No. 12-1776
IN THE
SUPREME COURT OF THE UNITED STATES
_________
CRANE, POOLE, & SCHMIDT, LLC, and ALAN SHORE
PETITIONERS,
v.
DONNELL, YOUNG, DOLE & FRUTT, PC,
RESPONDENTS.
On Writ of Certiorari
to the United States Court of Appeals
for the Thirteen Circuit
__
_______
BRIEF FOR THE PETITIONERS
_________
ALA MOOT COURT TEAM #6
Daisy Ayllon
Claudia Cortes
Roman Kashuba
Counsel for Petitioners
QUESTIONS PRESENTED
1.
Does the Computer Fraud and Abuse Act, which Congress passed in order to
combat the growing threat of malicious computer hacking, criminalize only
circumvention of code-based restrictions to computer access, and not various
minor violations of terms of service contracts, private computer use policies, or
duties of agency?
2.
Whether the recoverable costs under 18 U.S.C. §1920—which enumerates in
detail the type of expenses that may be awarded; which has always been
narrowly construed; and which covers only “minor, incidental expenses” incurred
during litigation—excludes the award of costs for Electronically Stored
Information, including a wide array of technical services and a multitude of
processes?
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED ............................................................................................. ii
TABLE OF AUTHORITIES .............................................................................................. v
OPINIONS BELOW......................................................................................................... xi
STATEMENT OF JURISDICTION .................................................................................. xi
STATUTORY PROVISIONS ........................................................................................... xi
STATEMENT OF THE CASE .......................................................................................... 1
SUMMARY OF THE ARGUMENT ................................................................................... 4
ARGUMENT ..................................................................................................................... 7
I.
THE COMPUTER FRAUD AND ABUSE ACT PROSCRIBES ONLY
UNAUTHORIZED ACCESS TO INFORMATION STORED ON
COMPUTERS. ....................................................................................................... 7
A. The Plain Language Of The CFAA Supports Attaching
Liability Only For Unauthorized Access To Information
Stored On A Computer ............................................................................. 9
B. The General Purpose And Legislative History Of The CFAA
Imposes Liability Only For Unauthorized Access. .............................. 11
C. The Rule Of Lenity Demands A Narrow Interpretation Of The
CFAA ........................................................................................................ 14
II.
COSTS FOR THE DISCOVERY OF ELECTRONICALLY STORED
INFORMATION ARE NOT COMPENSABLE UNDER SECTION 1920
BECAUSE THE STATUTE IS RESTRICTED IN SCOPE AND LIMITED TO
MINOR, INCIDENT EXPENSES ......................................................................... 19
A. Respondent’s E-Discovery Costs Are Not Recoverable
Because They Are Not Charges For “Making Copies” Within
The Meaning Of The Statute. ................................................................. 20
iii
1. The principles of statutory interpretation require a
circumscribed construction of the phrase “making
copies” ................................................................................... 21
2. The legislative history further confirms the plain
meaning of the statute ........................................................... 26
B. Respondent’s E-Discovery Costs Are Not Recoverable
Because They Are Not “Fees For Exemplification .............................. 32
C. Reading The Statute In Accordance With The Plain Language
And The Legislative Intent Is Sound Public Policy ............................. 34
CONCLUSION ............................................................................................................... 36
CERTIFICATE OF COMPLIANCE ................................................................................. 37
APPENDIX I ................................................................................................................... 38
APPENDIX II .................................................................................................................. 45
APPENDIX III ................................................................................................................ 47
iv
TABLE OF AUTHORITIES
Page(s)
Supreme Court of the United States:
Alyeska Pipeline Serv. Co.,
421 U.S. 240 (1975) .................................................................................... passim
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,
548 U.S. 291 (2006) ............................................................................................ 26
Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,
515 U.S. 687 (1995) ..................................................................................... 15, 16
Caminetti v. U.S.,
242 U.S. 470 (1917) ............................................................................................ 21
Cent. Bank of Denver v. First Interstate Bank,
511 U.S. 164 (1994) ............................................................................................ 24
Conn. Nat’l Bank v. Germain,
503 U.S. 249 (1992) ............................................................................................ 21
Crandon v. U.S.,
494 U.S. 152 (1990) ............................................................................................ 15
Crawford Fitting Co. v. J.T. Gibbons, Inc.,
482 U.S. 437 (1987) .............................................................................. 19, 20, 26
Ducan v. Walker,
533 U.S. 167, 172 (2001) .................................................................................... 21
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ............................................................................................ 24
Fleischmann Distilling Corp. v. Maier Brewing Co.,
386 U.S. 714 (1967) ............................................................................................ 35
Hughey v. United States,
495 U.S. 411 (1990) ............................................................................................ 15
Jones v. U.S.,
529 U.S. 848 (2000) ..................................................................................... 15, 16
v
Leocal v. Ashcroft,
543 U.S. 1 (2004) ................................................................................................ 14
N.Y. Times v. Sullivan,
376 U.S. 254 (1964) .............................................................................................. 7
Papachristou v. City of Jacksonville,
405 U.S. 156 (1972) ............................................................................................ 15
Perrin v. U.S.,
444 U.S. 37 (1979) ............................................................................................... 9
Rewis v. U.S.,
401 U.S. 808 (1971) ..................................................................................................... 15
Summit Valley Indus., Inc. v. Local 112, United Bhd. of Carpenters & Joiners
of Am.,
456 U.S. 717, 725 (1982) .................................................................................. 35
Taniguchi v. Kan Pacific Saipan, Ltd.,
132 S. Ct. 1997 (2012) .................................................................................. 19, 25
U.S. v. Kozminski,
487 U.S. 931 (1988) ............................................................................................ 16
U.S. v. Lanier,
520 U.S. 259 (1997) ............................................................................................ 15
Williams v. Taylor,
529 U.S. 420, 431 (2000) .................................................................................... 21
United States Courts of Appeals:
A. V. ex rel. Vanderbye v. iParadigms, LLC,
562 F.3d 630 (4th Cir. 2009)............................................................................ 7, 11
Arcadian Fertilizer, L.P. v. MPW Indus. Servs., Inc.,
249 F.3d 1293 (11th Cir. 2001)................................................................ 32, 33, 34
BDT Prod., Inc. v. Lexmark Int’l, Inc.,
405 F.3d 415 (6th Cir. 2005) ............................................................................... 20
vi
Cefalu v. Vill. of Elk Grove,
211 F.3d 416 (7th Cir. 2000)......................................................................... 32, 33
Country Vintner of N.C., LLC v. E. & J. Gallo Winery, Inc.,
718 F.3d 249 (4th Cir. 2013)........................................................................ passim
EEOC v. W & O, Inc.,
213 F.3d 600 (11th Cir. 2000).............................................................................. 20
Int'l Airport Ctrs., L.L.C. v. Citrin,
440 F.3d 418 (7th Cir. 2006) .............................................................................. 9, 17, 18
Kohus v. Toys R Us, Inc.,
282 F.3d 1355 (Fed. Cir. 2002) .......................................................................... 32
LVRC Holdings LLC v. Brekka,
581 F.3d 1127 (9th Cir. 2009)................................................................... 9, 10, 18
Mota v. Univ. of Tex. Hous. Health Sci. Ctr.,
261 F.3d 512 (5th Cir. 2001)................................................................................ 20
Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co.,
924 F.2d 633 (7th Cir. 1991)................................................................................ 22
Race Tires Am., Inc. v. Hoosier Racing Tire Corp.,
674 F.3d 158 (3d Cir. 2012) cert. denied, 133 S. Ct. 233 (2012) ................ passim
Smelt v. County of Orange
447 F.3d 673 ....................................................................................................... 36
U.S. v. John,
597 F.3d 263 (5th Cir. 2010)................................................................................ 17
U.S. v. Nosal,
676 F.3d 854 (9th Cir. 2012)........................................................................ passim
U.S. v. Phillips,
477 F.3d 215 (5th Cir. 2007)............................................................................... 12
U.S. v. Rodriguez,
628 F.3d 1258 (11th Cir. 2010)............................................................................ 18
vii
United States District Courts:
Bell Aerospace Servs., Inc., v. U.S. Aero Servs., Inc.,
690 F.Supp. 2d 1267 (M.D. Ala. 2010) ................................................................ 14
Diamond Power Int'l, Inc. v. Davidson,
540 F. Supp. 2d 1322 (N.D. Ga. 2007) ................................................................ 11
Gen. Cas. Co. of Am. v. Stanchfield,
23 F.R.D. 58 (D.Mont. 1959) ............................................................................... 22
In re Online DVD Rental Antitrust Litig.,
2012 WL 1414111 (N.D. Cal. Apr. 20, 2012) ....................................................... 30
In re Scientific-Atlanta, Inc. Sec. Litig.,
2011 WL 2671296 (N.D. Ga. July 6, 2011).......................................................... 30
Int’l Ass’n of Machinists & Aerospace Workers v. Werner-Masuda,
390 F.Supp. 2d 479 (D. Md. 2005) ...................................................................... 13
Lockheed Martin Idaho Techs. Co. v. Lockheed Martin Advanced Envtl. Sys., Inc.,
2006 WL 2095876 (D. Idaho July 27, 2006) ........................................................ 30
Parrish v. Manatt, Phelps & Phillips, LLP,
2011 WL 1362112 (N.D. Cal. Apr. 11, 2011) ....................................................... 30
Shamrock Foods Co. v. Gast,
535 F. Supp. 2d 962 (D. Ariz. 2008) ........................................................ 11, 13, 14
U.S. Bioservices Corp. v. Lugo,
595 F. Supp. 2d 1193 (D. Kan. 2009) ........................................................... 10, 13
Windy City Innovations, LLC v. Am. Online, Inc.,
2006 WL 2224057 (N.D. Ill. July 31, 2006) .......................................................... 30
Constitutional and Statutory Provisions:
Fed. R. Civ. P. 54(d)(1) .......................................................................................... passim
28 U.S.C. § 1920 .................................................................................................... passim
18 U.S.C § 1030 ..................................................................................................... passim
viii
Legislative History:
H.R. Rep. No. 99-612 (1986) .................................................................................... 11, 13
H.R. Rep. No. 98-894 (1984), reprinted in 1984 U.S.C.C.A.N. 3689.................. 11, 12, 13
H.R.J. Res. 648, 98th Cong. (1984) (enacted) ............................................................... 11
H.R.J. Res. 4718, 99th Cong. (1986) (enacted) ....................................................... 12, 14
S. Rep. No. 99-432 (1986), reprinted in 1986 U.S.C.C.A.N. 2479, 2486 .................... 9,11
S. Rep. No. 104-357 (1996) ........................................................................................... 12
Cong. Globe, 32nd Cong., 2d Sess.App. 207 (1853) ............................................... 29, 33
Judicial Administration and Technical Amendments Act of 2008,
Pub. L. No. 110–406, 122 Stat. 4291, 4292 (2008) ............................................. 28
Court Technology Fees: Report of the Proceedings of the Judicial Conference
of the United States Before the Comm. on Court Admin, 9 (2003) ............................... 28
Pub. L. No. 103-322 ....................................................................................................... 13
108 Stat. 1796, § 290001 (1993) .................................................................................... 13
Secondary Sources:
Computer Crime & Intellectual Property Section, U.S. Dep't of Justice, Field Guidance
on New Authorities That Relate to Computer Crime and Electronic Evidence Enacted in
the USA Patriot Act of 2001, http://www.usdoj.gov/criminal/cybercrime/PatriotAct.htm
(last visited Oct. 18, 2013). ............................................................................................. 13
ComputerWeekly.Com http://www.computerweekly.com/feature/How-datadeduplication-works (last visited Oct. 18, 2013) ............................................................. 31
Merriam Webster's Online Dictionary, http://www.merriam-webster.com/dictionary/copy
(last visited Oct. 18, 2013) .............................................................................................. 21
Merriam Webster's Online Dictionary, http://www.merriam-webster.com/dictionary/make
(last visited Oct. 18, 2013) .............................................................................................. 22
ix
Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary
/authorize (last visited Oct. 18, 2013) .............................................................................. 9
David J. Rosen, Limiting Employee Liability Under the CFAA: A Code-Based
Approach to “Exceeds Authorized Access, 27 BERKELY TECH. L.J. 737, 752 (2012) .... 10
RAY E. GRENIGA, HANDBOOK OF FEDERAL CIVIL DISCOVERY AND DISCLOSURE EDISCOVERY AND RECORDS § 6:1 (3d ed. 2013)............................................................... 29
DAVID E. RIES, PA. BAR ASS’N, RECORDS MANAGEMENT: CURRENT ISSUES IN
RETENTION, DESTRUCTION, AND E-DISCOVERY, 78 Pa. B.A. Q. 139, 153 (2007) ............ 29
CHARLES ALAN WRIGHT, ARTHUR R. MILLER, MARY KAY KANE & RICHARD L. MARCUS,
FEDERAL PRACTICE AND PROCEDURE § 2665 (3rd ed. 1998) ............................................. 35
x
OPINIONS BELOW
The decision of the U.S. Court of Appeals for the Thirteenth Circuit is published
as Donnell, Young, Dole & Frutt, PC v. Crane, Poole, & Schmidt, LLC, and Alan Shore.
