The opinion of the court was delivered by: Legge, District Judge.
Defendant has made several motions, which have been opposed,
briefed, argued, and submitted for decision.
The indictment charges one count, a violation of
18 U.S.C. § 1030(a)(5)(A). That section provides that whoever "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" is guilty
of a crime.
Defendant first moves to dismiss the indictment on the ground
that its allegations are insufficient. The charging indictment
closely tracks the language of the statute quoted above. It then
goes on to charge that "defendant knowingly transmitted code and
commands to a computer system of an Internet Service Provider
within the Northern District of California, a computer system
that was then used in interstate and foreign commerce, and that
as a result of such conduct the defendant intentionally caused
damage without authorization, and that damage caused a loss
aggregating at least $5,00 during a one-year period. . . ." The
dispute is over the sufficiency of the allegation of damage.
The term "damage" for purposes of Section 1030(a)(5)(A) is
defined in Subsection (e)(8) in four ways. The one that is at
issue here is Subsection (e)(8)(A), defining "damage" as "causes
loss aggregating at least $5,000 in value during any 1-year
period to one or more individuals."
The indictment here specifically alleges that the damage was a
loss aggregating at least $5,000 during a one-year period. The
indictment does not use the words "to one or more individuals."
However, the failure to include that language does not render the
indictment fatally defective.
This indictment meets those standards. The acts which defendant
is alleged to have done are certainly set forth with adequate
particularity, tracking the language of the statute. Subsection
(a)5(A) states that it is unlawful to cause damage to a protected
computer, but does not specify what that damage is. Subsection
(e)(8) defines "damage" in four ways. The indictment charges that
the damage was a loss aggregating at least $5,000 during a
one-year period. That is clearly invoking the damage defined in
The motion to dismiss the indictment on the ground of the
insufficiency of the charge is therefore denied.
A more serious argument is that because of the requirement of
the statute that the damage be to an "individual," it is not
applicable to the facts of this case. Defendant argues that the
term "to one or more individuals" includes only natural persons
and not businesses. The government argues that "individuals" can
include businesses as well as natural persons.
The indictment itself does not state whether the harm was to a
natural person or not. The victim is identified only as an
"Internet Service Provider." However, in the briefing on this
motion the parties agree that the victim was a business entity
known as Slip. net, which is not a natural person. Therefore,
both sides ask this court to resolve the question of whether the
"damage" defined by the statute must be to a natural person or
can also be to other types of entities. There is no case decision
on that issue under this statute. This court believes that the
issue must be resolved based upon the intent of Congress.
A recent decision of the United States Supreme Court, Clinton
v. City of New York, 524 U.S. 417, 118 S.Ct. 2091, 141 L.Ed.2d
393 (1998), discussed the use of the term "individual" in a
statute, in the context of the Line Item Veto Act. That act
provides that an "individual" adversely affected by the act can
bring an action challenging its constitutionality. The Court
interpreted the term "individual" to include not only natural
persons, but also business and ...