, contains several questionable assertions. Chiefly these are attributable to the court's failure to adequately understand the dimensions of the computerized world in which Riggs and Neidorf were acting, and the ways in which the computerization mattered. Other problems resulted from their failure to consider how relatively minor variations in the facts might have caused them to come to a radically different conclusion. It is not surprising in a case like Riggs, which was one of first impression, and involved a number of dramatic and emotionally charged issues, that there are areas in which the arguments (especially those from analogy) are weaker than one might like. The discussion below will attempt to address these concerns, again in the order in which they were addressed by the court. A. Wire Fraud It is difficult to find fault with the court's reasoning with respect to the wire fraud charge. Given the broad scope of offenses to which the statute has been held to apply,\92\ the court had precedent on its side when it held that Neidorf's efforts in furtherance of the publication of the E911 document were sufficient to constitute the elements of the fraud part of the offense.\93\ Neidorf's most favorable argument on this issue focused on the fact that Bell South not only suffered no monetary loss, but was at no point deprived of the use or possession of any of its property.\94\ The contents of Bell South's computer storage system were exactly the same after Riggs' unauthorized entry and "theft" as they had been before he got in.\95\ This is why the phone company did not detect the "theft" on their own: their use of the information was in no way impaired by the fact that it had been copied by Riggs. Unfortunately for Neidorf, no less an authority than the Supreme Court has held that this line of argument must fail. In Carpenter v. United States,\96\ a reporter for the Wall Street Journal's influential "Heard on the Street" column entered into a scheme with several stockbrokers in which he would provide them with information that was scheduled for publication in the column prior to the date it appeared in print.\97\ This sharing of pre- publication information was a violation of the newspaper's official policy and practice.\98\ When they received these "insider tips," the brokers would buy and sell stocks in such a way that they were able to (and did) profit from the effects that the column had on the stock market.\99\ These profits were shared with the reporter.\100\ R. Foster Winans (the reporter) was convicted of wire fraud, and appealed the conviction on the grounds that neither he nor his cohorts had obtained money or property from the journal.\101\ Winans further argued that his activities had not interfered with the Journal's use of its property (the information).\102\ The Supreme Court ruled against him, holding that the conviction withstood these objections since the fraud part of the statute required only a "wronging [of] one in his property right[s]."\103\ The violation of the confidentiality of The Journal's information met this standard.\104\ Although this decision would seem to lend support to the court's conclusion in the Riggs case, the situations are distinguishable in at least one important respect. While the "theft" of information at issue in Carpenter resulted in no financial loss to the Wall Street Journal, it did result in gain to the takers.\105\ This contrasts dramatically with Riggs, in which there was not only no identifiable loss, there was no identifiable gain, to any party.\106\ There is, consequently, some difficulty with using the precedents the court cites to support the contention that Neidorf's and Riggs' actions constituted fraud.\107\ Since this difficulty lies with ambiguities in the definition of "fraud," it is not possible to say with any degree of certainty that the court was either right or wrong: the ambiguity remains unresolved. However, it would seem to be prudent in such a situation for court's to err on the side of caution, restricting their interpretation of ambiguous terminology to its clear and undisputed meaning and allowing the legislature the opportunity to expand these definitions by statute if they so desire. B. National Stolen Property Act The greatest tension in the court's reasoning arose from the application of the NSPA to the electronic transfer of the E911 text file between Neidorf and Riggs. Although there is significant authority for the contention that the transfer of stolen or fraudulently obtained funds by wire does not avoid the strictures of section 2314 on the grounds that only "electronic impulses" had been transferred,\108\ it is not entirely clear that the analogy between the transfer of funds and the transfer of a document will withstand scrutiny. In the first place, money, whether transferred electronically or physically, can be in only one place at a time. That this was not the case in Riggs was precisely the point: the E911 document, after having been "transferred" from Georgia to Indiana, still existed in Georgia in precisely the same manner it did before the "transfer" took place.