The opinion of the U.S. District Court for the Eastern District of Evans is published as
Donnell, Young, Dole & Frutt, PC v. Crane, Poole, & Schmidt, LLC, and Alan Shore.
STATEMENT OF JURISDICTION
The judgment of the U.S. Court of Appeals for the Thirteen Circuit was entered
on October 5, 2012. Petitioner timely filed a writ of certiorari on October 10, 2012 and
this Court granted certiorari on October 1, 2013. This Court has jurisdiction under 28
U.S.C. § 1254(1).
STATUTORY PROVISIONS
The Computer Fraud and Abuse Act provides in pertinent part that “whoever . . .
intentionally accesses a computer without authorization or exceeds authorized access,
and thereby obtains . . . information from any protected computer” or “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 value of such use is not more than $5000 in any 1year period . . . shall be punished as provided in subsection (c) of this section.” 18
xi
U.S.C § 1030(a)(2), (a)(4) (2008). The Computer Fraud and Abuse Act is reproduced in
full in Appendix I.
Federal Rule of Civil Procedure 54 (d)(1) states that “[u]nless a federal statute,
these rules, or a court order provides otherwise, costs--other than attorney's fees-should be allowed to the prevailing party.” FED. R. CIV. P. 54(d)(1) is reproduced in full at
Appendix II.
In pertinent part, 28 U.S.C. § 1920 provides that “[a] judge or clerk of any court of
the United States may tax as costs . . . [f]ees for exemplification and the costs of making
copies of any materials where the copies are necessarily obtained for use in the case.”
28 U.S.C. § 1920(4). 28 U.S.C. § 1920 is reproduced in full at Appendix III.
xii
STATEMENT OF THE CASE
Donell, Young, Dole & Frutt, PC and Crane, Poole & Schmidt, LLC are competing
law firms in Gotham City, Evans. R. 11. Both firms are in the business of “providing high
profile legal defense, particularly in antitrust and RICO litigation.” Id. Attorney Alan
Shore was a litigation partner at Donnell. Id. at 11, 3. During his career at Donnell,
Donnell provided Mr. Shore with a laptop computer and a cell phone device as well as
with access to the “firm’s servers and intranet.” Id. at 3. Donnell also authorized Mr.
Shore’s access to the computer network and “any document or information therein,”
including “confidential and trade secrets documents[,]. . . client lists, fee arrangements,
and pending cases.” Id. at 3. While Donnell has policies prohibiting unauthorized use of
firm information, the “policies did not restrict Mr. Shore’s authorization to access the
information.” Id. at 11.
In early 2010, Mr. Shore accessed confidential client and billing practices
information and emailed it to his personal e-mail address. Id. at 3, 11. He also
downloaded firm information to his personal computer. Id. at 3. All the downloads and
emails occurred while Mr. Shore was a partner at Donnell. Id. at 3. At some point, during
negotiations to join Crane, Poole & Schmidt, LLC, Mr. Shore shared the information with
Crane attorneys. Id. at 3. Notwithstanding the fact that Mr. Shore shared the information
with individuals outside the firm, Donnell’s Information Technology Director testified “that
he ha[d] no reason to believe that [Mr.] Shore accessed any information other than what
he was authorized to access.” Id. at 4.
1
In April, 2010, Mr. Shore joined Crane as an attorney and, later, secured a client
for Crane on two important litigation matters. Id. at 3, 4. In retaining the prospective
client, Mr. Shore quoted the legal services to the client, basing his presentation on
information he had downloaded from Donnell. Id. at 4. In response, Donnell filed a
lawsuit against Crane and Mr. Shore, alleging, inter alia, that Crane and Mr. Shore had
violated the Computer Fraud and Abuse Act (“CFAA”) in that Crane had directed Mr.
Shore to access Donnell’s confidential files and Mr. Shore had knowingly and without
permission downloaded the confidential information and shared it with Crane with an
intent to defraud Donnell. Id. at 2. Donnell alleges that, as a result, Donnell has
“‘suffered and will continue to suffer impairment to the integrity of its data . . . including
economic damages . . . aggregating more than $5000 in a one year period.” Id. at 11.
The US Court for the Eastern District of Evans ruled for Plaintiff Donnell, stating
that while the CFAA exempts authorized data access, Mr. Shore exceeded his
authorization when he downloaded confidential data to his personal computer and
shared it with individuals outside the firm. Id. at 5-6. Accordingly, the district court
granted Donnell $2.5 million in damages as well as $3 million for the costs of
Electronically Stored Information (“IES”) discovery or electronic discovery. Id. at 6. As to
the discovery costs, the Court reasoned that Federal Rule of Civil Procedure 54(d) and
18 U.S.C. § 1920, which allow the prevailing party an award for costs for
“exemplification” and the “making copies of any materials,” include costs for the
processes involved in making the copies, such as “collection and preservation” of ESI,
software testing, and the fees of IT consultants. Id. at 6-7.
2
The US Court of Appeals for the Thirteenth Circuit affirmed the judgment that Mr.
Shore was without authority under the CFAA to access the information, but reversed the
award for the costs of electronic discovery and remanded for the entry of a judgment
that excluded electronic discovery. Id. at 10, 14. The Court reasoned, based on agency
law principles, that Mr. Shore, as an agent of Donnell, lost authorization to access
Donnell’s information when he breached his duty of loyalty to Donnell by deciding to use
Donnell’s information for his own benefit. Id. at 13. The Court, however, ruled that Crane
and Mr. Shore were only liable for a “very small portion” of the discovery fees since the
meaning of “exemplification” and “making copies” is limited to the “imitation[ ] or
reproduction[ ] of original works.” Id. at 14. As such, the costs of processing IES
information, such as metadata extraction, file conversion, and screening, are not
recoverable electronic discovery costs. Id.
Donnell appealed the decision of the Thirteenth Circuit & this Court granted
certiorari. Id. at 18.
3
SUMMARY OF THE ARGUMENT
This Court should revere the judgment of the Thirteen Circuit Court of Appeals
that Mr. Shore violated the CFAA but affirm the judgment that electronic discovery costs
under Federal Rule of Civil Procedure 54(d) are severely limited.
I.
THE COMPUTER FRAUD AND ABUSE ACT ONLY PROSCRIBES
UNAUTHORIZED ACCESS TO INFORMATION STORED ON COMPUTERS.
The plain language of the CFAA, Congress’ purpose in passing the CFAA, and
the rule of lenity support only a narrow interpretation of “without authorization” derived
from code-based restrictions on computer access, such as login and password
requirements. This narrow code-based interpretation finds support in the plain language
of the statute, which proscribes accessing information on a computer “without
authorization.” To authorize means to give permission to access. This permission is
apparent when an employer provides an employee with login credentials. Further, a lack
of permission is apparent from some barrier in the computer code that restricts access
to a computer or parts of a computer. A broader agency-based source of authorization,
on the other hand, finds no support in the text of the statute.
A narrow code-based interpretation of the statute is also evident from the
legislative history and general anti-hacking purpose of the statute. Congress passed the
CFAA in order to combat the growing trend of computer hacking, or what they then
termed “electronic trespassing.” The statute was not targeted at elevating criminal
penalties for existing crimes that are merely facilitated by computer use. Instead,
Congress intended to criminalize a new set of behavior where hackers circumvented
computer code in order to gain access to otherwise restricted computers. A broader
4
reading of the statute would shift the focus of the CFAA to employee’s electronic
misconduct and not simply hacking through access restrictions.
Lastly, a broad definition based on agency principles or contractual computer use
limitations would render the statute void for vagueness, as a broad range of day-to-day
activity would be subject to arbitrary prosecution. Thus, this Court should apply the rule
of lenity and interpret “without authorization” narrowly to include only code-based
restrictions on computer access.
II.
COSTS FOR THE DISCOVERY OF ELECTRONICALLY STORED
INFORMATION ARE NOT COMPENSABLE UNDER SECTION 1920
BECAUSE THE STATUTE IS RESTRICTED IN SCOPE.
