United States v. Gasperini

894 F.3d 482

UNITED STATES of America, Appellee,

v.Fabio GASPERINI, Defendant-Appellant.

Docket No. 17-2479-cr

August Term, 2017

United States Court of Appeals, Second Circuit.

Argued: June 6, 2018

Decided: July 2, 2018

Saritha Komatireddy, Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, New York, NY.

Simone Bertollini (Paul F. O'Reilly, on the brief), Law Offices of Simone Bertollini, New York, NY, for Defendant-Appellant Fabio Gasperini.

Before: Cabranes, Lynch, and Carney, Circuit Judges.

Gerard E. Lynch, Circuit Judge:

Fabio Gasperini was convicted by a jury in the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, Judge ) of one count of misdemeanor computer intrusion in violation of 18 U.S.C. § 1030(a)(2)(C), a provision of the Computer Fraud and Abuse Act of 1986 ("CFAA"). Gasperini raises several challenges to his conviction. First, he contends that the statute that he was convicted of violating is unconstitutionally vague. Second, he asserts that the district court erroneously denied his motion to suppress evidence that was allegedly collected in violation of the Stored Communications Act. Third, he contends that the district court abused its discretion in allowing the government to introduce into evidence screenshots from the Internet Archive (also known as the "Wayback Machine"). Gasperini makes several other arguments, which are addressed in an accompanying summary order. Because we are not persuaded by any of Gasperini's arguments, we AFFIRM the judgment of the district court.

BACKGROUND

The evidence discussed below is taken from the trial record. Insofar as it relates to the offense of conviction, the evidence is viewed in the light most favorable to the government, and we draw all reasonable inferences in its favor. United States v. Guadagna , 183 F.3d 122, 125 (2d Cir. 1999). As it relates to the sentencing issues discussed in the accompanying summary order, "we review the District Court's factual findings relevant to a sentencing determination for clear error." United States v. Johnson , 378 F.3d 230, 238 (2d Cir. 2004). In order to vacate such findings, "we must view the evidence in the light most favorable to the government and nevertheless find to be impermissible the factual determinations based upon that favorably-viewed evidence." Id.

In 2014, a virus began infecting QNAP-brand devices.¹ Computer security experts who detected the virus determined that the attacker behind the virus was attempting to covertly infiltrate computers. The attacker targeted QNAP computers, which do not log external internet connections, and used an often-overlooked port to access the computers. The virus installed malware, which included several commands for the computer to execute, in hidden directories on the infected computers. Once a computer was infected, the attacker installed a "backdoor" account, which had the status of a "superprivileged user," with unrestricted access to and control over the computer's data. After creating the backdoor account, the attacker patched the initial vulnerability that had allowed him access, thereby locking out other hackers. The infected computer was then instructed to scan the internet for other computers with the same vulnerability and infect them. In this way, the attacker created what is known as a "botnet"—a network of infected computers under the attacker's control. An analysis of one of the servers used in the scheme revealed that more than 155,000 computers were infected worldwide. Many of those computers were located in the United States.

The virus's commands accomplished different tasks. One command was designed to take certain username and password files from the infected computers and copy them onto a server. Another caused the infected computer to disguise itself as a human browsing the internet, and to click on certain banner advertisements. Yet another command prompted the botnet to launch coordinated attacks on certain websites, a practice known as distributed denial-of-service attacks.

United States investigators identified Gasperini, an Italian citizen, as the creator of the virus and perpetrator of the various attacks because he leased and operated several servers around the world that were used to host the malware and communicate with the infected computers. A search of Gasperini's email account also found a "test" copy of the computer virus that was initially used to infect QNAP computers, and emails from Gasperini expressly referencing several of the scripts installed on the infected computers.

