CA8: Cell phone is “computer” for 18 U.S.C. § 1030 purposes

The Eighth Circuit holds that a cell phone is a “computer” for identity fraud and U.S. Sentencing Guidelines enhancement purposes, adopting the district court’s findings and the government’s argument. United States v. Kramer, 631 F.3d 900 (8th Cir. 2011):

We acknowledge that a “basic” cellular phone might not easily fit within the colloquial definition of “computer.” We are bound, however, not by the common understanding of that word, but by the specific — if broad — definition set forth in § 1030(e)(1). Now it may be that neither the Sentencing Commission nor Congress anticipated that a cellular phone would be included in that definition. As technology continues to develop, § 1030(e)(1) may come to capture still additional devices that few industry experts, much less the Commission or Congress, could foresee. But to the extent that such a sweeping definition was unintended or is now inappropriate, it is a matter for the Commission or Congress to correct. We cannot provide relief from plain statutory text. See United States v. Mitra, 405 F.3d 492, 495 (7th Cir. 2005) (“As more devices come to have built-in intelligence, the effective scope of [§ 1030(e)(1)] 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.”).

The government introduced the phone’s user’s manual and a printout from Motorola’s website describing the phone’s features. See JA 1-120. The government did not, however, offer any expert testimony regarding the phone’s capabilities. Although doing so might have aided our review, the materials presented to the district court were sufficient to show by a preponderance of the evidence that Kramer’s phone was an “electronic … or other high speed data processing device” that “perform[ed] logical, arithmetic, or storage functions” when Kramer used it to call and text message the victim.

Furthermore, that processor performs arithmetic, logical, and storage functions when the phone is used to place a call. The user’s manual notes that the phone “keeps lists of incoming and outgoing calls, even for calls that did not connect,” JA 61, and “displays the phone number for incoming calls in [the] phone’s external and internal displays.” JA 66. Additionally, the phone keeps track of the “Network connection time,” which is “the elapsed time from the moment [the user] connect[s] to [the] service provider’s network to the moment [the user] end[s] the call by pressing [the end key].” JA 84. This counting function alone is sufficient to support a finding that the phone is performing logical and arithmetic operations when used to place calls.

The same is true when the phone is used to send text messages. Most fundamentally, the phone stores sets of characters that are available to a user when typing a message. See JA 42, 44. As the user types, the phone keeps track of the user’s past inputs and displays the “entered text,” see JA 44, i.e., the message being composed. The user may also delete characters previously entered, either “one letter at a time” or all at once. Id. In addition, the phone allows the users to “set different primary and secondary text entry modes, and easily switch between modes as needed when [they] enter data or compose a message,” including “iTAP” mode which uses “software” to “predict[] each word” as it is entered. JA 35. These capabilities all support the district court’s finding that the phone performed arithmetic, logical, and storage functions when Kramer used it to send text messages to the victim.

[Note: So, how can the government now argue that a cell phone seized in a search incident is not a computer, too? When is a cell phone a mere storage device and not a computer? Only when the government wants it to be not a computer, apparently.]