Awards for costs under Rule 54 of the Federal Rules of Civil Procedure are
modest in scope and limited to relatively minor, incidental expenses. Section 1920,
which defines “costs,” for purposes of Rule 54, grants courts the authority to tax as
costs fees for exemplification and the cost of making copies. Relying on the plain
meaning of the statute, the Thirteen Circuit, along with several other courts, held that ediscovery–specifically, gathering, preserving, processing, searching, culling, and
extracting ESI—costs are not recoverable under the statute because they are not
charges for “making copies” within the meaning of the statute. This Court’s precedent is
also instructive. In 2012, this Court reaffirmed section 1920’s narrow scope and refused
to stretch the ordinary meaning of the cost items enumerated in the statute. Further,
this Court has already explained that although Rule 54(d)(1) presumptively favors the
taxation of costs, that presumption is limited to the costs enumerated by the statute. In
5
other words, the rule does not create a presumption that costs are, in fact, included
within the enumeration.
The legislative history further supports this circumscribed reading: Congress
enacted section 1920 to specify in detail the taxable items covered under the statute.
Additionally, because Congress sough to standardize the compensable costs in federal
litigation, adopting a definition that included the processes leading up to the actual
reproduction of a material would lead to uncertainty, inconsistency, and confusion. And
it would saddle losing litigants with exorbitant amounts of money—something the
legislature specifically sought to cure.
Furthermore, the e-discovery fees Respondent claims do not constitute fees for
“exemplification” because “exemplification” is limited to “an official transcript of a public
record, authenticated as a true copy to use as evidence.” Consequently, exemplification
does not include demonstrative evidence. This Court’s directive “not to exceed the limits
of. . .[the] statute” conforms with the view that the statute’s language should not be read
broadly absent express Congressional authority. The broader view distorts the spirit of
the statute and thwarts the intent of the legislature by opening the door to a myriad of
unpredictable “exemplification” costs.
Finally, reading the statute narrowly and in accordance with its plain language is
sound policy: it will avoid a chilling effect on potential litigants and would conform with
the deeply rooted principle that parties to a lawsuit generally bear their own litigation
expenses.
6
ARGUMENT
This Court should affirm the ruling of the Thirteenth Circuit Court of Appeals that
Crane, and Mr. Shore are not liable to Donnell for the discovery costs of ESI, but
reverse the Court of Appeal’s decision that Mr. Shore violated the CFAA. On appeal,
this Court’s review of the Thirteenth Circuit Court’s judgment is de novo. See N.Y.
Times v. Sullivan, 376 U.S. 254, 285 (1964). The CFAA is a criminal statute aimed at
penalizing malicious hacking. The CFAA imposes liability only on individuals who
access computers “without authorization” and who may circumvent code-based access
limitations, such as passwords, to access information they have no authority to access.
Mr. Shore did not violate the CFAA because he had Donnell’s authority to access
Donnell’s computer and files. Moreover, Mr. Shore is not liable to Donnell’s for the costs
of ESI discovery as those costs are not recoverable under Federal Rule of Civil
Procedure 54. 18 U.S.C § 1920 provides for a very limited set of taxable costs under
Rule 54 and gives courts no discretion to award costs outside those enumerated in the
statute. The statute itself does not list electronic discovery as a type of cost that courts
may award and, in the latest amendment to section 1920, Congress expressed its
reluctance to make ESI discovery costs taxable.
I.
THE COMPUTER FRAUD AND ABUSE ACT PROSCRIBES ONLY
UNAUTHORIZED ACCESS TO INFORMATION STORED ON COMPUTERS.
The Computer Fraud and Abuse Act is a statute that criminalizes malicious
computer hacking. A. V. ex rel. Vanderbye v. iParadigms, LLC, 562 F.3d 630, 645 (4th
Cir. 2009). In pertinent parts, the CFAA provides for criminal penalties for any person
who “intentionally accesses a computer without authorization or exceeds authorized
7
access, and thereby obtains . . . information from any protected computer,” 18 U.S.C. §
1030(a)(2)(C) (2008), or for any person who “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”
§ 1030(a)(4). The statute does not define authorization, however it defines “exceeds
authorized access” as “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.” § 1030(e)(6). Importantly, the statute broadly defines “protected
computer” as any computer “used in or affecting interstate or foreign commerce or
communication.” § 1030(e)(2)(B). This definition ensnarls any computer connected to
the Internet, and thus a broad definition of “without authorization” could criminalize the
day-to-day activities of countless American accessing information on computers. A
narrow definition, on the other hand, better serves Congresses purpose in passing the
CFAA by criminalizing only malicious computer hacking that circumvents some
computer code in order to access information on a computer.
The plain language of the CFAA only supports a narrow interpretation of “without
authorization” derived from code-based restrictions on computer access. However,even
if this Court finds that the language of the statute is ambiguous, a narrow code-based
interpretation of the statute is also evident from the legislative history and general antihacking purpose of the statute. This Court should avoid a broad definition based on
agency principles or contractual computer use limitations as such an interpretation
would render the statute void for vagueness. Moreover, this Court should apply the rule
8
of lenity and interpret authorization narrowly to include only code-based restrictions on
computer access.
A.
The Plain Language of the CFAA Supports Attaching Liability Only
for Unauthorized Access to Information Stored on a Computer.
The plain language of the CFAA proscribes only unauthorized access of
information stored on computers. Even though the CFAA does not define “authorization,”
it is, however, a “fundamental canon of statutory construction . . . that, unless otherwise
defined, words will be interpreted as taking their ordinary, contemporary, common
meaning.” Perrin v. U.S., 444 U.S. 37, 42 (1979). The dictionary defines “authorize” as
“to give power or permission to someone or something.” Merriam-Webster Online
Dictionary, http://www.merriam-webster.com/dictionary /authorize (last visited Oct. 18,
2013). Consistent with this plain meaning of the words, an employer gives an employee
“authorization” to access information on a computer when the employer provides the
employee with login credentials that empowers that employee to access certain
information. LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1133 (9th Cir. 2009).
Accordingly, employees that are empowered to access the employer’s computer with
login credentials access the information stored in those computers with authorization
under the CFAA. See § 1030(a)(1)-(7).
Although some courts have found that authorization for the use of company
computers stems from a vague and fluid agency relationship between the employee and
the employer, Int'l Airport Ctrs., L.L.C. v. Citrin, 440 F.3d 418, 420-21 (7th Cir. 2006),
there is no language in the CFAA that states, or even suggests, that authorization to use
a computer relies on this nebulous concept. Brekka, 581 F.3d at 1133. The statute
9
simply does not support an interpretation that, based on agency law principles, an
employee, as an agent of the employer, loses authorization to access the employer’s
information every time the employee breaches his duty of loyalty. Moreover, applying an
agency-based interpretation of authorization would conflate the phrases “without
authorization” with “exceeds authorized access,” as authorization would then depend on
the binary agency relationship destroying the possibility that a person could “exceed
authorized access.” David J. Rosen, Limiting Employee Liability Under the CFAA: A
Code-Based Approach to “Exceeds Authorized Access, 27 BERKELY TECH. L.J. 737,
752 (2012).
Instead, the definition Congress provided for “exceeds authorized access”
creates a clear and definitive delineation between authorization and exceeding
authorization. A person “without authorization” has no permission to access a computer,
but a person who “exceeds authorized access” has permission to access some
information on a computer, but accesses information on that computer that the person is
not entitled to access. Brekka, 581 F.3d at 1133; see e.g. U.S. Bioservices Corp. v.
Lugo, 595 F. Supp. 2d 1193, 1195 (D. Kan. 2009) (where a former employee’s
authorized access was limited to certain information based on the geographical location
of patients). This interpretation does not strain the mean of “exceeds authorized access,”
as the agency approach does, and instead preserves the straightforward meaning. See
S. Rep. No. 99-432, at 13 (1986) (“Section (2)(g) establishes [a] definition[] for . . . the
term ‘exceeds authorized access,’ . . . which [is] self-explanatory.”).
10
Thus, an employee can only “exceed authorized access” when an employer has
placed some limitation on the employees access to information on a computer. This
definition of “exceeds authorized access” “obviates any need to revert to outside
sources, including principles of agency law, to understand the conduct prohibited by the
CFAA.” Shamrock Foods Co. v. Gast, 535 F. Supp. 2d 962, 965 (D. Ariz. 2008). This
definition also makes clear that a CFAA “violation does not depend upon the
defendant's unauthorized use of information, but rather upon the defendant's
unauthorized use of access.” Diamond Power Int'l, Inc. v. Davidson, 540 F. Supp. 2d
1322, 1343 (N.D. Ga. 2007) (emphasis in original). Accordingly, Mr. Shore did not
violate the CFAA because he had Donnell’s authorization to access all firm files. As
Donnell’s Information Technology Director stated Mr. Shore did not “access[ ] any
information other than what he was authorized as a partner.” R. 4.
B.
The General Purpose and Legislative History of the CFAA Supports
Liability Only for Unauthorized Access.
The legislative history of the CFAA indicates that Congress designed the Act to
combat and deter computer hacking—what was then considered “electronic
trespassing.” Vanderbye, 562 F.3d at 645; H.R. Rep. No. 99-612, at 5 (1986); H.R. Rep.
No. 98-894, at 10 (1984), reprinted in 1984 U.S.C.C.A.N. 3689, 3695-96. In 1984,
Congress passed the Comprehensive Crime Control Act (“CCA”), which contained
provisions that later became part of the CFAA. See H.R.J. Res. 648, 98th Cong. (1984)
(enacted). The legislative record indicates that Congress designed the provisions of this
precursor to the CFAA specifically to deter the various forms of computer code
circumvention—computer hacking—that had become prevalent at the time. See H.R.
11
Rep. No. 98-894, at 10-11, 20 (highlighting the CCA’s focus on “hackers” who “trespass
into” computer systems).
Just as in the current version of the CFAA, each provision of the CCA prohibited
accessing a computer “without authorization.” See §1030(a)(1)-(3). None of the
provisions contained the phrase “exceeds authorized access.” Instead, the text read:
“[o]r having accessed a computer with authorization, uses the opportunity such access
provides for purposes to which authorization does not extend.” S. Rep. No. 99–432, at 9,
reprinted in 1986 U.S.C.C.A.N. 2479, 2486. In 1986 Congress passed the CFAA, which
replaced this language that connected authorization to specific purposes and replaced it
with “exceeds authorized access.” H.R.J. Res. 4718, 99th Cong. (1986) (enacted).
Congress removed this language in order to distinguish between “insiders, who are
authorized to access a computer” and “outside hackers who break into a computer.” S.
Rep. No. 104-357, at 11 (1996). Thus, Congress removed language that would support
purpose-based restrictions and instead focused the language of the CFAA on inside
hackers who exceed their limited authorization to access certain information. See U.S. v.
Phillips, 477 F.3d 215, 219 (5th Cir. 2007) (relying on legislative history to support the
argument that Congress intended to distinguish “insiders . . . who are authorized to
access a computer” from “outside hackers who break into a computer”).
This change in language further comports with Congress’ intent and the CFAA’s
goal of criminalizing hacking through code-based restriction to computer access.
