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928 F.2d 504
59 U.S.L.W. 2603
(CITE AS: 928 F.2D 504)
UNITED STATES of America, Appellee,
v.
Robert Tappan MORRIS, Defendant-Appellant.
No. 774, Docket 90-1336.
United States Court of Appeals,
Second Circuit.
Argued Dec. 4, 1990.
Decided March 7, 1991.
Defendant was convicted in the United States District Court for the Northern
District of New York, Howard G. Munson, J., of violating computer Fraud and
Abuse Act. Defendant appealed. The Court of Appeals, Jon O. Newman, Circuit
Judge, held that: (1) statute punishing anyone who intentionally accesses
without authorization federal interest computers and damages or prevents
authorized use of information in those computers causing loss of $1,000 or
more does not require Government to demonstrate that defendant intentionally
prevented authorized use and thereby caused loss, and (2) there was
sufficient evidence to conclude that defendant acted without authorization
within meaning of statute.
Affirmed.
[1]
129K1
DISORDERLY CONDUCT
K. Nature and elements of offenses.
C.A.2 (N.Y.) 1991.
Statute which punishes anyone who intentionally accesses without authorization
federal interest computers and damages or prevents authorized use of
information in those computers causing loss of $1,000 or more does not require
Government to demonstrate that defendant intentionally prevented authorized use
and thereby caused loss. 18 U.S.C.A. s 1030(A)(5)(A).
U.S. v. Morris
928 F.2d 504, 59 U.S.L.W. 2603
[2]
129K1
DISORDERLY CONDUCT
K. Nature and elements of offenses.
C.A.2 (N.Y.) 1991.
Defendant's transmission of computer "worm" constituted accessing federal
interest computer without authorization under statute punishing anyone who
intentionally accesses without authorization federal interest computers and
damages or prevents authorized use of information in those computers causing
loss of $1,000 or more; defendant used computer program that transfers and
receives electronic mail and program that permits person to obtain limited
information about users of another computer to release "worm" into group of
national networks that connected university, governmental, and military
computers around the country and use of those features was not in any way
related to their intended function. 18 U.S.C.A. s 1030(A)(5)(A).
*504 Thomas A. Guidoboni, Washington, D.C., for defendant-appellant.
Ellen R. Meltzer, U.S. Dept. of Justice, Washington, D.C. (Frederick J.
Scullin, Jr., U.S. Atty., Syracuse, N.Y., Mark D. Rasch, U.S. Dept. of Justice,
Washington, D.C., on the brief), for appellee.
*505 Before NEWMAN and WINTER, Circuit Judges, and DALY, District Judge.
[FN*]
FN* The Honorable T.F. Gilroy Daly of the District Court for the District
of Connecticut, sitting by designation.
JON O. NEWMAN, Circuit Judge:
This appeal presents two narrow issues of statutory construction
concerning a provision Congress recently adopted to strengthen protection
against computer crimes. Section 2(d) of the computer Fraud and Abuse Act of
1986, 18 U.S.C. s 1030(A)(5)(A) (1988), punishes anyone who intentionally
accesses without authorization a category of computers known as "[f]ederal
interest computers" and damages or prevents authorized use of information in
such computers, causing loss of $1,000 or more. The issues raised are (1)
whether the Government must prove not only that the defendant intended to
access a federal interest computer, but also that the defendant intended to
prevent authorized use of the computer'S information and thereby cause loss;
and (2) what satisfies the statutory requirement of "access without
authorization."
These questions are raised on an appeal by Robert Tappan Morris from the May
16, 1990, judgment of the District Court for the Northern District of New York
(Howard G. Munson, Judge) convicting him, after a jury trial, of violating 18
U.S.C. s 1030(A)(5)(A). Morris released into INTERNET, a national computer
network, a computer program known as a "worm" [FN1] that spread and multiplied,
eventually causing computers at various educational institutions and military
sites to "crash" or cease functioning.
FN1. In the colorful argot of computers, a "worm" is a program that
travels from one computer to another but does not attach itself to the
operating system of the computer it "infects." It differs from a "virus,"
which is also a migrating program, but one that attaches itself to the
operating system of any computer it enters and can infect any other
computer that uses files from the infected computer.
We conclude that section 1030(a)(5)(A) does not require the Government to
demonstrate that the defendant intentionally prevented authorized use and
thereby caused loss. We also find that there was sufficient evidence for the
jury to conclude that Morris acted "without authorization" within the meaning
of section 1030(a)(5)(A). We therefore affirm.
