United States v. Mitra, Rajib K. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2328
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAJIB K. MITRA,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 03-CR-153-S—John C. Shabaz, Judge.
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ARGUED FEBRUARY 16, 2005—DECIDED APRIL 18, 2005
____________
Before EASTERBROOK, WOOD, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. Wisconsin’s capital city uses
a computer-based radio system for police, fire, ambulance,
and other emergency communications. The Smartnet II,
made by Motorola, spreads traffic across 20 frequencies.
One is designated for control. A radio unit (mobile or base)
uses the control channel to initiate a conversation. Com-
puter hardware and software assigns the conversation to an
open channel, and it can link multiple roaming units into
“talk groups” so that officers in the field can hold joint
conversations. This is known as a “trunking system” and
2 No. 04-2328
makes efficient use of radio spectrum, so that 20 channels
can support hundreds of users. If the control channel is in-
terfered with, however, remote units will show the message
“no system” and communication will be impossible.
Between January and August 2003 mobile units in
Madison encountered occasional puzzling “no signal” condi-
tions. On Halloween of that year the “no system” condition
spread citywide; a powerful signal had blanketed all of the
City’s communications towers and prevented the computer
from receiving, on the control channel, data essential to
parcel traffic among the other 19 channels. Madison was
hosting between 50,000 and 100,000 visitors that day. When
disturbances erupted, public safety departments were un-
able to coordinate their activities because the radio system
was down. Although the City repeatedly switched the control
channel for the Smartnet system, a step that temporarily
restored service, the interfering signal changed channels too
and again blocked the system’s use. On November 11, 2003,
the attacker changed tactics. Instead of blocking the sys-
tem’s use, he sent signals directing the Smartnet base
station to keep channels open, and at the end of each com-
munication the attacker appended a sound, such as a
woman’s sexual moan.
By then the City had used radio direction finders to pin
down the source of the intruding signals. Police arrested
Rajib Mitra, a student in the University of Wisconsin’s
graduate business school. They found the radio hardware
and computer gear that he had used to monitor communica-
tions over the Smartnet system, analyze how it operated,
and send the signals that took control of the system. Mitra,
who in 2000 had received a B.S. in computer science from
the University, possessed two other credentials for this kind
of work: criminal convictions (in 1996 and 1998) for hacking
into computers in order to perform malicious mischief. A
jury convicted Mitra of two counts of intentional interfer-
ence with computer-related systems used in interstate
No. 04-2328 3
commerce. See 18 U.S.C. §1030(a)(5). He has been sen-
tenced to 96 months’ imprisonment. On appeal he says that
his conduct does not violate §1030—and that, if it does, the
statute exceeds Congress’s commerce power.
Section 1030(a)(5) provides that whoever
(A)
(i) knowingly causes the transmission of a
program, information, code, or command,
and as a result of such conduct, intention-
ally causes damage without authorization,
to a protected computer;
(ii) intentionally accesses a protected com-
puter without authorization, and as a result
of such conduct, recklessly causes damage;
or
(iii) intentionally accesses a protected com-
puter without authorization, and as a result
of such conduct, causes damage; and
(B) by conduct described in clause (i), (ii), or (iii) of
subparagraph (A), caused (or, in the case of an at-
tempted offense, would, if completed, have caused)—
(i) loss to 1 or more persons during any 1-
year period (and, for purposes of an investi-
gation, prosecution, or other proceeding
brought by the United States only, loss
resulting from a related course of conduct
affecting 1 or more other protected comput-
ers) aggregating at least $5,000 in value;
(ii) the modification or impairment, or po-
tential modification or impairment, of the
medical examination, diagnosis, treatment,
or care of 1 or more individuals;
(iii) physical injury to any person;
4 No. 04-2328
(iv) a threat to public health or safety; or
(v) damage affecting a computer system used
by or for a government entity in furtherance
of the administration of justice, national
defense, or national security . . .
shall be punished as provided in subsection (c) of
this section.
Subsection (e)(1) defines “computer” as “an electronic, mag-
netic, 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”. Subsec-
tion (e)(2)(B) defines a “protected computer” to include any
computer “used in interstate or foreign commerce or com-
munication”. Finally, subsection (e)(8) defines “damage” to
mean “any impairment to the integrity or availability of
data, a program, a system, or information”.
