Yet again, the clash between technology and the law shows that neither Congress nor the courts can be trusted to handle the unintended consequences.  Via Fourth Amendment, the Eighth Circuit in  United States v. Kramer banged Neil Kramer with a two-level upward adjustment for having used a computer, pursuant to 18 U.S.C. § 1030(e)(1), in the course of transporting a minor in interstate commerce for the purpose of sexual activity.

What sort of computer did he use, you ask?  Was it an Apple? (Oh, please don’t let it be an iPad, please, please, please…)  No, it wasn’t a Mac.  It wasn’t even a PC.  It was (ta da) a Motorola.  More particularly, a Motorazr V3.

Huh?  That’s not a computer.  That’s a cellphone.  Welcome to the world of technology, as envisioned through the eyes of Congress and expressed through the will of the court.

The language of 18 U.S.C. § 1030(e)(1) is exceedingly broad. If a device is “an electronic . . . or other high speed data processing device performing logical, arithmetic, or storage functions,” it is a computer. This definition captures any device that makes use of a electronic data processor, examples of which are legion.

And in accord, the Circuit offers this chunk of scholarly wisdom:

Orin S. Kerr, Vagueness Challenges to the Computer Fraud and Abuse Act, 94 Minn. L. Rev. 1561, 1577 (2010) (“Just think of the common household items that include microchips and electronic storage devices, and thus will satisfy the statutory definition of ‘computer.’ That category can include coffeemakers, microwave ovens, watches, telephones, children’s toys, MP3 players, refrigerators, heating and air-conditioning units, radios, alarm clocks, televisions, and DVD players, in addition to more traditional computers like laptops or desktop computers.” (footnote omitted)). Additionally, each time an electronic processor performs any task—from powering on, to receiving keypad input, to displaying information—it performs logical, arithmetic, or storage functions.

And you wonder why I pay so much attention to things Orin says?  Of course, Orin’s laundry list was intended to point out the vagueness of the law rather than provide a road map for prosecutors to locate potential enhancements.  The point, however, is swallowed up in the language of § 1030(e)(1), which today reads like a second-grader’s understand of how a computer works.  Actually, a second-grader would have a better grasp; more like a legislator’s understanding.

Furthermore, there is nothing in the statutory definition that purports to exclude devices because they lack a connection to the Internet. To be sure, the term computer “does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.” 18 U.S.C. § 1030(e)(1). But this hardly excludes all non-Internet-enabled devices from the definition of “computer”—indeed, this phrasing would be an odd way to do it.

Of course, the definition of computer was enacted in 1986.  Some of you might not remember 1986 too well, but at the time the internet was virtually non-existent for normal folks,  Online existence was just budding, and to the extent early adopters were involved at all, it was in chatrooms or bulletin boards wholly populated by those who used a particular ISP, such as AOL, Prodigy or CompuServe.

So Congress didn’t address it?  Congress didn’t have the slightest clue the internet existed.  Of course, the law was amended a few times during the 1990s, as the internet emerged, and again as part of the USA Patriot Act, but then Congress wasn’t worried about correcting its overbroad definition of computer, or its omission of the internet, but rather how it could scream terrorism and emasculate constitutional rights at home.  But I digress.

This misbegotten definition might seem to implicate the enhancement if the bad guy brews himself a strong cup of java on his computer to keep him awake while he embarks on his interstate tryst with a minor, but the Circuit explains why we need not fear so broad a reading:

Of course, the enhancement does not apply to every offender who happens to use a computer-controlled microwave or coffeemaker. Application note 4 to § 2G1.3(b)(3) limits application of the enhancement to those offenders who use a computer “to communicate directly with a minor or with a person who exercises custody, care, or supervisory control of the minor.” U.S. Sentencing Guidelines Manual § 2G1.3(b)(3) cmt. n.4 (2009). Therefore, the note continues, the enhancement “would not apply to the use of a computer or an interactive computer service to obtain airline tickets for the minor from an airline’s Internet site.” Id. This is a meaningful limitation on the applicability of the enhancement, but it is no help to Kramer.

Notably, it’s not the statutory or caselaw that offers limitation, but the application note in the Sentencing Guidelines.  Though it’s double non-binding, and readily changeable, it’s all that stands between your toaster and prison.  Not prison for the toaster, but the defendant.

The Eighth Circuit recognized that its decision swept a device that no normal person would call a computer under existing technological understanding, or served to satisfy the Congressional purposes upon which the law was grounded way back in 1986, but was constrained by the plain language of the statute.

But to the extent that such a sweeping definition was unintended or is now inappropriate, it is a matter for the Commission or Congress to correct. We cannot provide relief from plain statutory text. See United States v. Mitra, 405 F.3d 492, 495 (7th Cir. 2005) (“As more devices come to have built-in intelligence, the effective scope of [§ 1030(e)(1)] grows. This might prompt Congress to amend the statute but does not authorize the judiciary to give the existing version less coverage than its language portends.”).

Don’t let those warm bodies imprisoned while the courts await Congress’ swift and decisive move toward correcting antiquated definitions of technology bother you.  The rules of statutory construction are far more important than any conceivable application of lenity.

But then, a nagging question was raised over at Fourth Amendment blog:

So, how can the government now argue that a cell phone seized in a search incident is not a computer, too? When is a cell phone a mere storage device and not a computer? Only when the government wants it to be not a computer, apparently.

A curious point indeed when one considers that computers received significant protection under the Fourth Amendment, while cellphones are entirely different.

And what does Orin Kerr have to say about this?  He approves.