08-532, 08-732 Law of
Computer Technology
Homework 1. Due September 30, 2009, 11:59 p.m.
Both problems 1 and 2 are to be done by students of both 08-532 and 08-732.
Homework policy: You may work with other students on homework assignments provided that (1) each person's written submission is his or hers alone; and (2) you identify on the homework each person with whom you worked in connection with that assignment. For example, you may work in pairs or groups to research, discuss and debate the homework, but then each person must go off and write their own paper. You may never hand in work of another even if you state that you have worked with that person. If you quote or paraphrase from external sources, such as web pages, you must identify the source of such material. Violations of these rules will be dealt with harshly to the fullest extent of University policy.
Homework must be submitted as a Microsoft Word file having a filename in the following format: [your surname].doc by email to shamos@cs.cmu.edu. PDF files are not acceptable because it is very difficult to add comments to them.
Whenever a problem seems to call for a yes or no answer, you must answer “yes” or “no” AND provide an explanation for your answer. Failure to explain will result in a zero for the question even if your yes or no answer is correct.
You should realize that there are no “right” or “wrong” answers to these questions. The fact patterns given below are not real, although they may be similar to those of actual cases. The fact that a court may have decided a similar case in a particular way does not make that decision the “right” answer. Your grade will depend on the degree to which you follow the methods taught in the course for analyzing cases of this type.
1. Statutory
Interpretation [60 points]. Ben
pleaded guilty to violating 18
U.S.C. §2252(a)(4)(B), which provided at the time of his offense that “any
person who – knowingly possesses 3 or more books, magazines, periodicals,
films, video tapes, or other matter which contain any visual depiction that has
been mailed, . . . by any means including by computer, if -
(i) the producing
of such visual depiction involves the use of a minor engaging in sexually
explicit conduct; and
(ii) such visual
depiction is of such conduct;
shall be punished as provided in subsection (b) of this section.”
Ben
pleaded guilty, so the interpretation of this statute is not at issue. 18 U.S.C. §2252(b)(2) provides for punishment: “Whoever violates, or attempts or conspires to violate,
paragraph (4) of subsection (a) shall be fined under this title or imprisoned
not more than 10 years, or both
In deciding to
plead guilty, Ben relied on the advice of his lawyer, who told him that he
would probably be sentenced to far less than 10 years under the United States
Sentencing Guidelines (USSG), which are regulations having the force of law
promulgated by the United States Sentencing Commission (see http://www.ussc.gov/guidelin.htm). The sentence starts at a certain “base
offense level” defined in the guidelines, but can be increased if certain
factors are present. The Probation
Office, which recommends sentences, began with the base offense level for the
crime, but made three upward adjustments of two levels each because (1) “the
material involved a minor under the age of twelve years,” (2) “the offense
involved possessing ten or more books, magazines, periodicals, films, video
tapes, or other items, containing a visual depiction involving the sexual
exploitation of a minor, and (3) “the defendant’s possession of the material
resulted from the defendant's use of a computer,” all of which are enhancement
factors under the Guidelines. The
recommended sentence was 30 months.
Without enhancement, the recommendation would have been 15 months.
Ben’s attorney
observed that the second factor reads, “the offense involved possessing ten or
more books, magazines, periodicals, films, video tapes, or other items, containing
a visual depiction involving the sexual exploitation of a minor.” However, no books, magazines, periodicals,
films or video tapes were involved. The
only evidence found of the crime were computer files on Ben’s computer. Ben appeals the sentence, arguing that under
the principle of ejusdem generis, books, magazines, periodicals, films or video
tapes are all printed or published tangible items, whereas computer files are non-published
intangibles. The phrase “or other items”
must be narrowly interpreted because this is a criminal statute, and therefore
“other items” can only be things of like kind to “books, magazines,
periodicals, films or video tapes.”
Because computer files are not in this category, and because use of a
computer is expressly mentioned in factor (3), Ben argues that factor (2) was
improperly applied and his sentence should be reduced.
(a) Should Ben succeed
in his appeal? This question requires
you to perform an ejusdem generis analysis of the Sentencing Guidelines.
2. Jurisdiction [60 points]. Jack Handy, a resident of
Under California law, for a court to exercise jurisdiction over a non-resident defendant (Handy), (1) Handy must have purposefully availed himself of the benefits and protections of California’s laws; (2) the claim must arise out of the Handy’s activities
related
to
The following facts were brought out while the Court was considering whether it had jurisdiction:
·
eBay is based in
· Handy did not regularly do business over the Internet.
·
Handy sold three cars previously over eBay, but
none to any
· Handy did not choose the winning bidder. That was done by eBay.
·
Handy had visited
(a)
Should the
M. Shamos.