that it's unclear whether information has to have a value that is one of the issue is unclear whether you have to have it doesn't say anything about value so why would we even think that's an issue it did the value part comes up i suppose with word in the context of commercial use which might imply you can make commercial use of something valueless or fraud but i'm not sure why there is any i would even think there's an issue information is information  thousands of computers i believe that he was acquitted of that you know he wasn't he was convicted of the very statute that you're talking about which is intruding into corporations without authorization to get information that's what he was while these access he's adding pos words without using them access if so how did he get the passwords well they called will create the password there's no evidence that he ever by the way was this vagueness challenge made in the district court your honor it was not and there's and so your argument really is that the district court should have so it was fun to decided that the statute was unconstitutional will to have to be six six six case from nine hundred seventy four dead their vote for vagueness claim could be days for the first time on appeal because it involves fundamental right i didn't say it couldn't be raised the question is do you have to establish that clear or should have made it clear to the district judge that this statute was unconstitutionally vague has any court anywhere ruled the statute vague previously no you didn't they didn't know you don't know but the indictment so we were not even in a position to raise that challenge are all of the arguments that you're making arguments that would go equally to the frog the enhanced felony charge that was expressly in the indictment you know simple int included offense yes you're on but why didn't the government in advance of the trial submit request to charge that to specifically requested an instruction on lesser included offense well days before trial that sounds reasonable i and the jury then returned a verdict on the lesser included offense yes you're ok and you're saying despite all of that you had no idea the lesser included offense was going to be charged yes that's correct and he went to trial day presented taken from me from the computer that they sent actually their computer was working fine and the f b i you went to their house and told them that their computer was infected if the government wanted to prove  malware into someone else's computer without permission from that person i'm authorized to access is there a question about the yes you know you don't you don't think that they think there's a serious question whether that constitutes an authorized access defendant used the credentials that were necessary to access the bots in fact the government introduced direct evidence that the defendant did use those credentials the request username and the password that was unique to him that he created refer the court to g for seventy seven ga for seventy seven is a screenshot that computer scientist lewis cruz testified was taken from the defendant's home computer and showed that he had specifically used the request username and the corresponding password to log into a q an apple bots that he had previously intruded into in addition she for ninety six is another photograph taken from the defendant's a google drive which shows the defendant using a chat program called internet relay chat to communicate with the bots that he had put into his bot and those are just two examples and they are examples from which the court can infer in the jury could infer as well that the defendant in various ways with the specific ip addresses that are in those photographs i cannot say at the top of my head i can get back to you on that i can say that given the way that the malware operated and what expert witness testified to it would have had the same impact on every computer that infected as it did on those one of the things that was we noted to the jury and to the district court below was that the defendant's home computers had been erased with sophisticated erasing software and the f b i was able to extract that one piece of evidence that one set of log ins but it's fair to infer that there were many other logons that would have been captured if that evidence hadn't been destroyed moving to the could you address the opponent statute can be applied to this case under both steps of the actual territoriality analysis first with respect to whether the statute expressly has actually territorial reach we would concur with the district court's analysis and i have a novel which goes through ten thirty and explains that there are various references to protected computers including computers and foreign communication foreign commerce both in the definition of protected computer and in the subsections ten thirty seven defining government entities and giving foreign governments even if they are not in connection with the us government foreign governments protection against hacking and exploitation and extortion under the statute so given those references the statute clearly contemplates situations in which  only foreign conduct abroad is part of the criminal conduct and that can still be punished so long as under the due process clause there is insufficient access to the united states secondly we would argue that in this case the court actually even reached that actually territor analysis because there was more than sufficient domestic conduct related to the statutes focused unauthorized access involved the defendant using command and control servers at least three of which were in the united states the new jersey server which the government introduced a copy of a trial showing that all of the bots that he had infected and put under his control checked into a server in new jersey that he then used to give them commands so you see that the author is that he's very intentionally using u s infrastructure to commit his crimes there is also in new york server from colo crossing that he used for that internet relay chat program to communicate with his bots and the arizona server from server hub that he targeted computers a type of computer that was widely used the united states the manufacturer testified that the us was one of their biggest markets and there are more than a million computers in the united states and that he had u s victims and u advertisers who were effected by his click fraud i think there's more than enough domestic conduct to to meet the test i want to just address a couple more points the defense counsel raised one he noted that he claimed that he was that twelve days before trial was not sufficient to be aware of the lesser included charge in addition to the federal putting defendants on notice i want to note also that in pretrial filings even before twelve days before trial in the motion dismissed filings back and forth the government set forth those three elements of the misdemeanor charge as the minimum that it had to prove and the defen also set forth exactly those three elements without the enhancements for the felony as what were at issue so i think it's fair to say that both sides were aware that that was enough for a conviction in this case and finally the defense stated that the the victims themselves did not testify that they had information taken from them i just want to note that the late victims were not aware of the intrusion that was the point of the intrusion it was covert it was concealed it was designed to ensure that he had complete control of those computers without alerting the true owner but the information was extracted according to government sure there's a variety of information that was extracted i'll start with the simplest and sort of the most intuitive which is one of the types of malicious code instructed the infected computer to take a copy of a particular username and password file called a c c can file and sen  mr burley said that the suggested i thought that the passwords that were extracted were passwords that he had inserted as opposed to passwords and usernames the warranty there but it sounds as if that's not what you just described as two different sets of passwords at issue in the case one is that when he when mr gasper in the first intruded to a computer he created an admin account username request and the sealed password separately once he was in the computer he would instruct that computer to search its contents to see if it had what's called a c c cam configuration file which contains that user's password username and password for a separate program and so those are the usernames and passwords a copy of which was then copied sent to servers with correct correct so that i think is the simplest example other examples are that again in the in the process of the expert test testify that in the process of hacking into the computer those materials obtained yes your honor we did ultimately get a copy of an italian warrant from italian authorities essentially the materials were obtained by the united states law enforcement authorities made a request to the italians the italians reviewed  sentence that he received and i'm asking is there any continuing effect that would be relevant if they would suppose we said yeah you're right this shouldn't have been a one year sentence go back and reset use him would that have any practical