USA v. Andrew Auernheimer

Filing 31

ECF FILER: ELECTRONIC AMICUS/INTERVENOR BRIEF on behalf of National Association of Criminal Defense Lawyers in support of Appellant/Petitioner, filed. Certificate of Service dated 07/08/2013 by ECF. (SPR)

United States Court of Appeals
for the

Third Circuit
Case No. 13-1816

UNITED STATES OF AMERICA
– v. –
ANDREW AUERNHEIMER
––––––––––––––––––––––––––––––
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY (WIGENTON, J.),
CRIMINAL NO. 11-CR-470 (SDW)

ADDENDUM OF AMICUS CURIAE NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
IN SUPPORT OF APPELLANT

STEVEN P. RAGLAND
JENNIFER A. HUBER
BEN D. ROTHSTEIN
KEKER & VAN NEST LLP
633 Battery Street
San Francisco, California 94111
Tel.: [phone]
Fax: [phone]
Attorneys for Amicus Curiae
National Association of
Criminal Defense Lawyers

Of Counsel:
JENNY CARROLL
Seton Hall University School of Law
Newark, New Jersey 07102
PETER GOLDBERGER
50 Rittenhouse Place
Ardmore, Pennsylvania 19003
Third Circuit Co-Vice-Chairs,
National Association of
Criminal Defense Lawyers
Amicus Curiae Committee

TABLE OF CONTENTS
Addendum Page
[Unknown Author], Untangling the Web: A Guide to Internet
Research (2007) (excerpts) ..................................................................... 1
Zoe Lofgren and Ron Wyden, Introducing Aaron’s Law, a
Desperately Needed Reform of the Computer
Fraud and Abuse Act, WIRED, June 20, 2013......................................... 23
Tim Wu, Fixing the Worst Law in Technology,
THE NEW YORKER, March 18, 2013 ....................................................... 27
United States v. Lowson, No. 2:10cr00114
(D.N.J. Oct. 12, 2010) (opinion denying motion to
dismiss superseding indictment)............................................................ 30

DOCID:

4046925
UNCLASSIFIEDHFOR

OFFICI~L

USE ONLY

Abuide To Internet ReseQI'ch
IT he opinions expressed in this article are

hose of the author( s) and do not represent
~he official ooinion of NSA/CSS.

pproved for Release by NSA on
4-19-2013 FOIA Case# 70381

UNCLASSIFIED,4lj;QR OFFICIAL USE ONLY

(b) (3) -P. L.

86-36

Add. 1

DOCID:

4046925
UNCLASSIFIEDNFOR OFFICIAL USE 6t4LY

Untangling the Web: An Introduction to Internet Research
by!
LCenterJorDigital Content
Last Updated: February 28, 2007
Cover Design byl
I

(b) (3) -P. L.

86-36

UNCLASSIFIEDh'FOR 6FFICI,IcL USE ONLY

Add. 2

DOCID:

4046925
UNCLASSIFIED/fP'Oii' OP'I"'ICIAL USE Of'IILY

Tl"li~

prodtJet I il!!! beefl pr=oelueeel fer= effieial use eAiy. Tl:lis aroel1:1st is
Aot aaproveel fer puslie release. TI-le iflfer=l'tlatiefl eeflteifleel i'=ier=eiA is
fer tl'le exelu!ive u~e of tl'le ori~il"lel reeipieflt eflel is Ret fer= furtl:ler
elistr=ibutiel"l otJt~ide tl'le reeipier~t'~ e~efle) or or~efliz:etiofl. Ti'=ie
9Fi§iRal FOGif3iOFlt A"l8Y A"l8l~e OOf3ies fer eJistrieutieFI 6FII)' WitRiFI ti"le
reeif3iCAt's a~efley er= er~afliz:atiefl.
Ultin,ete 1
espo1 1sibility for tl ;e p1 oteetiol"l of tl li! proeluet frel'fl puelie
disslss1:1re resieles witl:l tl:le 1:1ser, ;vitl:l severe f3CAalties for nsn
eel'flJ3Iiaflee.
~or

aelelitieAal iAferA"letieA, J3leese eeAteet:

9800 Savage Road
Suite 6324
Fort Meade, MD 20755-6324

(b) (3) -P. L. 86-36

UNCLASSIFIEDHFOR OFFISIAb Yili QNI.¥

Add. 3

DOCID: 4046925
UNCLASSIFIEDI/FUR OFFICIAL USI!!! ONLY

This Page Intentionally Left Blank

UNCLASSIFIEDA'FOR OFFIOIAL USE Of4LY

Add. 4

DOCID: 4046925
UNCLASSIFIEDHf"6R 6f"f"leiAL USE 6NLY

Table of Contents
Preface: The Clew to the Labyrinth ....................................................... 1
"Every Angle of the Universe" ............................................................... 5
What Will I Learn? .. ....... ...... .. ........ ... .................................................................... 6
Why Do I Need Help? ... .... ...... ........ ... ... ... ................................................ ... ..... ..... 7
What's New This Year ... .. .... ....... ... ...... .................... ................. .. ...... .. ........ ....... ... 8

Introduction to Searching .... .... ...................................... ...... .... ............ 11
Search Fundamentals .................. .. .. ... .. ....... ... ...... .... ........ ..-.............................. 11
.
The Past, Present, and Future of Search ........ ... ... ................. .. .. .. ...................... 12
Understanding Search Engines ... .... ..... ....... ... .... ................................................ 18
Search Engine Basics .. ......... ........... ...... .... ....... .. ... ..... ... .. .................................. 20
A Word About Browsers: Internet Explorer and Mozilla Firefox .......................... 22
The Great Internet Search-Offs .... .. ...... .......... ..... ........... .................................... 26
Types of Search Tools .......................... .......... ...... .. ... ... ..... ................ ................ 28
Web Directories/Subject Guides/Portals ....... .. .. .. .. ........ ... :.. .. .. ............. .. ............ 28
Metasearch Sites ................................................ ... .......... .. ... .. .. ... ....................... 30
Megasearch Sites ........................ .......... ........ ......... .... ..... ........ .. ......................... 35
Types of Searches and the Best Ways to Handle Them ...... ....... ... ... .. ....... .... ... 36

Search Savvy-Mastering the Art of Search ..................................... .. 43
Google ...................................................................................... .... ..... .. .. .... .. ........ 47
Google Hacks .............................................................. ... .... ... ... ..... ........... ....... ... 73
Yahoo Search ............................ ......... .... .... .......... .. ... .... .......... ................ .. ..... .... 89
Yahoo Hacks .............. .... ..... .. ... ... ... .. ...... .... ... .... .......... ................. .. ... ............ ... 113
Windows Live Search .... ...... .... ........ .............................. ................ .. ...... ........ ... 118
Gigablast ......... ..... .. .... ......... ............................................................................. 141

UNCLASSIFIED/fFOR OFFISIAL 1:-JSE ONLY

Add. 5

DOCID:

4046925
UNCLASSIFIED.tfj;QR OFFIOIAL I:JSE erRY

Exalead .............. ... ............................................................................................ 146
Ask .................................................................................................................... 161
More Help: Internet Guides and Tutorials ......................................................... 173

Specialized Search Tools & Techniques ............................................ 175
"Google Hacking" ..................................... .. ....................................................... 175
Custom Search Engines ............ ....................................................................... 186
Fagan Finder .................................................................................................... 193
Wikipedia ................... .... ........................................................... ...... .................. 202
Maps and Mapping ..... ...... .................................................. .. ...... .. ..................... 215

Uncovering the "Invisible" Internet ..................................................... 239
A9 Search .. ........................................ .. ... .... ... ........ .................................... ......... 239
Book Search .................................................. ................................................... 245
Answers.com ........................................... .......... ...... .. ... .................................... 260
GAlster ............. .. ........................................................................................ .. .... 264
The Internet Archive & the Wayback Machine ............. ................. .. .................. 267
Other Invisible Web Resources .................................................... .. .. ... ............. 273

Casting a Wider Net-International Search, Language Tools ........... 277
International Search .... .......................... .. .......................................................... 277
Online Dictionaries and Translators ...... ... .... ..................................................... 288
You Gatta Know When to Fold 'Em ................. .. ............................................... 304

Beyond Search Engines-Specialized Research Tools .................... 306
Email Lookups ....... ..... ... .......................... ................................. .... .................... 308
Telephone and FAX Directories ...................................................... ... ... ............ 311
Online Videos and Video Search ...... .. ..... ....................................... ................. . 317
Online Audio, Pod casts, and Audio Search ... .............................. ..................... 344

ii

UNCLASSIFIEDHFOR OFFICIAL I:ISE 9NL¥

Add. 6

DOCID:

4046925
UNCLASSIFIEDUIRQR. QIRIRI~I:~b Uii Q~lb¥

Special Topics-News, Blogs, & Technology Search ....................... 349
Newsgroups, Forums, & Mailing Lists .............................................................. 349
Web logs & RSS Feeds ..................................................................................... 356
General News Sources .................................................................................... 361
l\lews Sites & Search Engines .......................................................................... 362
Technology News Sources ............................................................................... 377
Telecommunications on the Web ..................................................................... 379

Research How-Tos ............................................................................ 384
Finding People ................................................................................................. 384
Using the Internet to Research Companies ...................................................... 400
How to Research a Specific Country ................................................................ 411
Finding Political Sites on the Web .................................................................... 419
Research Round-up: The Best Research Tips & Techniques .......................... 424

Researching & Understanding the Internet ....................................... 433
A Plain English Guide to lnternetworking ......................................................... 433
Researching Internet Statistics ......................................................................... 441
Regional Registries and NICs .......................................................................... 443
Domain Name Registries ................................................................................. 449
Understanding Domain Name and Whois Lookup Tools ................................. 451
World Network Whois Databases: AfriNIC, APNIC, ARIN, LACNIC, & RIPE .. 455
Global Network Whois Search Tools ................................................................ 456
Domain Name Whois Lookups ......................................................................... 458
Internet Toolkits ................................................................................................ 471
How to Research a Domain Name or IP Address ............................................ 474
Traceroute ........................................................................................................ 483

UNCLASSIFIEDIIJzOR. OIRIRICIA.b Uii O~ILY

iii

Add. 7

DOCID:

4046925
UNCLASSIFIEDJ!I&QR OFFICIAL I:JSE ONLY

Geolocating Internet Addresses ............................................................. .... .... .. 497
Finding ISPs & Internet Access Points ............................................................. 503
Cybergeography, Topology, and Infrastructure .................................... ............ 511

Internet Privacy and Security-Making Yourself Less Vulnerable in a
Dangerous World ................................................................................ 514
Basics for Improving Your Internet Privacy and Security ...... .. ......... ............ ..... 518
Increase Your Knowledge ........................................ .... .... ... .. ... .. ....... ................ 521
Browser Concerns ......................................................... ............... .................... 525
Email Concerns ..................................................................... .. ....... .................. 543
Microsoft and Windows Concerns .................................. .......... .... .. ..... ............ . 560
Handle with Care: More Privacy and Security Concerns ................................. 578
General Security & Privacy Resources .. ............. .............................................. 605
'

Conclusion .......................................... ................................................ 606
Web Sites by Type ............................................................................. 607

iv

UNCLASSIFIEDHFOR OFFICIAL t:JSE Ot.L¥

Add. 8

DOCID:

