Supreme Court of the United States

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1 Case No IN THE Supreme Court of the United States April Term, 2016 ALBERTA CAPINE, Petitioner, v. UNITED STATES OF AMERICA, Respondents. On Writ of Certiorari to the United States Court of Appeals for the Twelfth Circuit BRIEF FOR RESPONDENT United States of America Team 4 Attorneys for Respondent

2 TABLE OF CONTENTS TABLE OF CONTENTS...i Page TABLE OF AUTHORITIES...iii QUESTIONS PRESENTED...1 OPINIONS BELOW...1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...2 INTRODUCTION...3 STATEMENT OF THE CASE...5 ARGUMENT...9 I. THE TWELFTH CIRCUIT CORRECTLY ALLOWED SIXTEEN DOCUMENTS CONTAINING EVIDENCE OF ALBERTA CAPINE S DRUG TRANSACTIONS INTO EVIDENCE BECAUSE THEY WERE PREVIOUSLY VIEWED SUBJECT TO THE PRIVATE SEARCH DOCTRINE AND WOULD HAVE BEEN DISCOVERED SUBJECT TO THE INDEPENDENT SOURCE DOCTRINE...8 A. Violation Of The Warrant Requirement Is Not Subject To The Exclusionary Rule When Origania Police Officer Miller Viewed The Drug Transaction Files Because Those Files Were Previously Viewed By A Private Citizen...10 B. Violation Of The Warrant Requirement Is Not Subject To The Exclusionary Rule When Officer Miller Viewed Capine s Remaining Drug Transaction Files Because Those Files Would Have Been Found Through The Independent Source Doctrine...15 II. THIS COURT SHOULD AFFIRM THE TWELFTH CIRCUIT S AFFIRMATION OF THE DISTRICT COURT S GRANT OF SUMMARY JUDGMENT ON THE CFAA CLAIM BECAUSE EXCEEDS AUTHORIZED ACCESS IN THE CFAA APPROPRIATELY CREATES LIABILITY FOR VIOLATIONS OF USE RESTRICTIONS...19 A. This Court Should Adopt The Broad Definition Of Exceeds Authorized Access The broad definition is consistent with the CFAA s plain language...20 i

3 2. Under the broad definition, Petitioner exceeded her authorization...22 B. Arguments Against The Broad Interpretation Of Exceeds Authorized Access Are Misapplied Because the meaning of the statutory language can be determined with ordinary rules of statutory construction, the rule of lenity is inapplicable here The CFAA is not void for vagueness, nor does it pose a trap for the unwary...25 CONCLUSION...27 ii

4 TABLE OF AUTHORITIES CASES Page(s) United States Supreme Court Andresen v. Maryland, 427 U.S. 463 (1976)...12 DePierre v. United States, 131 S. Ct (2011)...25 Holder v. Humanitarian Law Project, 130 S. Ct (2010)...26 Horton v. California, 496 U.S. 128 (1990)...8 Hudson v. Michigan, 547 U.S. 586 (2006)...8, 9 Katz v. Unites States, 389 U.S. 347 (1967)...8, 10 Maryland v. Garrison, 480 U.S. 79 (1987)...11 Murray v. United States, 487 U.S. 533 (1988)...8, 15, 17, 18 Nardone v. United States, 308 U.S. 338 (1939)...16 Nix v. Williams, 467 U.S. 431 (1984)...18 Segura v. United States, 468 U.S. 796 (1984)...15, 16, 17, 18 Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920)...15, 16 United States v. Calandra, 414 U.S. 338 (1974)...15 iii

5 United States v. Jacobsen, 466 U.S. 109 (1984)...10, 11 United States v. Knotts, 460 U.S. 276 (1983)...8 United States v. Leon, 468 U.S. 897 (1984)...9, 10 United States v. Moore, 423 U.S. 122 (1975)...25 United States v. Shabani, 513 U.S. 10 (1994)...24 United States v. Williams, 553 U.S. 285 (2008)...25 Walter v. United States, 447 U.S. 649 (1980)...9, 11, 12, 13 Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 (1967)...11 Wong Sun v. United States, 371 U.S. 471 (1963)...8, 9 United States Courts of Appeals EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577 (1st Cir. 2001)...22, 23 Int'l Airport Ctrs., LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006)...22 P.C. Yonkers, Inc. v. Celebrations the Party and Seasonal Superstore, LLC, 428 F.3d 504 (3d Cir. 2005)...20 Rann v. Atchison, 689 F.3d 832 (7th Cir. 2012)...13 United States v. Banks, 514 F.3d 959 (9th Cir. 2008)...24 United States v. Gosselin World Wide Moving, N. V., 411 F.3d 502 (4th Cir. 2005)...25 iv

