United States v. Miranda and Lundell

Now that we've convicted Martha Stewart, let's get the Justice Department to work on some more serious crimes:

If the Committee were to refer this report to the Justice Department, prosecution might be considered under the Computer Fraud and Abuse Act.

The provision of this law most likely to apply in this case is 18 U.S.C. section 1030(a)(2)(B). It provides:

(a) Whoever -

(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains -

(B) information from any department or agency of the United States;
shall be punished under subsection (c) of this section.

For purposes of 18 U.S.C. section 1030:

- the term "exceeds unauthorized access" means 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. section 1030(e)(6).

- the term "department of the United States" means the legislative, or judicial branch of the Government, or one of the executive departments enumerated in section 101 of title 5; 18 U.S.C. section 1030(e)(7).

When Congress amended 18 U.S.C. section 1030 in 1996 by adding section (a)(2)(B), it meant to address a gap in the law's coverage. The legislative history states:

The second gap is the significant limitation on the privacy protection given to information held on Federal Government computers. Specifically, the prohibition only applies to outsiders who gain unauthorized access to Federal Government computers, and not to Government employees who abuse their computer access privileges to obtain Government information that may be sensitive and confidential. Senate Report 104-357, 104th Cong., 2d Sess., August 27, 1996, p. 4.

The legislative history also indicates that section (2)(B) was meant to cover government employees who "obtain information" by merely reading it. Id.
18 U.S. C. section 1030(a)(2)(B) is a misdemeanor punishable by a fine and/or not more than one year imprisonment. A referral to the Department of Justice could be made by either contacting the United States Attorneys' office for the District of Columbia or the Criminal Division's Computer Crimes and Intellectual Property Section. A prosecution under this section could result in litigation involving the article I, section 6 of the Constitution (speech and debate), the First Amendment (freedom of the press issues), the Fourth Amendment (issues relating to the search of computer records), and the definition of "unauthorized access" under the statute. And, while a criminal investigation could commence upon referral to the Department of Justice, a Senate Resolution would be needed to introduce documents or testimony into a Grand Jury or at trial. See Senate Rule 11.

In informal briefings prior to the issuance of this report, Committee Members asked about the possibility of pursuing a false statement case against Mr. _____ for being untruthful with investigators. The relevant statute, 18 U.S.C. section 1001, provides:

(A) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully -

(2) makes any false, fictitious, or fraudulent statement or representation;
shall be fined under this title or imprisoned not more than 5 years, or both.

The statue specifically addresses false statements in the context of legislative investigations:

(C) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to -

(2)any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission, or office of the Congress, consistent with applicable rules of the House or Senate.

To be fair, we shouldn't let Manny "Mr. Blank" Miranda hog all the glory. Jason Lundell deserves some credit too.