\109\ Because the transfer in Riggs was different from the transfer of stolen funds, the analogy to other cases that have addressed the "electronic impulses" issue tends to be misleading. Unlike stolen funds, the E911 document was accessible from virtually any place in the world. This was true even when copies existed only on Bell South's computer. Riggs' ability to acquire a copy without leaving his home\110\ proves this point. Because the document, in every case, remained intact in the place it was "transferred" from, there was nothing actually moved across state lines. The arguments accepted in the money cases (that although nothing was physical moved, the result was the same) do not apply to Riggs. When the court speaks of a transfer in this situation, what it is actually discussing is the creation of a copy in a distant place (somewhat like a fax). The difficulty which the court has in discussing this has to do with the ability of computer files to be infinitely and perfectly reproduced. This fundamental difference between computer files and the sorts of property to which the NSPA has previously been held to apply has caused a significant strain in the court's reasoning.\111\ A further difficulty with the analogy to money transfers is the fact that Riggs concerned the theft of a document rather than funds. The electronic impulses involved in the money transfers were relatively unimportant because they were nothing more than a means for getting the money from one place to another they represented something (the money) which was both tangible and valuable. In Riggs, electronic impulses (whether stored on a magnetic disk or transmitted over the telephone wires) are the "thing" that is alleged to have been stolen.\112\ The impulses were, therefore, much more than a mode of transportation: they were the very essence of the thing that was transported. The issue, contrary to what the court says, is precisely "whether electronic impulses are 'goods, wares, or merchandise' within the meaning of 2314."\113\ The court's lack of clarity on this point was especially evident in its discussion of the tangibility requirement.\114\ In an effort to make a connection between Riggs and prior cases involving the theft of trade secrets,\115\ the court argued that "if the information in Bell South's E911 text file had been affixed to a floppy disk, or printed out on a computer printer, then Neidorf's transfer of that information across state lines would clearly constitute the transfer of 'goods, wares, or merchandise' within the meaning of 2314."\116\ For support of this assertion the court quotes (among other similar cases) United States v. Bottone,\117\ which held that the intermediate use of a photocopy machine between the theft and the interstate transportation would not be sufficient to escape the statute.\118\ The court assumes away the important question, however, when they posit the affixation of the E911 file to a floppy disk or paper printout. If the computer file, without having been affixed to a disk or paper, was sufficiently tangible for it to be the sort of property to which the NSPA would be applicable,\119\ there is no reason why it should not have been considered sufficiently tangible for purposes of the statute when it was transported interstate in that form.\120\ The question that remains unaddressed, of course, is whether or not the file is tangible. The fact that there are tangible mediums to which the file could have been affixed is not relevant to this inquiry. Perhaps in recognition of this confusion between medium and message, the court reached a tentative holding that tangibility was not required by the NSPA.\121\ An imperceptible, but valuable, gas was used as an example to bolster the argument.\122\ Unfortunately, the example served primarily to illustrate the court's misapprehension of the word "tangible." Tangible is defined as "corporeal[;] capable of being exactly comprehended[;] real, concrete."\123\ This is not synonymous with perceptible, which means "discernible by the senses or mind."