DerEngel (Ryan Harris) of TCNiSO, who became famous for hacking cable modems and writing a book on the subject, has lost a motion to dismiss his case on the grounds that the federal wire fraud statute is unconstitutionally vague. His motion was originally filed prior to his jury trial, but was ruled premature, so subsequent to his conviction on seven of eight counts of wire fraud, he renewed the motion. For reference, the original indictment can be seen, here. He also has a motion for judgment not withstanding the verdict currently before the court, but I find it highly unlikely that a judge will nullify a jury verdict based on the clear cut explanation handed down yesterday in the order denying his vagueness motion.
Harris put forth an interesting argument for vagueness, but a quick reading shows its shakiness:
he asserts that if the wire fraud statute can be applied to punish his sale of cable modem hacking products, then it can also be applied to make criminal the conduct of other companies that create products which are readily susceptible to illegal use and known to be used unlawfully by many of their users. . . . Citing tort cases, the defendant asserts, in effect, that because the manufacturer of a product that is put to a harmful or illegal use is not ordinarily civilly liable for the consequences of that use, sellers of products are not on notice of any potential for criminal liability arising from a third party's use of a product.In essence, the argument is irrelevant. The wire fraud statute is intentionally vague, to cover a multitude of such schemes - the focus being on the intent to defraud. It is hard to argue that he did not know that selling his products would result in a loss to ISPs, and I find it even harder to believe that he could remotely argue other legitimate uses.
The court ruled along the same lines, stating that the statute has a broad scope for a reason, and that it has been previously held to cover many different situations, including stealing telephone and satellite service - and this factual scenario is not an analogical leap - it's less than a baby step. Therefore, the court concluded that "in convicting the defendant, the jury had to find that the defendant acted deliberately, with intent to defraud the internet service providers, and knew that his scheme was unlawful - findings that were amply supported by the evidence. These requirements provide further support for the conclusion that the wire fraud statute is not unconstitutionally vague as applied in this case."