FACTS
In the fall of 1988, Morris was a first-year graduate student in Cornell
University's computer science Ph.D. program. Through undergraduate work at
Harvard and in various jobs he had acquired significant computer experience and
expertise. When Morris entered Cornell, he was given an account on the
computer at the computer Science Division. This account gave him explicit
authorization to use computers at Cornell. Morris engaged in various
discussions with fellow graduate students about the security of computer
networks and his ability to penetrate it.
In October 1988, Morris began work on a computer program, later known as the
INTERNET "worm" or "virus." The goal of this program was to demonstrate the
inadequacies of current security measures on computer networks by exploiting
the security defects that Morris had discovered. The tactic he selected was
release of a worm into network computers. Morris designed the program to
spread across a national network of computers after being inserted at one
computer location connected to the network. Morris released the worm into
INTERNET, which is a group of national networks that connect university,
governmental, and military computers around the country. The network permits
communication and transfer of information between computers on the network.
Morris sought to program the INTERNET worm to spread widely without
drawing attention to itself. The worm was supposed to occupy little computer
operation time, and thus not interfere with normal use of the computers.
Morris programmed the worm to make it difficult to detect and read, so that
other programmers would not be able to "kill" the worm easily.
*506 Morris also wanted to ensure that the worm did not copy itself onto a
computer that already had a copy. Multiple copies of the worm on a computer
would make the worm easier to detect and would bog down the system and
ultimately cause the computer to crash. Therefore, Morris designed the worm
to "ask" each computer whether it already had a copy of the worm. If it
responded "no," then the worm would copy onto the computer; if it responded
"yes," the worm would not duplicate. However, Morris was concerned that other
programmers could kill the worm by programming their own computers to falsely
respond "yes" to the question. To circumvent this protection, Morris
programmed the worm to duplicate itself every seventh time it received a "yes"
response. As it turned out, Morris underestimated the number of times a
computer would be asked the question, and his one-out-of-seven ratio resulted
in far more copying than he had anticipated. The worm was also designed so
that it would be killed when a computer was shut down, an event that typically
occurs once every week or two. This would have prevented the worm from
accumulating on one computer, had Morris correctly estimated the likely rate of
reinfection.
Morris identified four ways in which the worm could break into computers on
the network:
(1) through a "hole" or "bug" (an error) in SEND MAIL, a computer program
that transfers and receives electronic mail on a computer;
(2) through a bug in the "finger demon" program, a program that permits a
person to obtain limited information about the users of another computer;
(3) through the "trusted hosts" feature, which permits a user with certain
privileges on one computer to have equivalent privileges on another computer
without using a password; and
(4) through a program of password guessing, whereby various combinations of
letters are tried out in rapid sequence in the hope that one will be an
authorized user's password, which is entered to permit whatever level of
activity that user is authorized to perform.
On November 2, 1988, Morris released the worm from a computer at the
Massachusetts Institute of Technology. MIT was selected to disguise the fact
that the worm came from Morris at Cornell. Morris soon discovered that the
worm was replicating and reinfecting machines at a much faster rate than he had
anticipated. Ultimately, many machines at locations around the country either
crashed or became "catatonic." When Morris realized what was happening, he
contacted a friend at Harvard to discuss a solution. Eventually, they sent an
anonymous message from Harvard over the network, instructing programmers how to
kill the worm and prevent reinfection. However, because the network route was
clogged, this message did not get through until it was too late. computers
were affected at numerous installations, including leading universities,
military sites, and medical research facilities. The estimated cost of dealing
with the worm at each installation ranged from $200 to more than $53,000.
Morris was found guilty, following a jury trial, of violating 18
U.S.C. s 1030(A)(5)(A). He was sentenced to three years of probation, 400
hours of community service, a fine of $10,050, and the costs of his
supervision.
DISCUSSION
I. The intent requirement in section 1030(a)(5)(A)
Section 1030(a)(5)(A), covers anyone who
(5) intentionally accesses a Federal interest computer without authorization,
and by means of one or more instances of such conduct alters, damages, or
destroys information in any such Federal interest computer, or prevents
authorized use of any such computer or information, and thereby
(A) causes loss to one or more others of a value aggregating $1,000 or more
during any one year period; ... [emphasis added].
[1] The District Court concluded that the intent requirement applied only to
the accessing and not to the resulting damage. *507 Judge Munson found
recourse to legislative history unnecessary because he considered the statute
clear and unambiguous. However, the Court observed that the legislative
history supported its reading of section 1030(a)(5)(A).