\124\ The gas in the court's example may very well be imperceptible to human senses; it does not follow that it is intangible. The perceptibility of the gas is absolutely irrelevant for purposes of determining its tangibility: a gas, discernible or not, is real and concrete, and section 2314 would prohibit the theft and interstate transportation of a tangible item whether it required tangibility or not. There is, additionally, strong support for the proposition that tangibility is required: the plain meaning of the term "goods, wares, or merchandise" demands it.\125\ C. Computer Fraud and Abuse Act The court's brisk dismissal of Neidorf's contention that the Computer Fraud and Abuse Act precluded his prosecution under other statutes\126\ is somewhat puzzling. There is no particular reason to believe that absence of an explicit mention in the record that the legislature intended to preclude prosecutions under other statutes should lead to the opposite conclusion. A more forceful argument against the court's conclusion is the lack of applicability of other statutes to Neidorf's actions. Neidorf was likely correct in his claim that the CFAA was the only act under which he could legitimately have been prosecuted: it is the only statute with which he had been charged that explicitly mentions computer related crime.\127\ Since the nature of Neidorf's activities were inextricably bound up with computer technology, the application of statutes which do not comprehend the possibilities of computer technology would risk stretching their language beyond the point of credibility. "When interpreting a criminal statute that does not explicitly reach the conduct in question, we are reluctant to base an expansive reading on inferences drawn from subjective and variable 'understandings.'"\128\ V. CONCLUSION It is often the case that new technology requires new paradigms. Computer technology is no exception. It is not possible to understand the events alleged in Riggs (or their implications) if we remain mired in (relatively) old-fashioned metaphors like paper print outs or computer disks. The document transfers that took place in the Riggs case were entirely virtual:\129\ all of the events took place in a kind of electronic netherworld that bears no direct relation to physical space.\130\ The court made much of the fact that the documents were initially available in one state, but later became available in another.\131\ In virtual terms, however, this is a distinction without a difference. Neidorf and Riggs might as easily have been next door neighbors or inhabitants of different planets; they would be unlikely to have known the difference.\132\ In the world of electronic communications, geographic location is all but irrelevant. It is difficult not to wonder if the court would have come out differently had Neidorf not saved the file on his own disk, but merely accessed it and edited it while it remained stored at the Lockport BBS or on Riggs' computer. Based upon the court's justification for its result, the answer would have to be yes. While information on the BBS was (theoretically) available to anyone, anywhere, who "simply pressed the right buttons on their computer,"\133\ it would not have been physically present in a tangible form (like a disk or a paper printout) in any place other than the computer in Illinois. Although the Riggs court's reasoning would lead us to conclude that no violation of the NSPA had taken place in this hypothetical, it is difficult to understand why such a distinction should make a difference. When presented with a case like Riggs, in which the real world has changed much faster than the law, courts face a difficult dilemma. They must choose between construing the literal language of the statute in a strict and principled manner, and flexibly applying the existing laws to address what they see as culpable behavior. The latter approach carries with it the all but inevitable risk of deforming the very legal order it seeks to uphold. Stretching statutory language to fit fact patterns for which it was never designed simply cannot be considered a preferred way of dealing with the law. Although Neidorf's actions may have been the sort that we, as a society, wish to prohibit, they were (with the possible exception of the Computer Fraud and Abuse Act) not illegal at the time he performed them. If the judgement of the legislature is that these sorts of acts should be illegal, they have the power to ensure that they are. To attempt to address these problems through the creative application of existing but unrelated statutes, without the benefit of legislative guidance is very much like judicially creating ex post facto laws. A concerted effort to educate both the courts and the legislatures about the functions of computerized telecommunications and the metaphors appropriate to discussing them would clearly be in order. Legislators and judges are, after all, human; and their fears of the unknown may be just as strong