Evidence later adduced at trial also linked Gasperini to a related "click fraud" scheme, in which the botnet computers were commanded to click on certain advertisements. Business records showed that several websites implicated in the scheme were registered in Gasperini's name. Additionally, Gasperini contracted with an Italian advertising company to earn money for each advertisement viewed on these websites. Finally, evidence at trial tended to show that Gasperini monitored the operation. This included emails from his servers reporting "clicks completed" and a photograph of his home computer commanding his botnet to click on an advertising banners. After his arrest in the Netherlands, Gasperini deleted the contents of his Google account, deactivated his Facebook account, and instructed someone to discard the hard drives in his home and erase others.

A grand jury charged Gasperini with felony crimes of computer intrusion with intent to defraud, for financial gain, and in furtherance of criminal acts; wire fraud conspiracy; wire fraud; and money laundering. After a seven-day jury trial, he was acquitted of all felony charges, and was convicted only of misdemeanor computer intrusion in violation of 18 U.S.C. § 1030(a)(2)(C), a lesser-included crime within one of the computer intrusion felonies charged in the indictment.² At sentencing, the trial judge found that the government had proven, by a preponderance of the evidence, that Gasperini had committed the felony offenses with which he was charged. Accordingly, those crimes were considered as relevant conduct in calculating the applicable Guidelines range, resulting in a range of 63 to 78 months' incarceration, which was capped by the statutory maximum of imprisonment for one year. The district court sentenced Gasperini principally to that statutory maximum. He now appeals from that conviction.³

DISCUSSION

I. Vagueness

The statute under which Gasperini stands convicted punishes anyone who "intentionally accesses a computer without authorization ... and thereby obtains ... information from any protected computer." 18 U.S.C. § 1030(a)(2)(C). Gasperini argues that the statute is unconstitutionally vague because it does not define the terms "access," "authorization," and "information," and because the definition of "protected computer" in § 1030(e)(2) is overbroad.

Because Gasperini did not raise this challenge below, we review it for plain error. United States v. Boyland , 862 F.3d 279, 288 (2d Cir. 2017), cert. denied , ––– U.S. ––––, 138 S.Ct. 938, 200 L.Ed.2d 212 (2018). When reviewing for plain error under Federal Rule of Criminal Procedure 52(b), an appellate court has discretion to correct an error not raised at trial only where the appellant demonstrates that "(1) there is an error; (2) the error is clear or obvious ...; (3) the error affected the appellant's substantial rights ...; and (4) the error seriously affects the fairness, integrity[,] or public reputation of judicial proceedings." United States v. Marcus , 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010) (internal quotation marks and brackets omitted).

Gasperini cannot clear the hurdle set by the second of these requirements. "At a minimum, a court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law." United States v. Olano , 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ; see also Rosales-Mireles v. United States , ––– U.S. ––––, 138 S.Ct. 1897, ––– L.Ed.2d –––– (2018). Gasperini cites no authority from any court—let alone one whose decisions are binding on us—holding, or even suggesting, that § 1030(a)(2)(C) is unconstitutionally vague. Accordingly, we cannot conclude that the district court plainly erred by not sua sponte dismissing the indictment on that ground.

In any event, Gasperini has not identified a due process violation here. "A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement." United States v. Williams , 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). We apply this standard in the context of the facts at issue, because, outside of the First Amendment context, an individual "who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." Id .

Even if we assume, arguendo , that the statute's application may be unclear in some marginal cases (including some fanciful possibilities conjured in Gasperini's appellate brief), Gasperini's conduct falls squarely and unambiguously within the core prohibition of the statute. "Congress enacted the CFAA in 1984 to address ‘computer crime,’ which was then principally understood as ‘hacking’ or trespassing into computer systems or data." United States v. Valle , 807 F.3d 508, 525 (2d Cir. 2015), citing H.R. Rep. No. 98-894, at 3691–92, 3695–97 (1984), and S. Rep. No. 99-432, at 2480 (1986). In this case, Gasperini was found by the jury to have hacked into thousands of computers without permission, thereby gaining access to all of the information stored on those computers. The...