Morris argues that the Government had to prove not only that he intended the
unauthorized access of a federal interest computer, but also that he intended
to prevent others from using it, and thus cause a loss. The adverb
"intentionally," he contends, modifies both verb phrases of the section. The
Government urges that since punctuation sets the "accesses" phrase off from the
subsequent "damages" phrase, the provision unambiguously shows that
"intentionally" modifies only "accesses." Absent textual ambiguity, the
Government asserts that recourse to legislative history is not appropriate.
See Burlington N.R. Co. v. Oklahoma Tax Comm'n, 481 U.S. 454, 461, 107 S.Ct.
1855, 1859, 95 L.Ed.2d 404 (1987); Consumer Product Safety Comm'n v. GTE
Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766
(1980); United States v. Holroyd, 732 F.2d 1122, 1125 (2d Cir.1984).
With some statutes, punctuation has been relied upon to indicate that a phrase
set off by commas is independent of the language that followed. See United
States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030,
103 L.Ed.2d 290 (1989) (interpreting the Bankruptcy Code). However, we have
been advised that punctuation is not necessarily decisive in construing
statutes, see Costanzo v. Tillinghast, 287 U.S. 341, 344, 53 S.Ct. 152, 153, 77
L.Ed. 350 (1932), and with many statutes, a mental state adverb adjacent to
initial words has been applied to phrases or clauses appearing later in the
statute without regard to the punctuation or structure of the statute. See
Liparota v. United States, 471 U.S. 419, 426-29, 105 S.Ct. 2084, 2088-90, 85
L.Ed.2d 434 (1985) (interpreting food stamps provision); United States v.
Nofziger, 878 F.2d 442, 446-50 (D.C.Cir.) (interpreting government "revolving
door" statute), cert. denied, --- U.S. ----, 110 S.Ct. 564, 107 L.Ed.2d 559
(1989); United States v. Johnson & Towers, Inc., 741 F.2d 662, 667-69 (3d
Cir.1984) (interpreting the conservation act), cert. denied, 469 U.S. 1208, 105
S.Ct. 1171, 84 L.Ed.2d 321 (1985). In the present case, we do not believe the
comma after "authorization" renders the text so clear as to preclude review of
the legislative history.
The first federal statute dealing with computer crimes was passed in
1984, Pub.L. No. 98-473 (codified at 18 U.S.C. s 1030 (Supp. II 1984)). The
specific provision under which Morris was convicted was added in 1986, Pub.L.
No. 99-474, along with some other changes. The 1986 amendments made several
changes relevant to our analysis.
First, the 1986 amendments changed the scienter requirement in section
1030(a)(2) from "knowingly" to "intentionally." See Pub.L. No. 99-474, section
2(a)(1). The subsection now covers anyone who
(2) intentionally accesses a computer without authorization or exceeds
authorized access, and thereby obtains information contained in a financial
record of a financial institution, or of a card issuer as defined in section
1602(n) of title 15, or contained in a file of a consumer reporting agency on a
consumer, as such terms are defined in the Fair Credit Reporting Act (15 U.S.C.
1681 et seq.).
According to the Senate Judiciary Committee, Congress changed the mental state
requirement in section 1030(a)(2) for two reasons. Congress sought only to
proscribe intentional acts of unauthorized access, not "mistaken, inadvertent,
or careless" acts of unauthorized access. S.Rep. No. 99-432, 99th Cong., 2d
Sess. 5 (1986), reprinted in 1986 U.S.Code Cong. & Admin.News 2479, 2483
[hereinafter Senate Report].
Also, Congress expressed concern that the "knowingly" standard "might be
inappropriate for cases involving computer technology." Id. The concern was
that a scienter requirement of "knowingly" might encompass the acts of an
individual "who inadvertently 'stumble[d] into' someone else's computer file or
computer data," especially where such individual was authorized *508 to use
a particular computer. Id. at 6, 1986 U.S.Code Cong. & Admin.News at 2483.
The Senate Report concluded that "[t]he substitution of an 'intentional'
standard is designed to focus Federal criminal prosecutions on those whose
conduct evinces a clear intent to enter, without proper authorization, computer
files or data belonging to another." Id., U.S.Code Cong. & Admin.News at
2484. Congress retained the "knowingly" standard in other subsections of
section 1030. See 18 U.S.C. s 1030(A)(1), (a)(4).
