information regarding its enhanced 911 (E911) system for handling emergency calls to policy, fire, ambulance, and other emergency services in municipalities. The text file which Riggs and Neidorf planned to steal specifically details the procedures for installation, operation, and maintenance of E911 services in the region in which Bell South operates. Bell South considered this file to contain valuable proprietary information and, therefore, closely guarded the information from being disclosed outside of Bell South and its subsidiaries. Riggs and Neidorf wanted to obtain the E911 text file so it could be printed in a computer newsletter known as "PHRACK" which Neidorf edited and published.
In about December 1988, Riggs began the execution of the fraud scheme by using his home computer in Decatur, Georgia, to gain unlawful access to Bell South's computer system located at its corporate headquarters in Atlanta, Georgia. After gaining access to Bell South's system, Riggs "downloaded"
the text file, which described in detail the operation of the E911 system in Bell South's operating region. Riggs then disguised and concealed his unauthorized access to the Bell South system by using account codes of persons with legitimate access to the E911 text file.
Pursuant to the scheme he had devised with Neidorf, Riggs then transferred the stolen computer text file to Neidorf by way of an interstate computer data network. Riggs stored the stolen text file on a computer bulletin board system
located in Lockport, Illinois, so as to make the file available to Neidorf. The Lockport bulletin board system was used by computer "hackers"
as a location for exchanging and developing software tools and other information which could be used for unauthorized intrusion into computer systems. Neidorf, a twenty-year-old student at the University of Missouri in Columbia, Missouri, used a computer located at his school to access the Lockport computer bulletin board and thereby receive the Bell South E911 text file from Riggs. At the request of Riggs, Neidorf then edited and retyped the E911 text file in order to conceal the fact that it had been stolen from Bell South. Neidorf then "uploaded"
his revised version of the stolen file back onto the Lockport bulletin board system for Riggs' review. To complete the scheme, in February 1989, Neidorf published his edited edition of Bell South's E911 text file in his PHRACK newsletter.
The current indictment asserts seven counts. Count I charges that Riggs committed wire fraud in violation of 18 U.S.C. § 1343 by transferring the E911 text file from his home computer in Decatur, Georgia to the computer bulletin board system in Lockport, Illinois. Count II charges both Riggs and Neidorf with violating § 1343 by causing the edited E911 file to be transferred from a computer operated by Neidorf in Columbia, Missouri, to the computer bulletin board system in Lockport, Illinois. Counts III and IV assert that by transferring the E911 text file via an interstate computer network, Riggs and Neidorf violated the National Stolen Property Act, 18 U.S.C. § 2314, which prohibits interstate transfer of stolen property. Finally, Counts V-VII charge Riggs and Neidorf with violating § 1030(a)(6)(A) of the Computer Fraud and Abuse Act of 1986, 18 U.S.C. § 1030(a)(6)(A), which prohibits knowingly, and with intent to defraud, trafficking in information through which a computer may be accessed without authorization.
A. Motion to Dismiss Count II
Neidorf claims that Count II of the indictment is defective because it fails to allege a scheme to defraud, one of the necessary elements for a wire fraud claim under 18 U.S.C. § 1343. See Lombardo v. United States, 865 F.2d 155, 157 (7th Cir.) (holding that the two elements of a wire fraud claim under § 1343 are a scheme to defraud and the use of wire communications in furtherance of the scheme), cert. denied, 491 U.S. 905, 105 L. Ed. 2d 695, 109 S. Ct. 3186 (1989). All Count II charges, says Neidorf, is that he received and then transferred a computer text file, not that he participated in any scheme to defraud.
Unsurprisingly, Neidorf's reading of the indictment is self-servingly narrow. The indictment plainly and clearly charges that Neidorf and Riggs concocted a fraud scheme, the object of which was to steal the E911 text file from Bell South and to distribute it to others via the PHRACK newsletter. The indictment also clearly alleges that both Riggs and Neidorf took action in furtherance of the fraud scheme. Riggs allegedly used fraudulent means to access Bell South's computer system and then disguised his unauthorized entry. Neidorf allegedly furthered the scheme by redacting from the E911 text file references to Bell South and other information which would reveal the source of the E911 file, transmitting the redacted file back to the Lockport bulletin board for Riggs review, and publishing the redacted text file in the PHRACK newsletter for others' use. Moreover, both Neidorf and Riggs allegedly used coded language, code names, and other deceptive means to avoid the detection of their fraud by law enforcement officials. These allegations sufficiently set forth the existence of a scheme to defraud, as well as Neidorf's participation in the scheme. See McNally v. United States, 483 U.S. 350, 358, 97 L. Ed. 2d 292, 107 S. Ct. 2875 (1987) (where the Court, quoting Hammerschmidt v. United States, 265 U.S. 182, 188, 68 L. Ed. 968, 44 S. Ct. 511 (1924), held that "to defraud" as used in the mail fraud statute simply means "wronging one in his property rights by dishonest methods or schemes" usually by "the deprivation of something of value by trick, deceit, chicane, or overreaching"); see also Carpenter v. United States, 484 U.S. 19, 108 S. Ct. 316, 320-21, 98 L. Ed. 2d 275 (1987) (applying McNally to the wire fraud statute, the Court held that a Wall Street Journal columnist participated in a scheme to defraud chargeable under § 1343 where he executed a plan under which he disclosed confidential financial information to an investor in exchange for a share of the investor's profits from that information).
