riggs_~1.txt

黑客培训教程

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