The prosecutor’s theory is that Smartnet II is a
“computer” because it contains a chip that performs high-
speed processing in response to signals received on the
control channel, and as a whole is a “communications
facility directly related to or operating in conjunction” with
that computer chip. It is a “protected computer” because it is
used in “interstate . . . communication”; the frequencies it
uses have been allocated by the Federal Communications
Commission for police, fire, and other public-health ser-
vices. Mitra’s transmissions on Halloween included “infor-
mation” that was received by the Smartnet. Data that Mitra
sent interfered with the way the computer allocated
communications to the other 19 channels and stopped the
flow of information among public-safety officers. This led to
“damage” by causing a “no system” condition citywide,
No. 04-2328 5
impairing the “availability of . . . a system, or information”
and creating “a threat to public health or safety” by knock-
ing out police, fire, and emergency communications. See
§1030(a)(5)(A)(i), (B)(iv). The extraneous sounds tacked onto
conversations on November 11 also are “information” sent
to the “protected computer,” and produce “damage” because
they impair the “integrity” of the official communications.
This time subsection §1030(a)(5)(B)(v) is what makes the
meddling a crime, because Mitra hacked into a governmen-
tal safety-related communications system.
Mitra concedes that he is guilty if the statute is parsed as
we have done. But he submits that Congress could not have
intended the statute to work this way. Mitra did not invade
a bank’s system to steal financial information, or erase data
on an ex-employer’s system, see United States v. Lloyd, 269
F.3d 228 (3d Cir. 2001), or plaster a corporation’s web site
with obscenities that drove away customers, or unleash a
worm that slowed and crashed computers across the world,
see United States v. Morris, 928 F.2d 504 (2d Cir. 1991), or
break into military computers to scramble a flight of
interceptors to meet a nonexistent threat, or plant covert
programs in computers so that they would send spam
without the owners’ knowledge. All he did was gum up a
radio system. Surely that cannot be a federal crime, Mitra
insists, even if the radio system contains a computer. Every
cell phone and cell tower is a “computer” under this stat-
ute’s definition; so is every iPod, every wireless base station
in the corner coffee shop, and many another gadget.
Reading §1030 to cover all of these, and police radio too,
would give the statute wide coverage, which by Mitra’s
lights means that Congress cannot have contemplated such
breadth.
Well of course Congress did not contemplate or intend this
particular application of the statute. Congress is a “they” and
not an “it”; a committee lacks a brain (or, rather, has so
many brains with so many different objectives that it is
6 No. 04-2328
almost facetious to impute a joint goal or purpose to the
collectivity). See Kenneth A. Shepsle, Congress is a “They,”
Not an “It”: Legislative Intent as Oxymoron, 12 Int’l Rev. L.
& Econ. 239 (1992). Legislation is an objective text ap-
proved in constitutionally prescribed ways; its scope is not
limited by the cerebrations of those voted for or signed it
into law.
Electronics and communications change rapidly, while
each legislator’s imagination is limited. Trunking communi-
cations systems came to market after 1984, when the first
version of §1030 was enacted, and none of the many
amendments to this statute directly addresses them. But
although legislators may not know about trunking com-
munications systems, they do know that complexity is en-
demic in the modern world and that each passing year sees
new developments. That’s why they write general statutes
rather than enacting a list of particular forbidden acts. And
it is the statutes they enacted—not the thoughts they did or
didn’t have—that courts must apply. What Congress would
have done about trunking systems, had they been present
to the mind of any Senator or Representative, is neither
here nor there. See West Virginia University Hospitals, Inc.
v. Casey, 499 U.S. 83, 100-01 (1991).
Section 1030 is general. Exclusions show just how gen-
eral. Subsection (e)(1) carves out automatic typewriters,
typesetters, and handheld calculators; this shows that other
devices with embedded processors and software are covered.
As more devices come to have built-in intelligence, the ef-
fective scope of the statute grows. This might prompt
Congress to amend the statute but does not authorize the
judiciary to give the existing version less coverage than its
language portends. See National Broiler Marketing Ass’n v.
