Should Everyone Who Uses A Phone Or A Computer As Part Of A Crime Get A Longer Sentence?

from the so-says-the-8th-circuit dept

Wed, Feb 23rd 2011 10:42am — Mike Masnick

We've noted just how far the Computer Fraud and Abuse Act (CFAA) has been stretched lately. The law -- which is supposed to be used against those involved in malicious hacking -- actually breaking into computer systems and such -- keeps being used in ways totally different than intended, such as claiming that just visiting a website you weren't supposed to can now be deemed as "hacking." Michael Scott alerts us to another unintended consequence of the broad interpretation of the CFAA, involving a sex offender who got an extra 28 months on his prison sentence because he used a phone.

Now, as the article notes, if there's anyone out there who deserves a longer prison sentence, it's a sex offender who victimizes minors. But that doesn't mean we should condone stretching a computer hacking law in a ridiculous manner. In this case, because the CFAA allows increased sentencing for someone who used a computer in the commission of the crime, the judge decided that a rather standard mobile phone counts as a "computer" under the law. Even though it was a standard mobile phone, and not a smartphone or feature phone, the judge quoted Steve Wozniak in pointing out that "Everything has a computer in it nowadays."

Of course, that should be a reason why we should worry about this kind of sentencing. The idea that anyone deserves more time in prison solely because they used a mobile phone doesn't make much sense. It continues to make a mockery of the law. If the guy deserves to be in prison longer for the actual despicable crime he committed, then the law should allow such longer sentences. But the courts shouldn't twist the CFAA to accomplish that goal.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: computers, crime, sentencing

52 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Marcus Carab (profile), 23 Feb 2011 @ 10:15am

Cars all run on computers now too, so I guess anyone found guilty of a traffic infraction should be charged under the CFAA too...
[ link to this | view in chronology ]
- Anonymous Coward, 23 Feb 2011 @ 10:48am
  
  Re:
  [ link to this | view in chronology ]
- Seth, 23 Feb 2011 @ 10:52am
  
  Re:
  Don't give them any ideas.
  [ link to this | view in chronology ]
- Ron (profile), 23 Feb 2011 @ 11:13am
  
  Yup
  My Prius has something like 14 major computers in it. If I commit any crive, am I going to be charged with 14 counts of using a computer while committing a crime? Plus, I have an iPhone. That would be 15 counts.
  [ link to this | view in chronology ]
  - pixelpusher220 (profile), 23 Feb 2011 @ 11:25am
    
    Re: Yup
    that's not a computer, that's a whole rogue computer army! ;-)
    
    So 'Ron', if that's your real name, just what did you give to Mr. Assange? hmm? vee haf vays ov making vou talk!!!
    [ link to this | view in chronology ]
    - Ron (profile), 23 Feb 2011 @ 11:31am
      
      Re: Re: Yup
      Well, that MIGHT be my real name. But,everything else about me is pure fiction.
      
      I gave Assange the instructions for adding automatic doorlocks to the Prius AND the means to disable the lock that prevent entering a destination into the NAV system WHILE the vehicle is in motion. But, don't tell anyone.
      
      My Prius is a rolling arsenal of potential piracy tools. ANd, it's both mobile AND stealth.
      [ link to this | view in chronology ]
- btr1701 (profile), 23 Feb 2011 @ 2:53pm
  
  Re: Computers
  > Cars all run on computers now too
  
  So do coffe makers and alarm clocks and just about everything else in your house.
  
  If the guy's alarm wakes him up on the day he commits crime, should that be allowable as an enhancement on his sentence?
  
  This nonsense is getting silly.
  [ link to this | view in chronology ]
Anonymous Coward, 23 Feb 2011 @ 10:53am

There is a computer in everything.

Imagine, sentencing hearing for somebody making hash brownies. Was the oven digital? Hah! Computer crime! You're extra fucked now.
[ link to this | view in chronology ]
- Michael, 24 Feb 2011 @ 3:54am
  
  Re:
  ...and he used the timer on his microwave - 2 counts.
  [ link to this | view in chronology ]
Josh in CharlotteNC (profile), 23 Feb 2011 @ 10:56am

medical devices
What about implanted medical devices?

Those 87 year old grannies with pacemakers robbing liquor stores are in for it now.
[ link to this | view in chronology ]
Jeremy Lyman (profile), 23 Feb 2011 @ 11:12am

Screw the bad guys
Yes, the mere fact that a magical device was used makes the standard crime all the more vile.

I also think people who commit crimes wearing hats should go to jail for longer. Also Ugg boots. And bolo ties. And those thriving on oxygen. Or using gravity.