4046925
UNCLASSIFIEDI!FQR 9FFI61AL tJSE 014t t

Preface: The Clew to the Labyrinth
One of the most famous stories about libraries tells of the tenth century Grand Vizier
of Persia, Abdul Kassem lsmael who, "in order not to part with his collection of
t 17,000 volumes when traveling, had them carried by a caravan of 400 camels
trained to walk in alphabetical order." 1 However charming this tale may be, the actual
event upon which it is based is subtly different. According to the original manuscript,
now in the British Museum, the great scholar and literary patron Sahib lsma'il b.
'Abbad so loved his books that he excused himself from an invitation by King Nuh II
to become his prime minister at least in part on the grounds that four hundred
camels would be required for the tr~nsport of his library alone. 2
A 21st Century version of the story might feature any number of portable electronic
devices-a laptop, a PDA, or even a mobile phone-designed to overcome this
difficulty. Today, 1000 years later, the Persian scholar/statesman would have to find
a new excuse for declining the job offer. Abdul Kassem lsmael (aka Sahib lsma'il b.
'Abbad) would be hard pressed to explain why he couldn't just find what he needed
on the Internet. The message seems to be that 'books are passe, replaced by ones
and zeroes, the real world replaced by a virtual one, knowledge supplanted by
information at best and chaotic data at worst. Have we shrunk the world or
expanded it? Or have we in some way replaced it?
Untangling the Web for 2007 is the twelfth edition of a book that started as a small
handout. After more than a decade of researching, reading about, using, and trying
to understand the Internet, I have come to accept that it is indeed a Sisyphean task.
Sometimes I feel that all I can do is to push the rock up to the top of that virtual hill,
then stand back and watch as it rolls down again. The Internet-in all its glory of
information and misinformation-is for all practical purposes limitless, which of
course means we can never know it all, see it all, understand it all, or even imagine
all it is and will be. The more we know about the Internet, the more acute is our

1

Alberto Manguel, A History of Reading, New York: Penguin, 1997, 19. Manguel cites as his source
Edward G. Browne's A Literary History of Persia, 4 vols., London: T. Fisher Unwin, 1902-24. I found
the specific reference to this story on pages 37 4-375 of Vol. 1, Book IV, "Decline of the Caliphate."
There is, sadly, no mention of the alphabetical arrangement of the library. This entire masterpiece is
available online at The Packard Humanities Institute, Persian Texts in Translation, 23 February 2006,
<http://oersian.oackhum.org/persian/of?file=90001 011 &ct=O> (15 November 2006).
2

Edward G. Browne. Vol. 1, Book IV, "Decline of the Caliphate," A Literary History of Persia," 4 vols.,
London: T. Fisher Unwin, 1902-24, 37 4-375. Available online at The Packard Humanities Institute,
Persian Texts in Translation, 23 February 2006,
<http://persian.packhum.org/persian/pf?file=90001 011 &ct=O> (15 November 2006).

UNCLASSIFIEDHF9R 9FFIS1Ab Uili

O~IL¥

1

Add. 9

DOCID:

4046925
UNCLASSIFIED!/j;QR QFFIGIAL l:JSE

6f~LY

awareness of what we do not know. The Internet emphasizes the depth of our
ignorance because "our knowledge can only be finite, while our ignorance must
necessarily be infinite." 3 My hope is that Untangling the Web will add to our
knowledge of the Internet and the world while recognizing that the rock will always
roll back down the hill at the end of the day.
I will end this beginning with another story and a word of warning. "Tion, Uqbar,
Orbis Tertius" describes the discovery of an encyclopedia of an unknown planet.
This unreal world is the creation of a secret society of scientists, and gradually, the
imaginary world of Tlon replaces and obliterates the real world. Substitute "the
Internet" for Tlon and listen. Does this sound familiar?
"Almost immediately, reality yielded on more than one account. The truth is that it
longed to yield ... The contact and the habit of Tlon have disintegrated this world.
Enchanted by its rigor, humanity forgets over and again that it is a rigor of chess
masters, not of angels ... A scattered dynasty of solitary men has changed the
face of the world. Their task continues. If our forecasts are not in error, a hundred
[or a thousand] years from now someone will discover the hundred volumes of
the Second Encyclopedia of Tlon. Then English and French and mere Spanish
will disappear from the globe. The world will be Tlon." 4
As we enjoy, employ, and embrace the Internet, it is vital we not succumb to the
chauvinism of novelty, that is, the belief that somehow whatever is new is inherently
good, is better than what came before, and is the best way to go or best tool to use. I
am reminded of Freud's comment about the "added factor of disappointment" that
has occurred despite mankind's extraordinary scientific and technical advances.
Mankind, claims Freud, seems "to have observed that this newly-won power over
space and time, this subjugation of the forces of nature, which is the fulfillment of a
longing that goes back thousands of years, has not increased the amount of
pleasurable satisfaction which they may expect from life and has not made them feel
happier." 5 Indeed, most of the satisfactions derived from technology are analogous
to the "cheap enjoyment. .. obtained by putting a bare leg from under the bedclothes
on a cold winter night and drawing it in again." 6 What good is all this technology and
information if, instead of improving our lot, it only adds to our confusion and
suffering? We are continually tempted to treat all technology as an end in itself
instead of a means to some end. The Internet is no exception: it has in large

3

Karl Popper, Conjectures and Refutation: The Growth of Scientific Knowledge, London & New York:
Routledge, 2002, p. 38.

4

Jorge Luis Borges, "Tion, Uqbar, Orbis Tertius," in Labyrinths, ed. Donald A. Yates and James E.
lrby, New York: New Directions Books, 1962, 17-18.

5

Sigmund Freud, "Civilization and Its Discontents," tr. James Strachey, New York: Norton, 1962, 3435.
6

2

Freud, 35.

UNCLASSIFIEDHFOR OFFIGIAL I:JSE ONLY

Add. 10

DOCID: 4046925
UNCLASSIFIEDHFOR OFFieiAL USE

61~LY

measure become the thing itself instead of a means of discovery, understanding,
and knowledge.
Like Tlbn , the Internet, "is surely a labyrinth, but it is a labyrinth devised by men, a
labyrinth destined to be deciphered by men." We must avoid getting lost in the
labyrinth without a clew. My hope is that Untangling the Web will be something akin
7
to Ariadne's clew, so that as you unravel it, you can wind your way through the web
while avoiding some of its dangers. Remember also that those who use the Internet
to do harm, to spread fear, and to carry out crimes are like the mythical Minotaur
who, as well as being the monster in the Minoan maze, was also its prisoner.

8

7

Daedalus, the architect of the infamous labyrinth on Crete, purportedly gave King Minos' daughter
Ariadne the clew, a ball of thread or yarn, to use to find a way out of the maze . Ariadne in turn gave
the clew to Theseus, who slew the Minotaur and found his way out of the labyrinth. Theseus repaid
Ariadne's kindness by leaving her on an island on their way back to Athens.
8

"Minotaurus," WikiMedia Commons, <http://commons.wikimedia .org/wiki/lmage :Minotaurus .qif> (6
February 2007). This image is in the public domain because its copyright has expired .

UNCLASSIFIEDJ.Ij;QR Qj;j;ICIAb IelSE QNb¥

3

Add. 11

DOCID:

4046925
UNCLASSIFIEDh'FOR OFFIOIJicL USE ONLY

Specialized Search Tools & Techniques
This section, which first appeared in the 2006 edition, was born of the rapid growth
of both unconventional search techniques such as Google hacking and the wildfire
spreading of such tools as online maps. This year, I have added a new section on
Wikipedia and expanded the maps and mapping section.

"Google Hacking"
This topic has received a great deal of attention in the world of Internet search in the
past few years. While this activity is generically referred to as "Google hacking," 61
this is a double misnomer. First, to limit this practice to "Google" is a mistake
because many of these kinds of searches can be run using any search engine,
though they are clearly going to be most effective with a large, powerful search tool
that offers many search options, such as Google. Second, this is not hacking in the
sense that most people use the term, i.e., gaining access to a computer or data on a
computer illegally or without authorization. Nothing I am going to describe to you is
illegal, nor does it in any way involve accessing unauthorized data. "Google (or
search engine) hacking" involves using publicly available search engines to
access publicly available information that almost certainly was not intended
for public distribution. In short, it's using clever but legal techniques to find
information that doesn't belong on the public Internet.
To understand how this information has found its way into search engine databases,
we need a quick overview of how search engines work. Very simply, search engines
deploy "spiders" (aka crawlers or bats), which is actually software that "crawls"
websites looking for new sites, updating old ones, following links, and dumping all
that data into search engine databases where it is stored, sorted, and eventually
accessed by users. There is nothing illegal, immoral, or even fattening about search

61

Let's talk about the term hacking for a minute. A hacker is someone who is proficient at using or
programming a computer; in short, a computer expert. While there is no universal agreement on a
preferred term for someone engaged in illegal/illicit computer or network activity, I will call these
"black hat" hackers "malicious hackers" to distinguish them from "white hat" or neutral "hackers,"
meaning proficient or expert computer users.

UNCLASSIFIEDJ.IIRQR QIRIRISIAb I.ISii QNbY

175

Add. 12

DOCID:

4046925
UNCLASSIFIEDA'FOR OFFIGIAb YS~ O~lb¥

engine spiders. Indeed, without them, we would have little or no idea what is "out
there" and available to us. The problem for webmasters is that it is their
responsibility to keep the search engine spiders out of any parts of their websites
they do not want to be accessed and indexed by a search engine. The spider is not
smart; it simply knows that if a "door" is open, it can-and will-go in and crawl
around. Webmasters must tell spiders "do not enter" (primarily) by the use of the
Robots Exclusion Protocol.
Robots Exclusion 62 comes in two basic flavors: either a metatag that can be inserted
into the HTML of a web page (usually used by an individual) or a Robots Exclusion
Protocol (robots.txt) file, a specially formatted file inserted by the website
administrator to tell the spider which parts of the website may and may not be
indexed by the spider. If a robots exclusion is missing or improperly configured, the
spider will index pages that the website owner may not have wished to have been
accessed.
The whole problem of keeping information on the Internet private dramatically
worsened almost overnight a couple of years ago when Google quietly started
indexing whole new types of data. Originally, most of what got spidered and indexed
was HTML webpages and documents, with some plain text thrown in for good
measure. However, the ever-innovative Google decided this wasn't good enough
and started to index PDF, PostScript, and-most importantly-a whole range of
Microsoft file types: Word, Excel, PowerPoint, and Access. Problem was, lots of
folks had assumed these file types were "immune" to spidering not because it
couldn't be done but because no one had yet done it. As a result, many companies,
organizations, and even governments had quite a lot of egg on their faces when
sensitive documents began turning up in the Google database.
That was then, this is now. You might think people would have learned, but judging
by the amount of "sensitive" information still available, many have not. Even though
search engines now routinely index many non-HTML file types, many individuals and
organizations still do not protect these files from the long reach of search engine
spiders. Furthermore, there are many ways for sensitive information to end up in
search engine databases. An improperly configured server, security holes, and
unpatched software can give search engine spiders unintended access. Quite
frankly, most of the problems boil down to one thing: human error, either through
ignorance or neglect.
What kinds of sensitive information can routinely be found using search engines?
·The types of data most commonly discovered by Google hackers usually falls into
one of these categories:

62

For additional information, see: <http://www.robotstxt.org/wc/exclusion.html> (14 November 2006).

