{"id":5171,"date":"2011-09-30T10:55:51","date_gmt":"2011-02-08T16:09:17","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-02-08T16:09:17","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=5171","title":{"rendered":"CA8: Cell phone is “computer” for 18 U.S.C. \u00a7 1030 purposes"},"content":{"rendered":"

The Eighth Circuit holds that a cell phone is a \u201ccomputer\u201d 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<\/a>, 631 F.3d 900 (8th Cir. 2011):<\/p>\n

We acknowledge that a \u201cbasic\u201d cellular phone might not easily fit within the colloquial definition of \u201ccomputer.\u201d We are bound, however, not by the common understanding of that word, but by the specific \u2014 if broad \u2014 definition set forth in \u00a7 1030(e)(1)<\/a>. 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, \u00a7 1030(e)(1)<\/a> 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) (\u201cAs more devices come to have built-in intelligence, the effective scope of [\u00a7 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.\u201d).<\/p>\n

The government introduced the phone\u2019s user\u2019s manual and a printout from Motorola\u2019s website describing the phone\u2019s features. See JA 1-120. The government did not, however, offer any expert testimony regarding the phone\u2019s 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\u2019s phone was an \u201celectronic … or other high speed data processing device\u201d that \u201cperform[ed] logical, arithmetic, or storage functions\u201d when Kramer used it to call and text message the victim.<\/p>\n

Furthermore, that processor performs arithmetic, logical, and storage functions when the phone is used to place a call. The user\u2019s manual notes that the phone \u201ckeeps lists of incoming and outgoing calls, even for calls that did not connect,\u201d JA 61, and \u201cdisplays the phone number for incoming calls in [the] phone\u2019s external and internal displays.\u201d JA 66. Additionally, the phone keeps track of the \u201cNetwork connection time,\u201d which is \u201cthe elapsed time from the moment [the user] connect[s] to [the] service provider\u2019s network to the moment [the user] end[s] the call by pressing [the end key].\u201d 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. <\/p>\n

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\u2019s past inputs and displays the \u201centered text,\u201d see JA 44, i.e., the message being composed. The user may also delete characters previously entered, either \u201cone letter at a time\u201d or all at once. Id. In addition, the phone allows the users to \u201cset different primary and secondary text entry modes, and easily switch between modes as needed when [they] enter data or compose a message,\u201d including \u201ciTAP\u201d mode which uses \u201csoftware\u201d to \u201cpredict[] each word\u201d as it is entered. JA 35. These capabilities all support the district court\u2019s finding that the phone performed arithmetic, logical, and storage functions when Kramer used it to send text messages to the victim. <\/p><\/blockquote>\n

[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.]<\/p>\n","protected":false},"excerpt":{"rendered":"

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