7th Circuit Affirms Broad Reach of Section 1030

April 18, 2005. The U.S. Court of Appeals (7thCir) issued its opinion [9 pages in PDF] in USA v. Mitra, affirming the District Court's conviction of Rajib Mitra on two counts of violating 18 U.S.C. § 1030.

Mitra, a graduate student at the University of Wisconsin, transmitted a radio signal that prevented the communications system for police, fire, ambulance, and other emergency communications in Madison, Wisconsin, from operating. He was prosecuted for violation of Section 1030, which is titled "Fraud and related activity in connection with computers". It is generally known as the criminal ban on computer hacking.

Mitra argued unsuccessfully in the District Court, and before the Court of Appeals, that his actions were in the nature of unauthorized broadcasts, or interference, and that Section 1030 is intended only to cover those who hack into computer servers to steal or alter information.

This opinion demonstrates that, as computer chips become more ubiquitous in products ranging from police communications equipment, to cell phones and iPods, to automobiles, the scope of malicious conduct that will fall under § 1030 will continue to grow.

The public safety radio frequency communications system in Madison, Wisconsin uses Motorola's Smartnet II. This spreads transmissions across 20 frequencies. Computer hardware and software assigns each conversation to an open channel, with one channel designated for control.

The Court of Appeals wrote that a signal transmitted by Mitra "blanketed all of the City's communications towers and prevented the computer from receiving, on the control channel, data essential to parcel traffic among the other 19 channels." As a result, "public safety departments were unable to coordinate their activities because the radio system was down".

The Court explained that Mitra would "send the signals that took control of the system". Law enforcement authorities found him by using radio direction finders. They also seized Mitra's computer and radio transmission equipment.

Mitra was charged, convicted and sentenced to 96 months incarceration for two violations of §1030(a)(5), which provides that whoever

  "(A) (i) knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer; (ii) intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or (iii) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage; and
  (B) by conduct described in clause (i), (ii), or (iii) of subparagraph (A), caused (or, in the case of an attempted offense, would, if completed, have caused) -- (i) loss to 1 or more persons during any 1-year period (and, for purposes of an investigation, prosecution, or other proceeding brought by the United States only, loss resulting from a related course of conduct affecting 1 or more other protected computers) aggregating at least $5,000 in value; (ii) the modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of 1 or more individuals; (iii) physical injury to any person; (iv) a threat to public health or safety; or (v) damage affecting a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security;"

shall be punished. (Parentheses in original.)

§ 1030(e) then defines "computer" as "an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device".

It also provides that a "protected computer" includes any computer "which is used in interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States".

The Court of Appeals wrote that prosecutor's theory, which the District Court accepted, "is that Smartnet II is a ``computer´´ because it contains a chip that performs high-speed processing in response to signals received on the control channel, and as a whole is a ``communications facility directly related to or operating in conjunction´´ with that computer chip. It is a ``protected computer´´ because it is used in ``interstate ... communication´´; the frequencies it uses have been allocated by the Federal Communications Commission for police, fire, and other public-health services. Mitra's transmissions on Halloween included ``information´´ that was received by the Smartnet. Data that Mitra sent interfered with the way the computer allocated communications to the other 19 channels and stopped the flow of information among public-safety officers. This led to ``damage´´ by causing a ``no system´´ condition citywide, impairing the ``availability of ... a system, or information´´ and creating ``a threat to public health or safety´´ by knocking out police, fire, and emergency communications."

The Court of Appeals wrote that Mitra's theory is that all he did was "gum up a radio system". He did not hack into a computer, as the Congress intended the statute to mean. He argued that if what he did violates § 1030, then "Every cell phone and cell tower is a ``computer´´ under this statute's definition; so is every iPod, every wireless base station in the corner coffee shop, and many another gadget. Reading §1030 to cover all of these, and police radio too, would give the statute wide coverage, which by Mitra's lights means that Congress cannot have contemplated such breadth."

Judge Frank Easterbrook, who wrote the Court of Appeals opinion, appears to endorse the prosecution's interpretation of the statute, rather than Mitra's. The Court of Appeals affirmed the conviction, but was not precise in its analysis.

Easterbrook did not discuss in detail the ramifications of this holding for a computer chip based economy. However, he did go into detail on the nature of the legislative process, and legislative intent. That is, Mitra argued that the Congress could not have intended when it enacted § 1030 over twenty years ago that it would apply to communications systems that use computer chips. Judge Easterbrook, like his fellow Chicago school jurist, Antonin Scalia, argues that courts should not be guided by legislative intent.

Legislatures do not have intent, wrote Easterbrook, only individual legislators do. And, their intent is not pertinent to courts. He wrote that neither the Congress nor legislators intended the application of § 1030 to the acts of Mitra. But, this does not matter. He wrote that legislatures "write general statutes rather than enacting a list of particular forbidden acts. And it is the statutes they enacted -- not the thoughts they did or didn’t have -- that courts must apply."

Easterbrook noted that there are limitations on the scope of § 1030. There must be intentional damage. Also, the damage must be at least $5,000 or bodily injury or danger to pubic safety. Finally, the computer must operate in interstate commerce. However, this third limitation hardly operates as a limitation. Easterbrook wrote that any use of radio frequency is interstate commerce, because spectrum is licensed by the Federal Communications Commission (FCC). It does not matter if the use of the spectrum is neither interstate nor commercial. By operation of law, it is interstate commerce.

Judge Easterbrook noted that the spectrum used by Madison public safety entities is licensed by the FCC. His opinion is silent on what affect use of unlicensed spectrum would have on the interstate commerce analysis.

This case is U.S.A. v. Rajib Mitra, U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 04-2328, an appeal from the U.S. District Court for the Western District of Wisconsin, D.C. No. 03-CR-153-S, Judge John Shabaz presiding. Judge Frank Easterbrook wrote the opinion of the Court of Appeals, in which Judges Wood and Sykes joined.