176

UNCLASSIFIEDfiJiOK OJiJileiAL USE Ot4L¥

Add. 13

DOCID:

4046925
UNCLASSIFIED/ff"6R 6FFI61AL lr:J&Ii

Q~L.Y

~

personal and/or financial information

~

userids, computer or account logins, passwords

~

private, confidential, or proprietary company data

~

sensitive government information

~

vulnerabilities in websites and servers that could facilitate breaking into the
site

Now, you may be thinking to yourself, "I use Google all the time and I've never
encountered this type of information." That's not surprising. It's not usually the kind
of thing you would stumble across inadvertently. Normally, one would have to be
actively looking for this type of information. Of course, many of the documents
Google hackers find using these techniques are not sensitive and indeed are
intended for the public Internet. Only a tiny fraction of the over eight billion pages in
the Google index were not meant to be made available to the public. And, it so
happens, these techniques are excellent unconventional ways of finding useful
information that might not be discovered using routine search engine queries. Here
are some of the typical techniques used in Google hacking:
~ search by file type 63 , site type, and keyword: many organizations store
financial, inventory, personnel, etc., data in Excel spreadsheet format and
often mark the information "Confidential," so a Google hacker looking for
sensitive information about a company in South Africa might use a query such
as:

[filetype:xls site:za confidential]
a similar but more specific search could involve use of a keyword such as
budget to search for Excel spreadsheets at Indian websites; for example:
[filetype:xls site:in budget]
~

one of the most popular Google hacking technique is to employ stock words
and phrases such as proprietary, confidential, not for distribution, do not
distribute, along with a search for specific file types, especially Excel
spreadsheets, Word documents, and PowerPoint brie·fings.

~

search for files containing login, userid, and password information; note,
even at international sites, these terms usually appear in English. This type of
information is typically stored in spreadsheet format, so a typical search might
be:
[filetype:xls site:ru login]

63

It is critical that you handle all Microsoft file types on the Internet with extreme care. Never open a
Microsoft file type on the Internet. Instead, use one of the techniques described here.

UNCLASSIFIEDHFOR OFFIGIAL l:ISE 6NL¥

177

Add. 14

DOCID:

4046925
UNCLASSIFIEDNFOR OFFICIAL

);>

1 1SE

QNI Y

misconfigured web servers that list the content of directories not intended
to be on the web often offer a rich load of information to Google hackers; a
typical command to exploit this error is:
[intitle:"index of' site:kr password]

);>

numrange search: this is one of the least known and (formerly) one of the
scariest searches available through Google. Numrange uses two number
separated by two periods (dots) and no spaces. While "legitimate" numrange
users probably will want to indicate what the numbers mean, e.g., weight,
money, pixels, etc. Google does ,not require any special words or symbols to
run a successful numrange search; hence its power. Numrange can be used
with keywords and other Google search options, such as:
[site:www.jordanislamicbank.com 617 ..780]

How is numrange typically used in Google hacking? It used to be extremely effective
in finding credit card numbers and social security numbers. Because of the publicity
about criminals using Google to look for private data, this particular search no longer
works for credit card and Social Security numbers, which is not a bad thing.
The disabled "hack" was:
[numrange:4567000000000000 ..4567999999999999 visa] or
[numrange :222000000 .. 250999999 ssn]
Now if you try these searches, you will see this message:

Google
Not Found
The requested URL
/sorry/ ?continulil::ht tp : // www . googl g . com/sea.rch'l..3Fnum\lD100'\26hl \loen\261 r\3D\26newwindow\3Dl \26.-al: a\30of f\26Q\30nurnr.enge\25

was not found on this server.

Lest you think I am spilling the beans here, I assure you I am not revealing anything
that is not already widely known and used on the Internet both by legitimate and illicit
Google hackers. I am fully indebted to Johnny Uohnnyihackstuff) Long for many of
the "Google hacking" techniques 64 I have learned. Please use the information he
provides judiciously because many of the Google hacking techniques he discusses
are really designed for cracking, i.e., breaking into websites and servers. That is not

64

Johnny Long, Google Hacking for Penetration Testers, Syngress: Rockland, MA, 2004.

178

UNCLASSIFIEDI/FOR OFFICIAL l:JSE ONLY

Add. 15

DOCID: 4046925
UNCLASSIFIEDNFOR OFFISIP.L

bl8~

QNI.:Y

something I encourage or advocate. I do encourage you to "hack" your own website
to see what kinds of information is being revealed inadvertently via Google and other
search engines.
Also, a lot of the best information Johnny offers is for his site members only, and I do
not want to suggest you register there. Nonetheless, Johnny's briefing slides from
the 2004 Black Hat and Defcon 12 conferences are available at the official Black Hat
Briefings website and elsewhere (so much for registration). I have also found his
excellent white paper "The Google Hacker's Guide" at other sites that do not require
registration; there is another very good briefing on the dangers of Google by
Sebastian Wolfgarten.
There was a fair amount of sniping following Long's talks at Black Hat and Defcon,
mostly of the "big deal" variety, i.e., it is not "real" hacking and therefore not worthy
of presenting at Defcon. However, this is a very shortsighted point of view when one
considers the kinds of information that is so very easily available via Google, et al.
How would you like to see your Social Security Number, credit card number, and
that very handy little three digit number on the back of your credit card used for
"verification," bank routing information, mother's maiden name, etc., in the next
Google hacking briefing? Yes, all this kind of information is readily available (I
know ... l've uncovered quite a bit of it myself). And this doesn 't even take into
consideration all the other website weaknesses, such as multiple vulnerabilities with
liS 6.0 Web-based administration, that can be exposed using Google.
Johnny Long's Googledorks Page

http://johnny.ihackstuff.com/qhdb .php

Johnny Long's "The Google Hacker's Guide"
http :1/www .securitymanaqement. com/library/Gooqle Hacker0704. pdf
Johnny Long, "You Got That With Google?" Black Hat Briefings and Defcon12 , July
2004.
http://www.blackhat.com/html/bh-media-archives/bh-archives-2004 .htmi#USA-2004
Johnny Long , "Google Hacking Mini-Guide," lnformit.com, 7 May 2004
http://www.informit.com/articles/printerfriendly.asp?p=170880
Sebastian Wolfgarten, "Watch Out Google"
http://www.wolfgarten.com/downloads/Watch out google .pdf
Joe Barr, "Google Hacks are for Real," Newsforge.com, 6 August 2004
http://www.newsforge.com/article.pl?sid=04/08/05/1236234
Taken all together, the information Johnny Long has found using Google (he sticks
with this one search engine), combined with the techniques he details at his website,
provide an excellent tutorial on using Google to find stuff that really should not be on
the public Internet or easily accessible via a search query. Furthermore, the greatest
value of his efforts may not be in finding useful information but in demonstrating the
vulnerabilities of any given website and the necessity of taking strong measures to

UNCLASSIFIED/!JO'QR OFFIOIJicl USE ONLY

179

Add. 16

DOCID:

4046925
UNCLASSIFIEDJJIRQR QFFI61AL tiSE ONL t

ensure the information that gets into Google (as well as other search engine
databases and the Internet Archive) is only that which is intended.
Given the large amount of "sensitive" or private data readily available via Internet'
search engines, people naturally wonder why companies and individuals do not
actively try to remove this information. Sometimes they do, but much still remains
accessible. Why? Getting private information "back" is harder than preventing
its disclosure in the first place. There are steps you can take to remove your data, ·
but as hacker Adrian Lamo says, "removing links after the fact isn't a very elegant
solution." Nor is it likely to be terribly effective. There are a number of reasons for
this, but what it boils down to is: it's very hard to put the genie back in the bottle.
First of all, you have to find out if your data is "out there" in order to ask search
engines to remove it and, clearly, many people and organizations are not playing
defense, that is, they are not routinely checking to see what is indexed from their
websites. Let's say you find something on Google that shouldn't be on the public
Internet. The first thing you have to do is to protect the sensitive pages on your site
or remove them entirely. However, even when you have removed those pages from
your website, this doesn't mean they can't be accessed. Once documents are
indexed in a search engine database, a publicly available copy of those documents
(usually referred to as the cache copy) may remain behind for days, weeks, even
months.
The next step is to ask Google to remove your sensitive pages from its database.
However, even when Google removes your data, there are literally hundreds of other
search engines around the world, and who knows what they have indexed from your
site. It will not be an easy task finding out. And I'll hazard a guess that not all of them
will be quite so accommodating as Google in removing pages. To make matters worse, if something really "juicy" shows up in a search engine,
chances are someone will find it and copy it to another website. Once this happens,
you can forget about removing that information from the Internet. To further
complicate matters, even if no individual comes across your sensitive data, the
Internet Archive 65 spider is almost certainly going to find that webpage and index it in
the Archive, and there it will remain until and unless you find it first and ask the
Archive to remove it. As you can see, the genie is running amuck! Prevention is
much easier (though certainly not easy) than curing this particular disease, so it's
vital to pay close attention to anything you put on a website, especially something
you do not want the whole world to see.
65

The Internet Archive is a non-profit organization that was founded to "build an 'Internet library,' with
the purpose of offering permanent access for researchers, historians, and scholars to historical
collections that exist in digital format. Based in San Francisco, the Internet Archive has been
harvesting the World Wide Web since 1996, to create one of the largest data collections in the world.
The Internet Archive's web archive contains over 100 terabytes of data, and the collection is growing
at a rate of 12 terabytes per month." <http://www.archive.org/> (14 November 2006).

180

UNCLASSIFIEDh'P'Oflt OI'FICIAL USE ONLY

Add. 17

DOCID:

4046925
UNCLASSIFIEDJJj;QR OH'ICIAL.,

Siii

11

O~ILY

Because of the vast amount of information available using public search engines, it's
relatively easy to find lots of interesting, amusing, shocking examples of sensitive
information. While this is all fine and good for entertaining yourself and impressing
your friends, what we are really after is ·useful, meaningful, and actionable
information. Put succinctly:
It's Easier to Find Anything Than It Is to Find Something

So how do you find "something" useful? While it isn't easy to do so, I can make
some suggestions that might help. The most valuable assets you have are your
subject matter knowledge and your creativity. Add these to a few search engine
strategies, and you can probably ·find many relevant and genuinely useful pieces of
information. The strategies I recommend for finding "something" rather than just
"anything" are:
Limit the search by site
This can be as broad as a county [site:fr] or as specific as an individual server on a
company website [site:office.microsoft.com].
Try to be as specific as possible
You will have a lot more success searching for information within the Chinese
Ministry of Foreign Affairs [site:fmprc.cn.gov] than looking at all the sites indexed for
China [site:cn] or even for the government of China [site:gov.cn]
Add keywords
Here's where your subject matter knowledge and creativity really help. You are the
best source of information about what words are most likely to yield the best quality
and quantity of useful information. As a general rule, more uncommon words work
best (consider using unusual proper names).
Limit the search by file type
Most of the best information found by Google hackers is not on webpages {HTML)
but in other types of files. Try all or most of the file types one at a time (these are not
the only searchable file types; check the particular search engine's documentation
(Help page) for others):
filetype:pdf-good for large documents of all types; widely used in academia,
government, and business; many PowerPoint briefings are also made available
in PDF at the same website
filteype:doc-good for internal working documents, reports, etc.
filetype:xls-good for personnel data, computer records, financial information

UNCLASSIFIEDh'FOR OFFICho!tL I:JSE ONLY

181

Add. 18

DOCID:

4046925
UNCLASSIFIEDA'~9R

OFFIOI)Icl l::ISE ONLY

filetype:ppt-good for briefings, which often contain company or government
plans for the future

•_!rJ• ~ ::E>sSi--

~_a_{ij)_·_~·~_j_tf!l_:~~~:·d·~-~J ~~.
0 ~ .; tJ · §! . !§) • Q' • -"' • ~ .(; l· ; :,.1 I •l

o:

