When Is a Phone a Computer?

• Citation: Vol. 8 No. 4
• Publication year: 2013

Washington Journal of Law, Technology and Arts Volume 8, Issue 4 Winter 2013

When Is a Phone a Computer?

J.C. Lundberg(fn*)© J.C. Lundberg

ABSTRACT

In United States v. Kramer, the Eighth Circuit upheld a two-level sentence enhancement for a defendant who made calls and sent text messages from a cellphone to a minor in order to lure her across state lines for criminal sexual activity. This enhancement was based on a provision in the United States Sentencing Guidelines that incorporates the definition of "computer" from the Computer Fraud and Abuse Act. The broad language of that statute encompasses not only computers-in the plainest sense-and cellphones, but also a myriad of other devices such as automobiles equipped with GPS navigation. In contrast to the sentencing context, this conception of many electronics devices as "computers" does not extend into issues related to searches. There, courts tend to permit broader examination of cellphones and other electronic devices in searches incident to arrest, despite the general protection computers are usually afforded under the Fourth Amendment.

TABLE OF CONTENTS

Introduction..................................................................................474

I. The Word "Computer" and Sentencing................................475

II. Computers and the Fourth Amendment................................477

A. Warrant Searches.............................................................477

B. Automobile Exception.....................................................480

C. Searches Incident to Arrest..............................................482

Conclusion...................................................................................484

Practice Pointers...........................................................................485

INTRODUCTION

In a recent case, United States v. Kramer,(fn1) the Eighth Circuit held that a two-level sentencing enhancement was appropriate when a defendant used a cellphone to induce a minor to cross state lines for criminal sexual activity. This enhancement applied because Kramer's cellphone was deemed to qualify as a computer under the relevant statutory definition of the Computer Fraud and Abuse Act.(fn2) This definition is so encompassing that Steve Wozniak's somewhat flippant claim, "[e]verything has a computer in it nowadays,"(fn3) becomes a troubling reality for many criminal defendants. Given the realities of how this class of crimes is committed and the sweeping definition above, effectively all defendants sentenced for such crimes will be eligible for the sentence enhancement. In contrast, computers-as traditionally conceived-are offered unique protection from searches under the Fourth Amendment. Under searches incident to arrest and those pursuant to a warrant, computer searches must be narrowly tailored. This double reading of the word "computer"-expansive for sentencing purposes and narrow for Fourth Amendment purposes-reflects the fog which plagues courts trying to apply traditional principles or older statutes to our rapidly evolving technology.

I. THE WORD "COMPUTER" AND SENTENCING

A common dictionary definition of "computer" is any "device that computes, especially a programmable electronic machine that performs high-speed mathematical or logical operations or that assembles, stores, correlates, or otherwise processes information."(fn4) This definition encompasses essentially all portable electronics- including iPods, smartphones, e-readers and iPads-as well as many microwaves and televisions. However, in common usage, "computer" generally intends either a laptop or desktop PC. Generally, most people think a computer is a device with a full QWERTY keyboard designed to be typed on at length.(fn5) Considering a more expansive definition than the intuitive one outlined above, the borders of where a modern device stops being a computer in any meaningful sense of the word is when a user cannot use the device to connect to the Internet.

The United States Sentencing Guidelines (USSG) include an enhancement of two levels if the "offense involved the use of a computer . . . to (A) persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct; or (B) entice, encourage, offer, or solicit a person to engage in prohibited sexual conduct with the minor."(fn6) The U.S. Sentencing Guidelines incorporate the definition of "computer" in the Computer Fraud and Abuse Act (CFAA). "'Computer' has the meaning given that term in 18 U.S.C. § 1030(e)(1)."(fn7) In turn,the term 'computer' means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.(fn8)

A cellphone is not a typewriter, calculator, or similar device. The deciding factor in the CFAA analysis has to do with the storage capacity. Some typewriters have a one line memory and most four function calculators can remember a single number but beyond that they rely on the user to supply data and processing power. Even the most rudimentary cellphone available on the market today qualifies as a computer under the CFAA due to its ability to, at a minimum, store a call history and list of contacts. The Seventh Circuit adopted this reasoning and spoke in even broader terms, stating that "[e]very cell phone and cell tower is a...