as those of the average citizen. Although they can, to some extent, be held accountable for their failure to educate themselves, it is ultimately the job of those who will be most affected by hasty and ignorant legislation and precedents to share their experience with the government. Properly carried out, such an effort could ensure that decisions like Riggs are, in the future, the exception rather than the rule. _____________________________________________________ ***FOOTNOTES*** _____________________________________________________ \1\ "Designer drugs" are chemical compounds which have the same or similar narcotic effects as illegal drugs, but different chemical structures. Because the possession or sale of these chemicals is not prohibited by the laws against, e.g., heroin or cocaine, and because of the practical difficulty of regularly adding to the schedule of controlled dangerous substances, laws have been enacted which automatically include "designer" equivalents to illegal drugs in the existing anti-narcotics statutes. \2\ 739 F.Supp. 414 (N.D.Ill. 1990). Although Congress has addressed the area of computer crime with the Computer Fraud and Abuse Act (18 U.S.C. 1030), that statute is limited to computers in which consumer credit information is stored or in which the Federal government has an interest. U.S. v. Riggs represents a prosecutorial and judicial attempt to combat activities that are essentially computer-related with statutes and precedents that do not (either explicitly or implicitly) comprehend the possibilities of computerized communications. \3\ Riggs, 739 F.Supp. at 417. \4\ Id. \5\ The name comes from combining the words "phreak" and "hack," which are the terms used for the acts of exploring, respectively, the telephone network and computer systems. \6\ A computer bulletin board, or BBS, is a software program which runs on a computer that is connected to one or more telephone lines. The program allows computer users with access to modems to phone up the BBS and, among other things, access electronic mail, upload and download computer files, and leave messages for later callers. See, e.g., Jensen, An Electronic Soap Box: Computer Bulletin Boards and the First Amendment, 39 Fed.Com.L.J. 217 (1987). \7\ Riggs, 739 F.Supp. at 417 \8\ Id. \9\ Id. \10\ John Perry Barlow, Crime and Puzzlement: In Advance of the Law on the Electronic Frontier; Cyberspace, WHOLE EARTH REV., September 22, 1990, at 44. \11\ Id. \12\ 18 U.S.C. 1343. \13\ 18 U.S.C. 2314. \14\ 18 U.S.C. 1030(a)(6)(A). \15\ Michael Alexander, Hacker Trial Begins in Chicago, COMPUTERWORLD, July 30, 1990, at 8; Motions to Dismiss Wire Fraud and Transport of Stolen Property Claims For Hacker Publishing Activity Denied, But Charges Dropped, THE COMPUTER LAWYER, September 1990, at 37 [hereinafter Motions to Dismiss]. \16\ United States v. Riggs, 739 F.Supp. 414 (N.D.Ill. 1990), and 743 F.Supp. 556 (N.D.Ill. 1990). \17\ Riggs, 739 F.Supp. at 420. \18\ The cases cited by the court consist of holdings that the interstate wire transfer of stolen funds falls within the ambit of the National Stolen Property Act (United States v. Kroh, 896 F.2d 1524 (8th Cir. 1990); United States v. Goldberg, 830 F.2d 459 (3rd Cir. 1987); United States v. Wright, 791 F.2d 133 (10th Cir. 1986); and United States v. Gilboe, 684 F.2d 235 (2nd Cir. 1982)) and cases holding that the stolen property may, under some circumstances, be intellectual property (United States v. Bottone, 365 F.2d 389, 393 (2nd Cir. 1966); United States v. Greenwald, 479 F.2d 320 (6th Cir. 1973); United States v. Lester, 282 F.2d 750 (3rd Cir. 1960); and United States v. Seagraves, 265 F.2d 876 (1959)). \19\ 739 F.Supp. at 426; 743 F.Supp. at 562. \20\ Michael Alexander, Dial 1800...for Bellsouth 'Secrets,' COMPUTERWORLD, August 6, 1990, at 8; Craig Bromberg, In Defense of Hackers, N.Y. TIMES MAG., April 21, 1991, at 44; Motions to Dismiss, supra note 15; Score One for the Hackers of America, NEWSWEEK, August 6, 1990, at 48. \21\ 18 U.S.C. 1030(a)(6)(A). \22\ 18 U.S.C. 2314. \23\ 18 U.S.C. 1343. \24\ See note 18, supra. \25\ See note 18, supra. \26\ 739 F.Supp at 421, 423. \27\ 18 U.S.C. 1030. \28\ Pub. L. No. 98173, ch. 21, 98 Stat. 2190 (1984) (codified as amended at 18 U.S.C. 1030 (1988)). \29\ Dodd. S. Griffith, Note, The Computer Fraud and Abuse Act of 1986: A Measured Response to a Growing Problem, 43 VAND. L. REV. 453, 460 (1990); David A. Bender, PREVENTION AND PROSECUTION OF COMPUTER AND HIGH TECHNOLOGY CRIME (MB) 3.05[b]. \30\ Griffith, supra note 29, at 466473. \31\ Id. at 470. \32\ Id. at 469. \33\ Griffith, supra note 29, at 469 n.128; 473. \34\ Id. at 472. \35\ Id. at 474. \36\ Id. at 478. \37\ Griffith, supra note 29, at 484. \38\ 