• ® ()l!lrF·

t!l'·l~

Muhammad Aslam

.at ccTLO Man<~ger
................ .:... . _____',.~.: .... :·.~

_r~ - · ---· _·__ _____:_

Presentation by: Gaurab Raj Upadllaya
at APOPS Forum. 16 APNIC Open Polley Meeting
August. 21 , 2003. Seoul. Korea
AFGNlC

And, ofte·n, PowerPo.int fHes are also
available i;n PDF(safer/easier to read)

Use Google hacking techniques to search inside websites requiring registration
You will frequently encounter a website, perhaps a database, that requires
registration to view its contents. On occasion, you can use Google to get at that data
without registering. For example, let's say you find a database of international
companies that requires free registration. Without registering, you may be able to
use Google to list all the companies and even get a look at the individual entries. Try
this series of queries or something similar:
[site:www.companyname.com inurl:database] or
[site:www.companyname.com inurl:directory] or
[site:www.companyname.com inurl:index]
Then, look for keywords, such as companies, and move to the next level query:
[site:www.cornpanyname.com inurl:companies]

182

UNCLASSIFIEDh't"O~

Ot"FI61)1(L l::ISE ONlY

Add. 19

DOCID:

4046925
UNCLASSIFIEDNFOR OFFIOIAL I:JSE

Q~Jb¥

You may be able to browse through the list of companies and get names,
addresses, phone numbers, etc.
Search in the native language
I cannot emphasize strongly enough how important it is to use keyword search terms
that are in the native language of the entity you are researching. The Internet is
becoming much less dependent upon English, and sites written in languages that do
not use the Latin alphabet are growing by leaps and bounds. For example, a search
term written in the native language and encoding is far more likely to yield
interesting, useful results than the same word transliterated into English. Most good
quality search engines now correctly render non-Latin search terms regardless of
how the term is transliterated in English. A search on the Arabic ~ returns very
different results than searching on [muhammad], [mohamet], [mohammed], etc.

Gougle ::

~ ~ ~ ~

D>9sktop

~

Semch

I ~eo~r<rtl
Results 1 . 100 of aboul 25.800,000 for 0.06) -seconds)

;:tr'2tlsb.J:,:I~barnmad_,J_®JJLL~.E

"""'-" ~ 1

-

I l•;·r~,!,t;t>l>t!2' I

... by sheikh Muhammad Jebril's spectacular voice . ........, ~ ~ c-" ,~.&...u!_, ~fol

J,j}}. ~J ~

J,y..
·N~~.,\:,:.J.;obnl.c,:..rr./- Gl<- :~?-~;.-~2~~-~-- -~_l~!.:.r.l.~~-r..r.~.U~).

>.,w.P)I'<=-11-

Ji,. ~.<.LJI. I T'''"''"'"'ilo,;E•J•• I

~ .:.L_,L-..1 '1L-Ju~y.ll ~~.1 ~~'-:ii_,~_,._..JI ~ -~ w~ ...
wvNr.t':'bril com.h:u/lrVJ~.o~..htrrt- J3k- '.->·-~·~,~-l~

· L='.).~.(~_J_
_f>h}~!.-~.

IYiohammad Esfal1ar11 Offic1al \Neb Site
Iranian s1nger. Profile, discography, and pictures.

'•W•'\.'

rrh)h.:trorncd-easf<~hrtll! t:"(ltn/ ·

1Dk ·

~~j_J.:j_ri

· ;:.!.:.!.!J:;r

r,;,~2

ucWI ~ ~I"'.J._,.c 1 -r""8 U:..;.a

photographing,landscape ,Portra1t .... All works of art copyright© MOHAMED MANNAI . .AJI
reseMld Copyright if:) 20!10-2006 MOHAMED MANNAI.

r~ghts

W11·'.'7 rnrnar,-'131 carn.l-7~. C_r~~~~."::~l- ::;I~T-~! £_iif;€'~

MUHI\.MM.A.D A.LI- Tlw Great<:lst Of A.ll Time
Thrs IS the Officral website of Muhammad Alr. the greatest of all trme.
'.Y"'t-:: .:~h. c. om.: 221,- ( -JchC>J- 3~rrd:.; ~1:.~-~~-;.

\l'/elcom8 to Hts Htqhness ::.heiKh Mohammed bin Rashi·j AI Mak1oum's ...
Offinal site of the Ruler of Dubai, who is also the UAE Vice Presrdent and Pnme Minister.
Contains news, hrs poetry and other information m Arabrc and ...
''1-111-.': sherhiYnoh;::;rnmec.J co ~1e-'- 2J..- ~-- ~1~:>-·~~~- ;:ir)1'::0! P.-t;~·~:
,_)!

......., 1 ~, .....)1 1 _..,.;Jic>~ ·I

r.,, ~'''··'''" P'oi~ I

ol.I_.,.JI ~J <...iD rfo Jl ~IJ lJ' ...._ ~ _,.....JI u.aJ- ~JI ~1 ~_,JI _,- 1». ...
wJ.'." sht:>;lthrr.uk-IIM~n:~d .:.o a~~ral.lr(./ir:d~:-;u~:.p- 2k · !~.:.~-~_i~]j · ;:::!'..0.:.1_;~-~--U~.J::.:.:

AI-Hairlm9dt com- A Website for All
Al-Hammadi.com is a website with informallon on Qatar, Islam. Arabic music, and more.
Come on in and enJOY what we have to offer
'.\·w:: -::~1-1:..-mlr:JarJt t:•.m:/- 12k- -~--~-~ ..=...::.:~- ~~.1:0~1.:~.U~.~:2.:.~::.

Remember that Diacritics Also Affect Searches
Most search engine algorithms are now set up to "read" accented search terms
differently from those without accents. It's easy to test this by searching first for a
term without any diacritical marks and then the same word with the marks, e.g.,
resume vs. resume.

UNCLASSIFIEDJ/j;QR Qj;j;ICIAL. USEi

0~11.¥

183

Add. 20

DOCID:

4046925
UNCLASSIFIEDNFOR OFFI91AL tJSE ONLY

Some common types of diacritical marks:
•
•
•
•
•
•
•
•
•
•
•
•
•
1
/

acute accent ( ')
ring 1 ~bove ( 0 ) used for angstrom@, aka krouzek
breve ( y)
caron or hacek ( v)
cedilla ( . )
circumflex ( A )
umlaut1 or diaeresis ( · )
double acute accent ( N)
grave accent (' )
macron(-)
ogonek ( L)
spiritus asp er
spiritus lenis

Strictly taken not diacritics but parts of the character.
66

Look for Misspellings (Intentional or Accidental)
I am constantly amazed by the frequency of misspelled words, uris, file names, etc.,
I encounter on the Internet. By far, most appear to be simple mistakes, often made
by non-English speakers trying to cope with our confusing language. These
mistakes tend to propagate as users copy and paste them again and again, which is
what I believe happened here:

66

Fact Index, <http://www.fact-index.com/d/di/diacritic.html>

184

UNCLASSIFIED/1fiOR Ofifii91AL tJSE ONLY

Add. 21

DOCID: 4046925
UNCLASSIFIED!JIPQR QFFICIAL l:JSE ONLY

Google
Web

Results 1 - 10 of 10 from www.chinadaily.com.cn for enlgish . (0.30 seconds)

jobs
Chinadaily.ccm.c n Recruitment tf!IE El W~~&~?l" ~~Oi~itll~­
r.;m'i\rJ(t~f!i(1 ;gl (~t:?.m). ~* :tr MH9~.:t~Hli: ...
VNNv.chinodaily .com.cn/e nlybh / doci2004-03/ 16/clmter,t_.3lS3·t4 .hlm- 23k. - (:~ch>;d - ~:: imil ot >J;<t18>;

jobs
Chinadaily. com. en Re cruitment tf!IE El W~ ~01?l". ~ ~~i..!!:itll~­
i.Q:iHf!i(1;g) (~t:?.m). ~* :tr~~~.:ti.~it~ill: ...
vN·tH. c.hrnadaily. corn. cn/en luish/ doct2004-03ll Giconter,t_31531 G.htm - 23k

- (;~':_L~)-

7!:r:Jt''~.P.i'.~l"-~~

jobs
tf!IE El t\i(lffl !ili11l". r!J±rol:~-JiJi I~H£J! (
~lrtttr~3!-> (2:g) ( ~t:?.m ). ~*: 30 ...
\'·,'•N-.V.ch ino(iaily.corn.cnie ui!JiShi doc/20rJ•J.r::r3.f1G/content_315317.htm- 23k- Gz.rlwd- cJimil~l' C'l~~::
Chinadaily . com.cn Recruitment

lObS
Chinadaily.com.cn Recruitment tf!IE El Wtm !JOli'l" (21
1it~~ ::!-' ~~:ltW > ~"~Jt!!~l?'f~l! «.211!t~~::!-'~~:ltW ...
wv•rw. chir,ad~i ly .com . cnieni!Jishi docf2004-04.106/conl8nt_321050.htm- 9k- (;]_~l1EQ- SimUi!r_p'l!J\:'~

jobs
Chmadaily.com .cn Rec ruitment

2-3:S)

(~t:?.r!J) .

Ift.PJiU JI!!:

tf!OO 8 t\i(lffl!Jiil?l"
~t:?. ~i!i

~i~:¥:~~

I'JUUi(

...

www.chirradail:;.eom.cn/en lyish! ,joct200,1-03f l6/con tent_3·t5312 .htrn- 30k · ~.i'.fh_~j- ;:L!:.it~lc.l!.~.!l~~-

Finally, the enormity of the task of finding meaningful and useful information on the
Internet is both daunting and comforting: daunting because we know we can only
scratch the surface of all the data and comforting because there is an almost
limitless pool of possibilities. I find it useful to keep the challenge in perspective by
recalling that a study published in 2000 showed "the sixty known, largest deep Web
sites contain data of about 750 terabytes (HTML-included basis) or roughly forty
times the size of the known surface Web." 67 In short, there is just so much data and
information available via the Internet that no institution, no government, no
computer, and certainly no individual can possibly grasp more than a small portion of
all there is.

67

Michael K. Bergman, "The Deep Web: Surfacing Hidden Value," BrightPianet .com, July 2001,
<http://www .brightplanet.com/technology/deepweb.asp> (14 November 2006), Introduction.

UNCLASSIFIEDJ!FSR OFFieiAL tiSE ONLY

185

Add. 22

GEAR SCIENCE ENTERTAINMENT BUSINESS SECURITY DESIGN OPINION VIDEO INSIDER MAGAZINE SUBSCRIBE

OPINION

newsmakers, in their words

tech policy & law

cars, gadgets, apps

Introducing Aaron’s Law, a Desperately
Needed Reform of the Computer Fraud and
Abuse Act

security and privacy

Tweet

FOLLOW WIRED OPINION

882

199
33

BY ZOE LOFGREN AND RON WYDEN 06.20.13

9:30 AM

MOST RECENT WIRED POSTS
Amazon Patents
‘DVD Extras’ for
E-Books

Ultrabook
Prototype
Combines Touch
and EyeTracking
Technology
Photo: Daniel J. Sieradski / Flickr

Southwest and
DISH Team Up
for Free In-Flight
TV on Your iPad

The Internet is up for grabs.
Foreign countries want to control it. Military regimes use it to spy, to oppress, and to attack public and
private institutions. ‘Big Content’ sought to censor it and dismantle its architecture. Law enforcement
and intelligence agencies want to mine and monitor it. Powerful incumbent business interests seek to
shape it in ways that benefit their bottom line but undermine the national interest and the interests of
individuals worldwide.
In each of these areas, there is debate in Congress about how to respond. We need an informed public
debate to ensure lawmakers make the right choices that fully preserve the vital openness of the Internet
and the privacy and civil liberties of its users. Reforming the Computer Fraud and Abuse Act (CFAA)
should be a part of that debate.
The CFAA is a sweeping Internet regulation that criminalizes
many forms of common Internet use. It allows breathtaking levels
of prosecutorial discretion that invites serious abuse. As
Congress considers policies to preserve an open Internet as a
platform for ideas and commerce, reforming the CFAA must be
included.

