State v. Allen, 74639
| Decision Date | 31 May 1996 |
| Docket Number | No. 74639,74639 |
| Citation | 260 Kan. 107,917 P.2d 848 |
| Parties | STATE of Kansas, Appellant, v. Anthony A. ALLEN, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The legal standards to be applied in preliminary hearings are restated.
2. Felony computer crime as charged in this case under K.S.A. 21-3755(b)(1) required the State to prove three distinct elements: (1) an intentional and unauthorized access to a computer, computer system, computer network, or any other property (as property is defined in K.S.A. 21-3755[a] ); (2) damage to a computer, computer system, computer network, or any other property; and (3) a loss in value as a result of such crime of at least $500 but less than $25,000.
3. The appellate courts read certain conduct as outside a statute's scope rather than as proscribed by the statute if including it within the statute would render the statute unconstitutionally vague.
4. Although K.S.A. 21-3755 defines "access," the plain and ordinary meaning should be applied rather than a tortured translation of the definition that is provided.
5. Pursuant to K.S.A. 21-3755, a defendant does not gain access to a computer system merely by dialing a telephone number answered by a computer. To gain access, the defendant must proceed beyond any security devices so as to have the ability to make use of the computer or obtain something from its memory.
6. Although computer crime is not, for obvious reasons, a common-law crime, it nevertheless has a common-law predicate which is useful in determining legislative intent. K.S.A. 21-3755 was not designed to update criminal trespass or malicious mischief statutes to the computer age but to address inadequacies in the present theft statute related to prosecution of computer-related crimes.
7. The damage element of computer crime as charged in this action mirrors the common-law requirement of the deprivation of something of value in a larceny action. As in a larceny action, the extent of the deprivation determines the severity level of the crime. This element of computer crime, as with other theft statutes, cannot be satisfied where there is no deprivation.
8. The degree of a theft crime is established by the value of the stolen property, which does not include the costs of investigation or security measures to prevent further thefts.
Steven J. Obermeier, Assistant District Attorney, argued the cause, and K. Michael Warner, Assistant District Attorney, Paul J. Morrison, District Attorney, and Carla J. Stovall, Attorney General, were on the brief, for appellant.
William Grimshaw, Olathe, argued the cause and was on the brief, for appellee.
In this first impression case, we are presented with the question of whether a person's telephonic connections that prompt a computer owner to change its security systems constitute felony computer crime in violation of K.S.A. 21-3755(b).
The charges against Anthony A. Allen arose from several telephonic connections he made with Southwestern Bell Telephone Company's computers in early 1995. After preliminary hearing, the trial court dismissed the complaint, finding no probable cause existed to believe Allen had committed any crime.
The State has appealed pursuant to K.S.A. 22-3602(b)(1). We affirm the trial court.
Because the result in this case must be limited to and driven by the facts presented at the preliminary hearing, we will summarize the evidence there presented in considerable detail.
Allen admitted to Detective Kent Willnauer that he had used his computer, equipped with a modem, to call various Southwestern Bell computer modems. The telephone numbers for the modems were obtained by random dialing. If one of Allen's calls were completed, his computer determined if it had been answered by voice or another computer. These were curiosity calls of short duration.
The State presented no evidence which showed that Allen ever had entered any Southwestern Bell computer system. Detective Willnauer was unable to state that Allen had altered any programs, added anything to the system, used it to perform any functions, or interfered with its operation. Willnauer specifically stated he had no evidence that the Southwestern Bell computer system had been damaged.
Ronald W. Knisley, Southwestern Bell's Regional Security Director, testified Allen had called two different types of Southwestern Bell computer equipment--SLC-96 system environmental controls and SMS-800 database systems.
The telephone numbers for the SLC-96 systems were thought to be known only to Southwestern Bell employees or agents on a need-to-know basis. Access to the SLC-96 systems required knowledge of a password. If one connected to the system it displayed "KEYWORD?" without any identification or warning. No evidence existed that Allen attempted to respond to the prompt.
Testimony confirmed Allen also called and connected 28 times with the SMS-800 systems at several different modem numbers. Each call but two was under 1 minute. Upon connection with this system, a person would see a log on request and a "banner." The banner identifies the system that has answered the incoming call and displays that it is Southwestern Bell property and that access is restricted. Entry into the system itself then requires both a user ID and a password which must agree with each other. No evidence indicated Allen went beyond this banner or even attempted to enter a user ID or password.
Knisley testified that if entry into an SMS-800 system were accomplished and proper commands were given, a PBX system could be located which would allow unlimited and nonchargeable long distance telephone calls. There was no evidence this occurred, nor was it shown that Allen had damaged, modified, destroyed, or copied any data.
James E. Robinson, Function Manager responsible for computer security, testified one call to an SMS-800 system lasted 6 minutes and 35 seconds. Although the system should have retained information about this call, it did not, leading to speculation the record-keeping system had been overridden. Robinson speculated Allen had gained entry into the system but admitted he had no evidence that Allen's computer had done anything more than sit idle for a few minutes after calling a Southwestern Bell modem number.
Robinson testified that Southwestern Bell was unable to document any damage to its computer equipment or software as a result of Allen's activities. However, as a result of its investigation, Southwestern Bell decided that prudence required it to upgrade its password security system to a more secure "token card" process. It was the cost of this investigation and upgrade that the State alleges comprises the damage caused by Allen's actions. Total investigative costs were estimated at $4,140. The cost of developing deterrents was estimated to be $1,656. The cost to distribute secure ID cards to employees totalled $18,000. Thus, the total estimated damage was $23,796.
