United States v. Gasperini
894 F.3d 482
2d Cir.2018Background
- In 2014 a malware campaign infected QNAP network-attached storage devices, creating a botnet that harvested credentials, performed click-fraud, and launched DDoS attacks; investigators linked the servers and a test virus to Fabio Gasperini.
- A grand jury indicted Gasperini on multiple felonies (computer intrusion with aggravating purposes, wire fraud conspiracy, wire fraud, money laundering); after trial he was acquitted of felonies but convicted of the lesser-included misdemeanor under 18 U.S.C. § 1030(a)(2)(C).
- At sentencing the district court found, by a preponderance, that Gasperini committed the charged felonies as relevant conduct, producing a Guidelines range capped by the statutory one-year maximum, to which the court sentenced him.
- Gasperini appealed, raising: (1) vagueness of the CFAA provision (§ 1030(a)(2)(C)); (2) that evidence seized under SCA warrants (and items from Italian searches) should be suppressed; and (3) that admitting Internet Archive (Wayback Machine) screenshots was improper.
- The Second Circuit affirmed: it rejected the vagueness challenge (conduct fell within core prohibition), held suppression under the SCA unavailable as a remedy for nonconstitutional SCA violations and found no U.S. control over Italian searches, and upheld authentication/admissibility of Wayback Machine screenshots.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vagueness of 18 U.S.C. § 1030(a)(2)(C) | Statute fails to define key terms and is overbroad, void for vagueness | Gasperini argued the CFAA is unconstitutionally vague as applied and facially | Rejected — conduct (remote unauthorized access and data exfiltration) falls squarely within the statute; no plain error shown |
| Suppression of SCA-obtained evidence | SCA warrants were extraterritorial and thus unauthorized; suppress evidence | Government: even if SCA applied extraterritorially, suppression is not an available SCA remedy for nonconstitutional violations | Rejected — suppression not authorized by SCA; defendant did not invoke a constitutional violation |
| Suppression of evidence from Italian searches | Italian searches were controlled by U.S. agents, so U.S. constitutional standards apply | Government: Italian searches were pursuant to Italian warrants with no U.S. control shown | Rejected — no evidence U.S. agents controlled the searches; mere request is insufficient to impute U.S. agency |
| Authentication/admissibility of Wayback Machine screenshots | Screenshots were unauthenticated and unreliable | Government produced Internet Archive witness who testified to the Archive’s capture and custody processes and matched records | Rejected — district court did not abuse discretion; witness testimony sufficed for authentication; cross-examination and weight for jury |
Key Cases Cited
- United States v. Guadagna, 183 F.3d 122 (2d Cir.) (standard for viewing trial evidence in favor of the government)
- United States v. Marcus, 560 U.S. 258 (U.S.) (plain-error review under Rule 52(b))
- United States v. Williams, 553 U.S. 285 (U.S.) (vagueness/due process standard)
- United States v. Olano, 507 U.S. 725 (U.S.) (plain-error requires clear error under current law)
- United States v. Valle, 807 F.3d 508 (2d Cir.) (Congress enacted CFAA to target hacking/trespass)
- Matter of Warrant to Search a Certain E–Mail Account Controlled and Maintained by Microsoft Corp., 829 F.3d 197 (2d Cir.) (SCA extraterritoriality ruling discussed)
- United States v. Bansal, 663 F.3d 634 (3d Cir.) (admissibility/authentication of Wayback Machine evidence)