Originally, hackers were seen as “electronic trespassers,” and the general purpose of
the CFAA was to create a cause of action for unauthorized access to a computer
12
network. Shamrock, 535 F.Supp. 2d at 965 (citing Int’l Ass’n of Machinists & Aerospace
Workers v. Werner-Masuda, 390 F.Supp. 2d 479, 495-96 (D. Md. 2005)). Thus, “the
statute deals with the unauthorized access in committing computer fraud rather than the
mere use of a computer.” U.S. Bioservices, 555 F.Supp. 2d at 1193. Moreover, “‘the
conduct prohibited is analogous to that of ‘breaking and entering’ rather than using a
computer . . . in committing the offense.’” Shamrock, 535 F.Supp. 2d at 965 (quoting
H.R. Rep. No. 98-894, at 20 (1984)).
The purpose behind the CFAA, as a new tool to prosecute new computer crimes,
is also evident in how the CFAA evolved as novel computer crimes materialized. First,
“pirate bulletin boards” that trafficked in stolen passwords emerged as a threat and
Congress responded by installing a provision that criminalized trafficking in stolen
passwords. H.R. Rep. No. 99-612, at 6 (1986). Next, Congress added provisions that
would combat the growing use of “worms” and “viruses” by computer criminals. Violent
Crime Control and Law Enforcement Act of 1994. Pub. L. No. 103-322; 108 Stat. 1796,
§ 290001 (1993). Congress again amended the statute in 2002, this time to ensure that
it captured computer crimes committed by terrorists. See generally, Computer Crime &
Intellectual Property Section, U.S. Dep't of Justice, Field Guidance on New Authorities
That Relate to Computer Crime and Electronic Evidence Enacted in the USA Patriot Act
of 2001, http://www.usdoj.gov/criminal/cybercrime/PatriotAct.htm (last visited Oct. 18,
2013).
Even though Congress amended the CFAA numerous times since its first
inception, not one of these amendments addressed the misuse of information by
13
employees. The CFAA has always had a definition section, yet Congress never defined
the relationship between an employee and authorized access. See 18 U.S.C. § 1030(e)
(2006). Notably, the only amendment that even acknowledged the possibility of
employee hackers removed language that clearly would have allowed employers to
define impermissible purposes that carry with them criminal liability. H.R.J. Res. 4718,
99th Cong. (1986) (enacted). Instead, Congress chose to focus on unauthorized access
and not impermissible use of information or purpose-based restrictions. Thus, Shore did
not violate the CFAA as his access was unrestrained. R. 4.
C.
The Rule of Lenity Demands a Narrow Interpretation of the CFAA.
The CFAA is a criminal statute that was designed to combat “electronic
trespassers” or hackers, not employees that misappropriate information that they are
authorized to access. Bell Aerospace Servs., Inc., v. U.S. Aero Servs., Inc., 690 F.Supp.
2d 1267, 1272 (M.D. Ala. 2010). Although Congress amended the CFAA to allow for
civil damages, 18 U.S.C. § 1030(g), these civil remedies were largely an “afterthought,”
Shamrock, 535 F. Supp. 2d at 966. Thus, while the CFAA may have a civil component,
it is a criminal statute focused on criminal conduct and should be construed in the same
manner regardless of whether the action is criminal or civil in nature. Leocal v. Ashcroft,
543 U.S. 1, 11 n. 8 (2004).
Criminal statutes that rely on nebulous or vague concepts of criminal activity
deprive citizens of their due process under the law guaranteed by the Fifth and
Fourteenth Amendment to the Constitution. See Papachristou v. City of Jacksonville,
405 U.S. 156, 165 (1972). In order to save criminal statutes from constitutional
14
challenges, courts apply the rule of lenity that dictates that criminal statutes should be
construed strictly. Rewis v. U.S., 401 U.S. 808, 812 (1971). The rule of lenity is
premised on two important principles: “first, a fair warning should be given to the world
in language that the common world will understand, of what the law intends to do if a
certain line is passed; second, legislatures and not courts should define criminal activity.”
Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 704
n. 18 (1995); see also U.S. v. Lanier, 520 U.S. 259, 266 (1997) (“[T]he . . . rule of lenity,
ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to
conduct clearly covered.”). Thus, as this Court stated in Hughey v. United States, lenity
principles “demand resolution of ambiguities in criminal statutes in favor of the
defendant.” 495 U.S. 411, 422 (1990). Moreover, “[b]ecause construction of a criminal
statute must be guided by the need for fair warning, it is rare that legislative history or
statutory policies will support a construction of a statute broader than that clearly
warranted by the text.” Crandon v. U.S., 494 U.S. 152, 160 (1990).
Under the rule of lenity, when a court is asked to make a choice “between two
readings of what conduct Congress has made a crime, it is appropriate, before we
choose the harsher alternative, to require that Congress should have spoken in
language that is clear and definite.” Jones v. U.S., 529 U.S. 848, 858 (2000) (internal
quotation marks and citation omitted). Thus, the CFAA cannot be construed more
broadly than the clear language of the statute would support. A restrained definition of
“without authorization” that is limited to code-based permission to use the computer
keeps the breadth of the statute narrow, while providing clear notice as to what conduct
15
Congress has criminalized. See U.S. v. Nosal, 676 F.3d 854, 863 (9th Cir. 2012) (en
banc). Conversely, the agency approach unpredictably criminalizes a whole array of
conduct, in direct contravention to the lenity rule. Id. at 860-61. Moreover, a broader
reading that incorporated agency principles allows courts to define the bounds of
criminal activity, instead of leaving criminal law to legislatures. Contra Babbitt,15 U.S.
687, 704 n. 18 (1995). If Congress had intended to use the CFAA to protect trade
secrets or to allow private companies to dictate the boundaries of criminal conduct
through their computer use policies, it was required to say so in plain language that
would give fair warning to employees risking liability by updating their Facebook status
on work computers. See Jones, 529 U.S. at 858.
Any broader interpretation that includes agency principals or employer dictated
use restrictions would expand the scope of the CFAA from an anti-hacking statute to
one that criminalize any unauthorized use of information on a computer—encompassing
a broad range of day-to-day activity form using the computer for social networking to
checking the weather before a lunchtime walk. See Nosal, 676 F.3d at 859 (The
government’s construction would “make criminals of large groups of people who would
have little reason to suspect they are committing a federal crime.”). This Court has
previously refused to adopt a broad interpretation of a statute precisely because it would
“criminalize a broad range of day-to-day activity.” U.S. v. Kozminski, 487 U.S. 931, 949
(1988). Moreover, such a broad interpretation that could encompass a multitude of dayto-day activities would “subject individuals to the risk of arbitrary or discriminatory
16
prosecution and conviction,” further muddying any notice that theoretically could extend
from clear contracts or policies governing the use of company computers. Id.
Courts that have adopted a broader interpretation of “without authorization” and
“exceeds authorized access,” have reconciled the CFAA’s lack of clear warning
language, by implying reasonable notice of unlawful activity from mens rea terms, as
well as fraud and materiality requirements included in the CFAA. See U.S. v. John, 597
F.3d 263, 273 (5th Cir. 2010); § 1030(a)(4) (punishing those that “knowingly and with
intent to defraud access[] a protected computer without authorization, or exceeds
authorized access”). The Fifth Circuit, for example, found that it was reasonable to
create criminal liability for violating use restrictions because “[a]n authorized computer
user has reason to know that he or she is not authorized to access data or information
in furtherance of a criminally fraudulent scheme.” John, 597 F.3d at 273. This reasoning,
however, falls short in explaining the meaning of “exceeds authorized access” in other
subsections that do not require the furtherance of a fraud. Subsection 1030(a)(2)(C)
requires only that the person who “exceeds authorized access . . . obtains . . .
information from any protected computer,” which includes any computer connected to
the Internet. Thus, the broad interpretation of “exceeds authorized access” makes any
violation of a private computer use policy a federal crime. See Nosal, 676 F.3d at 859.
Other circuits have failed to even consider whether a broader reading of the
CFAA would provide any notice of criminally culpable behavior, instead focusing on the
culpable conduct of the defendants before them. See Citrin, 440 F.3d at 421 (7th Cir.
2006); U.S. v. Rodriguez, 628 F.3d 1258, 1260 (11th Cir. 2010). Those courts did not
17
considered how their broader interpretations would criminalize violations of employer’s
computer use policies that are often dense, hard to understand, and subject to change
without warning. Compare Nosal, 676 F.3d at 859 (discussing at depth the implications
of a broad definition and finding no language to support that the CFAA criminalizes a
broad array of common activity) with Citrin, 440 F.3d at 420-21 (justifying agency-based
authorization with a single paragraph and without a discussion of the broad reach of
such an interpretation). Those circuits did not consider that even minor violations of
Facebook’s terms of service would now be subject to prosecution. The Ninth Circuit,
instead, grasped the gravity of allowing private companies the discretion to arbitrarily
create and prosecute breaches in authorized use, instead of access. Nosal, 676 F.3d at
863; Brekka, 581 F.3d at 1135. This Court must avoid those vagueness issues by
interpreting only code-based access restrictions into the CFAA in accordance with the
rule of lenity.
In conclusion, the plain language of the CFAA, Congress’ purpose in passing the
CFAA, and the rule of lenity support only a narrow interpretation of “without
authorization” derived from code-based restrictions on computer access. A broader
agency-based source of authorization finds no support in the text of the statute. A
narrow code-based interpretation of the statute is also evident from the legislative
history and general anti-hacking purpose of the statute. A broader reading would shift
the focus of the CFAA to employee’s electronic misconduct and not simply hacking
through access restrictions. Lastly, a broad definition based on agency principles or
contractual computer use limitations would render the statute void for vagueness, as a
18
broad range of day-to-day activity would be subject to arbitrary prosecution. Thus, this
Court should apply the rule of lenity and interpret authorization narrowly to include only
code-based restrictions on computer access.
II.
COSTS FOR THE DISCOVERY OF ELECTRONICALLY STORED
INFORMATION ARE NOT COMPENSABLE UNDER SECTION 1920
BECAUSE THE STATUTE IS RESTRICTED IN SCOPE.
An award of costs to the prevailing party under the Federal Rules of Civil
Procedure is limited. Taxable costs under Rule 54(d) are “modest in scope” and “limited
to relatively minor, incidental expenses.” Taniguchi v. Kan Pacific Saipan, Ltd., 132 S.
Ct. 1997, 2006 (2012). Rule 54(d) states that “[u]nless a federal statute, these rules, or
a court order provides otherwise, costs—other than attorney's fees—should be allowed
to the prevailing party.” Fed. R. Civ. P. 54(d). The definition of “costs” in 28 U.S.C. §
1920 (2008) as used under Rule 54, however, circumscribes this Court’s authority to
award electronic discovery expenses to the losing party. Crawford Fitting Co. v. J.T.