This use of a mens rea standard to make sure that inadvertent accessing was
not covered is also emphasized in the Senate Report's discussion of section
1030(a)(3) and section 1030(a)(5), under which Morris was convicted. Both
subsections were designed to target "outsiders," individuals without
authorization to access any federal interest computer. Senate Report at 10,
U.S.Code Cong. & Admin.News at 2488. The rationale for the mens rea
requirement suggests that it modifies only the "accesses" phrase, which was the
focus of Congress's concern in strengthening the scienter requirement.
The other relevant change in the 1986 amendments was the introduction of
subsection (a)(5) to replace its earlier version, subsection (a)(3) of the 1984
act, 18 U.S.C. s 1030(A)(3) (Supp. II 1984). The predecessor subsection
covered anyone who
knowingly accesses a computer without authorization, or having accessed
a computer with authorization, uses the opportunity such access provides for
purposes to which such authorization does not extend, and by means of such
conduct knowingly uses, modifies, destroys, or discloses information in, or
prevents authorized use of, such computer, if such computer is operated for or
on behalf of the Government of United States and such conduct affects such
operation.
The 1986 version changed the mental state requirement from "knowingly" to
"intentionally," and did not repeat it after the "accesses" phrase, as had the
1984 version. By contrast, other subsections of section 1030 have retained
"dual intent" language, placing the scienter requirement at the beginning of
both the "accesses" phrase and the "damages" phrase. See, e.g., 18 U.S.C. s
1030(A)(1).
Morris notes the careful attention that Congress gave to selecting the
scienter requirement for current subsections (a)(2) and (a)(5). Then, relying
primarily on comments in the Senate and House reports, Morris argues that the
"intentionally" requirement of section 1030(a)(5)(A) describes both the conduct
of accessing and damaging. As he notes, the Senate Report said that "[t]he new
subsection 1030(a)(5) to be created by the bill is designed to penalize those
who intentionally alter, damage, or destroy certain computerized data belonging
to another." Senate Report at 10, U.S.Code Cong. & Admin.News at 2488. The
House Judiciary Committee stated that "the bill proposes a new section (18
U.S.C. 1030(A)(5)) which can be characterized as a 'malicious damage' felony
violation involving a Federal interest computer. We have included an
'intentional' standard for this felony and coverage is extended only to outside
trespassers with a $1,000 threshold damage level." H.R.Rep. No. 99-612, 99th
Cong.2d Sess. at 7 (1986). A member of the Judiciary Committee also referred
to the section 1030(a)(5) offense as a "malicious damage" felony during the
floor debate. 132 Cong.Rec. H3275, 3276 (daily ed. June 3, 1986) (remarks of
Rep. Hughes).
The Government's argument that the scienter requirement in section
1030(a)(5)(A) applies only to the "accesses" phrase is premised primarily upon
the difference between subsection (a)(5)(A) and its predecessor in the 1984
statute. The decision to state the scienter requirement only once in
subsection (a)(5)(A), along with the decision to change it from "knowingly" to
"intentionally," are claimed to evince a clear intent upon the part of Congress
to apply the scienter requirement only to the "accesses" phrase, though making
that requirement more difficult to satisfy. This reading would carry out the
Congressional objective of protecting the individual who "inadvertently
'stumble[s] into' someone else's computer file." Senate Report at 6, U.S.Code
Cong. & Admin.News at 2483.
*509 The Government also suggests that the fact that other subsections of
section 1030 continue to repeat the scienter requirement before both phrases of
a subsection is evidence that Congress selectively decided within the various
subsections of section 1030 where the scienter requirement was and was not
intended to apply. Morris responds with a plausible explanation as to why
certain other provisions of section 1030 retain dual intent language. Those
subsections use two different mens rea standards; therefore it is necessary to
refer to the scienter requirement twice in the subsection. For example,
section 1030(a)(1) covers anyone who
(1) knowingly accesses a computer without authorization or exceeds
authorized access, and by means of such conduct obtains information that has
been determined by the United States Government pursuant to an Executive order
or statute to require protection against unauthorized disclosure for reasons of
national defense or foreign relations, or any restricted data ... with the
intent or reason to believe that such information so obtained is to be used to
the injury of the United States, or to the advantage of any foreign nation.