6 United States v. John, 597 F.3d 263 (5th Cir. 2010)...22, 23 United States vs. Nosal, 676 F.3d 854 (9th Cir. 2012)...23, 24 United States v. Ranyun, 255 F.3d 449 (5th Cir. 2001)...13 United States v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010)...22, 23 United States v. Romm, 455 F.3d 990 (9th Cir. 2006)...24 United States v. Sioux, 362 F.3d 1241 (9th Cir. 2004)...20 WEC Carolina Energy Solutions LLC v. Miller, 687 F.3d 199 (4th Cir. 2012)...23, 24 District Courts Shamrock Foods Co. v. Gast, 535 F.Supp.2d 962 (D. Ariz. 2008)...20 Shurgard Storage Centers, Inc. v. Safeguard Self Storage, Inc., 119 F. Supp. 2d 1121 (W.D. Wash. 2000)...21 CONSTITUTIONAL PROVISIONS U.S. Const. amend. IV...passim STATUTES 18 U.S.C (2012)...passim OTHER AUTHORITIES H.R. Rep. No (1984)...20 Pub. L. No , 2102, 98 Stat (1984)...20 S. Rep. No (1986)...21, 27 Webster's New Riverside University Dictionary (1995)...20, 21, 26 v

7 QUESTIONS PRESENTED I. This Court has held that violations of the Fourth Amendment are excluded except when a search is conducted by a private citizen, and when police have discovered the information through an independent source. Officer Miller viewed files that were previously viewed by a private citizen and those files were again disovered pursuant to a warrant as an independent source. Should the Court apply the exclusionary rule to Capine s drug transaction files? II. Circuit courts have adopted conflicting interpretations of the Computer Fraud and Abuse Act ( CFAA ) as it applies to employees. Lacking specific authorization, Capine used her position and access at a debt collection agency to unlawfully obtain confidential consumer information to perpetuate identity theft. Do Capine s actions appropriately fit the definition of exceeds authorized access under the CFAA? STANDARD OF REVIEW This Court will review the case at hand de novo. (R. at 4.) OPINIONS BELOW The decision of the United States Court of Appeals for the Twelfth Circuit denying Capine s motion to supress is reported at Capine v. United States, 913 F.3d 1131 (12th Cir. 2015), and in included in the record at pages The decision of the United States District Court for the District of Origania is unreported. 1

8 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. The Computer Fraud and Abuse Act, 18 U.S.C. 1030, provides in relevant part: (a) Whoever... (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains (A) information contained in a financial record of a financial institution, or of a card issuer as defined in section 1602 (n) of title 15, or contained in a file of a consumer reporting agency on a consumer, as such terms are defined in the Fair Credit Reporting Act (15 U.S.C et seq.); (C) information from any protected computer; (4) knowingly and with the intent to defraud, access a protected computer without authorization, or exceeds authorization by means of such conduct furthers the intended fraud and obtains anything of value... shall be punished as provided in subsection (c) of this section. (B) which is used in or affecting 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; 2

9 INTRODUCTION SUMMARY OF THE ARGUMENT I. This Court should affirm the Twelth Circuit s denial of Petitioner s motion to supress because Officer Miller viewed Capine s files within the scope of the private search doctrine and those files were also descovered through an independent source. The Twelfth Circuit affirmed the jury s decision to convict Alberta Capine in the district court, holding that the incriminating files viewed by Officer Miller are not subject to the exclusionary rule because those files were viewed by a private citizen. The district court correctly applied the private search doctrine in denying Capine's motion to suppress the thirteen files. Before police searched the transaction history folder, a private party searched it viewing three randomly selected files, frustrating Capine s expectation of privacy. Because the police search did not exceed the scope of the private search, it did not violate the Fourth Amendment. Moreover, regardless of the scope of the private search, the Twelfth Circuit should be affirmed because the thirteen additional files Officer Miller viewed were also discovered through an independent source. Officer Miller obtained a valid warrant to search not only the incriminating folder but also all the content of Capine s computer. During this search, Officer Miller discovered incriminating evidence in all thirty-two files located within the transaction history folder. Despite the prior supposed violation, because those files were found from this independent source, the exclusionary rule need not apply. Thus, the Court should affirm the Twelfth Circuit holding and deny Petitioner s motion to suppress. II. With regards to the CFAA, this presents an issue of first impression to the Supreme Court: whether the Twelfth Circuit properly upheld prosecution of Petitioner under the 3

10 CFAA. Respondent asserts that Petitioner exceed[ed] authorized access to Find Funds Inc. computer system under the CFAA when she violated corporate policies restricting access to confidential financial information for debt collection only. The Twelfth Circuit s ruling acknowledges clear and unambiguous statutory language and should be affirmed. The CFAA provides that an individual exceeds authorized access by using authorized access to obtain information which the individual is not entitled to obtain. 18 U.S.C. 1030(e)(6). The dictionary definition of entitle is to furnish with a right. An employer furnishes the right to obtain information from workplace computers, and can restrict that right to business purposes. Employees who violate those policies have exceeded their authorized access, and can be prosecuted under the CFAA. The legislative history of the CFAA supports this plain reading of exceeds authorized access. Moreover, the rule of lenity does not require a different interpretation because it only applies to ambiguous statutes. Where, as here, the statute is facially unambiguous and provided fair warning that Petitioner was criminally liable for her conduct, the rule of lenity cannot be used to overturn Congress' express intent. Petitioner ought to be prosecuted under the CFAA because she expressly violated company policies prohibiting accessing the financial information database in a way that deviated from the business purpose of debt collection. Consequently, this Court should affirm the Twelfth Circuit s ruling that Petitioner s actions violate the CFAA. 4