Gibbons, Inc., 482 U.S. 437, 441 (1987). Section 1920 awards costs for six different
categories of expenses; but, in pertinent part, it grants the district court the authority to
tax as costs “fees for exemplification and the cost of making copies of any materials
where the copies are necessarily obtained for use in the case.” § 1920(4). The costs are
exhaustive and “impose rigid controls on cost-shifting.” Crawford, 482 U.S. at 444.
Accordingly, charges for the collection, processing, and production of ESI discovery are
not taxable against a losing party.
19
A.
Respondent’s ESI Discovery Costs Are Not Recoverable Because
They Are Not Charges For “Making Copies” Within The Meaning of
the Statute.
Rule 54(d) prohibits courts from awarding to the prevailing party the costs of ESI
discovery. While courts have discretion “to tax, as costs, the items enumerated in §
1920,” courts “are bound by the limitations set out in . . . § 1920.” Crawford, at 442, 445.
Accordingly, “courts may only award those costs articulated in section 1920.” Mota v.
Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 529 (5th Cir. 2001); see also EEOC
v. W & O, Inc., 213 F.3d 600, 620 (11th Cir. 2000) (stating that an award is limited to the
costs enumerated in section 1920). In determining the parameters of section 1920,
“courts may interpret the meaning of [the] items listed” as costs. BDT Prod., Inc. v.
Lexmark Int’l, Inc., 405 F.3d 415, 419-20 (6th Cir. 2005).
The court below properly held that Respondent cannot recover its electronic
discovery costs because they are not charges for “making copies” or “exemplification”
within the meaning of Rule 54(d) for two reasons. First, Congressional intent to
circumscribe the scope of section 1920(4) costs to imitation or reproduction of an
original work is clear from the plain meaning of the language. Even if the court finds
ambiguity in the text, however, the legislative history and Congressional intent demand
a narrow reading of section 1920(4). Second, a circumscribed application of “making
copies” and “exemplification” under seciton 1920 is sound public policy because it
avoids a chilling effect on litigants.
20
1. The principles of statutory interpretation require a circumscribed
construction of “making copies.”
In construing statutory language, it is well established that courts must begin with
the language of the statute. See, e.g. Ducan v. Walker, 533 U.S. 167, 172 (2001)
(collecting cases). In doing so, courts “presume that a legislature says in a statute what
it means and means in a statute what it says there.” Conn. Nat’l Bank v. Germain, 503
U.S. 249, 253-54 (1992). Accordingly, absent Congressional intent to the contrary,
courts “give the words of a statute their ordinary, contemporary, common meaning.”
Williams v. Taylor, 529 U.S. 420, 431 (2000). Indeed, “when the words of a statute are
unambiguous, then, this first canon is also the last[] [and the] ‘judicial inquiry is
complete.’” Germain, 503 U.S. at 254. Thus, the sole function of the Court is to enforce
the statute’s language according to its terms. Caminetti v. U.S., 242 U.S. 470, 485
(1917).
The application of these statutory construction principles to section 1920
establishes that the phrase “making copies” is limited to “producing imitations or
reproductions of original work.” Country Vintner of N.C., LLC v. E. & J. Gallo Winery,
Inc., 718 F.3d 249, 259 (4th Cir. 2013). Section 1920’s category four costs allows a
prevailing party to recover “[f]ees for exemplification and the costs of making copies of
any materials where the copies are necessarily obtained for use in the case.” 28 U.S.C
§ 1920. Although section 1920 does not define the phrase “making copies,” these are
not words that defy precise definition. The noun “copy” is defined as “an imitation,
transcript, or reproduction of an original work.” Merriam Webster's Online Dictionary,
http://www.merriam-webster.com/dictionary/copy (last visited Oct. 18, 2013). To “make”
21
means “to cause to happen, bring into being by forming, shaping, or altering material, to
produce (a material thing)” Merriam Webster's Online Dictionary, http://www.merriamwebster.com/dictionary/make (last visited Oct. 18, 2013). Relying on these definitions,
the Third and Fourth Circuits have held that the “gathering, preserving, processing,
searching, culling, and extracting ESI simply do not amount to ‘making copies.’” Race
Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 159 (3d Cir. 2012) cert.
denied, 133 S. Ct. 233 (2012); E. & J. Gallo Winery, Inc., 718 F.3d 249, 256-57.
These dictionary definitions are also consistent with their common use. In the art
world, for example, the word “copy” conveys that a particular piece is not the artist’s
original work. In others areas of life, the word “copy” is often associated with
“photocopies” or “Xerox copies.” Courts have consistently recognized this common
understanding. See, e.g., Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble
Co., 924 F.2d 633, 643 (7th Cir. 1991) (holding that photocopies are taxable because
they constitute “copies” while expenditures for a computerized litigation support system
are not recoverable as a part of copying costs); Gen. Cas. Co. of Am. v. Stanchfield, 23
F.R.D. 58, 60 (D.Mont. 1959) (holding that “photostatic copies” of plaintiff’s
correspondence were compensable under section 1920(4)).Unfazed by the limitations of
the plain meaning of the statute, Respondent demands a complete re-evaluation of the
provision arguing that extracting metadata,1 storing electronic data, analyzing the firm’s
1
Metadata refers to data providing information about data, including the purpose of the data, time and date of
creation, creator or author of the data, location on a computer network. For instance, a text document’s metadata
may contain information about how long the document is, who the author is, when the document was written, and a
short summary of the document. Indiana University, Knowledge Base, http://kb.iu.edu/data/aopm.html (last visted
Oct. 18, 2013).
22
server and computers, reviewing documents to ascertain relevancy, screening for
privilege, and data organization methods all fall within the bounds of “making copies.” R.
6. Not so.
The Third Circuit, which has thoroughly evaluated this provision in connection
with electronic discovery, came to the same conclusion in Race Tires. 674 F.3d at 159.
The Third Circuit explained that section 1920(4) “does not state that all steps that lead
up to the production of copies of materials are taxable . . .” It does not say that courts
may tax activities that encourage cost savings. Section 1920(4) “authorizes awarding
only the cost of making copies.” Race Tires, 674 F.3d at 169 (emphasis added).
To arrive at this determination, the Third Circuit analogized electronic discovery
to pre-digital era discovery, pointing that the complying party had to locate the paper
files first. Id. Then, the party had to collect and transport the files elsewhere, where
attorneys would review each document to determine its relevancy. Id. Thereafter, the
attorneys of the complying party would screen the potentially relevant documents for
privilege and other legally protected materials. Id. Ultimately, the entire process could
lead the complying party to process a large volume of documents to produce a smaller
set of relevant documents. Id. As stated by the Third Circuit, “none of the steps that
preceded the actual act of making copies in the pre-digital era would have been
considered taxable.” Id. Consistently, the steps to comply with electronic discovery are
also not taxable. Were this Court to determine that the steps leading up to the actual
making of copies of ESI are compensable, there would be no logical argument for
denying similar costs associated with making copies of paper documents
23
Respondent’s sweeping position is not limited to the costs of the steps involved in
electronic discovery, however. Respondent goes even further, asking this Court to allow
it to recover $1,640,000 just for “IT Consultant fees for writing, testing, and using
software for data organization…” R. 7. This runs contrary to the plain language of
section1920 and this Court’s precedent. Congress allowed only for the taxation of the
costs of making copies. The costs of making copies do not depend upon whether third
party consultants with technical expertise perform the activities leading up to the making
of copies. Section 1920 “does not authorize taxation merely because today's technology
requires technical expertise” to comply with discovery requests. Race Tires, 674 F.3d at
169.
This narrow interpretation—that the costs of “making copies” does not involve the
steps and processes leading up to the actual making of a copy—is further supported by
the context of the statute. This Court has stated that, “the words of a statute must be
read in their context and with a view to their place in the overall statutory scheme.” FDA
v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). The phrases
“electronic discovery,” “electronically stored information,” “digital information,” or “digital
data” do not appear in any of the cost categories outlined by the statute. While the
statute mentions fees for “electronically stored transcripts” for use in the case under
category number two, the text stops short of stating that IES discovery is recoverable. It
is a canon of statutory construction that Congress knows how to say what it intends.
Cent. Bank of Denver v. First Interstate Bank, 511 U.S. 164, 176-77 (1994) (stating that
although “Congress knew how to impose aiding and abetting liability when it chose to do
24
so,” in the instant statute it had not used the words “aid” and “abet,” and hence had
chosen not to impose such liability.) Section1920 specifically enumerates which items
may be taxed, and ESI is not an item Congress chose to list. Accordingly, ESI discovery
is not taxable as this Court has already ruled that courts do not have discretion to award
costs that do not appear in section 1920.
Although, at first glance, it may seem illogical or impractical to exclude ESI as
part of the compensable costs under the statute given that electronic discovery is
perhaps as prevalent as paper discovery, this argument sidesteps the actual issue
before this Court. What is at stake is not whether ESI is the new wave of discovery, but
rather, whether the ESI is compensable under the statute. While ESI may very well be
the “new way of doing business,” these extra-statutory considerations are fundamentally
at odds with the principles of statutory interpretation. This Court’s job is to give effect to
the intent of legislature, not to accommodate within the text of the statute new
technological advances.
Instructively, this Court recently reaffirmed the significant limitations of section
1920 in Taniguchi v. Kan P. Saipan, Ltd., where it observed that taxable cost under the
statute are “modest in scope” and “limited to relatively minor, incidental expenses.” 132
S. Ct. at 2006. In Taniguchi, this Court decided whether the costs incurred in translating
documents qualified as “compensation of an interpreter” under section 1920(6). Id. This
Court held that the word “interpreter” was not broad enough to encompass “translator.”
Id. In so holding, this Court observed that its “decision was in keeping with the narrow
scope of taxable costs” under section 1920. Id. Thus, “[b]ecause taxable costs are
25
limited by statute and are modest in scope, [there is] no compelling reason to stretch the
ordinary meaning of the cost items Congress authorized in section 1920.” Id.
While there is a “presumption in favor of awarding costs” under section1920, that
does not, in any way, indicate that this Court “should give the terms “making copies”
their broadest meaning.” Donnell Young, No. 12-0715, slip op. at 16 (Hanks, J.,
dissenting). This Court has already explained that Rule 54(d)(1) presumptively favors
the taxation of costs that are enumerated by the statute. In other words, the rule does
not create a presumption that costs are, in fact, included within the enumeration. As this
Court has previously explained, section 1920 “ defines the term ‘costs’ as used in Rule
54(d).” Crawford Fitting Co., 482 U.S. at 441. As such, “the discretion granted by Rule
54(d) is not a power to evade the specific congressional limits on costs awards.” Id. at
442. Rather, “it is solely a power to decline to tax, as costs, the items enumerated in
section 1920.” Id.; see also Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S.