18 U.S.C. 1030(a)(6)(A). "(a) Whoever * * * (6) knowingly and with intent to defraud traffics (as defined in section 1029) in any password or similar information through which a computer may be accessed without authorization, if (A) such trafficking affects interstate or foreign commerce * * * shall be punished as provided in subsection (c) of this section." \39\ Griffith, supra note 29, at 481. \40\ 18 U.S.C. 2312. \41\ United States v. Smith, 686 F.2d 234, 24446 (1982). \42\ "The automobile was uniquely suited to felonious taking whether by larceny, embezzlement, or false pretenses. It was a valuable, salable article which itself supplied the means for speedy escape." Dowling v. United States, 105 S.Ct. 3127, 3134 n.12 (1985) (quoting United States v. Turley, 877 S.Ct at 400401). \43\ Id. at 313435. \44\ Id. at 3134 n.13 (quoting from the Attorney General in 78 Cong. Rec. 2947 (1934)). \45\ 18 U.S.C. 2314. "Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted, or taken by fraud * * * "Shall be fined not more than $10,000 or imprisoned not more than ten years, or both." \46\ Id. \47\ See United States v. Kroh, 896 F.2d 1524 (8th Cir. 1990); United States v. Goldberg, 830 F.2d 459 (3rd Cir. 1987); United States v. Wright, 791 F.2d 133 (10th Cir. 1986); United States v. Gilboe, 684 F.2d 235 (2nd Cir. 1982). \48\ United States v. Lester, 282 F.2d 750 (3rd Cir. 1960); United States v. Seagraves, 265 F.2d 876 (1959). See also United States v. Greenwald, 479 F.2d 320 (6th Cir. 1973). \49\ United States v. Bottone, 365 F.2d 389, 393 (2nd Cir. 1966). \50\ Id. \51\ The language in 1343 (the wire fraud statute) concerning the elements of the offense is the same as that in 1341 (the mail fraud statute). The courts have, accordingly, construed them to have the same effect. \52\ McNally v. United States, 107 S.Ct. 2875, 287980 (1987) ("The sponsor of the recodification stated, in apparent reference to the antifraud provision, that measures were needed 'to prevent the frauds which are mostly gotten up in the large cities . . . by thieves, forgers, and rapscallions generally, for the purpose of deceiving and fleecing the innocent people of the country.'"). \53\ 18 U.S.C. 1343. "Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both." \54\ McNally, 107 S.Ct. at 2879. \55\ Id. \56\ See, e.g., United States v. Condolon, 600 F.2d 7 (C.A.Va. 1979) ("Gravaman of offense of wire fraud is simply the misuse of interstate communication facilities"); United States v. Cowart, 595 F.2d 1023 (C.A.Ga. 1979) ("To prove wire fraud, government must show scheme, use of interstate communications, such as telephone, and criminal intent to defraud); United States v. Corey, 566 F.2d 429 (C.A.N.Y. 1977) ("To prove a violation of this section, it need only be shown that a defendant was one of the participants in a fraudulent scheme which was furthered by the use of interstate transmission facilities"). \57\ See supra note 56. \58\ 18 U.S.C. 1343. \59\ BLACK'S LAW DICT. (6th. ed. 1990). \60\ United States v. Keane, 522 F.2d 534 (7th Cir. 1975) ("A specific violation of state law . . . is not necessary to obtain a conviction for mail fraud"). \61\ United States v. Riggs, 739 F.Supp. 414, 418 (N.D. Ill. 1990). \62\ Id. at 41819. \63\ Id. at 419. \64\ Id. \65\ Riggs, 739 F.Supp. at 418. \66\ Id. \67\ Id. (quoting Hammerschmidt v. United States, 265 U.S. 182 (1924)). \68\ Id. at 419. \69\ Riggs, 739 F.Supp. at n.7 (citing McNally v. United States, 483 U.S. 350 (1987), for the proposition that "a mail fraud charge must be based on the deprivation of property[, although] the property which forms the basis for a wire fraud or mail fraud charge can be 'intangible' property"). \70\ Id. The court cites Carpenter v. United States, 108 S.Ct. 316, 320 (1987) (holding that the publication schedule and contents of the Wall Street Journal's "Heard on the Street" column is confidential business information and therefore protected property under 1341) and United States v. Keane, 852 F.2d 199, 205 (7th Cir. 1988) (finding protectable property in a city's confidential plans for acquiring real estate) as support. \71\ The court does not explicitly draw this conclusion in their opinions, perhaps because the reasoning is somewhat problematic. In the first place, it is difficult to understand precisely how the usual rationale for protection of proprietary business information (the preservation of competitive advantage) applies in the case of a publicly regulated monopoly such as the telephone company. Although it has been suggested that the integrity of the 911 response system may be compromised by the widespread publication of this kind of information, that argument would seem to urge the application of some sort