The Law Is Flawed and Prone to Prosecutorial
Abuse
Vagueness is the core flaw of the CFAA. As written, the CFAA

Lying about one’s
age on Facebook, or
checking personal
email on a work
computer, could
violate this felony
statute.

For the First
Time, You Can
Actually Own the
Digital Comics
You Buy

Wired Space
Photo of the
Day: Active
Martian Slopes

Tesla Owners
Get Their Own
Google Glass
App

Review: Razer
Blade 14-inch

Add. 23

makes it a federal crime to access a computer without
authorization or in a way that exceeds authorization. Confused
by that? You’re not alone. Congress never clearly described what this really means. As a result,
prosecutors can take the view that a person who violates a website’s terms of service or employer
agreement should face jail time.

Gaming Laptop

So lying about one’s age on Facebook, or checking personal email on a work computer, could violate
this felony statute. This flaw in the CFAA allows the government to imprison Americans for a violation of
a non-negotiable, private agreement that is dictated by a corporation. Millions of Americans — whether
they are of a digitally native or dial-up generation — routinely submit to legal terms and agreements
every day when they use the Internet. Few have the time or the ability to read and completely
understand lengthy legal agreements.
Another flaw in the CFAA is redundant provisions that enable a person to be punished multiple times
… for the same crime. These charges can be stacked one on top of another, resulting in the threat of
higher cumulative fines and jail time for the exact same violation.
This allows prosecutors to bully defendants into accepting a deal in order to avoid facing a multitude of
charges from a single, solitary act. It also plays a significant role in sentencing. The ambiguity of a
provision meant to toughen sentencing for repeat offenders of the CFAA may in fact make it possible
for defendants to be sentenced based on what should be prior convictions — but were nothing more
than multiple convictions for the same crime.
These problems are not hypothetical. But it took the unfortunate death of Aaron Swartz to spotlight
them.

TRENDING NOW ON WIRED
You May Not Like Weev, But
Your Online Freedom Depends
on His Appeal
For the First Time, You Can
Actually Own the Digital
Comics You Buy

Aaron’s Law
In January, Aaron Swartz, an Internet innovator and activist, decided
to end his brief but brilliant life. At the time, Swartz faced the
possibility of severe punishment under the CFAA — multiple felony
charges and up to 35 years in prison by the government’s own
declaration – for what amounted to an act of civil disobedience.
Aaron attempted to make documents, many created with public
funding, freely available to the public.

Zoe Lofgren & Ron
Wyden
Zoe Lofgren is a Democratic

Man Invents New Language
for Turning Graphics Chips
Into Supercomputers

Representative from California and
Ron Wyden is a Democratic Senator

But Aaron Swartz was not the first or the last victim of overzealous
prosecution under the CFAA.

Email Is Crushing Twitter,
Facebook for Selling Stuff
Online

from Oregon.

That’s why we’re authoring bipartisan legislation — which, with the
permission of Aaron Swartz’s family, we call “Aaron’s Law” — in the
House and Senate to begin the process of updating the CFAA.
Aaron’s Law is not just about Aaron Swartz, but rather about refocusing the law away from common
computer and Internet activity and toward damaging hacks. It establishes a clear line that’s needed for
the law to distinguish the difference between common online activities and harmful attacks.

Blood, Sweat, and Gear: How
One Guy Retooled His Life
With Triathlon Training

SUBSCRIBE TO WIRED
MAGAZINE

In drafting Aaron’s Law — the text of which is available here, along with a detailed summary here – we
did not opt for a quick fix of the CFAA that could bring with it unintended consequences.

Aaron’s Law is not
just about Aaron
Swartz, but rather
about refocusing the
law away from
common computer
and Internet activity
and toward
damaging hacks.

Instead, we undertook a deliberative process for crafting this
legislation. We posted drafts of the bill on Reddit to solicit public
feedback. And that feedback informed revisions and solicitation
of further feedback. We reviewed extensive input from a broad
swath of technical experts, businesses, advocacy groups, current
and former government officials, and the public. The result is a
proposal that we believe, if enacted into law, safeguards
commonplace online activity from overbroad prosecution and
overly harsh penalties, while ensuring that real harmful activity is
discouraged and fully prosecuted.
The law must separate its treatment of everyday Internet activity
from criminals intent on causing serious damage to financial,
social, civic, or security institutions. Our proposal attempts to
accomplish this and address the fundamental problems of CFAA
by doing the following:

ADVERTISEMENT

HIPAA & HITECH
Compliance
www2.idexpertscorp.com
Review HITECH Breach Requirements
With Our Free Whitepaper Downloads

Add. 24

Establish that mere breach of terms of service, employment agreements, or contracts are not
automatic violations of the CFAA. By using legislative language based closely on recent important
9th and 4th Circuit Court opinions, Aaron’s Law would instead define ‘access without authorization’
under the CFAA as gaining unauthorized access to information by circumventing technological or
physical controls — such as password requirements, encryption, or locked office doors. Notwithstanding
this change, hack attacks such as phishing, injection of malware or keystroke loggers, denial-of-service
attacks, and viruses would continue to be fully prosecutable under strong CFAA provisions that Aaron’s
Law does not modify.
Bring balance back to the CFAA by eliminating a redundant provision of the law that can
subject an individual to duplicate charges for the same CFAA violation. This is, in fact, what
happened to Aaron Swartz — more than a third of the charges in the superseding indictment against
him were under this redundant CFAA provision. Eliminating the redundant provision streamlines the
law, reduces duplicative charges, but would not create a gap in protection against hackers.
Bring greater proportionality to CFAA penalties. Currently, the CFAA’s penalties are tiered, and
prosecutors have wide discretion to ratchet up the severity of the penalties in several circumstances —
leaving little room for non-felony charges under CFAA (i.e., charges with penalties carrying less than a
year in prison). For example, under current law a prosecutor can seek to inflate potential sentences by
stacking new charges atop violations of state laws. Aaron’s Law would reform the penalty for certain
violations to ensure prosecutors cannot seek to inflate sentences by stacking multiple charges under
CFAA, including state law equivalents of CFAA, and torts (non-criminal violations of law).

Will It Work?
Some say that while the CFAA may be a broad statute,
prosecutorial discretion will ensure that it is not abused. We
disagree. Whether it is with respect to privacy, civil liberties, or
Internet use, the government has shown itself unable to restrain
its use of power. So far, government discretion has repeatedly
failed to curb abuse and, in fact, has resulted in abuse itself.

The government has
shown itself unable
to restrain its use of
power. It has
repeatedly failed to
curb abuse and, in
fact, has resulted in
abuse itself.

Other critics may argue that Aaron’s Law reforms remove one
specific scenario from CFAA: an authorized individual using their
own authorization (such as password credentials) to access and
use information in unauthorized ways. Although we do not wish
to create any new vulnerabilities, the overbroad approach
currently taken by the CFAA potentially criminalizes millions of
Americans for common Internet activity. Moreover, numerous
laws like Theft of Trade Secrets, the Privacy Act, copyright law, the Stored Communications Act, wire
fraud, and HIPAA already criminalize misuse of information.

The CFAA permits private parties to sue violators, but this private cause of action is not always present
in other federal laws. We’ve heard some concern from companies that Aaron’s Law would hinder their
ability to take matters into their own hands to protect their proprietary information from insider theft. We
look forward to robust discussions on this issue and to addressing any warranted concerns.

WIRED opinion
EDITOR
Sonal Chokshi

FEATURED CONTRIBUTORS
Alice Marwick
Andy Baio | Codeword column
Bruce Schneier
Chelsea Sexton
Clayton Christensen
Danah Boyd
David Gelernter
Evan Selinger
Gavin Newsom
Grant McCracken
James Dyson
Jaron Lanier
John Maeda
Kareem Abdul-Jabbar
Kyle Wiens
Mark Lemley
Matt Blaze
Mikko Hypponen
Nassim Nicholas Taleb
Neil deGrasse Tyson
Philippe Starck
Samuel Arbesman
Susan Crawford | Pipeline column
Stephen Wolfram
Temple Grandin
Zeynep Tufekci
view entire archive
send us a tip

SERVICES

Laws Can Spur Innovation … Or Halt It
The introduction of this legislation is just the beginning of a process needed to bring balance back to
the CFAA. Still, achieving even the specific, important reforms in Aaron’s Law will not be an easy lift.

The public can
speak loudly thanks
to the Internet. And
when it does,
lawmakers will
listen.

Quick Links: Contact Us | Newsletter | RSS Feeds |
Tech Jobs | Wired Mobile | FAQ | Site Map

Congress rarely moves with haste. Correcting this complex law
— enacted more than a quarter century ago — to work in the
Digital Age will take a significant amount of time. To successfully
build meaningful CFAA reforms into law will require sustained
public engagement and support.
But the events of the last couple of years have demonstrated
that the public can speak loudly thanks to the Internet. And when
it does, lawmakers will listen.

The consequences of inaction are all too clear. We live in an age
where people connect globally by simply touching a device in the
palm of their hand, empowered by online advances that have enriched the world scientifically,
culturally, and economically.
But ill-conceived computer crime laws can undermine this progress if they entrap more and more
people — simply for creative uses of the technology that increasingly mediates our everyday activities

Add. 25

and our interactions with the world. This not only fails us today, it can also become an obstacle to the
innovations of tomorrow.
The Internet faces broad challenges to the fundamental characteristics that have enabled it to be the
transformational technology that we know. An update to the CFAA must be part of the discussion that
seeks to resolve these challenges. Today, there’s an entire generation of digitally-native young people
that have never known a world without an open Internet and their ability to use it as a platform to
develop and share ideas. It’s up to all of us to keep it that way.
Tags: aaron swartz, hacktivism, open vs. closed, then & now
Post Comment | 82 Comments and 0 Reactions |  Permalink

Tweet

882

199

Disqus seems to be taking longer than usual. Reload?

PREVIOUS ARTICLE

Phew, NSA Is Just
Collecting Metadata. (You
Should Still Worry)

NEXT ARTICLE

Everything You Need to
Know About Trolls (The
Patent Kind)

SITEMAP | FAQ | CONTACT US | WIRED STAFF | ADVERTISING | PRESS CENTER | SUBSCRIPTION SERVICES | NEWSLETTER | RSS FEEDS
Condé Nast Web Sites: Webmonkey | Reddit | ArsTechnica | Details | Golf Digest | GQ | New Yorker
Subscribe to a magazine:
Subscribe to a magazine:

Condé Nast web sites:
Condé Nast web sites:

International Sites:
International Sites:

Wired.com © 2013 Condé Nast. All rights reserved. Use of this Site constitutes acceptance of our User Agreement (effective 3/21/12) and Privacy Policy (effective 3/21/12). Your California Privacy Rights.
The material on this site may not be reproduced, distributed, transmitted, cached or otherwise used, except with the prior written permission of Condé Nast.
Ad Choices

Add. 26

Fixing the Worst Law in Technology: Aaron Swartz and the Computer Fraud and Abuse ...

