Friday, June 14, 2013

Does the Computer Fraud and Abuse Act violate the 10th Amendment to the US Constitution?

US v. Roque, Dist. Court, D. New Jersey 2013

Motion to Dismiss indictment denied.  From the Court Opinion:

Essentially, the Superseding Indictment[1] alleges that Felix Roque, who is the Mayor of West New York, and his son, Joseph Roque, sought, through violations of the Computer Fraud and Abuse Act ("CFAA"), to disable a website critical of Mayor Roque's administration and to harass persons associated with the website. Of course, alleging is not proving, and the defendants are clothed in the presumption of innocence. It would be premature and inappropriate at this stage to consider the truth, or not, of what is alleged. The current motions are directed to the sufficiency of the Indictment and its allegations as a matter of law.

Computer Fraud and Abuse Act

Defendants move to dismiss the Indictment. They assert that the CFAA, at least as applied here, impinges upon the authority of the State of New Jersey to regulate local conduct, and hence violates the Tenth Amendment to the United States Constitution. The Tenth Amendment provides that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const, amend. X. The government responds, in essence, that the CFAA is an exercise of a power "delegated to the United States by the Constitution" — specifically, by the Commerce Clause, which grants Congress the power to "regulate Commerce ... among the several States." U.S. CONST, art. I, § 8, cl. 3. See generally Treasurer of N.J. v. U.S. Dep't of Treasury, 684 F.3d 382, 413 (3d Cir. 2012) ("If Congress acts under one of its enumerated powers ... there can be no violation of the Tenth Amendment") (quoting United States v. Parker, 108 F.3d 28, 31 (3d Cir. 1997)).[3]

The CFAA was enacted pursuant to the Commerce Clause power. The CFAA charges here are explicitly tied to "protected computers," defined as computers "used in or affecting interstate or foreign commerce or communication." 18 U.S.C. § 1030(e)(2)(B). The Indictment alleges that each computer in question was a protected computer, i.e., a "computer used in and affecting interstate commerce." E.g., Indictment Count 1, ¶¶ 2(a) 86 (b); Count 2, ¶ 2. If facially adequate, such allegations are sufficient to call for a trial on the merits. See generally Costello v. United States, 350 U.S. 359, 363 (1956); United States v. Vitillo, 490 F.3d 314, 320 (3d Cir. 2007). The Indictment, in other words, need only allege a valid offense; it need not on its face negate the possibility of every application of the statute that might present a Constitutional problem. It is almost tautological that an allegation of interstate commerce, if proven, would establish the required nexus to interstate commerce. And having alleged interstate commerce, the government has taken on the burden of proving it. Nevertheless, because that is something of a legal conclusion, I will entertain briefly the defendants' contention that the allegations factually fall short of what is legally required to support federal jurisdiction. See generally Fed. R. CRIM. P. 12(b)(3)(B); United States v. Panarella, 277 F.3d 678, 685 (3d Cir. 2002) (Rule 12 challenge available "if the specific facts alleged in the charging document fall beyond the scope of the relevant criminal statute").

It is settled that the Commerce Clause power encompasses (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce; and (3) activities that substantially affect interstate commerce. See United States v. Lopez, 514 U.S. 549, 558-59 (1995); United States v. Bishop, 66 F.3d 569, 590 (3d Cir. 1995). The Indictment alleges facts and circumstances sufficiently broad to encompass proof of the requisite connection to interstate commerce under category (1) or category (2).

The inherent attributes of the internet, plus the physical locations of the computers in question here, suggest that the defendants used the "channels" or "instrumentalities" of interstate commerce, and that the relevant communications crossed state lines and hence were "in" interstate commerce. See United States v. MacEwan, 445 F.3d 237, 245 (3d Cir. 2006) (concluding that the "Internet is an instrumentality and channel of interstate commerce"); United States v. Trotter, 478 F.3d 918, 921 (8th Cir. 2007). The computers at issue here were all connected to the internet, and were used to communicate over the internet. The government argues, with some force, that the internet is the quintessential "instrumentality" of 21st century commerce. Thus the commerce power that once permitted the government to regulate intrastate activities of railroad cars would permit regulation here, even if the computer communications had been confined to this State. Cf. Southern R. Co. v. United States, 222 U.S. 20 (1911).[4] Even as applied to in-state activity, the CFAA has been upheld as a valid exercise of the Commerce Clause power. See, e.g., Trotter, 478 F.3d at 921; United States v. Mitra, 405 F.3d 492, 496 (7th Cir. 2005) (purely local attack on first-responder network upheld as violation of CFAA because the network operated over the electromagnetic spectrum and was an instrumentality of interstate commerce). Likewise, and in the alternative, the commerce power that once permitted the government to regulate persons and property actually transported across state lines permits regulation of the interstate communications here. Cf. Brooks v. United States, 267 U.S. 432 (1925) (upholding Dyer Act, which prohibits transportation of stolen vehicles across state lines); Hoke v. United States, 227 U.S. 308, 320 (1913) (Mann Act). Actual interstate communications between, for example, computers in New Jersey and "Go Daddy, an Internet Service Provider (ISP') located in Arizona," or "Weebly, a second ISP located in California" (Indictment Count 1, ¶ 1(h)), may demonstrate that the computers were used "in" interstate commerce. See Trotter, 478 F.3d at 921 (citing Mitra, 405 F.3d at 496).

We might hypothesize that the offense conduct involves purely local politics, or that the participants were personally indifferent to the interstate character of the internet or the location of the servers. In general — and certainly at this pretrial stage — I cannot say that this affects the issue. It may be just as true, for example, that a carjacker does not intend to commercially exploit a stolen car, or to drive it across state lines; nevertheless, because carjacking implicates interstate commerce, Congress has the power to prohibit it. See Bishop, 66 F.3d at 590; see also Trotter, 478 F.3d at 922,

Under these principles, I cannot grant defendants' motion to dismiss the Indictment. The allegations of the Indictment encompass a set of facts that, if proven, would make out a violation of the CFAA that would fall within the Commerce Clause power. Even if I accepted the defendants' Tenth Amendment reasoning, see n.3, above, I could not find at this early procedural stage that the government had boxed itself out of proving a valid federal case. The motion to dismiss the Indictment on these grounds is denied.

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