Since Congress sought in subsection (a)(1) to have the "knowingly" standard
govern the "accesses" phrase and the "with intent" standard govern the
"results" phrase, it was necessary to state the scienter requirement at the
beginning of both phrases. By contrast, Morris argues, where Congress stated
the scienter requirement only once, at the beginning of the "accesses" phrase,
it was intended to cover both the "accesses" phrase and the phrase that
followed it.
There is a problem, however, with applying Morris's explanation to section
1030(a)(5)(A). As noted earlier, the predecessor of subsection (a)(5)(A)
explicitly placed the same mental state requirement before both the "accesses"
phrase and the "damages" phrase. In relevant part, that predecessor in the
1984 statute covered anyone who "knowingly accesses a computer without
authorization, ... and by means of such conduct knowingly uses, modifies,
destroys, or discloses information in, or prevents authorized use of, such
computer...." 18 U.S.C. s 1030(A)(3) (Supp. II 1984) (emphasis added). This
earlier provision demonstrates that Congress has on occasion chosen to repeat
the same scienter standard in the "accesses" phrase and the subsequent phrase
of a subsection of the computer Fraud Statute. More pertinently, it shows that
the 1986 amendments adding subsection (a)(5)(A) placed the scienter requirement
adjacent only to the "accesses" phrase in contrast to a predecessor provision
that had placed the same standard before both that phrase and the subsequent
phrase.
Despite some isolated language in the legislative history that arguably
suggests a scienter component for the "damages" phrase of section
1030(a)(5)(A), the wording, structure, and purpose of the subsection, examined
in comparison with its departure from the format of its predecessor provision
persuade us that the "intentionally" standard applies only to the "accesses"
phrase of section 1030(a)(5)(A), and not to its "damages" phrase.
II. The unauthorized access requirement in section 1030(a)(5)(A)
[2] Section 1030(a)(5)(A) penalizes the conduct of an individual who
"intentionally accesses a Federal interest computer without authorization."
Morris contends that his conduct constituted, at most, "exceeding authorized
access" rather than the "unauthorized access" that the subsection punishes.
Morris argues that there was insufficient evidence to convict him of
"unauthorized access," and that even if the evidence sufficed, he was entitled
to have the jury instructed on his "theory of defense."
We assess the sufficiency of the evidence under the traditional
standard. Morris was authorized to use computers at Cornell, Harvard, and
Berkeley, all of which were on INTERNET. As a result, Morris was authorized to
communicate with other computers on the network to send electronic mail (SEND
MAIL), and to find out certain information about the users of other
computers *510 (finger demon). The question is whether Morris's
transmission of his worm constituted exceeding authorized access or accessing
without authorization.
The Senate Report stated that section 1030(a)(5)(A), like the new section
1030(a)(3), would "be aimed at 'outsiders,' i.e., those lacking authorization
to access any Federal interest computer." Senate Report at 10, U.S.Code
Cong. & Admin.News at 2488. But the Report also stated, in concluding its
discussion on the scope of section 1030(a)(3), that it applies "where the
offender is completely outside the Government, ... or where the offender's act
of trespass is interdepartmental in nature." Id. at 8, U.S.Code Cong. &
Admin.News at 2486 (emphasis added).
Morris relies on the first quoted portion to argue that his actions can be
characterized only as exceeding authorized access, since he had authorized
access to a federal interest computer. However, the second quoted portion
reveals that Congress was not drawing a bright line between those who have some
access to any federal interest computer and those who have none. Congress
contemplated that individuals with access to some federal interest computers
would be subject to liability under the computer fraud provisions for gaining
unauthorized access to other federal interest computers. See, e.g., id.
(stating that a Labor Department employee who uses Labor's computers to access
without authorization an FBI computer can be criminally prosecuted).
The evidence permitted the jury to conclude that Morris's use of the SEND MAIL
and finger demon features constituted access without authorization. While a
case might arise where the use of SEND MAIL or finger demon falls within a
nebulous area in which the line between accessing without authorization and
exceeding authorized access may not be clear, Morris's conduct here falls well
within the area of unauthorized access. Morris did not use either of those
features in any way related to their intended function. He did not send or
read mail nor discover information about other users; instead he found holes
in both programs that permitted him a special and unauthorized access route
into other computers.
Moreover, the jury verdict need not be upheld solely on Morris's use of SEND
MAIL and finger demon. As the District Court noted, in denying Morris' motion
for acquittal,
Although the evidence may have shown that defendant's initial insertion of
the worm simply exceeded his authorized access, the evidence also demonstrated
that the worm was designed to spread to other computers at which he had no
account and no authority, express or implied, to unleash the worm program.
