The opinion of the court was delivered by: BUA
NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE
On June 5, 1990, this court entered a memorandum opinion denying defendant Craig Neidorf's motion to dismiss the original indictment in this case. See United States v. Riggs, 739 F. Supp. 414 (N.D.Ill. 1990). Two days later, the Special April 1990 Grand Jury returned an 11-count superseding indictment against Neidorf and his co-defendant, Robert Riggs. Neidorf now moves to dismiss each count in the superseding indictment except Count I, which names only Riggs as a defendant. In support of his motion, Neidorf adopts the arguments in the amicus curiae briefs of Electronic Frontier Foundation ("EFF").
For the reasons stated herein, EFF's arguments are rejected; Neidorf's motion to dismiss the superseding indictment is accordingly denied.
The facts set forth in the superseding indictment are essentially the same as those in the original indictment, so only a brief overview of them is necessary here. The government charges that Neidorf and Riggs devised and implemented a scheme to defraud involving the use of computers. The original indictment charged that the focus of the fraud scheme was narrow; the government claimed that the goal of the scheme was to use computers to steal the E911 text file owned by Bell South Telephone Company ("Bell South").
The superseding indictment, however, now charges that misappropriation of Bell South's E911 text file was only one of the goals of the fraud scheme in which Neidorf and Riggs participated. The objective of the scheme is now more generally described as follows:
To fraudulently obtain and steal private property in the form of computerized files by gaining unauthorized access to other individuals' and corporations' computers, copying the sensitive computerized files in those computers, and then publishing the information from the computerized files in a hacker publication for dissemination to other computer hackers.
Thus, government now claims that Riggs and Neidorf entered into a scheme to steal and disseminate not only Bell South's E911 file, but other valuable computer-stored information as well.
According to the superseding indictment, Riggs and Neidorf committed several acts in furtherance of their broad scheme to distribute information stolen from computer systems. Each of these acts forms the basis for separate charges in Counts Two, Three, Four and Seven of the superseding indictment. Count Two charges that Neidorf violated the federal wire fraud statute, 18 U.S.C. § 1343, by using his computer to announce the beginning of the "Phoenix Project." According to the government, that project involved a plan to solidify the hacker community by publishing hacking tutorials and disseminating other items of interest to hackers, such as information on how to prevent law enforcement authorities from discovering hacking activity. Neidorf's plan was to use a computer hacker newsletter entitled "PHRACK," which he published regularly, to distribute information to the hacking community. Counts Three and Four charge that Neidorf and Riggs further violated § 1343 by sending communications to each other via electronic mail concerning the implementation of their scheme. In addition, Count Seven charges that Neidorf violated § 1343 by publishing an issue of PHRACK which contained a series of tutorials about breaking into computer systems.
The superseding indictment also charges Neidorf and Riggs with committing acts in furtherance of their more specific goal to fraudulently obtain Bell South's E911 text file. These acts form the basis of the remaining counts in the superseding indictment -- Counts One, Five, Six, Eight, Nine, Ten, and Eleven. Count One charges that Riggs violated § 1343 by gaining unauthorized access to Bell South's computer system in Atlanta, Georgia, downloading a copy of Bell South's E911 text file to his home computer in Decatur, Georgia, and then transferring the E911 file to a computer bulletin board service in Lockport, Illinois, where he stored it for Neidorf's review. Count Five charges that Neidorf and Riggs violated § 1343 when Neidorf, using a computer located at the University of Missouri in Columbia, Missouri, retrieved the E911 file from the Lockport computer bulletin board. Count Six charges that Neidorf's receipt of the E911 file from Riggs through the Lockport computer bulletin board constitutes a violation of the federal statute prohibiting the interstate transportation of stolen property, 18 U.S.C. § 2314.
Neidorf's arguments, as presented by amicus EFF, attack the superseding indictment in two waves. One set of arguments challenges the counts against Neidorf based on the transfer of the stolen E911 file -- Counts Five, Six, Eight, Nine, Ten and Eleven. The other set of arguments challenges the counts dealing with the remaining charges -- Counts Two, Three, Four, and Seven. The court will address each set of Neidorf's arguments separately.
I. Counts Five, Six, Eight, Nine, Ten ...