11 STATEMENT OF THE CASE Statement of the Facts Petitioner Alberta Capine worked as a small claims supervisor for Find Funds, Inc., a debt collections agency. (R. at 2.) In her employment, Petitioner had the significant responsibility to safeguard agency computers that had access to sensitive financial information databases. Id. Petitioner was assigned a username and password to access those databases in order to find confidential information for the sole purpose of debt collection. Id. Petitioner was not authorized to use FF computer resources for personal gain and FF has a policy of deactivated employee usernames and passwords when they leave the company. Id. On September 23rd, Ester Sundon s, a coworker and roommate of Petitioner s, laptop broke down and Sundon asked Petitioner to borrow her laptop. Id. In reaction to this request, Petitioner became tense, avoided eye contact and refused. Id. Due to Petitioner s suspicious behavior, Sundon accessed Petitioner s laptop without permission as she saw Petitioner s use her password earlier. Id. Upon login, Sundon saw and open folder labeled transaction history, which contained a list of sixteen documents and sixteen excel spreadsheets. Id. The word and excel files were paired with a common name for example, LitlAl.pdf and LitlAl.xlsx, or BigJim.pdf and BigJim.xlxs. Id. Additionally, each file type within the folder is approximately the same size; the PDFs ranged from 15-20KB (kilobytes) and the spreadsheets ranged from 10-17KB. (R. at 3.) Sundon opened the first spreadsheet and discovered a chart that identified a series of drug transaction, each listed by date, dollar amounts, and the quantities of marijuana, cocaine, methamphetamine, and other illegal drugs. Id. Sundon then randomly choose two more spreadsheets to view and found similar charts detailing the sale of illegal drugs. Id. Without 5

12 opening other files, Sundon called the police to report what was found. Id. Officer Miller was dispatched to the scene where Sundon showed him all the files that she had already opened. (R. at 3.) Officer Miller immediately recognized that the files described the dealing of illegal drugs. Id. Officer Miller was granted permission to use the laptop by Sundon and copied the spreadsheets and PDFs from the transaction history folder to a flash drive. Id. Officer Miller then viewed each file finding that all 16 spreadsheets contained transaction history for dealing illegal drugs and the PDF documents contained private customer date such as: names, addresses, social security numbers, dates of birth, telephone numbers, family connections, and employment and credit information (including bank account and credit card accounts). Id. The confidential information contained in the PDFs indicated that they were saved from a FF database for financial information services called Sureinf.com. Id. Officer Miller then confiscated the laptop and obtained a warrant before searching the remainder of the computer. Id. Further investigation discovered that the PDFs had been accessed using Petitioner s unique employee username and password. Id. Summary of the Proceedings Petitioner was indicted for multiple counts of drug trafficking, attempted identity theft, and violation of the Computer Fraud and Abuse Act ( CFAA ). (R. at 3.) Under 18 U.S.C. 1030(a)(2)(C), Petitioner was charged with having exceeded her authorized access to a protected computer and obtaining information therefrom. Id. Before trial, Petitioner moved to exclude all the files on the grounds that they were obtained in violation of the Fourth Amendment. Id.)\ The trial court denied her motion based on the private search exception, and allowed all of the spreadsheets and PDF documents to be admitted as evidence. Id. Petitioner was convicted on all counts. Id. On appeal, Petitioner argued that she obtained 6

13 her the personal information as an authorized user of FF s computer system and that the warrantless search of the files Sundon did not view violated the Forth Amendment. Id. The United States District Court for the District of Origania affirmed the trial court s decision on both issues. Id. Petitioner filed a Petition for Writ of Certiorari with the United States Supreme Court, and Certiorari was granted on October 19, (R. at 1.) 7

14 ARGUMENT I. THE TWELFTH CIRCUIT CORRECTLY ALLOWED SIXTEEN DOCUMENTS CONTAINING EVIDENCE OF ALBERTA CAPINE S DRUG TRANSACTIONS INTO EVIDENCE BECAUSE THEY WERE PREVIOUSLY VIEWED SUBJECT TO THE PRIVATE SEARCH DOCTRINE AND WOULD HAVE BEEN DISCOVERED SUBJECT TO THE INDEPENDENT SOURCE DOCTRINE. The Fourth Amendment guarantees the right of individuals to be secure in their person and effects, and that right shall not be violated by an unreasonable search without a warrant. U.S. Const. amend. IV. The Fourth Amendment protects people and what a person seeks to preserve, even in an area accessible to the public. Katz v. Unites States, 389 U.S. 347, 351 (1967); see also Horton v. California, 496 U.S. 128 (1990) (holding the Fourth Amendment proscribes all warrantless searches unconstitutional per se). Its protection applies to privacy from government intrusion, determined by whether the individual had an expectation of privacy that society recognizes as reasonable. United States v. Knotts, 460 U.S. 276, 281 (1983). Violation of the Fourth Amendment could lead to the exclusion of evidence. The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful search. Murray v. United States, 487 U.S. 533, 536 (1988). This rule also prohibits the introduction of further evidence that is the product of the primary evidence, or that is acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes attenuated from the taint. Id. at But suppression of evidence has always been the Court s last resort, not its first impulse, because the exclusionary rule generates substantial social cost. Hudson v. Michigan, 547 U.S. 586, 591 (2006). Exclusion of evidence sometimes sets the guilty free and the dangerous back onto the streets. Id. This Court has been cautious not to expand the exclusionary rule, repeatedly emphasizing its costly toll on truth-seeking objectives. Id. 8