Page 1 of 4

• « Making Money: Dog Runners!
• Main
• Protect and Serve »
March 18, 2013

Fixing the Worst Law in Technology
Posted by Tim Wu
• Print
• More

Share
Close
◦
◦ Reddit
◦ Linked In
◦ Email
•
On the opening day of this year’s South by Southwest
festival, in Austin, an audience gathered in a giant conference
hall to remember the life and tragic suicide of Aaron Swartz.
Tim Berners-Lee, the inventor of the World Wide Web,
spoke of Swartz’s curious and restless mind. Swartz’s
girlfriend Taren Stinebrickner-Kauffman described him as a
man who was constantly asking whether what he was doing
was the most important thing that he could be doing. (A
quality extensively documented by Larissa MacFarquhar in
her Profile of Swartz.) The proceedings were yet another
reminder that Swartz’s suicide was heartbreaking beyond
belief, and that something must be done about the law that he
was aggressively prosecuted under, the Computer Fraud and
Abuse Act.
As if to underline the point, last Thursday, federal
prosecutors indicted that Matthew Keys, a social-media
editor at Reuters, under the same law for helping with an
online prank. Keys helped hackers vandalize a news story on
the Web, messing with the contents of the article and
changing a headline to read “PRESSURE BUILDS IN HOUSE TO
ELECT CHIPPY 1337”—which was an inside joke. The damage
was trivial, yet he is threatened with two hundred and fifty

Add. 27
http://www.newyorker.com/online/blogs/newsdesk/2013/03/fixing-the-worst-law-in-technol... 7/2/2013

Fixing the Worst Law in Technology: Aaron Swartz and the Computer Fraud and Abuse ...

Page 2 of 4

thousand dollars in damages and up to twenty-five years in prison.
These prosecutions have brought a rare moment of public attention to the breadth and severity of this law. Congress
could change the law, but everyone knows that waiting for congressional action nowadays is a fool’s game. The
Obama Administration can, and should, set things right by changing its enforcement policy. And if the Justice
Department declines to act, President Obama, as the ultimate enforcer of the law, should step in and set things right.
The Computer Fraud and Abuse Act is the most outrageous criminal law you’ve never heard of. It bans
“unauthorized access” of computers, but no one really knows what those words mean. Orin Kerr, a former Justice
Department attorney and a leading scholar on computer-crime law, argues persuasively that the law is so open-ended
and broad as to be unconstitutionally vague. Over the years, the punishments for breaking the law have grown
increasingly severe—it can now put people in prison for decades for actions that cause no real economic or physical
harm. It is, in short, a nightmare for a country that calls itself free.
It wasn’t always this way. The act was born, in 1984, as a narrow statute enacted for the reasonable goal of
combating malicious hackers: people who break into computer systems and steal valuable data (like credit-card
numbers) or do real economic damage. But it is in the nature of law to mutate and expand beyond the original
justification. Over the years, Congress expanded the statute five times, adding private rights of action and making
misdemeanors into felonies. Both private litigants and the Justice Department began to use the law against not only
hackers but also otherwise legitimate users who violate the “terms of service” policies that come with nearly ever
piece of software and service we use on computers today.
What are terms of service? Remember the last time you signed up for a Web site and clicked through several pages
of fine print? Yep, that was it. Chances are, you didn’t read it, and didn’t think that it might be a federal felony to
violate the provisions that it contained. The Justice Department has repeatedly taken the position that such violations
are felonies. In the prominent cyberbullying case United States v. Drew, a federal prosecutor asserted that violating
MySpace’s terms of service would be a federal felony. Similarly, the indictment threatening Aaron Swartz with
thirty-five years in prison depended, in part, on a terms-of-service violation: when Swartz tried to download
thousands of academic articles, he did so as an authorized guest user of the M.I.T. network. He didn’t actually
“hack” or “break” into the network; he violated the terms of service for guests by downloading too much stuff.
The broadest provision, 18 U.S.C. §1030(a)(2)(c), makes it a crime to “exceed authorized access, and thereby
obtain… information from any protected computer.” To the Justice Department, “exceeding authorized access”
includes violating terms of service, and “any protected computer” includes just about any Web site or computer. The
resulting breadth of criminality is staggering. As Professor Kerr writes, it “potentially regulates every use of every
computer in the United States and even many millions of computers abroad.” You don’t have to be a raving
libertarian to think that might be a problem. Dating sites, to borrow an example from Judge Alex Kozinski, usually
mandate that you tell the truth, making lying about your age and weight technically a crime. Or consider employer
restrictions on computers that ban personal usage, like checking ESPN or online shopping. The Justice Department’s
interpretation makes the American desk-worker a felon.
When judges or academics say that it is wrong to interpret a law in such a way that everyone is a felon, the Justice
Department has usually replied by saying, roughly, that federal prosecutors don’t bother with minor cases—they
only go after the really bad guys. That has always been a lame excuse—repulsive to anyone who takes seriously the
idea of a “a government of laws, not men.” After Aaron Swartz’s suicide, the era of trusting prosecutors with
unlimited power in this area should officially be over.
What can be done? Congresswoman Zoe Lofgren has drafted a bill that attempts to curtail the act’s sprawling
breadth. But even in the best of times, Congress rarely scales back criminal laws—and we have the do-nothingest
Congress in history. The problem is compounded by industry resistance. At a recent White House meeting, Oracle
and other companies made clear their suspicion of Lofgren’s bill. Big data firms prefer the law just the way it is, and

Add. 28
http://www.newyorker.com/online/blogs/newsdesk/2013/03/fixing-the-worst-law-in-technol... 7/2/2013

Fixing the Worst Law in Technology: Aaron Swartz and the Computer Fraud and Abuse ...

Page 3 of 4

why wouldn’t they? If you’re a prosecutor or a firm with lots of data, the law is just about perfect. It’s just too bad
for the rest of us.
The Lofgren bill is a worthy effort, but betting on this Congress to pass a law that is opposed by industry and that
diminishes prosecutorial authority is to bet on the political version of an inside straight. The memory of Swartz’s
suicide will fade, and we will be left with the sword of Damocles dangling. There needs to be a better way.
There is a much more immediate and effective remedy: the Justice Department should announce a change in its
criminal-enforcement policy. It should no longer consider terms-of-service violations to be criminal. It can join more
than a dozen federal judges and scholars, like Kerr, who adopt a reasonable and more limited interpretation. The
Obama Administration’s policy will have no effect on civil litigation, so firms like Oracle will retain their civil
remedies. President Obama’s DREAM Act enforcement policy, under which the Administration does not deport
certain illegal immigrants despite Congress’s inability to make the act a law, should be the model. Where Congress
is unlikely to solve a problem, the Administration should take care of business itself.
All the Administration needs to do is to rely on the ancient common-law principle called the “rule of lenity.” This
states that ambiguous criminal laws should be construed in favor of a defendant. As the Supreme Court puts it,
“When choice has to be made 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.” So far, at least thirteen federal judges have rejected the Justice Department’s interpretation of the
Computer Fraud and Abuse Act. If that’s not a sign that the law is unclear and should be interpreted with lenity, I
don’t know what is.
If neither the Justice Department nor the Attorney General will budge, it falls to the President, who bears ultimate
public responsibly for law enforcement, to do what is right. The Computer Fraud and Abuse Act is egregiously
overbroad in a way that has clearly imposed on the rights and liberties of Americans. With just one speech, the
President can set things right.
Tim Wu is a professor at Columbia Law School and the author of “The Master Switch.”
Photograph by Fred Benenson/Wikimedia Commons.
Keywords
•
•
•
•
•

Aaron Swartz;
Computer Fraud and Abuse Act;
elements;
technology;
techpages

• Print
• More

Share
Close
◦
◦ Reddit
◦ Linked In
◦ Email

Add. 29
http://www.newyorker.com/online/blogs/newsdesk/2013/03/fixing-the-worst-law-in-technol... 7/2/2013

Case 2:10-cr-00114-KSH Document 53 Filed 10/12/10 Page 1 of 15 PageID: 962

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES of AMERICA
v.

Criminal No. 10-114 (KSH)

KENNETH LOWSON,
a/k/a ―
Money‖,
KRISTOFER KIRSCH,
a/k/a ―
Robert Woods‖,
JOEL STEVENSON and
FAISAL NAHDI

OPINION

Defendants

Katharine S. Hayden, U.S.D.J.
I. Introduction
Defendants are charged with violations of the Computer Fraud and Abuse Act and the
wire fraud statute arising from an alleged scheme to circumvent security measures put in place
by Online Ticket Vendors (OTVs) in order to buy large blocks of tickets meant for the general
public and then to re-sell those tickets at great profit on the secondary market. Defendants argue
that their conduct is not criminal, and that in fact the government seeks to criminalize what
otherwise would be a breach of contract action for violating the terms of service for ticket sales
on OTVs‘ websites. The defendants state, ― Indictment does not seek to punish computer
This
fraud, it inappropriately tries to regulate the legal secondary market for event ticket sales through
an overreaching prosecution.‖ (Moving Br. 5.) The government counters that this case is
anything but novel, and that ―[
e]ach and every step of the way is [a] traditional fraud . . . the
1

Add. 30

Case 2:10-cr-00114-KSH Document 53 Filed 10/12/10 Page 2 of 15 PageID: 963

same thing that we see in court every day.‖ (Oral argument transcript 17:7−11.) The defendants,
according to the government, ― about who they were. They lied about their business model.
lied
They lied when they impersonated thousands of individual ticket buyers. And they lied when
they established thousands of false email addresses and domain names.‖ (Opp‘n Br. 1.)
The yawning gap between the government‘s and the defendants‘ positions is not lost on
the Court, and it highlights and echoes tensions in other courts‘ viewpoints on where the line
falls between what is civilly actionable conduct, and what is criminal.
Defendants now move to dismiss the Superseding Indictment (― indictment‖). For the
the
reasons to be discussed, the Court denies the defendants‘ motion.
II. Legal Standard
An indictment, if valid on its face and returned by a legally constituted and unbiased
grand jury, ― enough to call for trial of the charge on the merits.‘‖ United States v. Vitillo, 490
‗is
F.3d 314, 320 (3d Cir. 2007) (quoting Costello v. United States, 350 U.S. 359, 363 (1956)). ―
An
indictment is generally deemed sufficient if it[] (1) contains the elements of the offense intended
to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and
(3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or
conviction in the event of a subsequent prosecution.‖ Id. (quoting United States v. Rankin, 870
F.2d 109, 112 (3d Cir. 1989)) (internal quotation marks omitted).
Where an indictment is valid on its face, a motion to dismiss is appropriate only after the
government has had an opportunity to present its proofs at trial. United States v. Forero, 623 F.
Supp. 694, 699 (E.D.N.Y. 1985). In other words, a motion to dismiss an indictment is not a
2