Neidorf also argues that Count II is deficient because it fails to allege that he had a fiduciary relationship with Bell South. To support this position, Neidorf relies on cases such as United States v. Richter, 610 F. Supp. 480 (N.D. Ill. 1985), and United States v. Dorfman, 532 F. Supp. 1118 (N.D. Ill. 1981). In each of those cases, as well as other similar cases cited by Neidorf, the court held that where a wire fraud charge is based on the deprivation of an intangible right, such as the right to honest and fair government or the right to the loyal service of an employee, the government must allege the existence of a fiduciary relationship between the defendant and the alleged victim to state a charge under § 1343.
In the instant case, however, the wire fraud charge is not based on the deprivation of an intangible right. The government charges Riggs and Neidorf with scheming to defraud Bell South out of property -- the confidential information contained in the E911 text file. The indictment specifically alleges that the object of defendants' scheme was the E911 text file, which Bell South considered to be valuable, proprietary, information. The law is clear that such valuable, confidential information is "property," the deprivation of which can form the basis of a wire fraud charge under § 1343. See Carpenter, 108 S. Ct. at 320; see also United States v. Keane, 852 F.2d 199, 205 (7th Cir.), cert. denied, 490 U.S. 1084, 109 S. Ct. 2109, 104 L. Ed. 2d 670 (1989). Therefore, Neidorf's argument misconstrues the wire fraud charge against him. Cases such as Richter and Dorfman are wholly inapposite.
As further support for his argument that fiduciary relationship between himself and Bell South must be alleged to state a wire fraud charge against him, Neidorf analogizes his role in the alleged scheme to that of an "innocent tippee" in the securities context, such as the defendants in Dirks v. Securities Exchange Commission, 463 U.S. 646, 77 L. Ed. 2d 911, 103 S. Ct. 3255 (1983), and Chiarella v. United States, 445 U.S. 222, 63 L. Ed. 2d 348, 100 S. Ct. 1108 (1980). This analogy, however, is fallacious. Those cases involved individuals who come upon information lawfully ; the question in each of those cases was whether, once possessing that information, the individual had a duty to disclose it. In the instant case, in contrast, Neidorf is alleged to have planned and participated in the scheme to defraud Bell South. Although Riggs allegedly was the one who actually stole the E911 text file from Bell South's computer system, the government alleges that Neidorf was completely aware of Riggs' activities and agreed to help Riggs conceal the theft to make the fraud complete. Therefore, in no way can Neidorf be construed as being in a similar situation to the innocent tippees in Dirks and Chiarella.8 As a result, the court rejects his argument that Count II is defective for failing to allege a fiduciary duty between himself and Bell South. Neidorf's motion to dismiss Count II is accordingly denied.
B. Motion to Dismiss Counts III and IV
Counts III and IV charge Riggs and Neidorf with violating 18 U.S.C. § 2314, which provides, in relevant part:
Whoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $ 5000 or more, knowing the same to have been stolen, converted or taken by fraud . . . shall be fined not more than $ 10,000 or imprisoned not more than ten years, or both.
The government concedes that charging Neidorf under § 2314 plots a course on uncharted waters. No court has ever held that the electronic transfer of confidential, proprietary business information from one computer to another across state lines constitutes a violation of § 2314. However, no court has addressed the issue. Surprisingly, despite the prevalence of computer-related crime, this is a case of first impression. The government argues that reading § 2314 as covering Neidorf's conduct in this case is a natural adaptation of the statute to modern society. Conversely, Neidorf contends that his conduct does not fall within the purview of § 2314 and that the government is seeking an unreasonable expansion of the statute. He urges the court to dismiss the charge on two grounds.
Neidorf's first argument is that the government cannot sustain a § 2314 charge in this case because the only thing which he allegedly caused to be transferred across state lines was "electronic impulses." Neidorf maintains that under the plain language of the statute, this conduct does not come within the scope of § 2314 since electronic impulses do not constitute "goods, wares, or merchandise."