15 In United States v. Leon, 468 U.S. 897, 907 (1984), this Court rejected indiscriminate application of the rule and later held that it is only applicable where remedial objectives are most efficaciously served, such that the benefit of deterrence outweighs the social costs. Hudson v. Michigan, 547 U.S. at 591. Here it is clear that the exclusion of evidence from what the Respondents content was not a product of a Fourth Amendment violation, could effectively place a drug dealer back onto the streets. That cost to society drastically outweighs any deterrent effect in this case. Reversing the Circuit Court decision would communicate to police that a reasonable inference in an area authorized to be searched is unconstitutional. Making new law would gravely change police investigative procedure. Furthermore, this Court has rejected an expansive view of the exclusionary rule, suggesting a wide scope such that all evidence obtained in violation of the Constitution is inadmissible. Id. The Court further rejected violation of the Fourth Amendment as synonymous with the application of the exclusionary rule. Id. Rather, whether the exclusionary rule is appropriately imposed in a particular case is an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct. Id. at The Court instructs that it is necessary for a constitutional violation to be a but-for cause of obtaining evidence, but it alone is not a sufficient condition for suppression. Id. at 592. If police violation the Fourth Amendment in obtaining evidence was a but-for cause, this Court has never held that evidence as being fruit of the poisonous tree merely because it would not have been discovered but-for the illegal police action. Id. But-for cause is causation in the logical sense, and alone may be too attenuated from the taint to justify exclusion. Id. The more apt questions is whether the evidence has come in by exploitation of police illegality, or by means sufficiently distinguishable to be purged of the primary taint. Wong Sun v. United States, 9

16 371 U.S. 471, 488 (1963). Even in situations where there is a direct causal connection, attenuation of the taint occurs when the violated interest protected by the Constitution would not be saved by suppression of the evidence obtained. Leon, 547 U.S. at 593. Adopting the policy that the public today should not pay for inadequacies in the legal regime of the past, the Court has refused to assume that exclusion in this context is a necessary deterrence merely because it was deterrence in a different context long ago. Id. at 597. This Court has emphasized that the Fourth Amendment requires adherence to judicial processes, with only a few specific exceptions. Katz, 389 U.S. at 357. Applicable here is the private search doctrine. For this Court has consistently construed the protection of the Fourth Amendment as proscribing only governmental action, and that it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official. United States v. Jacobsen, 466 U.S. 109, 113 (1984) (quoting Walter v. United States, 447 U.S. 649, 662 (1980).) The private search doctrine applies to the evidence at hand and this Court should affirm the Twelfth Circuit s ruling and find that Officer Miller s search and discovery of incriminating drug transaction files on Alberta Capine ( Petitioner s ) laptop should be included into evidence. A. Violation Of The Warrant Requirement Is Not Subject To The Exclusionary Rule When Origania Police Officer Miller Viewed The Drug Transaction Files Because Those Files Were Previously Viewed By A Private Citizen And Within The Scope Of The Private Search. Three files that police viewed that were previously viewed by Sundon, falling squarely within the definition of the private search doctrine and is not an issue before this Court. The additional thirteen files viewed by Officer Miller should not be excluded because they do not go 10

17 substantially beyond the private search and are therefore not protected by the Fourth Amendment. It is well recognized by this Court that the Fourth Amendment does not apply to searches by private citizens. United States v. Jacobsen, 466 U.S. 109 (1984). The Fourth Amendment only applies to searches and seizures involving government action, and warrantless searches are presumptively unreasonable. Id. at 114. But reasonableness of police having invaded a citizen s privacy must be evaluated based on the facts at that time. Id. at 115. When the initial invasion of privacy is occasioned by private action, whether accidental or deliberate, and whether reasonable or unreasonable, there is no violate the Fourth Amendment because of their private character. Id. Furthermore, an additional invasion of privacy by the government must be tested by the degree to which they exceeded he scope of the private search. Id. (emphasis added) On its face, this implies that there is some degree to which the scope of the private search is exceeded yet still analyzed under the private search doctrine. Just as a properly authorized police search is limited by the terms of its authorization, the same kind of limitation must be applied to the police use of a private citizen s invasion of another person s privacy. Id. at The particularity requirement of a warrant includes reasonable specificity in describing the place to be searched and the things the police are searching for. Maryland v. Garrison, 480 U.S. 79, 84 (1987). For instance, the Court upheld a warrant authorizing the search of a third floor apartment despite there being two apartments on the third floor. Id. at 87. In the execution of the warrant, the police reasonably included the entire third floor, both apartments, even though the suspect only inhabited one. Id. Like in Garrison, where the suspect lived in one apartment but police searched both apartments on the 11