Add. 31

Case 2:10-cr-00114-KSH Document 53 Filed 10/12/10 Page 3 of 15 PageID: 964

vehicle for a summary trial on the evidence, United States v. Winer, 323 F. Supp. 604, 605 (C.D.
Pa. 1971), and any factual assertions related to a charge must be tested at trial. United States v.
Bender, 2003 WL 282184 (S.D.N.Y. 2003). Moreover, on occasion a defendant‘s legal
contentions may be so bound up with those facts that a court cannot grant a motion to dismiss.
United States v. Shabbir, 64 F. Supp. 2d 479, 481 (D. Md. 1999).
III. The Wire Fraud Counts
Counts 27-36 and 37-43 of the indictment charge wire fraud by the use of CAPTCHA
Challenges (counts 27-36) and e-mails (counts 37-43).
To charge the crime of wire fraud sufficiently, the government must allege three elements
of the offense: (1) the defendants' ―
knowing and willful participation in a scheme or artifice to
defraud, (2) with the specific intent to defraud, and (3) the use of the mails or interstate wire
communications in furtherance of the scheme.‖ United States v. Al Hedaithy, 392 F.3d 580, 590
(3d Cir. 2006); see also 18 U.S.C. § 1343 (2006). In addition, the object of the scheme must be a
traditionally recognized property right. Al Hedaithy, 392 F.3d at 590.
First, the government sufficiently alleges an extensive scheme in which Wiseguys
knowingly and willfully engaged to defraud Ticketmaster. The indictment alleges that Wiseguys
circumvented computer code and surreptitiously obtained and resold event tickets that online
ticket vendors would not otherwise sell to them. According to the indictment, defendants wrote
automated software to defeat the vendors‘ security measures, including CAPTCHA, by opening
thousands of connections and using CAPTCHA Bots to quickly solve CAPTCHA challenges.
(Superseding Indict. Count 1, ¶¶ 7, 10.) The defendants allegedly acquired source code the
vendors used to protect their websites, created a database of CAPTCHA challenges and their
answers, and tested means of navigating to ticket ― Pages‖ without having to answer
Buy
3

Add. 32

Case 2:10-cr-00114-KSH Document 53 Filed 10/12/10 Page 4 of 15 PageID: 965

CAPTCHA challenges at all. (Superseding Indict. Count 1, ¶¶ 9, 11, 12.) Wiseguys also
allegedly used various means of deception, including mimicking the steps a human would take
when answering CAPTCHA challenges (including making mistakes), using thousands of nonconsecutive IP addresses to create the illusion that the addresses were not owned by a single
company, using as many as 150 different credit cards to buy tickets, registering for fan clubs
under fake names, creating a voicemail system with as many as 1,000 different telephone
numbers, renting a mail drop in Las Vegas, renting real estate under an assumed name, and lying
to lessors about the nature of their business. (Superseding Indict. Count 1, ¶¶ 14-16, 19, 20, 3537.)
Second, the indictment sufficiently charges that Wiseguys had the specific intent to
defraud the online ticket vendors. First, the alleged deceptive tactics in themselves suggest that
the defendants knew what they were doing was wrong. Language in the indictment cites to the
defendants‘ correspondence with each other and with third parties to demonstrate intent to
defraud. According to the indictment, the defendants talked about pursuing ―non
-human‖ means
of buying tickets and finding backdoors at online ticket vendors‘ websites. (Superseding Indict.
Count 1, ¶ 43.) They are charged with discussing the use of ―
hacks‖ and breaking CAPTCHA
challenges, ignoring Ticketmaster‘s cease and desist requests, and using tactics like the
voicemail system to divert Ticketmaster‘s efforts to track them down. (Superseding Indict.
Count 1, ¶¶ 44, 46.) The indictment also states that Wiseguys also told their employees to keep
quiet about what the company did and discussed using ―
stealth protocol‖ to go undetected.
(Superseding Indict. Count 1, ¶ 47.) Moreover, the indictment alleges that Wiseguys stated that
after undermining Ticketmaster‘s goodwill and position as an exclusive ticket distributor, it
intended to become a vendor in the primary market for tickets and attract Ticketmaster‘s
4

Add. 33

Case 2:10-cr-00114-KSH Document 53 Filed 10/12/10 Page 5 of 15 PageID: 966

customers by providing better protection against scalpers. (Superseding Indict. Count 1, ¶¶ 4142.)
Third, the indictment adequately charges that Wiseguys used interstate wire
communications to further their scheme. To wit, counts 27-36 allege that Wiseguys‘s responses
to CAPTCHA challenges and automated ticket purchases generated by CAPTCHA Bots for ten
sets of Bruce Springsteen tickets constitute the use of interstate wire communications.
(Superseding Indict. Counts 27-36, ¶ 2.) Counts 37-43 allege that seven emails between the
defendants and various individuals regarding Wiseguys‘ business operations constitute the use of
interstate wire communications. (Superseding Indict. Counts 37-43, ¶ 2.)
Finally, the indictment charges that the object of Wiseguys‘s scheme was to deprive the
online ticket vendors of (1) their right to be the exclusive distributor of tickets, (2) their right to
define the terms of sale for tickets by refusing to sell to people who use automated programs, and
(3) the goodwill value of providing event tickets to the public. (Superseding Indict. Count 1, ¶
2(c).)
This has led to one of the more hotly debated points in the defendants‘ motion. While the
government describes the online ticket vendors‘ interests as valuable property rights and this
case as a ―
classic wire fraud case‖ (Oral argument transcript 28:6–7), the defendants label the
government‘s theory as the tail wagging the dog of secondary-market regulation.
The case law mirrors the opposing positions taken by the parties. While the property
right at issue in a wire fraud indictment need not be a tangible one, United States v. Henry, 29
F.3d 112, 115 (3d Cir. 1994), the defendants cite to several cases that they claim stand for the
proposition that the particular intangible rights asserted by the government in this case are not
property rights for purposes of the wire fraud statute. For instance, in Henry, the Third Circuit
5

Add. 34

Case 2:10-cr-00114-KSH Document 53 Filed 10/12/10 Page 6 of 15 PageID: 967

held that competing banks‘ right to a fair bidding opportunity to be the depository for toll bridge
revenues was not a property right. Id. In United States v. Bruchhausen, the Ninth Circuit held
that a manufacturer‘s interest in the post-sale destination of its products did not constitute a
property right under the wire fraud statute, 977 F.2d 464, 467–68 (9th Cir. 1992), and in United
States v. Alkaabi, the Third Circuit held that a testing service‘s interest in maintaining the
integrity of its testing process did not constitute a property right. 223 F. Supp. 2d 583, 590
(D.N.J. 2002).
On the other hand, the government points out that a hallmark of a property right is
exclusivity, United States v. Carpenter, 484 U.S. 19, 26 (1987), and the property right asserted
here is tied to the online ticket vendors‘ interest in being the exclusive distributor of tickets for a
given event. Further, in United States v. Al Hedaithy, the Third Circuit held that a testing service
had a property right in controlling who could take its exam and receive a score report, 392 F.3d
580, 603 (2004), and in United States v. Alsugair, the court held that a testing service had a
property right in its goodwill. 256 F. Supp. 2d 306, 316 (D.N.J. 2003).
At the motion to dismiss stage, it would be premature for this Court affirmatively to cast
its lot with one theory over the other, especially given the broad range of factual situations
reflected in the cases cited in the parties‘ briefs, which are more numerous than those discussed
here. For one thing, a court‘s analysis of a motion to dismiss an indictment must not be
converted into a summary trial on the evidence. United States v. Delle Donna, 552 F. Supp. 2d
475, 482 (D.N.J. 2008) (―
‗[A]t this stage of the proceedings the indictment must be tested by its
sufficiency to charge an offense‘ rather than by whether the ‗charges have been established by
the evidence.‘‖ (quoting United States v. Sampson, 371 U.S. 75, 76, 78–79 (1962))); United
States v. Miller, 694 F. Supp. 2d 1259, 1267 (M.D. Ala. 2010) (court could not decide, on motion
6

Add. 35

Case 2:10-cr-00114-KSH Document 53 Filed 10/12/10 Page 7 of 15 PageID: 968

to dismiss indictment, whether defendant was a ― offender‖ within the meaning of a statute
sex
because such decision would require the court to look beyond the face of the indictment and rule
on the merits). It suffices now to determine whether the government has charged a required
element of wire fraud, and it has. Whether the government‘s theory is correct is properly
decided after it has offered its proofs. The Court‘s direct response to the defendants‘ strenuous
arguments about property rights is simply that, the legal determination of whether the online
ticket vendors‘ interests alleged constitute property rights under the wire fraud statute is so
bound up with the facts of the case that a decision at this stage is premature. See United States v.
Shabbir, 64 F. Supp. 2d 479, 480 (D. Md. 1999); United States v. Nanz, 471 F. Supp. 968, 972
(D. Wis. 1979) (―
Trial of the merits of [the] charges would not only be of assistance, but would
be indispensable to the proper resolution of the motion.‖). It is worth noting that most of the
cases cited by both the government and the defense were decided on appeal from a conviction,
and one was actually a civil case decided at the summary judgment stage. Here, the alleged facts
have not been developed enough for the Court to determine how the online ticket vendors
conduct their businesses so as to make a considered judgment about the nature of the property
rights they allegedly possessed. On its face, however, the indictment sufficiently specifies
property rights that Wiseguys allegedly targeted, such that it must survive the defendant‘s motion
to dismiss.
IV. The CFAA Counts:
1. Counts 2 through 10: Obtaining Information from a Protected Computer, 18 U.S.C. §§ 1030
(a)(2)(C) and (c)(2)(B)(i)

7

Add. 36

Case 2:10-cr-00114-KSH Document 53 Filed 10/12/10 Page 8 of 15 PageID: 969

Counts 2 through 10 of the indictment charge that defendants Lowson, Kirsch and
Stevenson knowingly and intentionally accessed computers without authorization and exceeded
authorized access, and using an interstate communication, obtained information from protected
computers used in and affecting interstate and foreign commerce and communication, for the
purpose of commercial gain.

In so doing, the Indictment charges a crime under CFAA § 1030

(a)(2)(C), which prohibits intentionally accessing a computer without authorization or exceeding
authorized access, and thereby obtaining information from any protected computer.
The crimes charged under the CFAA—including the two additional CFAA violations
alleged in counts 11 to 26— center on the defendants‘ alleged unauthorized access of
Ticketmaster‘s computer network. Throughout their briefs and at oral argument, both the
government and the defendants have fiercely contested what constitutes ―
unauthorized access‖
for the purpose of a prosecution under the CFAA. The central and recurring question is whether
the scheme and conduct alleged here is merely an egregious breach of contract based on
violations of the terms of service on Ticketmaster‘s website, or something criminal. Defendants
assert that the indictment ―
unambiguously depend[s] upon alleged breaches of contract to
establish criminal liability.‖ (Def. Reply Br. 5.) The government insists that defendants‘
conduct amounted to a crime.
The Court is satisfied that the indictment sufficiently alleges the elements of unauthorized
access and exceeding authorized access under the CFAA, and sufficiently alleges conduct
demonstrating defendants‘ knowledge and intent to gain unauthorized access.
The indictment alleges a number of actions taken by defendants to defeat code-based
security restrictions on Ticketmaster‘s websites. (Although the government‘s briefs speak of
8

Add. 37

Case 2:10-cr-00114-KSH Document 53 Filed 10/12/10 Page 9 of 15 PageID: 970

unauthorized access of the websites of Online Ticket Vendors in general, the indictment‘s CFAA
charges in counts 2 through 26 reference only the network belonging to Ticketmaster.) A nonexhaustive list of the steps defendants allegedly took to defeat Ticketmaster‘s code-based
security measures includes: circumventing Proof of Work protections; writing automated
software to defeat CAPTCHA (itself an extensive process which allegedly involved opening
thousands of connections at once and using CAPTCHA Bots to respond to CAPTCHA
challenges in fractions of a second); employing optical character recognition to defeat
CAPTCHA challenges; testing the vulnerability of security encryption to get directly to ―
Buy
Pages‖; and implementing ―
hacks‖ and using ―
backdoors‖ to enable automated programs to
purchase tickets. The defendants also allegedly disregarded cease-and-desist letters and hired
contract hackers,‖ to defeat difficult security restrictions. (See
programmers, including ―
Superseding Indict. Count 1 ¶¶ 35−40.)
The indictment also sufficiently pleads the other elements of obtaining information from
a protected computer under § 1030. The protected computers referenced in the statute are
described in the indictment as Ticketmaster‘s network, which is used in interstate commerce and
communication. The elements of commercial advantage and private financial gain are pleaded
as 10 separate purchases of tickets for resale to concerts and sports events in 2006 and 2007.
(Superseding Indict. Counts 2 through 10 ¶ 2.) Finally, the indictment alleges that the
―
information‖ obtained by defendants from Ticketmaster‘s website was a seat-map ―
built‖ by
CAPTCHA Bots ―to seiz a number of prize seats,‖ which Wiseguys employees then would
e
― through‖ in order to select and purchase the best ones. (Superseding Indict. Count 1 ¶¶
cull
22−25.)
9