The court is unpersuaded by Neidorf's disingenuous argument that he merely transferred electronic impulses across state lines. Several courts have upheld § 2314 charges based on the wire transfer of fraudulently obtained money, rejecting the arguments of the defendants in those cases that only electronic impulses, not actual money, crossed state lines. For example, in United States v. Gilboe, 684 F.2d 235 (2d Cir. 1982), cert. denied, 459 U.S. 1201, 75 L. Ed. 2d 432, 103 S. Ct. 1185 (1983), the court held, in affirming a § 2314 conviction based on the wire transfer of funds:
The question whether [§ 2314] covers electronic transfers of funds appears to be one of first impression, but we do not regard it as a difficult one. Electronic signals in this context are the means by which funds are transported. The beginning of the transaction is money in one account and the ending is money in another. The manner in which the funds were moved does not affect the ability to obtain tangible paper dollars or a bank check from the receiving account. If anything, the means of transfer here were essential to the fraudulent scheme.
Id. at 238. Other circuits have followed the reasoning in Gilboe. See United States v. Kroh, 896 F.2d 1524, 1528-29 (8th Cir. 1990); United States v. Goldberg, 830 F.2d 459, 466-67 (3d Cir. 1987); United States v. Wright, 791 F.2d 133, 135-37 (10th Cir. 1986); see also United States v. Kenngott, 840 F.2d 375, 380 (7th Cir. 1987) (citing Gilboe with approval). In all of these cases, the courts held that money was transferred across state lines within the meaning of § 2314 because funds were actually accessible in one account prior to the transfer, and those funds were actually accessible in an out-of-state account after the transfer. The courts refused to accept the superficial characterization of the transfers as the mere transmittal of electronic impulses.
Similarly, in the instant case, Neidorf's conduct is not properly characterized as the mere transmission of electronic impulses. Through the use of his computer, Neidorf allegedly transferred proprietary business information -- Bell South's E911 text file. Like the money in the case dealing with wire transfers of funds, the information in the E911 text file was accessible at Neidorf's computer terminal in Missouri before he transferred it, and the information was also accessible at the Lockport, Illinois computer bulletin board after Neidorf transferred it. Therefore, under Gilboe, Kroh, Wright, and Goldberg, the mere fact that the information actually crossed state lines via computer-generated electronic impulses does not defeat a charge under § 2314.
The question this case presents, then, is not whether electronic impulses are "goods, wares, or merchandise" within the meaning of § 2314, but whether the proprietary information contained in Bell South's E911 text file constitutes a "good, ware, or merchandise" within the purview of the statute. This court answers that question affirmatively. It is well-settled that when proprietary business information is affixed to some tangible medium, such as a piece of paper, it constitutes "goods, wares, or merchandise" within the meaning of § 2314. See United States v. Greenwald, 479 F.2d 320, 322 (6th Cir.) (documents containing valuable chemical formulae are "goods, wares, or merchandise" under § 2314), cert. denied, 414 U.S. 854, 94 S. Ct. 154, 38 L. Ed. 2d 104 (1973); United States v. Bottone, 365 F.2d 389, 393 (2d Cir.) (copies of documents describing a manufacturing process of patented drugs constitute a "good" under § 2314), cert. denied, 385 U.S. 974, 87 S. Ct. 514, 17 L. Ed. 2d 437 (1966); United States v. Lester, 282 F.2d 750, 754-55 (3d Cir. 1960) (copies of geophysical maps identifying oil deposits come within the purview of § 2314), cert. denied, 364 U.S. 937, 5 L. Ed. 2d 368, 81 S. Ct. 385 (1961); United States v. Seagraves, 265 F.2d 876 (3d Cir. 1959) (same facts as in Lester).
Therefore, in the instant case, if the information in Bell South's E911 text file had been affixed to a floppy disk, or printed out on a computer printer, then Neidorf's transfer of that information across state lines would clearly constitute the transfer of "goods, wares, or merchandise" within the meaning of § 2314. This court sees no reason to hold differently simply because Neidorf stored the information inside computers instead of printing it out on paper. In either case, the information is in a transferrable, accessible, even salable form.
Neidorf argues in his brief that a § 2314 charge cannot survive when the "thing" actually transferred never takes tangible form. A few courts have apparently adopted this position.
For example, in United States v. Smith, 686 F.2d 234 (5th Cir. 1982), the court held that a copyright does not fit within the definition of "goods, wares, or merchandise" under § 2314. The court ruled that in order to come within that definition, "the 'thing' or 'item' must have some sort of tangible existence; it must be in the nature of 'personal property or chattels.'" Id. at 241. Similarly, in Bottone, supra, where the court held that copies of documents describing a manufacturing process for a patented drug constitute "goods, wares, or merchandise" under § 2314, the court opined:
To be sure, where no tangible objects were ever taken or transported, a court would be hard pressed to conclude that "goods" had been stolen and transported within the meaning of § 2314; the statute would presumably not extend to the case where a carefully guarded secret was memorized, carried away in the recesses of a thievish mind and placed in writing only after a [state] boundary had been crossed.