18 third floor as the warrant specified, here Officer Miller searched thirteen additional files within the transaction history folder contained the three files viewed by Sundon. (R. at 3.) A general warrant would of course be considered intrusive per se, but if a warrant refers to a the search of documents involving a crime of false pretenses, then police would be authorized to search all documents for that crime; and if they should come across mere evidence, other than what was described in the warrant, then it too is admissible if it aids in conviction. Andresen v. Maryland, 427 U.S. 463, 480, 483 (1976) (See also Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307 (1967), where the Court stated that when the police seize mere evidence, probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. ) Applied to the particularity of the authorization here, if Officer Miller searched the entire computer, or even went beyond the confines of the transaction history folder, then it would be akin to general warrant intrusiveness. Instead, Sundon gave Officer Miller authorization to search the incriminating transaction history folder where she randomly choose three files to view. (R. at 3.) Like in Andresen v. Maryland, searching documents for crimes of false pretenses may uncover private unrelated information or other incriminating evidence that could aid in conviction, here looking through the incriminating folder also revealed more incriminating information that aided in Petitioners conviction. (R. at 3.) Therefore, a properly authorized police search would be limited to the entire folder, and that same limitation must be applied to the police use of a private citizen s invasion of another person s privacy. Justice Stevens provided examples of exceeding the scope of a private search; each tend to show how there is an obvious difference in the authorized place to be search, or thing to be search for, than something outside of the scope. Walter, 447 U.S. at 657. For instance, an 12

19 authorized search of a garage would not imply authorization to search an adjacent house, just as a warrant to search for a stolen refrigerator would not authorize the opening of desk drawers. Id. This Court has not reviewed an issue involving the scope of a digital media device, yet several circuits have. In Rann v. Atchison, 689 F.3d 832, 838 (7th Cir. 2012), the court held that police viewing of all images did not exceed the scope of the private search conducted by the defendant s daughter and mother when they subsequently viewed only a random assortment of illegal images on digital media. Similarly here, Sundon viewed three randomly selected files from the incriminating folder prior to police viewing only thirteen additional files, not the remaining sixteen. (R. at 3.) In United States v. Ranyun, 255 F.3d 449, 464 (2001), the court held that police did exceed the scope of the private search because they could not be substantial certainty that all of the disks contained illegal images; as there was nothing on the disk indicating its contents. Unlike Ranyun, where there were no identifying marks indicating the contents, here there were paired names of documents within a transaction history folder reasonably indicating the content of the files. (R. at 2.) But in Ranyun, the court also recognized that the police do not exceed the scope of a prior private search when they examine more items within a closed container than did the private searchers. 255 F.3d, at 464. Here, the transaction history folder is akin to a container and the items within the container akin to the various files. Thus under this view, Officer Miller did not exceed the scope of the private search. This is distinguishable from Walter v. United States, 447 U.S. 649 (1980), where the Court set the outer limit for what the scope of a private search actually is. There, police confiscated film and screened them to discover incriminating evidence. Id. at 651. The previous private search did not go as far as to project the film, but stopped with examination of the box 13

20 and filmstrips. Id. at 652. Therefore, police projection of the films was a significant expansion of the private search. Id. at 657. Walter is different from here due to one determinative detail; where in Walter the private citizen did not view the films, here Sundon did view three files within the incriminating folder. (R. at 3.) Therefore, Officer Miller did not exceed the scope of the private search. The extent of Officer Miller s search did not exceed the scope of the private search and was not substantial enough to constitute a separate search. Sundon s private search, having chosen files at random in one particular folder that she found suspicious, defined the scope of the officer s subsequent search to the contents of that folder. (R. at 3.) Officer Miller limited his search to only the files on Petitioner s laptop that would clearly reveal evidence of illegal drug dealings due to the information from the initial three documents viewed. Id. The additional thirteen files were in the same folder titled transaction history, labeled such that the spreadsheets and the PDF s were paired with common names, and each type of file was approximately the same size. (R. at 2.) Officer Miller also only viewed the same type of document as Sundon; all were spreadsheets. Id. Accordingly, Officer Miller had no reason to believe that any of the files would reveal anything other than similar illegal information. Officer Miller did not violate Petitioner s Fourth Amendment rights when he opened incriminating files without a warrant because those files were within the scope of the private search that frustrated Petitioner s reasonable expectation of privacy. Therefore, the Court should affirm the decision of the Twelfth Circuit. / / / / / / / / / 14

21 B. Violation Of The Warrant Requirement Is Not Subject To The Exclusionary Rule When Officer Miller Viewed Capine s Remaining Drug Transaction Files Because Those Files Would Have Been Found Through The Independent Source Doctrine. A police search that goes substantially beyond the scope of a previous private search could lead to exclusion of evidence, unless the taint of the violation is attenuated by an independent source. Almost simultaneously with the Courts development of the exclusionary rule in 1921, it announced the independent source doctrine. Murray, 487 U.S. at 537. The United States contends that the police in this matter did not go substantially beyond the scope of the private search, yet if the Court should hold that they did, then the Court should still affirm based on the independent source doctrine. In Segura v. United States, this Court decided whether an earlier illegal entry by police, in violation of the Fourth Amendment, required suppression of evidence later seized pursuant to a valid search warrant. 468 U.S. 796, (1984). Resolution of this issue requires the Court to determine whether the initial violation tainted the discovery of the challenged evidence. Id. at 799. The Court held that evidence discovered during a valid search warrant, issued wholly on information known to police prior to the violation, need not be suppressed as fruit of the poisonous tree because the information on which the warrant was based is unrelated to the violation; based on an independent source. Id. See also Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). The exclusionary rule is a judicially prescribed remedial measure and as with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served. Segura, 468 U.S., at 804. (quoting United States v. Calandra, 414 U.S. 338, 348 (1974).) Evidence obtained as a direct result of an unconstitutional search [] is plainly subject to exclusion. Id. Further evidence obtained is 15

