1 IN THE CIRCUIT COURT OF THE STATE OF OREGON 2 FOR THE COUNTY OF WASHINGTON 3 4 STATE OF OREGON, ) ) 5 Plaintiff, ) ) 6 v. ) No. C940322CR ) A91702 7 RANDAL LEE SCHWARTZ, ) ) 8 Defendant. ) 9 10 TRANSCRIPT OF PROCEEDINGS 11 BE IT REMEMBERED That the above-entitled matter 12 came on regularly for demurrer hearing before the Honorable 13 Gayle Nachtigal, Judge of the Circuit Court of the State of 14 Oregon, County of Washington, on July 1, 1994 at the 15 Washington County Courthouse in Hillsboro, Oregon. 16 17 APPEARANCES: 18 Thomas J. Tintera Deputy District Attorney 19 Appearing on behalf of the State; 20 Marc Sussman Attorney at Law 21 Appearing on behalf of the Defendant. 22 23 24 25 LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 index - i 1 EXHIBIT INDEX Marked Offered Rec'd 2 DEFENDANT'S: 3 No. 101 Minutes of hearings, 4 copy of proposed amendments 4 to House Bill 2795 5 No. 102 House Bill 2795 4 6 No. 103 Document 4 7 No. 104 Transcript 5 8 No. 105 Copy of Oregon Laws, 5 Chapter 737 9 No. 106 Copy of Oregon Laws, 5 10 Chapter 962 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 3 1 (July 1, 1994) 2 P R O C E E D I N G S 3 MR. TINTERA: State of Oregon versus Randal Lee 4 Schwartz, 9403-22CR. Mr. Schwartz is present. He's not in 5 custody at this time, he's appearing with counsel. It's my 6 understanding that the parties are ready to proceed on the 7 demurrer and may peripherally at some point during the 8 morning talk about some discovery issues. 9 THE COURT: Okay. 10 MR. TINTERA: And the State's ready to go. 11 THE COURT: Okay. Mr. Sussman. 12 MR. SUSSMAN: Good morning, Your Honor. Mark 13 Sussman appearing with Mr. Schwartz. We are prepared to 14 proceed. I have some exhibits and one witness that we 15 would like to present for the Court's consideration. 16 We have presented -- we filed previously both a 17 memorandum in support of our demurrer with two attachments; 18 an appendix that has two parts to it, and a reply to the 19 State's response to our memorandum. And the latter 20 included an attachment of transcript from the legislative 21 hearings, and I just wanted to make sure that all of that 22 was in the file -- 23 THE COURT: It is. 24 MR. SUSSMAN: -- and you had an opportunity to 25 look at that. LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 4 1 THE COURT: And I have. 2 MR. SUSSMAN: Good. Because there was a lot to 3 give you, to have presented to you at 4 o'clock the 4 afternoon before the hearing, I realize. 5 Your Honor, with that I'd like to offer certain 6 exhibits which I've presented to the State previously in 7 support of our position in this. 8 We would offer Defendant's Exhibit 101 which is a 9 packet of the minutes, the schedule, of the hearings on the 10 House Bill that was the basis for 164.377, and the minutes 11 of the hearings for the legislative committees that 12 considered the bill, and a copy of proposed amendments to 13 House Bill 2795, the original measure, which is the -- form 14 the basis of the statute in question. 15 Defendant's Exhibit 102 contains the engrossed 16 bill 2795 and the working measures that were considered in 17 the house judiciary committees, the bills that were 18 referred to in the proceedings that were transcribed for 19 the Court in the house judiciary committee. And it also 20 includes a copy of the enrolled House Bill 2795 so that you 21 have the -- all of the working copies of the bill as it 22 worked through the session in which it was originally 23 passed. 24 And Exhibit 103 is an Oregon session, was Chapter 25 537, which is the final bill that was passed. We also LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 5 1 would offer Defendant's Exhibit 104 which -- so that it's 2 in the record, and that is the transcript of the 3 proceedings of the house judiciary committee meeting. 4 The correct date should be May 6, 1985. There is 5 a typographical error on the cover sheet which says that it 6 was 1995. Our Legislature's never been accused of being 7 that forward thinking. 8 THE COURT: No. 9 MR. SUSSMAN: So I would just have -- correct 10 that for the record. 11 THE COURT: Okay. 12 MR. SUSSMAN: And finally, Exhibit 105 is a copy 13 of the Oregon laws from 1989, Chapter 730 -- I'm sorry, 14 737, which reflects amendments to ORS 164.377. And 106 15 that we offer is a copy of Oregon laws, Chapter 962 which 16 are the amendments that were passed in 1991. 17 And with these exhibits, Your Honor, you will 18 have a complete history of the statute with whatever 19 discussion, whatever, of the provisions of the bill were 20 involved in the legislative history and whatever changes 21 have been made to the statute. 22 THE COURT: Any objection? 23 MR. TINTERA: Well, Judge, as stated in my memo, 24 I don't think we get to this particular point. I think the 25 defendant has failed initially to establish any First LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 6 1 Amendment free speech right that is impinged in his 2 particular case; therefore, we don't go into a general 3 analysis of the statute. 