United States, 436 U.S. 816 (1978). What protects people
who accidentally erase songs on an iPod, trip over (and thus
disable) a wireless base station, or rear-end a car and set off
a computerized airbag, is not judicial creativity but the
No. 04-2328 7
requirements of the statute itself: the damage must be
intentional, it must be substantial (at least $5,000 or bodily
injury or danger to pubic safety), and the computer must
operate in interstate or foreign commerce.
Let us turn, then, to the commerce requirement. The sys-
tem operated on spectrum licensed by the FCC. It met the
statutory definition because the interference affected “com-
munication.” Mitra observes that his interference did not
affect any radio system on the other side of a state line, yet
this is true of many cell-phone calls, all of which are part of
interstate commerce because the electromagnetic spectrum
is securely within the federal regulatory domain. See, e.g.,
Radovich v. National Football League, 352 U.S. 445, 453
(1957); Federal Radio Commission v. Nelson Brothers Bond
& Mortgage Co., 289 U.S. 266, 279 (1933). Congress may
regulate all channels of interstate commerce; the spectrum
is one of them. See United States v. Lopez, 514 U.S. 549,
558 (1995); United States v. Morrison, 529 U.S. 598, 608-09
(2000). Mitra’s apparatus was more powerful than the
Huygens probe that recently returned pictures and other
data from Saturn’s moon Titan. Anyway, the statute does
not ask whether the person who caused the damage acted
in interstate commerce; it protects computers (and com-
puterized communication systems) used in such commerce,
no matter how the harm is inflicted. Once the computer
is used in interstate commerce, Congress has the power
to protect it from a local hammer blow, or from a local
data packet that sends it haywire. (Indeed, Mitra concedes
that he could have been prosecuted, consistent with the
Constitution, for broadcasting an unauthorized signal. See
47 U.S.C. §301, §401(c).) Section 1030 is within the national
power as applied to computer-based channel-switching
communications systems.
Mitra offers a fallback argument that application of §1030
to his activities is so unexpected that it offends the due
process clause. But what cases such as Bouie v. Columbia,
8 No. 04-2328
378 U.S. 347 (1964), hold is that a court may not apply a
clear criminal statute in a way that a reader could not
anticipate, or put a vague criminal statute to a new and
unexpected use. Mitra’s problem is not that §1030 has been
turned in a direction that would have surprised reasonable
people; it is that a broad statute has been applied exactly as
written, while he wishes that it had not been. There is no
constitutional obstacle to enforcing broad but clear statutes.
See Rogers v. Tennessee, 532 U.S. 451, 458-62 (2001)
(discussing Bouie’s rationale and limits). The statute itself
gives all the notice that the Constitution requires.
During deliberations the jury inquired about the meaning
of the word “intentionally.” The judge referred them to the
instructions, which included a definition. Mitra says that the
judge should have drafted a new definition, because the first
must have been confusing (though he concedes that it was
correct). This sort of problem is one for the district judge to
resolve on the spot; there would be little point in Monday
morning quarterbacking.
Sentencing requires but little discussion. The district judge
added offense levels under U.S.S.G. §2B1.1(b)(13)(A)(iii)
and (B) after concluding that Mitra had disrupted a “critical
infrastructure”. (Our citations are to the 2003 Manual, which
the district judge used; the current version is substantively
identical but numbered a little differently.) Application
Note 12 defines that term; Mitra concedes that an emer-
gency radio system fits the definition. Emergency services
are one of the note’s examples. Once again his argument
takes the form that the authors of this language just
couldn’t have meant what they said. It is not as if the note
were a linguistic garble, or that it is impossible to fathom
why any sane person would think that the penalty for
crippling an emergency-communication system on which
lives may depend should be higher than the penalty for
hacking into a web site to leave a rude message. The
district judge was right to apply the guideline and note as
written.
No. 04-2328 9
Mitra was sentenced before United States v. Booker, 125
S. Ct. 738 (2005), and did not argue in the district court
that the sixth amendment limits the judge’s role in sen-
tencing. Review now is limited to a search for plain error.
The approach developed in United States v. Paladino, 401
F.3d 471 (7th Cir. 2005), applies to this sentence, which falls
within a properly calculated guideline range. Accordingly,
although the judgment of conviction is affirmed, we remand
to the district court under the terms of Paladino so that the
district judge may inform us whether the additional
discretion provided by Booker’s remedial holding would
affect Mitra’s sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-18-05