22 tainted by a prior illegality if exploited by of the initial illegality; but if obtained by distinguishable means then it is purged from the primary taint. Id. at Nearly a century ago it was well established that evidence is not excluded if the connection between illegal police conduct and the discovery of evidence is so attenuated as to dissipate the taint. Id. at 805. See Nardone v. United States, 308 U.S. 338, 341 (1939). Therefore, if police had an independent source for discovery of the evidence, then it is not excluded. Id. See also Silverthorne Lumber Co., 251 U.S., at 392. Furthermore, a valid warrant search [is] a means sufficiently distinguishable to purge the evidence of any taint arising from supposed the illegal action. Id. at 814. In Segura, the Assistant United States Attorney advised police that they should secure Segura s apartment to prevent the destruction of evidence while a search warrant was obtained. Id. at 800. While conducting external surveillance, police stopped Segura outside his apartment and then made entry without request or permission. Id. Police conducted a security check to ensure safety and that evidence was not destroyed, but in the process observed drug trafficking paraphernalia. Id. at 801. That evidence was not altered, and the next day, after the warrant was issued, police rediscovered that evidence. Id. The District Court held that but-for the illegal entry, the drug paraphernalia may have been removed or destroyed and would not have been discovered when the warrant search was made; therefore, all evidence under the warrant were fruit of the poisonous tree. Id. at 802. The Court of Appeals reversed holding that the suppression of evidence under a valid warrant was prudentially unsound simply because it could have been destroyed. Id. at 803. On review, this Court found that the warrant was not secured based on any information derived from the illegal actions of the police. Id. at 814. The warrant was not secured in any way from information after 16

23 the illegal entry into Segura s apartment; the source of the information came wholly unconnected with the entry and was known to the agents before the initial entry. Id. Because of that, the Court held that it is beyond dispute, that the information possessed by the agents before they entered the apartment constituted an independent source for the discovery of the evidence now challenged. Id. Additionally, in Murray v. United States, 487 U.S. 533 (1988), four years after Segura, this Court reaffirmed the strength of the independent source doctrine when it analyzed the scope of the doctrine. There, knowledge of drugs in a warehouse was acquired at the time of the unlawful entry, but also acquired pursuant to a warrant. Id. at 541. In Murray, the police entered an unoccupied warehouse and in plain view observed numerous burlap-wrapped bales, later found to contain drugs. Id. at 535. The police left without disturbing the bales to secure a search warrant where the police did not mention the prior entry, and did not rely on any observations made during that entry. Id. at [I]f that later acquisition was not the result of the earlier entry there is no reason why the independent source doctrine should not apply. Id. The Court recognized that the exclusionary rule in this situation would put the police and society in a worse position than if no violation occurred. Id. The independent source doctrine rests on the policy; while the government should not profit from its illegal activity, neither should it be placed in a worse position than it would otherwise have occupied. Id. at 542. Therefore, the Court held that it can be absolutely certain that the warrantless entry did not contributed to the issuance of a warrant or to the discovery of the evidence during the lawful search and did not apply the exclusionary rule. Id. at Segura and Murray are analogous this this case. Similar to Segura were police had information to secure a warrant prior to any illegal action, here police also had information, 17

24 derived from legally viewing three files on Petitioner s computer that Officer Miller immediately recognized as dealings in illegal drugs, providing probable cause to secure a warrant. (R. at 3.) As in Murray where the police did not rely on observations made during the initial entry, here there is nothing in the record that indicated that the police relied on all sixteen document in order to secure the warrant. (R. at 2-3.) Also, just as in Segura and in Murray, despite the police violating the Fourth Amendment the Court did not apply the exclusionary rule, here even if the Court finds that police violated Petitioner s privacy the Court should not apply the exclusionary rule because of the application of the independent source doctrine. Society has an interest in deterring unlawful police conduct and in having juries hear all probative evidence of a crime. Nix v. Williams, 467 U.S. 431, 443 (1984). This is properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. Id. When challenged evidence has an independent source, exclusion would put police in a worse position than absent any violation. Id. See also Murray v. United States, 487 U.S. 533, 539 (1988) ( Inevitable discovery stems from the validity of the independent source doctrine as applied to evidence initially acquired unlawfully. The inevitable discovery doctrine is an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered. ) A valid warrant led to the discovery of the all the files in the folder, including files the police viewed and those the police did not previously view, acting as an independent source of discovery separate from viewing the files prior to the warrant. If the Court agrees, Petitioner s Fourth Amendment contentions are at an end. Because the incriminating files were discovered 18