4 It's my understanding of the procedures in a 5 demurrer of this nature if the defendant fails in a 6 First -- in establishing some First Amendment right, he is 7 restricted to a limited analysis of how the facts as 8 applied to him, or how the charges as applied to him, are 9 overbroad or the statute applied to him is overbroad or 10 vague. He doesn't -- is not able to go into a wider 11 framework, and the defendant has failed to do that. 12 He's failed to do it through his memorandum, any 13 of his memorandum, as to how this statute as applied to him 14 is either vague or overbroad. So I think there's an 15 insufficient foundation to receive any of these particular 16 exhibits. 17 THE COURT: Assuming, just for the moment, that 18 we get past that, is there any objection to these coming 19 in -- 20 MR. TINTERA: No, there is not. 21 THE COURT: -- at the second phase? Okay. 22 Assuming we get to that point, these matters will be 23 received. 24 MR. SUSSMAN: And I intended to address those 25 other issues -- LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 7 1 THE COURT: Right. 2 MR. SUSSMAN: -- in terms of my remarks to the 3 Court and indirectly through our use of the witness who we 4 intend to call in the case. But let me just sort of -- 5 perhaps as an introductory remarks to kind of frame how we 6 see the issues on that and where I disagree with the State 7 on that would be helpful in sort of where we go from here. 8 The -- last night I came across the most -- and I 9 think it's the most recent advance sheet which I just 10 received -- included the newest case from the Court of 11 Appeals dealing with the issue of vagueness. I know 12 (unclear word) challenges State v. Butterfield. 13 And that case cites State v. Albee which the 14 State relied upon in its response, and then talked at 15 length about the point that Mr. Tintera's just making now, 16 with indicating that the defendant must do more than simply 17 assert a faciel challenge where First Amendment issues are 18 not involved. 19 But, you know, if First Amendment issues are 20 involved, then the -- you get into a second -- a 21 secondary analysis of whether or not even hypothetically 22 the statute could infringe on constitutionally protected 23 rights of the defendant. 24 Now, interestingly, there's a vigorous dissent in 25 this case, and the Court of Appeals opinion in this case LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 8 1 makes no reference to State v. Graves nor -- although Albee 2 cites State v. Graves for its position. And the 3 significance of State v. Graves, including where we are in 4 this particular case, is that in making a vagueness in 5 challenge, you know, in evaluating a statute to determine 6 whether it is impermissibly vague, the Court is -- bear 7 with me for a second, I'm going to grab my -- the Court 8 required -- has stated a standard for reviewing those 9 statutes today that: 10 "The term of the criminal statute must be 11 sufficiently explicit to inform those who are subject 12 to it of what conduct on their part will render them 13 liable to its penalties." 14 Now, the line of cases which the State's relied 15 on and which I believe that Butterfield and even Albee 16 relies on to say that a mere general faciel challenge is 17 not sufficient, includes cases like State v. Langley which 18 have rejected the challenge of the defendant who was 19 charged with some conduct which is other than the conduct 20 involving the offending language, the language that the 21 defendant claimed was offensive in that particular 22 statute. 23 In Langley it was a situation where he was 24 complaining about the otherwise in-custody provisions of 25 the aggravated murder statute to elevate the murder to LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 9 1 aggravated murder. And the Court held in that case that 2 whether or not that's vague, it doesn't matter, because 3 this man was clearly in custody in a state correctional 4 facility at the time, so he was not entitled to raise that 5 challenge. 6 Now, what we have in this particular case, if you 7 look at the indictment, is we have a person who is 8 specifically accused in Count I of the indictment of 9 altering -- of "knowingly and without authorization 10 altering a computer and computer network consisting of 11 Intel computers, Mink and Brillig." 12 The statutory provisions that we are complaining 13 about as being vague relate specifically to the conduct 14 that Mr. Schwartz is alleged to have committed: altering 15 these computers without authorization. 