FC: U.S. Attorney replies to "Good Samaritan" outcry with statement

[Declan McCullagh <declan () well com>]

I and other folks who communicated with the DOJ received the below 
statement yesterday evening.

It seems as though U.S. Attorney Sheldon Sperling is feeling some pressure. 
Sperling's direct phone number and contact info have disappeared from a 
University of Tulsa law school alum site:
http://www.tilly.com/tulawclassof79/s.htm

Subscribers to the cypherpunks list pointed out that it's still here:
http://www.google.com/search?q=cache:suoo-rMakz8:www.tilly.com/tulawclassof79/s.htm+Sheldon+Sperling+Shepard&hl=en

Background:
"Feds target Oklahoma good samaritan who noted web security hole"
http://www.politechbot.com/p-02412.html

"DOJ prosecution of "good samaritan" may be justified after all?"
http://www.politechbot.com/p-02415.html

-Declan

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From: Glenn Reynolds <gharlanr () bellsouth net>
Subject: Brian K. West case:  email from U.S. Attorney
To: declan
Date: Fri, 24 Aug 2001 23:00:05 -0400

I got this earlier this evening from Sheldon Sperling, the U.S. Attorney
involved in the Brian K. West case.  Reading between the lines, it
sounds like he's decided to assert a little adult supervision.  You may
have already gotten this:  my InstaPundit.Com site, where the commentary
appeared on Sunday the 19th (not Wed. the 22d as he says) has been hit
repeatedly by .gov types searching "Brian K. West" on Google, suggesting
that this is part of a big PR counteroffensive.  Anyway, in case you
didn't get one, here it is.  I've also posted it, with comments, on
http://instapundit.com if you're interested.

*********

Date: Fri, 24 Aug 2001 21:07:41 -0400
From: "Sperling, Sheldon" <Sheldon.Sperling () usdoj gov>
Subject: Press Release - 1030

Please see information below.

          NEWS
    RELEASE
U.S. Department of Justice
Sheldon J. (Shelly) Sperling
United States Attorney
Eastern District of Oklahoma

For Release: August 24, 2001

For Further Information Contact: Sheldon J. (Shelly) Sperling, United 
States Attorney

	MUSKOGEE, OKLAHOMA  -  An article posted on the internet last Friday 
reported that an internet service provider employee is alleged to have 
penetrated a hole in the comparative security of a newspaper's website, 
employed a userid and a password, and downloaded a valuable computer 
program.  The employee reported the penetration to the website owner to 
include site insecurity, access using user names and passwords, and 
downloading the program, but claimed his intrusion accidental.  The website 
owner reported the alleged intrusion to law enforcement authorities.

Pursuant to a complaint to law enforcement officers, an application was 
made for a search warrant.  A United States Magistrate-Judge ordered a 
search of the employee's place of business.  A website's computer program 
was found on the employee's laptop.  A copy of the search warrant was left 
with the employer as provided by law.  The employee was not arrested and 
has not been charged.

Investigation into the allegations  is pending.  A very substantial portion 
of the investigation, to include interviews with witnesses, is not yet 
public and is ongoing.  The question under investigation is whether 
valuable intellectual property has been improperly converted.

More particularly, the purpose of the investigation is to determine:
(1) whether the employee intentionally accessed a computer without 
authorization or          exceeded authorized access (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),
(2) whether the employee thereby obtained information from a protected 
computer (a        computer which is used in interstate or foreign commerce 
or communication), and
        (3) whether the conduct involved an interstate communication.  18 USC 1030.
Only if all three questions are answered in the affirmative has a criminal 
offense been committed.

Even where there is probable cause to believe that a person has committed a 
criminal offense in the Eastern District of Oklahoma, a prosecutor must 
consider whether to:
        (1) request or conduct further investigation,
        (2) commence or recommend prosecution,
(3) decline prosecution and refer the matter for prosecutorial 
consideration is another         jurisdiction,
(4) decline prosecution and initiate or recommend pretrial diversion or 
other non-              criminal disposition, or
        5) decline prosecution without taking other action.

A suspect's intent, the amount of loss occasioned by the behavior, and the 
context of the alleged offense are among many factors that are within the 
scope of the investigation and weighed in such prosecutorial 
decisions.  Only after all these standards and issues have been considered 
would the United States Attorney's Office for the Eastern District of 
Oklahoma prosecute an individual for a criminal offense.

Pursuant to the employee's telephone call to our office, we sent him a 
letter containing an invitation to appear before the grand jury to answer 
questions concerning this matter, written advice of his rights, the option 
and importance of retaining counsel, and the prospect of an agreed 
plea.  No final decision has been made or agreement reached to resolve this 
matter.

Because of the public interest in this matter based on hundreds of 
individuals who have written me about this matter and the publicity which 
has been generated, I am providing limited comments on this matter during 
the investigation.  The purpose of the investigation is to determine 
whether the allegations warrant further action in a criminal setting.

Thank you for your interest.

                Shelly
Sheldon J. (Shelly) Sperling
United States Attorney
Eastern District of Oklahoma
1200 West Okmulgee
Muskogee, OK 74401
sheldon.sperling () usdoj gov

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