25 independently, after the warrant was issued, that information was derived from an independent source. Thus this Court should affirm the decision of the Twelfth Circuit. II.. THIS COURT SHOULD AFFIRM THE TWELFTH CIRCUIT S AFFIRMATION OF THE DISTRICT COURT S GRANT OF SUMMARY JUDGMENT ON THE CFAA CLAIM BECAUSE EXCEEDS AUTHORIZED ACCESS IN THE CFAA APPROPRIATELY CREATES LIABILITY FOR VIOLATIONS OF USE RESTRICTIONS. The CFAA in effect in 2012 imposed criminal penalties on whoever: knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period. 18 U.S.C. 1030(a)(4). The term protected computer includes any computer which is used in interstate or foreign commerce or communication, including a computer located outside of the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States. 18 U.S.C. 1030(e)(2)(B). The statute does not define the phrase without authorization, however, it does provide the following definition of exceeds authorized access : to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter. 18 U.S.C. 1030(e)(6). A. This Court Should Adopt The Broad Definition Of Exceeds Authorized Access. Under this definition, the operative word is entitled -- whether an individual exceeds authorized access depends on the individual's entitlement to obtain information from a computer system she is authorized to access. The ordinary, dictionary meaning of entitle is to furnish with a right. Webster's New Riverside University Dictionary 435. Since the employer furnishes the right to access its computer systems and obtain information from it, explicit 19

26 policies restricting the right to obtain information from workplace computers determines when an individual exceeds authorized access. Thus where, as here, an employer only allows employees to obtain information from computers for business use, the plain meaning of the CFAA permits criminal prosecution of employees who breach these restrictions. 1. The broad definition is consistent with the CFAA s plain language. This Court's inquiry should end with such clear and unambiguous statutory language. See United States v. Sioux, 362 F.3d 1241, 1246 (9th Cir. 2004) ( It is well-settled that reference to legislative history is inappropriate when the text of the statute is unambiguous. ). However, to the extent that this Court finds any ambiguity in the statute, the legislative history of the CFAA demonstrates that Congress intended to authorize criminal prosecution of employees under these circumstances. The CFAA -- originally called the Counterfeit Access Device and Computer Fraud and Abuse Act -- was enacted in Shamrock Foods Co. v. Gast, 535 F.Supp.2d 962, 965 (D. Ariz. 2008) (citing Pub. L. No , 2102(a), 98 Stat (1984)). It was originally only a criminal statute intended to deter and punish the outside hacker who broke into federal government and certain financial institution computer systems. See H.R. Rep. No , at 10-1, 20 (1984), as reprinted in 1984 U.S.C.C.A.N. 3689, , 3706 (House Committee report identifying concerns about hackers and analogizing the prohibited conduct to that of breaking and entering ); see also S. Rep. No , at 3 (1986), as reprinted in 1986 U.S.C.C.A.N. 2479, 2481 ( The first Federal computer crime statute was enacted in 1984 as part of P.L ). The current version of the CFAA is the product of several revisions that changed its scope from a narrow criminal statute punishing outsiders who hack into federal government and financial institution computers to the much broader statute that now exists. See P.C. Yonkers, 20

27 Inc. v. Celebrations the Party and Seasonal Superstore, LLC, 428 F.3d 504, 510 (3d Cir. 2005) (observing that the scope of [the CFAA's] reach has been expanded over the last two decades. ); Shurgard Storage Centers, Inc. v. Safeguard Self Storage, Inc., 119 F. Supp. 2d 1121, 1127 (W.D. Wash. 2000) (citing S. Rep. No , at 3 (1986)) ( The first version of the CFAA... was directed at protecting classified information on government computers as well as protecting financial records and credit information on government and financial institution computers. ). The felony provision for fraud in connection with computers, Section 1030(a)(4), as well as most of the other substantive provisions of Section 1030, date from the 1986 revisions to the statute. Consequently, the 1986 Senate Judiciary Committee Report commenting on the bill provides a window into the scope of criminal liability under the current provisions of the CFAA. The 1986 revisions substituted the concise term exceeds authorized access for the more cumbersome phrase that had been enacted in the 1984 statute to convey this concept -- or having accessed a computer with authorization, uses the opportunity such access provides for purposes to which such authorization does not extend. See Pub. L. No , 2(c), 100 Stat (1986); S. Rep. No , at 9, as reprinted in 1986 U.S.C.C.A.N. 2479, At that time, Congress also introduced the definition of exceeds authorized access that survives today. See Pub. L. No , 2(g)(4), 100 Stat (1986) (adding Section 1030(e)(6) defining the term exceeds authorized access ). In making this substitution, Congress expressed no dissatisfaction with the reach of the original language, merely with the particular formulation. In fact, the definition of exceeds authorized access in Section 1030(e)(6), relying as it does on an entitlement to obtain information, is broader in meaning than the cumbersome phrase it replaced, because an employer can restrict the right to obtain information in ways other than limiting access for a 21

28 specific purpose. Thus, it seems clear that the new definition was intended to target both individuals who use authorized access for purposes to which such authorization does not extend, as well as those who violate other employer restrictions on obtaining information from workplace computers. In other words, the legislative history confirms that Congress meant what it said in the CFAA. Even if the CFAA originally was about hacking, the broad definition is consistent with that purpose because it allows companies to reign in employees who use their access for culpable conduct. 2. Under the broad definition, Petitioner exceeded her authorization. A preponderance of circuits interpreting the term exceeds authorized access have concluded that the statute unambiguously encompasses conduct of the type engaged in by Petitioner. See United States v. Rodriguez, 628 F.3d 1258, 1263 (11th Cir. 2010); United States v. John, 597 F.3d 263, (5th Cir. 2010); Int'l Airport Ctrs., LLC v. Citrin, 440 F.3d 418, (7th Cir. 2006); EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, (1st Cir. 2001). The Eleventh Circuit, in United States v. Rodriguez, affirmed the conviction of a Social Security Administration employee who obtained personal information about former girlfriends and other women from federal databases that he was authorized to use only for business reasons. 628 F.3d at Rodriguez argued that he did not violate Section 1030(a)(2)(B) because he accessed databases that he was authorized to use as a Social Security Administration employee. See id. at The Eleventh Circuit rejected his argument, explaining that Rodriguez clearly exceed[ed] his authorized access because his access of the victims' personal information was not in furtherance of his duties as an employee. Id. 22

