Brian West - Defense Press Release

[Cherie M. Chappell]

Defense Press Release - For Immediate Release

In response to U.S. Attorney Sheldon (Shelly) J. Sperling's web posted News
Release of 8/24/01, posted at http://www.politechbot.com/p-02430.html  Mr.
Brian West's defense team makes the following response:

It appears from the facts of this case that Mr. West was allegedly using
Microsoft Windows, Microsoft Internet Explorer, and Microsoft FrontPage
software (all registered trademarks of the Microsoft Corporation) when he
was inadvertently exposed to the Poteau Daily News & Sun's website directory
tree.  The web hosting provider for the Poteau Daily News & Sun, Cyberlink,
was also allegedly running Microsoft NT 4.0 - IIS and Microsoft FrontPage
with server extensions enabled.

 >From these facts it appears that Microsoft's software may have caused this
unfortunate situation to occur.   Mr. Sperling or the Federal Bureau of
Investigation may be wise to investigate Microsoft as a possible
co-defendant or party in this case.

It appears that Microsoft's software at issue in this case was developed
and/or produced after the original October 1984 enactment of the statute.
If this case goes to trial, the Microsoft personnel who developed these
programs will likely be subpoenaed as witnesses by Mr. West's defense team.
Or if it is found that this software  contributed to, participated in or
caused the events under investigation to occur, Microsoft could be indicted
under the same statute.

It may be appropriate to ask Microsoft to recall these potentially
statute-violating products from the market or to provide patches to all of
the affected software owners, worldwide.  (The language of the statute
provides for worldwide jurisdictional authority - if the computer is "used
in interstate or foreign commerce or communication".)

This case may also involve Oklahoma state antitrust issues.

Under Title 18 of the United States Code, Section 1030(a)(2)(C), the federal
statute under which the federal investigation against Mr. West is
proceeding, it is a crime for:
"Whoever intentionally accesses a computer without authorization or exceeds
authorized access, and thereby obtains information from any protected
computer if the conduct involved an interstate or foreign communication;"
The statute also provides definitions for certain key phrases used in the
statute.
18 USC 1030(e): As used in this section -
(1) 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;
(2) the term ''protected computer'' means a computer -
(A) exclusively for the use of a financial institution or the United States
Government, or, in the case of a computer not exclusively for such use, used
by or for a financial institution or the United States Government and the
conduct constituting the offense affects that use by or for the financial
institution or the Government; or
(B) which is used in interstate or foreign commerce or communication;
(6) the term ''exceeds authorized access'' means to access a computer with
authorization and to use such access to obtain or alter information in the
computer that the accesser is not entitled so to obtain or alter;
This statute may be fatally flawed.

First, there is a question of the Constitutionality of this statue under the
1st and 9th Amendments to the United States Constitution.

Second, everyone who places Cookies on millions of computers around the
world without the authorization of internet users could be criminally
prosecuted under this statute, particularly in light of the statute's
definitions of "protected computer" and "exceed authorized access."

Third, senders of certain kinds of SPAM (not the lunch meat) may also be
subjected to criminal prosecution under this statute.   Every U.S. Attorney
in the country may have the power to criminally prosecute SPAM'ers under
this statute.
Although Mr. Sperling notes in his posting (cited above) that, "[t]he
question under investigation is whether valuable intellectual property has
been improperly converted" he should note that the provisions of the Digital
Millennium Copyright Act allowing criminal prosecution for merely looking at
or caching code do not apply in this case, as that particular portion of the
DMCA was not enacted until October 2000, a full nine months after the events
unfolded in Mr. West's case.
Cyberlink or it's owner(s) may be investigated by the Office of Oklahoma
Attorney General Drew Edmondson for possible criminal antitrust violations
under Oklahoma law (79 O.S. 203(A) and (B))
http://www.oscn.net/applications/oscn/deliverdocument.asp?citeID=89728  From
the facts in this case, it appears that Cyberlink allegedly exercised it's
monopoly market power in the Poteau internet service provider market and
allegedly attempted to prevent Mr. West's company from gaining entry into
that market by allegedly misinforming law enforcement about Mr. West's
contact and involvement with the website of the Poteau Daily News & Sun.

Mr. West's defense team has decided to issue this press release in response
to Mr. Sperling's press release that was web posted at 21:01 (9:07pm) on
Friday, August 24, 2001, at  http://www.politechbot.com/p-02430.html   and
because Mr. West's situation has generated a great deal of public interest.

Mr. West and his defense team thank you for your interest in his situation.

-Cherie M. Chappell and Kenneth R. Poland

For further information contact:

Cherie M. Chappell, Esq.
Chappell Law Firm, P.L.L.C.
P.O. Box 5243
Edmond, OK 73083-5243
405.340.7755 voice
405.340.7757 fax
Email: cmc at chappelllawfirm.com
URL: www.chappelllawfirm.com

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