riggs_~1.txt

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 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.