29 Similarly, in United States v. John, the Fifth Circuit found that a bank employee exceeded her authorized access when, in order to facilitate fraud, she accessed confidential customer information in contravention of her employer's restrictions on computer use. 597 F.3d at There, as here, the defendant was aware that her employer's official policy, which was reiterated in training programs she attended, prohibited misuse of the company's computer systems and confidential... information. Id. at 272. John and Rodriguez are comparable because the access here was for a non-business purpose in violation of Find Funds Inc. s policies. (R. at 2.) Moreover, here Petitioner was using confidential information specifically gathered to harm individuals and in no way supported the business goals of Find Funds Inc. (R. at 7.) According to John and Rodriguez, the statute s plain meaning indicates that, when one exceeds the purpose for which he was given authorization, there is a violation. EF Cultural Travel is comparable, as the First Circuit found there was a likelihood employees exceeded authorized access when they breached a confidentiality agreement to create a scraper. 274 F.3d at 581. Petitioner was similarly aware that the information gathered was confidential, and she similarly accessed information she was not permitted to access. (R. at 7.) United States vs. Nosal, 676 F.3d 854 (9th Cir. 2012) and WEC Carolina Energy Solutions LLC v. Miller, 687 F.3d 199 (4th Cir. 2012) are factually distinguishable. In Nosal, the employee had authorized access to the information, but his later use of the information exceeded the purpose for which access was granted. 676 F.3d at 856. In WEC, specifically the employee downloaded files and took them to a competitor, in the same line of business. 687 F.3d at 207. Here, however, Petitioner was not authorized to access these confidential financial records because debt collection proceedings had not been ordered for these individuals. Also, the purpose of the excessive access was clearly distinct from the business of the employer. Thus, 23

30 at the point of access itself, she exceeded her authorized access. Nosal and WEC err as a matter of policy because the narrow definition they espouse allows employees to steal or use information for personal gain in a manner harmful to their company employers or unsuspecting customers. B. Arguments Against The Broad Interpretation Of Exceeds Authorized Access Are Misapplied. The rule of lenity cannot be applied in this case since the CFAA unambiguously criminalizes the actions of Petitioner. See United States v. Shabani, 513 U.S. 10, 17 (1994) ( The rule of lenity applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute. ). This is not a case where the Court can make no more than a guess as to what Congress intended. United States v. Banks, 514 F.3d 959, 968 (9th Cir. 2008). Nor is this a case where the language of the criminal statute is ambiguous or, by its plain meaning, too narrow to embrace the government's theory of prosecution. United States v. Romm, 455 F.3d 990, 1001 (9th Cir. 2006). Congress provided a statutory definition of the term exceeds authorized access that recognizes an employer's power to limit an employee's right to obtain information from a workplace computer or network. That power extends to prohibiting employees from obtaining valuable information for non-business uses or purposes, as Petitioner did here. Additionally, application of the rule of lenity here would, in fact, impermissibly operate as a flat prohibition on a statute that was drafted to apply to a broad range of conduct. Banks, 514 F.3d at 967. Rather than supporting the principle of fair notice, overturning the Twelfth Circuit's decision would frustrate Congress' clear intent and provide Petitioner with an unwarranted windfall. Consequently, the Twelfth Circuit s decision should be affirmed. / / / 24

31 1. Because the meaning of the statutory language can be determined with ordinary rules of statutory construction, the rule of lenity is inapplicable here. Appellees maintain that this Court's construction of the CFAA must be guided at all times by the rule of lenity, and they further maintain that the rule of lenity requires this Court to adopt the narrowest possible construction of the CFAA. Appellees misunderstand the purpose of the rule of lenity and the manner of its application. The rule of lenity is not a guiding principle of statutory construction; it is a tie-breaker of last resort. As Justice Sotomayor recently explained for a unanimous Supreme Court, The rule... is reserved for cases where, after seizing everything from which aid can be derived, the Court is left with an ambiguous statute. DePierre v. United States, 131 S. Ct. 2225, 2237 (2011). If traditional tools of statutory construction... suffice to resolve the interpretive issues, there is no occasion for resort to the rule of lenity. United States v. Gosselin World Wide Moving, N. V., 411 F.3d 502, 514 (4th Cir. 2005). Even if there were some ambiguity in the CFAA, its status as a criminal statute does not require this Court to adopt the narrowest possible construction of its terms. The canon in favor of strict construction (of criminal statutes) is not an inexorable command to override common sense and evident statutory purpose... Nor does it demand that a statute be given the narrowest meaning. United States v. Moore, 423 U.S. 122, 145 (1975). 2. The CFAA is not void for vagueness, nor does it pose a trap for the unwary. The CFAA is not void for vagueness. A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement. United States v. Williams, 553 U.S. 285, 304 (2008). The court 25