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.

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Filed Under: computers, crime, sentencing

52 Comments

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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...
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Anonymous Coward, 23 Feb 2011 @ 10:48am

Re:
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Seth, 23 Feb 2011 @ 10:52am

Re:
Don't give them any ideas.
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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.
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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.
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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?
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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.
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Stuart, 23 Feb 2011 @ 11:24am

But
You have to "THINK OF THE CHILDREN!"
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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!!!
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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.
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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!
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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.
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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).
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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).
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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.
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Jon Bane, 23 Feb 2011 @ 12:06pm

Re: What does Rocco want?
OMG!! Children.. think of them.. errr..

Moral Outrage is what sells.
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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.
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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.
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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?
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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....
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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!
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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!
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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.
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Marcus Carab (profile), 23 Feb 2011 @ 1:09pm

Re: Re: The Brain
especially if it turns out that a parallel universe already patented entropy
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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.
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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.
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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.
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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.
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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.
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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.
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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".
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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.
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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..."
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Avatar28 (profile), 23 Feb 2011 @ 5:27pm

Re: Screw the bad guys
A bridge! A bridge! :)
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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
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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
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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
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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
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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
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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...
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Michael, 24 Feb 2011 @ 3:54am

Re:
...and he used the timer on his microwave - 2 counts.
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Michael, 24 Feb 2011 @ 3:54am

Re: Screw the bad guys
Books.
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Anonymous Coward, 24 Feb 2011 @ 4:50am

Re: Re: devices used...
You've never seen my boss using a computer then. ;)
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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?
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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?
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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?
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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.
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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).
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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.
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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.
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test, 4 Apr 2014 @ 11:36pm

Test
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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?
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