What do we burn apart from witches?
[ link to this | view in chronology ]
- Avatar28 (profile), 23 Feb 2011 @ 5:27pm
  
  Re: Screw the bad guys
  A bridge! A bridge! :)
  [ link to this | view in chronology ]
- Michael, 24 Feb 2011 @ 3:54am
  
  Re: Screw the bad guys
  Books.
  [ link to this | view in chronology ]
Stuart, 23 Feb 2011 @ 11:24am

But
You have to "THINK OF THE CHILDREN!"
[ link to this | view in chronology ]
jsl4980 (profile), 23 Feb 2011 @ 11:30am

Hey a phone is a computer tell Sony to eff off
If the courts now believe that phones are computers, then the DMCA exemption for jailbreaking a phone should apply to all computers. Twisting their logic in the other direction, Geohot should be declared innocent for jailbreaking his PS3.
[ link to this | view in chronology ]
- nasch (profile), 23 Feb 2011 @ 3:11pm
  
  Re: Hey a phone is a computer tell Sony to eff off
  While you're right that jailbreaking a PS3 should be legal, a ruling that phones are computers doesn't imply that all computers are phones.
  [ link to this | view in chronology ]
  - monkyyy, 23 Feb 2011 @ 6:36pm
    
    Re: Re: Hey a phone is a computer tell Sony to eff off
    if it can access google then it can access google voice
    [ link to this | view in chronology ]
Anonymous Coward, 23 Feb 2011 @ 11:31am

Before you committed the crime, you woke up by alarm clock, watch TV for a while, checked your email, glanced at your digital watch, microwaved some food, used your cell phone and drove to the scene. According to the CFAA, that's 7 counts of computer crimes. We're putting you away for life you filthy hacker!
[ link to this | view in chronology ]
Anonymous Coward, 23 Feb 2011 @ 11:34am

To make matters worse, even if the precedent is allowed to stand it's still not going to make any difference. Pedophiles, rapist, and murderers are already being let out early in some cases to make room for mandatory drug sentencing laws.

Once it's allowed for sex offenders, it's only a matter of time before it's applied to drug bust, and the dude who got 18 extra months for his sex offense will get out even earlier to make room for the guy who got an extra five months for smoking weed (cause he called his dealer on his phone to set up the meet).
[ link to this | view in chronology ]
Anonymous Coward, 23 Feb 2011 @ 11:52am

What does Rocco want?
"...if there's anyone out there who deserves a longer prison sentence, it's a sex offender who victimizes minors..."

Longer than what? Longer than anything? Why not just say you advocate the death penalty for child molesters and be done with it.

I am so sick of the politics of "more": taxes on the rich should be higher. How high? Just higher. We should spend more on health care. How much? Just more. Sentences should be longer for drug dealers, child molesters, terrorists, gun possessors and [flavor of the month], and all "loopholes" should be closed. Fifty years for possession of less marijuana than you used to have in college? Wait, that's not what we meant...

Now cue the knuckle-draggers who think I'm defending pedophiles (SPOILER: V'z qrsraqvat rirelbar).
[ link to this | view in chronology ]
- Jon Bane, 23 Feb 2011 @ 12:06pm
  
  Re: What does Rocco want?
  OMG!! Children.. think of them.. errr..
  
  Moral Outrage is what sells.
  [ link to this | view in chronology ]
Bengie, 23 Feb 2011 @ 12:01pm

The Brain
The Brain is just a computer. Using your Brain to commit a crime automatically increases the sentence of your crime.
[ link to this | view in chronology ]
- Dark Helmet (profile), 23 Feb 2011 @ 12:44pm
  
  Re: The Brain
  "The Brain is just a computer. Using your Brain to commit a crime automatically increases the sentence of your crime."
  
  In Digital Philosophy Theory, the entire UNIVERSE is just one big computer.
  
  We're all doomed....
  [ link to this | view in chronology ]
  - Marcus Carab (profile), 23 Feb 2011 @ 1:09pm
    
    Re: Re: The Brain
    especially if it turns out that a parallel universe already patented entropy
    [ link to this | view in chronology ]
    - Bruce Ediger (profile), 23 Feb 2011 @ 2:38pm
      
      Re: Re: Re: The Brain
      So you admit it's true, patents came before Freedom of Speech, and therefore pre-empt Freedom of Speech, you hairy, pirate-loving, universe of criminals inhabitor.
      [ link to this | view in chronology ]
      - monkyyy, 23 Feb 2011 @ 6:40pm
        
        Re: Re: Re: Re: The Brain
        im sorry but a parallel universe version of u said that 1 second before you, and is suing u(and many other 'u's) for copyright infringement
        [ link to this | view in chronology ]
- Mateo Jose (profile), 3 Mar 2011 @ 12:29am
  
  Re: The Brain
  Good point. Someday in the not-too-distant future, people will have electronic implants in their brains. These processors will be more powerful than any smart phone of today.
  At that point in time, I suppose any crime committed would fall under the CFAA.
  [ link to this | view in chronology ]
jsl4980 (profile), 23 Feb 2011 @ 12:07pm