291, 301 (2006) (noting that “the term ‘costs’ in Rule 54(d) is defined by the list set out
in section 1920”).
2. The legislative history further confirms the plain meaning of the statute.
Because the text and structure of the statute leave no doubt about the meaning
of the phrase “making copies,” there is no need to consider the legislative history.
Nevertheless, the legislative history, too, supports this circumscribed reading. Therefore,
any ambiguity should be resolved against the inclusion of ESI as part of the
compensable costs.
26
Congress knows how to regulate ESI in this digital era. Yet, in 2008, in the most
recent amendment to section1920, Congress bypassed the opportunity to specifically
provide for the costs of ESI discovery. E. & J. Gallo Winery, Inc., 718 F.3d at 256-57.
Although Congress modified the statute from “[f]ees for exemplification and copies of
papers necessarily obtained for use in the case” to “[f]ees for exemplification and copies
of any materials necessarily obtained for use in the case,” this change cannot be read to
broaden the statute as Respondents propose. Rather, it must be read in conformity with
the text, the statute’s traditional interpretation, and Congress’ intent. Although the
languages expands the nature of the sources that may be copied, Congress retained
the word “copies,” so that, regardless of the medium, the statute still will be limited to
reproductions of an original. Indeed, Congressed used the word “copies” twice in the
same sentence: “[f]ees for exemplification and the costs of making copies of any
materials where the copies are necessarily obtained for use in the case.” 28 U.S.C. §
1920(4) (emphasis added). Thus, as the Thirteen Circuit explained in Race Tires “only
the scanning of hard copy documents, the conversion of native files to TIFF, and the
transfer of VHS tapes to DVD involved ‘copying’” fall within the meaning of section
1920(4). 674 F.3d at 171. Accordingly, Respondent is only entitled to recover costs for
the conversion of native files to TIFF or PDF format (itemized as 2(e)) and copying of
ESI (itemized as 3 and 4). R. 6. However, Respondent cannot recover for any of its
vendor costs. Had Congress intended to include electronic discovery costs under
section 1920, it could, and would, have done so.
27
The inclusion of costs for ESI under the umbrella of section 1920 is contrary to
legislative intent. The only amendment to the 1948 version of section 1920 came in
2008. Id. at 165. In 2002, Congress specifically “considered whether technological
advances . . . ma[d]e it appropriate to reevaluate the cost provisions in . . . [section]
1920,” as it had been proposed by an earlier Senate committee report on technological
fees. Judicial Administration and Technical Amendments Act of 2008, Pub. L. No. 110–
406, 122 Stat. 4291, 4292 (2008); Court Technology Fees: Report of the Proceedings of
the Judicial Conference of the United States Before the Comm. on Court Admin, 9
(2003). Importantly, Congress, while mindful that section 1920 “‘[did] not address many
of the technology expenses that [we]re . . . often expended in federal litigation[,]” as the
2002 report had found, declined the invitation to allow the act to cover these new
technologies because it “was concerned . . . that . . . [they] could dramatically expand
the intention of the statute which was to allow the taxing of costs in a very limited way.’”
E. & J. Gallo Winery, Inc., 718 F.3d at 261-62 (4th Cir. 2013) (citing Judicial
Administration at 4292). Instead, Congress adopted two “limited” statutory amendments.
Id. (citing Court Technology Fees: Report of the Proceedings of the Judicial Conference
of the United States Before the Comm. on Court Admin, 9 (2003). When Congress has
spoken clearly, as in the instance case, this Court’s job is only to give effect to
Congress’s intent. This Court cannot act as super legislature and include discovery
costs under section1920 when Congress considered the precise issue, but chose not to
include the costs.
28
The spirit of the statute, too, establishes that electronic discovery is not within the
ambit of the statute. The precursor of Section 1920, the 1853 Act, was enacted to
“specify[] in detail the nature . . . of the taxable items of cost.” Alyeska Pipeline Serv. Co.,
421 U.S. 240, 251-52 (1975). Indeed, one of the main goals of the Act was to
“prescrib[e] a limited number of definite items to be allowed.” Cong. Globe, 32nd Cong.,
2d Sess.App. 207 (1853) (statement of Sen. Bradbury) (emphasis added). Furthermore,
in enacting this piece of legislation, Congress undertook to “standardize the costs
allowable in federal litigation” because “there was great diversity of practice among the
courts” and the losing parties were being “unfairly saddled with exorbitant fees.” Alyeska
Pipeline Serv. Co., 421 U.S. at 252. The legislature carried such fundamental goals into
the 1948 version of Section 1920, “without any apparent intent to change the controlling
rules.” Id. at 255.
The inclusion of ESI discovery under the costs for “making copies” outright
distorts the statute’s goals. Unlike the words “copies,” “e-discovery” is hardly a definite
term. Consensus is even lacking as to what exactly constitutes electronic discovery.
See JAY E. GRENIGA, HANDBOOK OF FEDERAL CIVIL DISCOVERY AND DISCLOSURE EDISCOVERY AND RECORDS § 6:1 (3d ed. 2013) (stating that electronic discovery involves
nine basic steps: information management, identifying, preserving, collecting,
processing, reviewing, analyzing, producing, and presenting); see also DAVID E. RIES,
PA. BAR ASS’N, RECORDS MANAGEMENT: CURRENT ISSUES IN RETENTION, DESTRUCTION,
AND
E-DISCOVERY, 78 Pa. B.A. Q. 139, 153 (2007) (indicating that ESI discovery
includes five steps: preservation, collection, processing, reviewing, and producing).
29
The diverging conceptualizations of e-discovery are instructive for two reasons.
First, they immediately reveal that ESI is amorphous, open-ended and limitless in nature.
Applying these terms to the same straightforward disputes, different jurisdictions have
reached different results. See, e.g., Lockheed Martin Idaho Techs. Co. v. Lockheed
Martin Advanced Envtl. Sys., Inc., 2006 WL 2095876, at *2 (D. Idaho July 27, 2006)
(cost of creating litigation database was recoverable “due to the extreme complexity of
this case and the millions of documents that had to be organized”); Parrish v. Manatt,
Phelps & Phillips, LLP, 2011 WL 1362112, at *2 (N.D. Cal. Apr. 11, 2011) (“[t]he
reproduction costs defendants incurred in collecting, reviewing, and preparing client
documents for production were necessary expenditures made for the purpose of
advancing the investigation and discovery phases of the action”); In re Online DVD
Rental Antitrust Litig., 2012 WL 1414111, at *1 (N.D. Cal. Apr. 20, 2012) (holding that
court had ability to broadly construe section 1920 “with respect to electronic discovery
production costs” and, given the specific facts of the case, awarded to plaintiffs over
$700,000 in costs, including, among other things, .tiff conversions and professional
fees); In re Scientific-Atlanta, Inc. Sec. Litig., 2011 WL 2671296, at *1 (N.D. Ga. July 6,
2011) (cost of keyword searching analogous to cost of reviewing paper documents,
which is not recoverable);Windy City Innovations, LLC v. Am. Online, Inc., 2006 WL
2224057, at *3 (N.D. Ill. July 31, 2006) (denying costs for keyword searching, optical
character recognition, and coding services).
Accordingly, adopting the view that the phrase “making copies” includes
analyzing servers and computers; collecting, extracting, and preserving ESI; and IT
30
consultant fees would inevitable result in uncertainty, inconsistency, and confusion—
precisely what Congress sough to cure when it enacted section1920. Second, the
ambiguity and irregularity stretches beyond the mere interpretation of the words and
extends to the type of technologies available to litigants. For example, because firms
have drastically different systems, a firm with sophisticated technologies may be able to
retrieve and produce the information requested at significantly less expense than a firm
without access to the most advanced retrieval technologies. Thus, Respondent’s
position also creates unfairness.
Even if there was agreement, however, as to the precise contours of e-discovery,
its inclusion under section 1920 will still thwart the statute’s spirit since e-discovery is
not specific in nature. A single step in the e-discovery process may, itself, involve
multiple processes. see also CURRENT ISSUES IN RETENTION, DESTRUCTION, AND EDISCOVERY, at 153. (indicating that the processing of e-discovery in turn “includes
filtering, deduplication,2 maintaining relationships between records, etc.”). The lack of
specificity inherent in electronic discovery becomes readily apparent when considering
that parties may claim that electronic discovery involves anything from identifying the
data, to installing software to read the data, to securing a vendor to protect and manage
the data. See Race Tires 674 F.3d at 159-60; R. 6 (asking to recover for expenses
2
Data deduplication, also called intelligent compression or single-instance storage, is a means of
reducing the amount of data that needs to be stored. The data deduplication process works by eliminating
redundant data and ensuring that only the first unique instance of any data is actually retained.
Subsequent iterations of the data are replaced with a pointer to the original. ComputerWeekly.Com
http://www.computerweekly.com/feature/How-data-deduplication-works (last visited Oct. 18, 2013).
31
related to analysis of the plaintiff firm’s server and computers; review of documents to
ascertain relevancy and privilege; IT consultant fees)
B.
The Electronic Discovery Charges Are Not “Fees For Exemplification.”
The e-discovery fees Respondent claims do not constitute fees for
“exemplification” either. “Exemplification” is limited to “an official transcript of a public
record, authenticated as a true copy to use as evidence.” Arcadian Fertilizer, L.P. v.
MPW Indus. Servs., Inc., 249 F.3d 1293, 1297 (11th Cir. 2001) (internal quotations
omitted); see also Kohus v. Toys R Us, Inc., 282 F.3d 1355, 1358-59 (Fed. Cir. 2002).
The word “exemplification” has appeared in the statute since the statute’s inception in
1853, and its definition has remained the same throughout time. E. & J. Gallo Winery,
Inc., 718 F.3d at 261-62. “Exemplification” means “an official transcript of a document
from public records, made in [a] form to be used as evidence, and authenticated as a
true copy.” Id. (internal quotations omitted). Consequently, exemplification does not
include demonstrative evidence. Arcadian Fertilizer, F.3d at 1297. Only one circuit has
read “exemplification” to mean “the act of illustration by example,” and thus, to
potentially, include the costs of “a variety of exhibits and demonstrative aids.” Cefalu v.
Vill. of Elk Grove, 211 F.3d 416, 427 (7th Cir. 2000). However, Congress has never
used the “broad phrase ‘demonstrative evidence’” Kohus, 282 F.3d at 1359.
For instance, in Kohus, the Federal Circuit, held that a video could not qualify as
“exemplification” because the word is limited to “an official transcript of public records”
because Congress has not embraced the broader definition of “demonstrative evidence.”
Id. at 1359. The court further justified its conclusion by noting that this Court has
32
specifically directed courts “not to exceed the limits of . . . [the] statute.” Id. at 1359.