of quasi-national security interest standard of secrecy rather than the prohibitions of the trade secret law. It should also be noted that proprietary information does not easily fit into the category of things of which one can be deprived. It is easy to imagine that a limited (as in this case) or even broad publication of confidential information would not rob it of all utility in the hands of its original possessor. Still, the court's decision seems to suggest that any degree of deprivation would be sufficient to trigger the application of section 1343. Although this would be consistent with much of the other wire fraud jurisprudence (e.g., the principle that any use of the wire system is sufficient for the statute to apply), there is no indication that the court even considered this potentially problematic area. As it is easily conceivable that public knowledge of even the existence of some information could lessen its utility, the court's interpretation of the wire fraud statute would seem bound to collide with the First Amendment (if the collision has not, as Neidorf argued, already occurred). \72\ Riggs, 739 F.Supp. at 419. \73\ Id. \74\ Id. at 420. \75\ Id. \76\ 684 F.2d 235 (2d Cir. 1982). \77\ Id. at 238. \78\ Riggs, 739 F.Supp. at 420. \79\ Id. \80\ United States v. Greenwald, 479 F.2d 320 (6th Cir. 1973) (documents containing chemical formulas); United States v. Bottone, 365 F.2d 389 (2nd Cir. 1966) (copies of documents describing the manufacture of a patented drug); United States v. Lester, 282 F.2d 750 (3rd Cir. 1960) (copies of geophysical maps); and United States v. Seagraves, 265 F.2d 876 (1959) (same as Lester). \81\ Riggs, 739 F.Supp. at 421. \82\ Id. \83\ Id. \84\ Id. at 422. \85\ 105 S. Ct. 3127 (1985). In a prosecution for the sale of bootleg Elvis Presley recordings, the court held that the goods actually shipped (the illegally manufactured records) do not come within the range of section 2314 because no physical part of the shipment had been "stolen, converted, or taken by fraud." The court further held that a copyright is not the sort of interest that is capable of being "stolen, converted, or taken by fraud." \86\ Riggs, 739 F.Supp. at 422. \87\ Id. at 423. \88\ Id. \89\ Id. \90\ Riggs, 739 F.Supp. at 423. \91\ Id. See also Griffith, supra note 29, at 484485 \92\ See supra note 56 and related text; see also supra note 60. \93\ Riggs, 739 F.Supp. at 418. \94\ Although the statement of facts does not explicitly state this, it is implicit both from the nature of computer telecommunications (erasing the file from the Bell South computer would have required actions in addition to merely downloading it) and from Riggs' ability to successfully conceal his access to the file. See also infra note 109. \95\ See supra note 94. \96\ 108 S.Ct. 316 (1987). \97\ Id. at 318-319. \98\ Id. at 319. \99\ Id. \100\ Carpenter, 108 S.Ct. at 319. \101\ Id. at 320-321. \102\ Id. \103\ Id. at 321. \104\ "Petitioners' arguments that they did not interfere with the Journal's use of the information . . . miss the point. * * * Petitioners cannot successfully contend . . . that a scheme to defraud requires a monetary loss, such as giving the information to a competitor; it is sufficient that the Journal has been deprived of its exclusive use of the information, for exclusivity is an important aspect of confidential business information and most private property for that matter." Id. See also note 69, supra. \105\ Id. at 319. \106\ Phrack was an amateur publication. It was (and is) distributed at no charge to readers. Copies are available for downloading from numerous public and private bulletin board systems or from InterNet sites such as ftp.cs.widener.edu (in directory /pub/cud/phrack). \107\ This difficulty may not be insurmountable. If fraud signifies nothing more than "wronging one in his property rights by dishonest methods or schemes," then the statute would seem to apply to the facts in Riggs. Hammerschmidt v. United States, 44 S.Ct. 511, 512 (1924). However, "the words 'to defraud' . . . usually signify the deprivation of something of value." Id.; see also BLACK'S LAW DICT. (6th. ed. 1990). This language indicates that the statute should not apply to a case like Riggs where neither loss nor gain (nor, in fact, deprivation) is involved. This ambiguity seems to have gone largely unexplored; it is certainly unresolved, and the Riggs court ignores it entirely. \108\ See, e.g., United States v. Gilboe, 684 F.2d 235 (2d Cir. 1982); United States v. Kroh, 896 F.2d 1524 (8th Cir. 1990); United States v. Goldberg, 830 F.2d 459 (3d Cir. 1987); United States v. Wright, 791 F.2d 133 (10th Cir. 1986); United States v. Kenngott, 840 F.2d 375 (7th Cir. 1987). \109\ The term "download" does not imply the deletion of any files. Furthermore, the factual allegations in the case charge only that Riggs transferred the text file from the Bell South computer system, not that he tampered with the contents of that system. This is further borne out by the failure of Bell South to detect Riggs' unauthorized access. See Riggs, 739 F.Supp. at 417; see also note 94, supra. \110\ Riggs, 739 F.Supp. at 417. \111\ See, e.g., Dowling v. United States, 105 S.Ct. 3127, 3133 (1985) (The NSPA "seems clearly to contemplate a physical identity between the items unlawfully obtained and those eventually transported"). \112\ It will not do to claim that the information is the thing which has been stolen; the NSPA applies only to "goods, wares, merchandise, securities or money" (18 U.S.C. 2314), and this requires tangibility. United States v. Smith, 686 G.2d 234, 240 (1982) ("The phrase goods, wares, or merchandise connotes tangible items; something tangible has or possesses physical form."). Accepting, arguendo, the Riggs court's holding that an electronically transferred document is a tangible object, this goes no further than to state that "when proprietary business information is affixed to some tangible medium, such as a piece of paper, it constitutes 'goods, wares, or merchandise' within the meaning of 2314." United States v. Riggs, 739 F.Supp. 414, 420 (1990). The tangible medium in this case can be nothing other than the computer file. \113\ Riggs, 739 F.Supp. at 420 ("The question this case presents, then, is not whether electronic impulses are 'goods, wares, or merchandise' within the meaning of 2314, but whether the proprietary information contained in Bell South's E911 text file constitutes a 'good, ware, or merchandise' within the purview of the statute."). \114\ Id. at 421. \115\ United States v. Greenwald, 479 F.2d 330 (6th Cir. 1973); United States v. Bottone, 365 F.2d 389 (2nd Cir. 1966); United State v. Lester, 282 F.2d 750 (3rd Cir. 1960); United States v. Seagraves, 265 F.2d 876 (1959). \116\ Riggs, 739 F.Supp. at 421. \117\ 365 F.2d 389 (2nd Cir. 1966). \118\ Id. at 393. \119\ That is, that it was a good, ware, or merchandise. "Sometimes the meaning of 'goods' is extended to include all tangible items, as in the phrase 'goods and services.'" BLACK'S LAW DICT. (6th. ed. 1990). A good cannot, presumably, be an intangible item. See also United States v. Smith, 686 F.2d 234, 240 (1982). \120\ In other words, the bare text file (unaffixed to any medium) was what was stolen, as well as what was transported. The Bottone court was able to come to the decision it did because something tangible was taken from Lederle, and something tangible was transported across the border. Bottone v. United States, 365 F.2d 389, 393-394 (2nd Cir. 1966). The only issue was that "the intangible information that was the purpose of the theft was transformed and embodied in a different physical object." Id. at 393. The court went to great pains to emphasize that its conclusions would not apply "where no tangible objects were ever taken and transported." Id. This is, however, precisely the situation in Riggs. \121\ "[T]his court is not entirely convinced that tangibility is an absolute requirement of 'goods, wares, or merchandise' under 2314." United States v. Riggs, 739 F.Supp. 414, 421 (N.D.Ill. 1990). \122\ Id. at 421. \123\ THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (William Morris, ed., New College Ed. 1978). \124\ Id. \125\ See supra note 119. \126\ Riggs, 739 F.Supp. at 423. \127\ It remains an open question whether his actions constitute the trafficking in stolen passwords, as prohibited by the CFAA. 18 U.S.C. 1030(a)(6)(A). \128\ Williams v. United States, 102 S.Ct. 3088, 3092 (1982) (quoted in Dowling v. United States, 105 S.Ct. 3127, 3133-3134 (1985)). \129\ "Existing or resulting in essence or effect though not in actual fact, form, or name." THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (William Morris, ed., New College Ed. 1978). This term is often used to describe the "space" in which computer events take place (viz., virtual reality). \130\ This "place" is often referred to as "cyberspace," a term originally coined by the writer William Gibson but quickly adopted in the computer world, especially among the hacker subculture. See, e.g., WILLIAM GIBSON, NEUROMANCER (1984). \131\ Riggs, 739 F.Supp. at 420. \132\ In a recent experiment, for example, private computer users were able to send electronic mail to orbiting space shuttle astronauts through publicly accessible networks. See, e.g., Joe Abernathy and Mark Carreau, Electronic Mail Beams Shuttle's Message Home, HOUSTON CHRON., Aug. 5, 1991, at 1A. \133\ Riggs, 739 F.Supp. at 422.