Hey a phone is a computer tell Sony to eff off
If the courts now believe that phones are computers, then the DMCA exemption for jailbreaking a phone should apply to all computers. Twisting their logic in the other direction, Geohot should be declared innocent for jailbreaking his PS3.
[ link to this | view in chronology ]
Anonymous Coward, 23 Feb 2011 @ 12:26pm

Not a feature phone?
> Even though it was a standard mobile phone, and not a smartphone or feature phone

Are you sure? See http://gnumonks.org/~laforge/papers/gsm_phone-anatomy-latest.pdf for a definition of these terms. Most "standard mobile phones" will be feature phones.
[ link to this | view in chronology ]
Anonymous Coward, 23 Feb 2011 @ 12:35pm

Even landline phones count
When you use a landline phone, you are actually using several computers. The number you dial is interpreted by a set of computers, including one or several databases, to decide how to complete the call (the keyword if you want to know more about this is "SS7"). The sound of your voice is converted by a computer into a digital stream, which is sent via a set of computers to another computer which will convert it back to analog signals (the keyword here is "G.711"). And that with an old-fashioned analog landline phone.

Now let's talk about elevators. Did you know that many modern elevators are computer-controlled?
[ link to this | view in chronology ]
- monkyyy, 23 Feb 2011 @ 6:46pm
  
  Re: Even landline phones count
  think of the lights, and speed cameras, and cop`s radar guns that u passed on the way to work
  the sign`s were made by tech, using mined(w/ a alot of tech) metal that got here by a simitruck, and airplane and then some sort of wheel
  [ link to this | view in chronology ]
- monkyyy, 23 Feb 2011 @ 6:46pm
  
  Re: Even landline phones count
  think of the lights, and speed cameras, and cop`s radar guns that u passed on the way to work
  the sign`s were made by tech, using mined(w/ a alot of tech) metal that got here by a simitruck, and airplane and then some sort of wheel
  [ link to this | view in chronology ]
Lync, 23 Feb 2011 @ 12:50pm

Should Everyone Who Uses A Phone Or A Computer As Part Of A Crime Get A Longer Sentence?
If they knowingly used any tech device to commit a crime of any sort, such use should impart harsher sectencing the same as the use of a weapon in the commission of said crime. Nuff said!
[ link to this | view in chronology ]
- Beta (profile), 23 Feb 2011 @ 1:32pm
  
  Re: Should Everyone Who Uses A Phone Or A Computer As Part Of A Crime Get A Longer Sentence?
  Why?
  
  You're supposed to make a strong, clear, concise argument before you say "nuff said". You said "nuff said" instead of the argument.
  [ link to this | view in chronology ]
  - nasch (profile), 23 Feb 2011 @ 3:14pm
    
    Re: Re: Should Everyone Who Uses A Phone Or A Computer As Part Of A Crime Get A Longer Sentence?
    I think he said "nuff said" instead of "just kidding".
    [ link to this | view in chronology ]
    - Beta (profile), 23 Feb 2011 @ 3:32pm
      
      Re: Re: Re: Should Everyone Who Uses A Phone Or A Computer As Part Of A Crime Get A Longer Sentence?
      Oh...
      
      Can I amend my statement? Maybe to something like "a strong, clear, concise argument or a cutting parody of the bad thinking that some people really, sincerely use around here so that everyone will know you're being witty and satirical instead of neither..."
      [ link to this | view in chronology ]
Lync, 23 Feb 2011 @ 12:51pm

Should Everyone Who Uses A Phone Or A Computer As Part Of A Crime Get A Longer Sentence?
If they knowingly used any tech device to commit a crime of any sort, such use should impart harsher sectencing the same as the use of a weapon in the commission of said crime. Nuff said!
[ link to this | view in chronology ]
Scott@DreamlandVisions (profile), 23 Feb 2011 @ 1:00pm

devices used...
The concept of increasing the sentence or severity level of a crime based on the use or possession of a device during the commission of that crime has been around for generations.

Having a firearm in your possession during the commission of a crime, even if their is zero violence, or even the threat of violence, will still net you additional time.

The judge's statements makes it pretty plain that the defense attorney fell down on his job in making sure that the verdict and the sentence match the reality of what his client did.
[ link to this | view in chronology ]
- Beta (profile), 23 Feb 2011 @ 1:47pm
  
  Re: devices used...
  "The concept of increasing the sentence or severity level of a crime based on the use or possession of a device during the commission of that crime has been around for generations. Having a firearm in your possession during the commission of a crime, even if their is zero violence, or even the threat of violence, will still net you additional time."
  
