Instructions



Computer Crime LawProfessor OhmShort-Answer QuestionsModel Questions and AnswersSpring 2017InstructionsThe final exam in Computer Crime Law might contain short answer questions. These questions will ask you to interpret short fact patterns, which raise issues about some of the statutes we have studied closely in this class, in particular the Computer Fraud and Abuse Act, Wiretap Act, Pen Register and Trap and Trace Act, and Stored Communications Act. These questions might also raise Fourth Amendment issues. Although these questions may not have single, clear answers, they are intended to elicit doctrinal analyses based on the text of these statutes and the cases construing them. These questions are not intended to elicit policy discussions.The following five questions model the type of short-answer questions that might be asked, together with model answers. The questions and answers on the final exam will likely be similar in structure, tone, and length to these models.All references to statutory sections refer to Title 18 unless otherwise noted.Question 1In no more than 125 words, write a short answer to the following question:A hacker disables a power grid serving a hospital and is indicted for violating section 1030(a)(5)(A). What statutory maximum sentence might the hacker face based on the fact the attack affected a hospital? List all reasons for the potential statutory maximum. Assume the hacker has no prior convictions for violating section 1030.Model AnswerThe statutory maximum for violations of 1030(a)(5)(A) are provided for in subsection (c). The standard maximum is one year in prison, (c)(4)(G). Under (c)(4)(B), this might increase to a ten year maximum for an attack on a hospital if the attack is deemed to have caused “the modification or impairment of the medical examination, diagnosis, treatment, or care of 1 or more individuals” (c)(4)(A)(i)(II); “physical injury to any person” (c)(4)(A)(i)(III); or a “threat to public health or safety” (c)(4)(A)(i)(III). The maximum sentence might increase to 20 years if serious bodily injury results, (c)(4)(E), and life imprisonment if anybody died, (c)(4)(F).Question 2In no more than 125 words, write a short answer to the following question:A low-ranking gang member is working as an undercover informant with the FBI to try to develop criminal cases against some of the gang’s higher-ups. The FBI sets up the informant’s phone with a recording device, which he uses to record his conversations with other members of the gang. The informant gives copies of the resulting recordings to the police but also keeps copies for himself in a scheme to blackmail the people he is speaking with. Assume blackmail is an actionable tort and crime in this jurisdiction. Does the creation of these recordings fall within any exceptions to the federal prohibition on wiretapping?Model AnswerThe creation of the recordings is not an unlawful interception because the person making the recording is acting under color of law and is also a party to the communication. 2511(2)(c). The police may use these recordings without restriction. If the gang member himself is prosecuted or sued for a potential wiretap violation, he might be guilty or liable and not able to rely on his own consent. If his hidden personal purpose for making these recordings makes him considered to not be acting “under cover of law”, then this falls within 2511(2)(d), which provides an exception to the consent exception if “such communication is intercepted for the purpose of committing any criminal or tortious act”, which the question suggests applies to blackmail.Question 3In no more than 125 words, write a short answer to the following question:Georgetown University provides scientific cloud computing services, akin to Amazon’s Web Services product, to faculty members and other researchers affiliated with the University. The police trace potential copyright infringement originating from a user of this service and ask Georgetown for any information about the users associated with this activity. Under what conditions may Georgetown give content or non-content information associated with a user of this service to the police? Focus on the Stored Communications Act alone.Model AnswerBecause Georgetown does not provide access to this service to members of the general public, it is not an RCS for purposes of the SCA. 2711(2). This service also seems not to be an ECS service at all because it does not appear to allow users to communicate with other users. 2510(15). This service thus falls entirely outside the SCA and Georgetown can volunteer any information, content or non-content, about its users to law enforcement. Law enforcement may also compel the production of any information about the contents and non-contents on this service with only a mere subpoena.Question 4In no more than 125 words, write a short answer to the following question:T-Mobile, the wireless phone provider, launches a new feature on its website called “Emoji Portraits”. It creates a public profile posted online for every subscriber to its service, listing that subscriber’s name and his or her “ten most often used emoji in text messages.” Focusing only on the Stored Communications Act and ignoring any consent issues, is this service illegal?Model AnswerSection 2702(a) prohibits an ECS or RCS from disclosing the contents of a user’s communications. Emoji almost certainly satisfy the definition of contents, because they have come to represent the “substance, meaning, or purport” of modern communications. But 2702(a) applies only to “the contents of a communication”, and it is unclear whether a provider can escape this prohibition by aggregating information about contents of multiple communications, by rendering these things no longer the contents of a communication. Finally, there might be debate about whether these emoji are still “in electronic storage,” although we would need to know more about the architecture of a system to know the answer.Question 5Short answer questionIn no more than 125 words, write a short answer to the following question:The FBI would like to obtain copies of files stored in a Dropbox cloud file storage account associated with a particular user. What must it do to compel Dropbox to produce copies of these files? Be sure to discuss any cases that might bear on the question.Model AnswerDropbox provides computer storage services to the public, making it a quintessential RCS. The Government may compel the contents of communications stored with an RCS with a subpoena or d-order, provided they give notice to the subscriber or customer, 2703(b)(1)(B) although this notice may be delayed, id. and 2705. With a search warrant, the police need not give this notice, 2703(b)(1)(A). If the Warshak holding or reasoning applies to these files, then only a search warrant would suffice and 2703(b)(1)(B) is unconstitutional as a violation of Fourth Amendment rights. ................
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