In closing arguments, the State admitted Allen did not get into the computer system, nor did he modify, alter, destroy, copy, disclose, or take possession of anything. See K.S.A. 21-3755(b)(1). Instead, the State argued Allen's conduct in acquiring the unlisted numbers and calling them constituted an "approach" to the systems, within the meaning of K.S.A. 21-3755(a)(1), which questioned the integrity of the systems and resulted in the altered or added security precautions.
In its oral ruling, the trial court noted K.S.A. 21-3755 was unclear. The court then held the mere fact Allen made telephone calls, a legal activity, which resulted in the connection of two modems, was insufficient to prove he had "gained access" to Southwestern Bell's computer systems as the K.S.A. 21-3755(b)(1) charge required. In addition, the court held Southwestern Bell's investigative expenses and voluntary security upgrade costs did not constitute damage to the computer systems or other property as defined in the statute.
The legal standard to be applied in a preliminary hearing is clear. If it appears from the evidence presented that a crime has been committed and there is probable cause to believe the defendant committed it, K.S.A. 22-2902(3) requires that the defendant be bound over for trial. State v. Martinez, 255 Kan. 464, 466, 874 P.2d 617 (1994). If there is not sufficient evidence, the defendant must be discharged. State v. Engle, 237 Kan. 349, 350, 699 P.2d 47 (1985); K.S.A. 22-2902(3). From the evidence presented, the trial court must draw the inferences favorable to the prosecution, and the evidence need only establish probable cause. State v. Sherry, 233 Kan. 920, 935, 667 P.2d 367 (1983). "Probable cause at a preliminary hearing signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt." State v. Puckett, 240 Kan. 393, Syl. p 1, 729 P.2d 458 (1986).
Allen was charged under K.S.A. 21-3755, which in applicable part provides:
....
"(6) 'Computer system' means a set of related computer equipment...
To continue reading
Request your trial
-
DeSoto v. Bd. of Parks & Recreation
...2000) (“As a noun, ‘access' ... means to exercise the freedom or ability to make use of something.”); see also State v. Allen, 260 Kan. 107, 917 P.2d 848 (1996) (under Kansas computer crime statute, no “access” to program until user proceeds past banners and log-in screen). DeSoto does not ......
-
State v. Hall
...other factors. K.S.A. 21–4610(d). Restitution can include costs in addition to and other than fair market value. State v. Allen, 260 Kan. 107, 115–16, 917 P.2d 848 (1996). The appropriate[297 Kan. 714]amount is that which compensates the victim for the actual damage or loss caused by the de......
-
State v. Davis
...(2003); State v. Hunziker, 274 Kan. 655, 56 P.3d 202 (2002); State v. Applegate, 266 Kan. 1072, 976 P.2d 936 (1999); State v. Allen, 260 Kan. 107, 917 P.2d 848 (1996); and State v. Beechum, 251 Kan. 194, 833 P.2d 988 (1992). From these cases, we know that the starting point is generally the......
-
U.S. v. Phillips
...by various judicial interpretations of what constitutes obtaining access to a protected computer. See, e.g., State v. Allen, 260 Kan. 107, 917 P.2d 848 (1996) (under Kansas computer crime statute, until a computer user proceeds beyond introductory banners and log-in screens by use of a pass......
-
§ 7.05 The Computer Fraud and Abuse Act (18 U.S.§ 1030)
...2004) (receiving electronic information is not the same as accessing the computer from which the information derived).[83] State v. Allen, 917 P.2d 848 (Kan. 1996). Defendant had used his computer repeatedly to dial up a Southwestern Bell Telephone computer that controlled long-distance tel......
-
Lengthening Shadows: Biotechnology and Patent Eligibility
...25. See Trulock v. Freeh, 275 F.3d 391 (4th Cir. 2001); Am. Online , 121 F. Supp. 2d 1255 (N.D. Iowa, 2000). 26. See State v. Allen, 917 P.2d 848 (Kan. 1996). 27. 18 U.S.C. § 1030(e)(6). 28. See S. Rep. No. 99-432, at 10. 29. United States v. Nosal ( Nosal III ), 828 F.3d 865, 873 (9th Cir.......
-
Lenity on Me: Lvrc Holdings Llc v. Brekka Points the Way Toward Defining Authorization and Solving the Split Over the Computer Fraud and Abuse Act
...Health Care Disc., Inc., 121 F. Supp. 2d 1255, 1272 (N.D. Iowa 2000))), quoted in SCOTT & SHIELDS, supra note 24, at 4-16; State v. Allen, 917 P.2d 848, 852–53 (Kan. 1996) (construing Kansas statute’s definition of accessnarrowly); Patricia L. Bellia, Defending Cyberproperty, 79 N.Y.U. L. R......
-
Employees' Misappropriation of Electronic Data: Federal and Kansas Computer Tampering Acts
...21-3755(b)(1). [87] Id. 21-3755(b)(2). [88] Id. 21-3755(b)(3). [89] Id. 21-3755(c)(1). [90] Id. 21-3755(c)(2), (d). [91] State v. Allen, 260 Kan. 107, Syl. ¶ 5, 917 P. 2d 848-49 (1996). [92] 260 Kan. at 107-08, Syl. ¶¶ 6, 7, 917 P.2d at 849. [93] State v. Jackson, 219 P. 3d 491, 2009 WL 403......