Add. 38

Case 2:10-cr-00114-KSH Document 53 Filed 10/12/10 Page 10 of 15 PageID: 971

The Court notes and must take seriously the arguments advanced by the defendants, as
well as those made by Amici, regarding whether the unauthorized access alleged here amounts to
contract-based violations of Ticketmaster‘s terms of service that are actionable under civil laws.
The Court is aware, for example, that the investigation of Wiseguys, and ultimately these
defendants, began after a civil case was successfully prosecuted by Ticketmaster. See
Ticketmaster LLC v. RMG Technologies, 507 F. Supp. 2d 1096 (C.D. Cal. 2007). Courts have
differed over what constitutes unauthorized access under the CFAA and where the line falls
between a civil and criminal violation of the statute. Defendants point to United States v. Drew,
in which a district court dismissed the indictment against a defendant who had been found guilty
of a misdemeanor violation of the CFAA for unauthorized access based solely on the defendant‘s
―
conscious breach of a website‘s terms of service.‖ United States v. Drew, 259 F.R.D. 449, 467
(C.D. Cal. 2009). To hold otherwise, the Drew court stated, would be to transform § 1030
(a)(2)(C) into a law that violates the void for vagueness doctrine by affording ― much
too
discretion to the police and too little notice to citizens who wish to use the [Internet].‖ Id. at 467
(quoting City of Chicago v. Morales, 527 U.S. 41, 64 (1999)). Defendants here go further and
argue that, under the government‘s theory, a teenager hypothetically could be prosecuted under
the CFAA for violating the age requirement restrictions in the terms of service when using a
search engine like Google.
But, as the government goes to pains to stress, and as the indictment makes clear, the
unauthorized access charges at the heart of this indictment involve allegations of breaches of
both contract- and code-based restrictions. In Drew, the conduct charged did not involve
allegations of circumvention of code-based restrictions. And significantly, the Drew court‘s
decision to dismiss the indictment came after trial, which allowed for the full presentation of all
10

Add. 39

Case 2:10-cr-00114-KSH Document 53 Filed 10/12/10 Page 11 of 15 PageID: 972

the government‘s proofs and a development of the factual record in what admittedly is a
technology-intensive and unsettled area of the law. This Court is satisfied that a full presentation
of the government‘s proofs is required to determine if the defendants‘ arguments ring true that
the ―
code-based restrictions . . . are red herrings . . . [and] are inextricably intertwined with the
vendors‘ terms of use.‖ (Def. Reply 3.) For now, the indictment sufficiently alleges conduct
supporting the government‘s theory of distinct code- and contract-based violations, and the
government is entitled to the opportunity to fully offer its evidence, subject to cross-examination,
as to why the conduct at issue here is criminal. In this case, the facts and the law are so closely
related that further development of the record will shed light on crucial questions, such as what
exactly the defendants did, how the alleged code-based restrictions worked, and whether the
defeat of CAPTCHA challenges and circumvention of Ticketmaster‘s security measures is
indeed distinct conduct from the terms of service violations described in Drew. It is only at that
point that the Court can examine and rule on the defense theory that the CFAA and wire fraud
counts are inextricably entwined, and so if the CFAA counts fall, so must the wire fraud counts.
Defendants also make a vagueness challenge. But as the Supreme Court has noted,
―
vagueness challenges to statutes which do not involve First Amendment freedoms must be
examined in light of the facts of the case at hand.‖ Drew at 464 (citing United States v. Mazurie,
419 U.S. 544, 550 (1975)). Here, the factual record before the Court remains undeveloped.
In addition, defendants argue that the indictment fails to identify the ―
information‖ that
defendants ―
obtained‖ under counts 2 through 10. They contend that the only things they
obtained were tickets, that the ―
information‖ at issue was publicly available to ―e other
very
member of the public that uses the online vendors‘ public websites‖ (Def. Br. 17), and that
11

Add. 40

Case 2:10-cr-00114-KSH Document 53 Filed 10/12/10 Page 12 of 15 PageID: 973

―
[c]omprehensive seating information was available from numerous other sources.‖ (Def. Reply
10.) In effect, defendants argue, the government seeks to criminalize obtaining publicly
available ―
information‖ and, in the process, the government will increase ―
exponentially‖ the
universe of federal crimes. (Def. Moving Br. 18.) The government, however, argues that the
information obtained included a detailed map of ―
available premium seats for each Event‖ that
was unavailable to individual users and ―
confidential in the aggregate.‖ (Opp‘n Br. 30−32.)
These clashing characterizations of what exactly defendants saw and whether it constituted
―
obtaining information‖ within the meaning of the CFAA highlights yet again the need for
further factual development of the record. Applying the analysis that is proper at this stage, the
Court finds that the indictment does allege sufficient facts to satisfy the element of obtaining
information.
2. Accessing a protected computer with intent to defraud, 18 U.S.C. §§ 1030 (a)(4) and
(c)(3)(A):
Counts 11 through 20 of the indictment allege that defendants Lowson, Kirsch and
Stevenson knowingly, and with intent to defraud, accessed Ticketmaster‘s computer network and
exceeded authorized access, and by doing so furthered the intended fraud and obtained things of
value.
things of value‖ obtained, according to the indictment, were tickets to a July 28,
The ―
2008 Bruce Springsteen concert at Giants Stadium. (Superseding Indict. Counts 11 through 20 ¶
2.) The key contested areas in counts 11 through 20 are the issues of unauthorized access
(discussed above in counts 2 through 10), and the element of ―
intent to defraud.‖

12

Add. 41

Case 2:10-cr-00114-KSH Document 53 Filed 10/12/10 Page 13 of 15 PageID: 974

The ―
intent to defraud‖ is demonstrated in the indictment by the defendants‘ alleged
scheme to, among other things, pose as individual buyers and deceive Ticketmaster into selling
tickets to defendants that Ticketmaster otherwise would not sell. (See e.g. Superseding Indict.
Count 1 ¶¶ 14−21.)
Defendants argue that the charged fraud and access violations are essentially one in the
same (Def. Moving Br. 18), while the government contends that the unauthorized access and the
fraud are alleged distinctly. According to the government, the unauthorized access consisted of
circumventing code restrictions, defeating IP blocking and other conduct. The fraud, the
government argues, consisted of the overall scheme to deprive Ticketmaster of its rights to
exclusivity and to dictate terms of sale and also of its good will. (Opp‘n 28−29.)
The Court finds that the indictment sufficiently pleads facts demonstrating intent to
defraud and that the government is entitled to fully present its evidence on this question.
3. Transmitting a program that causes unauthorized damage, 18 U.S.C. § 1030 (a)(5)(A)
Counts 21 through 26 allege that defendants Lowson, Kirsch and Stevenson knowingly
caused the transmission of programs, information, code, and commands, and as a result of such
conduct, intentionally caused damage without authorization to protected computers, in and
affecting interstate and foreign commerce and communication, thereby causing loss to one or
more persons during a 1-year period aggregating at least $5,000 in value.
The indictment pleads a knowledge element demonstrated by allegations that, among
other things, defendants discussed and implemented means to purchase tickets automatically
without responding to CAPTCHA challenges; to defeat CAPTCHA using optical character
13

Add. 42

Case 2:10-cr-00114-KSH Document 53 Filed 10/12/10 Page 14 of 15 PageID: 975

recognition; and to update their CAPTCHA answer base when they encountered new CAPTCHA
challenges. The pleaded ―
transmission‖ involves defendants‘ responses to CAPTCHA
challenges and automated ticket purchase requests for six different concerts and other events.
(Superseding Indict. Counts 21 through 26 ¶ 2.) The pleaded damage element of at least $5,000
involves defendants‘ blocking out authorized, individual users from the website by using
CAPTCHA Bots, which ―
seized‖ the best seats for events and made those seats unavailable for
purchase or consideration until their release by a Wiseguys employee. (See Superseding Indict.
Count 1 ¶¶ 2, 25, 56.)
Defendants argue that the conduct at issue in the damage allegation essentially is
identical to the conduct underlying the unauthorized access allegations, that the government
again is seeking to ―c
riminalize a breach of contract,‖ and that the indictment as a result contains
no valid damage allegation. (Def. Reply 11.) While these arguments fit logically into the
defendants‘ overall argument that this is a civil and not a criminal matter, the Court is satisfied
that, for the purposes of deciding the motion to dismiss, the indictment sufficiently pleads the
damage element of counts 21 through 26.
V. Conclusion
This case poses a good example of the complexity of criminal prosecutions under statutes
written specifically about, for, and as a result of the Internet—and more, insofar as the parties are
wrestling with the always perplexing issue of what constitutes criminal fraud. The challenge is
to harmonize the CFAA and the government‘s charges of crime in the highly specialized
marketplace the defendants operated in, with traditional and, indeed, sacrosanct tenets of the
criminal law. The Court—and the parties as well—will be in a far better position to meet that
14

Add. 43

Case 2:10-cr-00114-KSH Document 53 Filed 10/12/10 Page 15 of 15 PageID: 976

challenge after the government presents its evidence. The motion to dismiss the Superseding
Indictment is denied.

/s/Katharine S. Hayden
Katharine S. Hayden, U.S.D.J.

15

Add. 44

AFFIDAVIT OF SERVICE
DOCKET NO. 13-1816
-------------------------------------------------------------------------------X
USA
vs.
Andrew Auernheimer
-------------------------------------------------------------------------------X

I, Elissa Matias , swear under the pain and penalty of perjury, that according to law and being over
the age of 18, upon my oath depose and say that:
on July 8, 2013
I served the Addendum of Amicus Curiae National Association of Criminal Defense Lawyers in
Support of Appellant within in the above captioned matter upon:

See Attached Service List

via electronic filing and electronic service.
Unless otherwise noted, copies have been sent to the court on the same date as above for filing via Express
Mail.
Sworn to before me on July 8, 2013
/s/ Robyn Cocho
_______________________________
Robyn Cocho
Notary Public State of New Jersey
No. 2193491
Commission Expires January 8, 2017

/s/ Elissa Matias
Elissa Matias

Job # 248362

Service List:
Mark E. Coyne, Esq.
email: [e-mail].
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Tor B. Ekeland, Esq.
email: [e-mail]
Tor Ekeland
155 Water Street
6th Floor, Suite 2
Brooklyn, NY 11201
Hanni M. Fakhoury, Esq.
email: [e-mail]
Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109

Marcia C. Hofmann, Esq.
email: [e-mail]
25 Taylor Street
San Francisco, CA 94102

Mark H. Jaffe, Esq.
email: [e-mail]
Tor Ekeland
155 Water Street
6th Floor, Suite 2
Brooklyn, NY 11201

Orin S. Kerr, Esq.
email: [e-mail]
George Washington University
2000 H. Street, NW
Washington, DC 20052