Moreover, there was also evidence that the worm was designed to gain access to
computers at which he had no account by guessing their passwords. Accordingly,
the evidence did support the jury's conclusion that defendant accessed without
authority as opposed to merely exceeding the scope of his authority.
In light of the reasonable conclusions that the jury could draw from
Morris's use of SEND MAIL and finger demon, and from his use of the trusted
hosts feature and password guessing, his challenge to the sufficiency of the
evidence fails.
Morris endeavors to bolster his sufficiency argument by contending that his
conduct was not punishable under subsection (a)(5) but was punishable under
subsection (a)(3). That concession belies the validity of his claim that he
only exceeded authorization rather than made unauthorized access. Neither
subsection (a)(3) nor (a)(5) punishes conduct that exceeds authorization. Both
punish a person who "accesses" "without authorization" certain computers.
Subsection (a)(3) covers the computers of a department or agency of the United
States; subsection (a)(5) more broadly covers any federal interest computers,
defined to include, among other computers, those used exclusively by the United
States, 18 U.S.C. s 1030(E)(2)(A), and adds the element of causing damage or
loss of use of a value of $1,000 or more. If Morris violated subsection
(a)(3), as he concedes, then his conduct in inserting the worm into the
INTERNET *511 must have constituted "unauthorized access" under subsection
(a)(5) to the computers of the federal departments the worm reached, for
example, those of NASA and military bases.
To extricate himself from the consequence of conceding that he made
"unauthorized access" within the meaning of subsection (a)(3), Morris subtly
shifts his argument and contends that he is not within the reach of subsection
(a)(5) at all. He argues that subsection (a)(5) covers only those who, unlike
himself, lack access to any federal interest computer. It is true that a
primary concern of Congress in drafting subsection (a)(5) was to reach those
unauthorized to access any federal interest computer. The Senate Report
stated, "[T]his subsection [ (a)(5) ] will be aimed at 'outsiders,' i.e., those
lacking authorization to access any Federal interest computer." Senate Report
at 10, U.S.Code Cong. & Admin.News at 2488. But the fact that the subsection
is "aimed" at such "outsiders" does not mean that its coverage is limited to
them. Congress understandably thought that the group most likely to damage
federal interest computers would be those who lack authorization to use any of
them. But it surely did not mean to insulate from liability the person
authorized to use computers at the State Department who causes damage to
computers at the Defense Department. Congress created the misdemeanor offense
of subsection (a)(3) to punish intentional trespasses into computers for which
one lacks authorized access; it added the felony offense of subsection (a)(5)
to punish such a trespasser who also causes damage or loss in excess of $1,000,
not only to computers of the United States but to any computer within the
definition of federal interest computers. With both provisions, Congress was
punishing those, like Morris, who, with access to some computers that enable
them to communicate on a network linking other computers, gain access to other
computers to which they lack authorization and either trespass, in violation of
subsection (a)(3), or cause damage or loss of $1,000 or more, in violation of
subsection (a)(5).
Morris also contends that the District Court should have instructed the
jury on his theory that he was only exceeding authorized access. The District
Court decided that it was unnecessary to provide the jury with a definition of
"authorization." We agree. Since the word is of common usage, without any
technical or ambiguous meaning, the Court was not obliged to instruct the jury
on its meaning. See, e.g., United States v. Chenault, 844 F.2d 1124, 1131 (5th
Cir.1988) ("A trial court need not define specific statutory terms unless they
are outside the common understanding of a juror or are so technical or specific
as to require a definition.").
An instruction on "exceeding authorized access" would have risked misleading
the jury into thinking that Morris could not be convicted if some of his
conduct could be viewed as falling within this description. Yet, even if that
phrase might have applied to some of his conduct, he could nonetheless be found
liable for doing what the statute prohibited, gaining access where he was
unauthorized and causing loss.
Additionally, the District Court properly refused to charge the jury with
Morris's proposed jury instruction on access without authorization. That
instruction stated, "To establish the element of lack of authorization, the
government must prove beyond a reasonable doubt that Mr. Morris was an
'outsider,' that is, that he was not authorized to access any Federal interest
computer in any manner." As the analysis of the legislative history reveals,
Congress did not intend an individual's authorized access to one federal
interest computer to protect him from prosecution, no matter what other federal
interest computers he accesses.
CONCLUSION
For the foregoing reasons, the judgment of the District Court is affirmed.