  That doesn't make it a good idea, and it's not clear that the principle should be extended to computers. You could just as well do it the other way: because possession of polarized sunglasses doesn't increase the sentence, neither should possession of a loaded shotgun. See? To be a strong argument it needs something more.
  [ link to this | view in chronology ]
- Anonymous Coward, 24 Feb 2011 @ 1:51am
  
  Re: devices used...
  For firearms it makes some sense; the presence of a firearm, either on the part of the criminal or on the part of the victim, increases the chances of someone getting badly hurt.
  
  For computers, it does not make any sense...
  [ link to this | view in chronology ]
  - Anonymous Coward, 24 Feb 2011 @ 4:50am
    
    Re: Re: devices used...
    You've never seen my boss using a computer then. ;)
    [ link to this | view in chronology ]
Anonymous Coward, 23 Feb 2011 @ 2:46pm

Yes, it appears that they were just itching for a reason to keep this guy of the street. Stupid judge; there's probably another computer in the other phone that received the call. How many computers were involved between the phones in order to make the call?

The judge, the prosecution, and even the defense, should all be disbarred and sentenced to 28 months probation, during which time THEY can't use anything with a 'computer' in it.
[ link to this | view in chronology ]
- nasch (profile), 23 Feb 2011 @ 3:15pm
  
  Re:
  The judge, the prosecution, and even the defense, should all be disbarred and sentenced to 28 months probation
  
  Or 4 years, if they used a computer during the case.
  [ link to this | view in chronology ]
leichter (profile), 23 Feb 2011 @ 6:06pm

Why let the facts get in the way of a good complaint?
Judges are supposed to follow the law as written - whether they like it or not. (There are out's for them in some cases, but usually not.) The decision they rendered here was based on the language Congress handed them: The court relied on the �exceedingly broad language� of � 1030(e)(1) that ��[i]f a device is �an electronic � or other high speed data processing device performing logical, arithmetic, or storage functions,� it is a computer.� The court also held that �there is nothing in the statutory definition that purports to exclude devices because they lack a connection to the Internet.�

Congress also wrote the law that, for the most part, takes away a judge's discretion in deciding on the sentence. One can make some arguments for this (it increases predictability, it helps ensure that rich white kids don't get shorter sentences for the same crime as poor black kids); one can make political arguments for it (people feel judges are too lenient and have chosen, through their elected representatives, to be tougher on criminals); and one can make very good arguments *against* it (basically, little in real life is cut and dried and trying to pin things down too much leads to miscarriages of justice). Nevertheless, this is the law we have on the books today.

I'd be the first to agree that it's absurd to enhance a sentence based on "use of a computer" when that "computer" is a cell phone. Hell, I'd even agree that enhanced sentencing for using a computer on the Internet is a bad idea. But I disagree that this is an indictment of the judges involved. It's an indictment of Congress, which passed bad laws.

The first part of fixing a problem is putting the blame in the right place.

��-- Jerry
[ link to this | view in chronology ]
- Anonymous Coward, 24 Feb 2011 @ 5:00am
  
  Re: Why let the facts get in the way of a good complaint?
  > Judges are supposed to follow the law as written - whether they like it or not.
  
  Is this the "just following orders" argument?
  [ link to this | view in chronology ]
Rekrul, 24 Feb 2011 @ 5:02am

So if I pick up a computer and hit someone in the head with it, does that mean I'll get a longer sentence than if I used a deadlier weapon like a lead pipe?
[ link to this | view in chronology ]
Just Musing, 24 Feb 2011 @ 6:00am

What about multi-core cpu's?
If I use a computer with a quad-core processor, would the sentence be increased 4x?
[ link to this | view in chronology ]
- Bruce Ediger (profile), 24 Feb 2011 @ 6:09am
  
  Re: What about multi-core cpu's?
  Oh, no, not at all! It's the Evil Joo Joo in the any kind of computer, be it a 1 MHz 6809, or a 2.2 GHz, quad-core all-you-can-eat, Vegas style buffet computer.
  
  It's the Evil Joo Joo that those filthy hackers get from the computer, nothing more. Don't you see? It's perfectly logical, old chap.
  [ link to this | view in chronology ]
Chris Rhodes (profile), 24 Feb 2011 @ 9:13am

They Always Want it Both Ways
A phone is a computer if that interpretation would benefit the state (CFAA). A phone is not a computer if that interpretation would benefit the state (Warrantless Searches).
[ link to this | view in chronology ]
misterdoug (profile), 21 Mar 2011 @ 2:14pm

Obviously this judge isn't Dutch
The Dutch judge who thinks hacking a wifi router isn't hacking because it isn't a computer is living in a whole different world.
[ link to this | view in chronology ]
test, 4 Apr 2014 @ 11:36pm

Test
[ link to this | view in chronology ]
Jamie Yoak, 4 Apr 2014 @ 11:40pm

What about lawyers?
When lawyers submit fictitious documents to the courts electronically, shouldn't they be arrested for wire fraud?
[ link to this | view in chronology ]