Similarly, in Arcadian Fertilizer, the Eleventh Circuit interpreted “exemplification” to be
limited to official transcripts of public records. 249 F.3d at 1297. The Arcadian court
reasoned that “there is no statutory authority” to award costs for physical or electronic
exhibits or models “until Congress sees fit to amend the language of section 1920 to
include the innovative technologies currently used in the production of demonstrative
exhibits.” Id. at 1297-98. In contrast, in Cefalu, the Seventh Circuit, interpreted
“exemplification” to mean “illustration by example . . . a connotation broad enough to
include a wide variety of exhibits and demonstrative aids.” 211 F.3d at 427. While the
court recognized that “exemplification” could refer only to official transcripts of public
records, it concluded that it most “commonly . . . signified the act of illustration by
example.” Id.
The interpretation of ambiguous words does not, however, conclusively turn to
the word’s most common meaning, but to the legislative intent and the spirit of the
statute. From its birth, the legislature intended section 1920 to “prescrib[e] a limited
number of definite items to be allowed.” Cong. Globe, 32nd Cong., 2d Sess.App. 207
(1853) (statement of Sen. Bradbury) (emphasis added). In the only two subsequent
amendments to the statute in 1948 and 2008, Congress took care to preserve such
overriding objective. See Alyeska Pipeline Serv. Co., 421 U.S. at 255-60. The narrower
definition of “exemplification” is harmonious with the spirit of the statute. The broader
interpretation is not. The narrow interpretation identifies a discrete and definite cost
item: official transcripts of public records, authenticated for use as evidence. The
33
contours of the broader view are, however, unknown. The Seventh Circuit, itself, points
out that the “illustration by example” definition can include a wide variety of exhibits and
demonstrative aids. Creativity may be the only limit to the broader view as prevailing
parties have already had the occasion to claim that “exemplification” covers not only
demonstrative aids such as charts and presentations, but “hard drive imaging, data
processing, keyword searching, and file format conversion.” See Race Tires, 674 F.3d
at 159-60.
The broader view not only distorts the spirit of the statute and thwarts the intent
of the legislature by opening the door to a myriad of unpredictable “exemplification”
costs, but it goes directly against this Court’s directive that courts may not award costs
not listed in section1920. Only Congress can grant courts statutory authority to award
exemplification costs beyond the costs for official transcripts of official records. As the
Federal District points out, however, Congress has not adopted the broader view that
“exemplification” covers “demonstrative evidence.” And, as the Eleventh Circuit stated in
Arcadian Fertilizer, until Congress decides to expand the meaning of exemplification to
account for demonstrative evidence and new technologies, courts simply lack authority
to make such costs taxable.
C.
Reading The Statute In Accordance With The Plain Language And
The Legislative Intent Is Sound Public Policy.
Reading the statute in accordance with its plain language is sound public policy.
Taxing ESI expenses as discovery costs would create the risk of excessive costs
awards and would contravene the so-called “American Rule,” under which parties to a
lawsuit generally bear their own discovery expenses and thus, benefit alike. The
34
American Rule against shifting the expense of the litigation to the losing party is
“founded on the egalitarian concept of providing relatively easy access to the courts to
all citizens and reducing the threat of liability for litigation expenses as an obstacle to the
commencement of a lawsuit or the assertion of a defense that might have some merit.”
CHARLES ALAN WRIGHT, ARTHUR R. MILLER, MARY KAY KANE & RICHARD L. MARCUS,
FEDERAL PRACTICE AND PROCEDURE § 2665 (3rd ed. 1998).
The Congressional costs-regime set out in section 1920 represents a decision to
depart only slightly from this principle–a principle “deeply rooted in our history and in
congressional policy.” Alyeska Pipeline Serv. Co., 421 U.S. at 271 (discussing the
American Rule in connection with attorneys’ fees). The objective of the American costsregime is to avoid the possibility of large costs awards deterring litigants from
prosecuting or defending a lawsuit. Fleischmann Distilling Corp. v. Maier Brewing
Co., 386 U.S. 714, 718 (1967). These concerns are particularly troubling for poor and
other disadvantaged groups. See, e.g., Summit Valley Indus., Inc. v. Local 112, United
Bhd. of Carpenters & Joiners of Am., 456 U.S. 717, 725 (1982) (noting “the possible
deterrent effect that fee shifting would have on poor litigants with meritorious claims,”
which, among other considerations, “persuade us not to infer that Congress intended to
authorize” such a regime); Fleischmann Distilling Corp., 386 U.S. at 718 (noting “that
the poor might be unjustly discouraged from instituting actions to vindicate their rights if
the penalty for losing included the fees of their opponents' counsel”).
Finally, this Court should leave any redefinition of section 1920 to the political
process. Cost-shifting is doubtless a divisive issue. Indeed, it is an area “fraught with
35
sensitive policy considerations in which federal courts should not involve themselves if
there is an alternative.” Smelt, 447 F.3d at 681. Congress is ably fit to address this
policy matter—one that “Congress has reserved for itself.” Alyeska Pipeline at 269.
Since Congress’ approach to cost-shifting has been to carve out specific exceptions to a
general rule, this Court “cannot award [] fees beyond the limits of [the statute, and is] not
free to fashion drastic new rules with respect to the allowance of [] fees to the prevailing
party in federal litigation.” Alyeska Pipeline, 421 U.S. at 269.
CONCLUSION
For all the foregoing reasons, this Court should reverse the judgment of the U.S.
Court of Appeals for the Thirteen Circuit and hold that the CFAA applies only to
individuals who circumvent computer code-based restrictions and that electronic
discovery costs are non-recoverable.
36
CERTIFICATE OF COMPLIANCE
The undersigned counsel certifies that the Petitioners’ Brief complies with the word
limitation specified in Rule C(3)(d) of the ALA Moot Court Competition Rules.
Word count: 10,109
Respectfully submitted,
BY:
_____________/s/________________
Attorneys for Petitioners
Daisy Ayllon
Claudia Cortes
Roman Kashuba
ALA Moot Court Team #6
37
APPENDIX I
Effective: September 26, 2008
18 U.S.C.A. § 1030
§ 1030. Fraud and related activity in connection with computers
(a) Whoever-(1) having knowingly accessed a computer without authorization or exceeding
authorized access, and by means of such conduct having obtained information that has
been determined by the United States Government pursuant to an Executive order or
statute to require protection against unauthorized disclosure for reasons of national
defense or foreign relations, or any restricted data, as defined in paragraph y. of section
11 of the Atomic Energy Act of 1954, with reason to believe that such information so
obtained could be used to the injury of the United States, or to the advantage of any
foreign nation willfully communicates, delivers, transmits, or causes to be
communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit
or cause to be communicated, delivered, or transmitted the same to any person not
entitled to receive it, or willfully retains the same and fails to deliver it to the officer or
employee of the United States entitled to receive it;
(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. 1681 et seq.);
(B) information from any department or agency of the United States; or
(C) information from any protected computer;
(3) intentionally, without authorization to access any nonpublic computer of a
department or agency of the United States, accesses such a computer of that
department or agency that is exclusively for the use of the Government of the United
States or, in the case of a computer not exclusively for such use, is used by or for the
Government of the United States and such conduct affects that use by or for the
Government of the United States;
(4) 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;
(5)
(A) knowingly causes the transmission of a program, information, code, or
command, and as a result of such conduct, intentionally causes damage without
authorization, to a protected computer;
38
(B) intentionally accesses a protected computer without authorization, and
as a result of such conduct, recklessly causes damage; or
(C) intentionally accesses a protected computer without authorization, and
as a result of such conduct, causes damage and loss.
(6) knowingly and with intent to defraud traffics (as defined in section 1029) in
any password or similar information through which a computer may be accessed without
authorization, if-(A) such trafficking affects interstate or foreign commerce; or
(B) such computer is used by or for the Government of the United States;1
(7) with intent to extort from any person any money or other thing of value,
transmits in interstate or foreign commerce any communication containing any-(A) threat to cause damage to a protected computer;
(B) threat to obtain information from a protected computer without
authorization or in excess of authorization or to impair the confidentiality of
information obtained from a protected computer without authorization or by
exceeding authorized access; or
(C) demand or request for money or other thing of value in relation to
damage to a protected computer, where such damage was caused to facilitate
the extortion;
shall be punished as provided in subsection (c) of this section.
(b) Whoever conspires to commit or attempts to commit an offense under subsection (a)
of this section shall be punished as provided in subsection (c) of this section.
(c) The punishment for an offense under subsection (a) or (b) of this section is-(1)(A) a fine under this title or imprisonment for not more than ten years, or both,
in the case of an offense under subsection (a)(1) of this section which does not occur
after a conviction for another offense under this section, or an attempt to commit an
offense punishable under this subparagraph; and
(B) a fine under this title or imprisonment for not more than twenty years, or both,
in the case of an offense under subsection (a)(1) of this section which occurs after a
conviction for another offense under this section, or an attempt to commit an offense
punishable under this subparagraph;
(2)(A) except as provided in subparagraph (B), a fine under this title or
imprisonment for not more than one year, or both, in the case of an offense under
subsection (a)(2), (a)(3), or (a)(6) of this section which does not occur after a conviction
for another offense under this section, or an attempt to commit an offense punishable
under this subparagraph;
(B) a fine under this title or imprisonment for not more than 5 years, or both, in
the case of an offense under subsection (a)(2), or an attempt to commit an offense
punishable under this subparagraph, if-(i) the offense was committed for purposes of commercial advantage or
private financial gain;
39
(ii) the offense was committed in furtherance of any criminal or tortious act
in violation of the Constitution or laws of the United States or of any State; or
(iii) the value of the information obtained exceeds $5,000; and
(C) a fine under this title or imprisonment for not more than ten years, or both, in the
case of an offense under subsection (a)(2), (a)(3) or (a)(6) of this section which occurs
after a conviction for another offense under this section, or an attempt to commit an
offense punishable under this subparagraph;
(3)(A) a fine under this title or imprisonment for not more than five years, or both,
in the case of an offense under subsection (a)(4) or (a)(7) of this section which does not
occur after a conviction for another offense under this section, or an attempt to commit
an offense punishable under this subparagraph; and
(B) a fine under this title or imprisonment for not more than ten years, or both, in
the case of an offense under subsection (a)(4) or (a)(7) of this section which occurs
after a conviction for another offense under this section, or an attempt to commit an
offense punishable under this subparagraph;
(4)(A) except as provided in subparagraphs (E) and (F), a fine under this title,
imprisonment for not more than 5 years, or both, in the case of-(i) an offense under subsection (a)(5)(B), which does not occur after a conviction for
another offense under this section, if the offense caused (or, in the case of an attempted
offense, would, if completed, have caused)-(I) loss to 1 or more persons during any 1-year period (and, for purposes
of an investigation, prosecution, or other proceeding brought by the United States
only, loss resulting from a related course of conduct affecting 1 or more other
protected computers) aggregating at least $5,000 in value;
(II) the modification or impairment, or potential modification or impairment,
of the medical examination, diagnosis, treatment, or care of 1 or more individuals;
(III) physical injury to any person;
(IV) a threat to public health or safety;
(V) damage affecting a computer used by or for an entity of the United
States Government in furtherance of the administration of justice, national
defense, or national security; or
(VI) damage affecting 10 or more protected computers during any 1-year
period; or
(ii) an attempt to commit an offense punishable under this
subparagraph;
(B) except as provided in subparagraphs (E) and (F), a fine under this title,
imprisonment for not more than 10 years, or both, in the case of-(i) an offense under subsection (a)(5)(A), which does not occur after a
conviction for another offense under this section, if the offense caused (or, in the
case of an attempted offense, would, if completed, have caused) a harm
provided in subclauses (I) through (VI) of subparagraph (A)(i); or
40
(ii) an attempt to commit an offense punishable under this subparagraph;
(C) except as provided in subparagraphS (E) and (F), a fine under this title,
imprisonment for not more than 20 years, or both, in the case of-(i) an offense or an attempt to commit an offense under subparagraphs (A)
or (B) of subsection (a)(5) that occurs after a conviction for another offense under
this section; or
(ii) an attempt to commit an offense punishable under this subparagraph;
(D) a fine under this title, imprisonment for not more than 10 years, or both, in the
case of-(i) an offense or an attempt to commit an offense under subsection (a)
(5)(C) that occurs after a conviction for another offense under this section; or
(ii) an attempt to commit an offense punishable under this subparagraph;
(E) if the offender attempts to cause or knowingly or recklessly causes serious
bodily injury from conduct in violation of subsection (a)(5)(A), a fine under this
title, imprisonment for not more than 20 years, or both;
(F) if the offender attempts to cause or knowingly or recklessly causes death from
conduct in violation of subsection (a)(5)(A), a fine under this title, imprisonment for any
term of years or for life, or both; or
(G) a fine under this title, imprisonment for not more than 1 year, or both, for-(i) any other offense under subsection (a)(5); or
(ii) an attempt to commit an offense punishable under this subparagraph.
[(5) Repealed. Pub.L. 110-326, Title II, § 204(a)(2)(D), Sept. 26, 2008, 122 Stat. 3562]
(d)(1) The United States Secret Service shall, in addition to any other agency
having such authority, have the authority to investigate offenses under this section.
(2) The Federal Bureau of Investigation shall have primary authority to
investigate offenses under subsection (a)(1) for any cases involving espionage, foreign
counterintelligence, information protected against unauthorized disclosure for reasons of
national defense or foreign relations, or Restricted Data (as that term is defined in
section 11y of the Atomic Energy Act of 1954 (42 U.S.C. 2014(y)), except for offenses
affecting the duties of the United States Secret Service pursuant to section 3056(a) of
this title.
(3) Such authority shall be exercised in accordance with an agreement which
shall be entered into by the Secretary of the Treasury and the Attorney General.
(e) As used in this section-(1) the term “computer” means an electronic, magnetic, optical,
electrochemical, or other high speed data processing device performing logical,
arithmetic, or storage functions, and includes any data storage facility or
communications facility directly related to or operating in conjunction with such
device, but such term does not include an automated typewriter or typesetter, a
portable hand held calculator, or other similar device;
(2) the term “protected computer” means a computer--
41
(A) exclusively for the use of a financial institution or the United States
Government, or, in the case of a computer not exclusively for such use, used by
or for a financial institution or the United States Government and the conduct
constituting the offense affects that use by or for the financial institution or the
Government; or
(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;
(3) the term “State” includes the District of Columbia, the Commonwealth of
Puerto Rico, and any other commonwealth, possession or territory of the United States;
(4) the term “financial institution” means-(A) an institution,2 with deposits insured by the Federal Deposit Insurance
Corporation;
(B) the Federal Reserve or a member of the Federal Reserve including
any Federal Reserve Bank;
(C) a credit union with accounts insured by the National Credit Union
Administration;
(D) a member of the Federal home loan bank system and any home loan
bank;
(E) any institution of the Farm Credit System under the Farm Credit Act of
1971;
(F) a broker-dealer registered with the Securities and Exchange
Commission pursuant to section 15 of the Securities Exchange Act of 1934;
(G) the Securities Investor Protection Corporation;
(H) a branch or agency of a foreign bank (as such terms are defined in
paragraphs (1) and (3) of section 1(b) of the International Banking Act of 1978);
and
(I) an organization operating under section 25 or section 25(a) of the
Federal Reserve Act;
(5) the term “financial record” means information derived from any record held by
a financial institution pertaining to a customer's relationship with the financial institution;
(6) the term “exceeds authorized 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;
(7) 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;
(8) the term “damage” means any impairment to the integrity or availability of
data, a program, a system, or information;
42
(9) the term “government entity” includes the Government of the United States,
any State or political subdivision of the United States, any foreign country, and any
state, province, municipality, or other political subdivision of a foreign country;
(10) the term “conviction” shall include a conviction under the law of any State for
a crime punishable by imprisonment for more than 1 year, an element of which is
unauthorized access, or exceeding authorized access, to a computer;
(11) the term “loss” means any reasonable cost to any victim, including the cost
of responding to an offense, conducting a damage assessment, and restoring the data,
program, system, or information to its condition prior to the offense, and any revenue
lost, cost incurred, or other consequential damages incurred because of interruption of
service; and
(12) the term “person” means any individual, firm, corporation, educational
institution, financial institution, governmental entity, or legal or other entity.
(f) This section does not prohibit any lawfully authorized investigative, protective,
or intelligence activity of a law enforcement agency of the United States, a State, or a
political subdivision of a State, or of an intelligence agency of the United States.
(g) Any person who suffers damage or loss by reason of a violation of this
section may maintain a civil action against the violator to obtain compensatory damages
and injunctive relief or other equitable relief. A civil action for a violation of this section
may be brought only if the conduct involves 1 of the factors set forth in subclauses (I),
(II), (III), (IV), or (V) of subsection (c)(4)(A)(i). Damages for a violation involving only
conduct described in subsection (c)(4)(A)(i)(I) are limited to economic damages. No
action may be brought under this subsection unless such action is begun within 2 years
of the date of the act complained of or the date of the discovery of the damage. No
action may be brought under this subsection for the negligent design or manufacture of
computer hardware, computer software, or firmware.
(h) The Attorney General and the Secretary of the Treasury shall report to the
Congress annually, during the first 3 years following the date of the enactment of this
subsection, concerning investigations and prosecutions under subsection (a)(5).
(i)(1) The court, in imposing sentence on any person convicted of a violation of
this section, or convicted of conspiracy to violate this section, shall order, in addition to
any other sentence imposed and irrespective of any provision of State law, that such
person forfeit to the United States-(A) such person's interest in any personal property that was used or intended to
be used to commit or to facilitate the commission of such violation; and
(B) any property, real or personal, constituting or derived from, any proceeds that
such person obtained, directly or indirectly, as a result of such violation.
(2) The criminal forfeiture of property under this subsection, any seizure
and disposition thereof, and any judicial proceeding in relation thereto, shall be
governed by the provisions of section 413 of the Comprehensive Drug Abuse
43
Prevention and Control Act of 1970 (21 U.S.C. 853), except subsection (d) of that
section.
(j) For purposes of subsection (i), the following shall be subject to
forfeiture to the United States and no property right shall exist in them:
(1) Any personal property used or intended to be used to commit or to facilitate
the commission of any violation of this section, or a conspiracy to violate this section.
(2) Any property, real or personal, which constitutes or is derived from proceeds
traceable to any violation of this section, or a conspiracy to violate this section3
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APPENDIX II
I.
RULE 54. JUDGMENT; COSTS
(a) DEFINITION; FORM. “Judgment” as used in these rules includes a decree and any
order from which an appeal lies. A judgment should not include recitals of pleadings, a
master's report, or a record of prior proceedings.
(b) JUDGMENT ON MULTIPLE CLAIMS OR INVOLVING MULTIPLE PARTIES. When an action
presents more than one claim for relief—whether as a claim, counterclaim, crossclaim,
or third-party claim—or when multiple parties are involved, the court may direct entry of
a final judgment as to one or more, but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for delay. Otherwise, any order or
other decision, however designated, that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties does not end the action as to any of the
claims or parties and may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and liabilities.
(c) DEMAND FOR JUDGMENT; RELIEF TO BE GRANTED. A default judgment must not differ in
kind from, or exceed in amount, what is demanded in the pleadings. Every other final
judgment should grant the relief to which each party is entitled, even if the party has not
demanded that relief in its pleadings.
(d) COSTS; ATTORNEY'S FEES.
(1) Costs Other Than Attorney's Fees. Unless a federal statute, these rules, or a
court order provides otherwise, costs—other than attorney's fees—should be allowed
to the prevailing party. But costs against the United States, its officers, and its
agencies may be imposed only to the extent allowed by law. The clerk may tax costs
on 14 days’ notice. On motion served within the next 7 days, the court may review the
clerk's action.
(2) Attorney's Fees.
(A) Claim to Be by Motion. A claim for attorney's fees and related nontaxable
expenses must be made by motion unless the substantive law requires those fees
to be proved at trial as an element of damages.
(B) Timing and Contents of the Motion. Unless a statute or a court order provides
otherwise, the motion must:
(i) be filed no later than 14 days after the entry of judgment;
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(ii) specify the judgment and the statute, rule, or other grounds entitling the
movant to the award;
(iii) state the amount sought or provide a fair estimate of it; and
(iv) disclose, if the court so orders, the terms of any agreement about fees for
the services for which the claim is made.
(C) Proceedings. Subject to Rule 23(h), the court must, on a party's request, give
an opportunity for adversary submissions on the motion in accordance with Rule
43(c) or78. The court may decide issues of liability for fees before receiving
submissions on the value of services. The court must find the facts and state its
conclusions of law as provided in Rule 52(a).
(D) Special Procedures by Local Rule; Reference to a Master or a Magistrate
Judge. By local rule, the court may establish special procedures to resolve feerelated issues without extensive evidentiary hearings. Also, the court may refer
issues concerning the value of services to a special master under Rule 53 without
regard to the limitations of Rule 53(a)(1), and may refer a motion for attorney's fees
to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial matter.
(E) Exceptions. Subparagraphs (A)–(D) do not apply to claims for fees and
expenses as sanctions for violating these rules or as sanctions under 28 U.S.C. §
1927.
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APPENDIX III
II.
28 USC § 1920 - Taxation of costs
A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for
use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials
where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and
salaries, fees, expenses, and costs of special interpretation services under
section 1828 of this title.
A bill of costs shall be filed in the case and, upon allowance, included in the judgment or
decree.
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