16 And we are contending in this case that in his 17 capacity as a -- at the time as a contract -- contractor 18 employee of Intel with access to and working on these 19 computer systems, that without the kind of guidance that 20 the law requires, you know, in a criminal statute, Mr. 21 Schwartz could not know what was criminally proscribed and 22 what was not, or we're prepared to show that the statute 23 would cover activities which would be socially acceptable 24 and non-criminal, as well as offensive or criminal conduct. 25 But the key thing in this is that the specific LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 10 1 language that we are challenging relates directly to the 2 activities that are alleged to be the criminal conduct of 3 Mr. Schwartz, and that distinguishes this situation, this 4 case, from Langley and Butterfield and I believe most -- 5 virtually all the cases that have addressed that issue 6 which have said that you cannot complain of vagueness if 7 it -- if the offensive conduct, the language, does not 8 apply to what you are alleged to have done in this 9 particular case. 10 Now, assuming we go past that and the Court is 11 prepared to deal with this question of vagueness, I think 12 that there are going to be several very important issues 13 which you will have -- we think that you will have to 14 decide in determining either that the terms are not vague 15 or, if they are, in terms of trying to find a way to save, 16 if possible -- and we suggest it's not -- these particular 17 statutory terms. 18 I think that the Court's going to be presented 19 with the question of what -- in the absence of a statutory 20 definition, what is the meaning of the term "alter," as 21 used in 164.377. 22 Second, with respect to the argument and the 23 question about the issue of "without authorization," Mr. 24 Tintera has argued that, you know, has obvious, very simple 25 meaning. I mean, the term "authorization." LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 11 1 The point we make is not that authorization is -- 2 or "without authorization" is itself unclear, but what the 3 statute has done to make it unclear is it has failed to 4 designate what kind of authorization is required and from 5 whom. 6 Without -- the purpose of our appendices is to 7 show you that every other statute in the Oregon Revised 8 Statutes that requires some form of authorization 9 specifically -- gives some specific indication of where the 10 authorization is to come from or what kind of 11 authorization is required. Without that -- and so we -- 12 this Court will be confronted with then with the 13 question -- we'll ask you to make findings and decide, 14 also, what does that term mean in terms of from what source 15 and from whom. 16 Similarly, the next level of problem that we 17 identify and we ask you to make a decision on with respect 18 to the issue of without authorization, is that the language 19 of the statute and the language of the indictment says 20 "knowingly and without authorization" alters the computer, 21 computer system, computer program. And it is not clear 22 from the pleading or from the statute whether "without 23 authorization" is a separate element or whether -- you 24 know, to which the mental state knowingly applies. 25 In other words, we'll ask you to decide whether LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 12 1 or not that means that the State must prove that -- beyond 2 a reasonable doubt -- that Mr. Schwartz knew or had reason 3 to know that he was not authorized to take certain 4 actions. 5 The alternative reading, if you read "knowingly 6 and without authorization" together as a single element, as 7 a single kind of mental state, seems to create a situation 8 where the State then would need to prove only that Mr. 9 Schwartz knowingly took certain action and he was without 10 authorization. In other words, it makes it kind of a 11 strict liability offense like a driving while suspended, 12 and it would not matter if he knew that he was without 13 authorization or that he didn't know. 14 That's something that also I suggest the Court 15 will need to clarify and we'll ask the Court to make some 16 findings on. And -- because these issues are issues which 17 are going to be critical, both for the defense, both in 18 terms of planning its defense at trial, and also in terms 19 of what jury instructions are going to be required and what 20 are the -- basically the issues of proof that are going to 21 be required at trial. 22 These are the things which are uncertain and 23 unclear from the terms of the statute. These are the 24 reasons why we submit that the statute is vague. It's 25 vague as it applies to, you know, to Mr. -- the conduct LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 13 1 alleged against Mr. Schwartz, and why we feel that it 2 involves so much legislation by the Court that it can't be 3 saved and why we ask -- we'll be asking the Court to grant 4 the demurrer. With that I'm prepared to call my witness. 5 THE COURT: Okay. 6 MR. SUSSMAN: At this point I'd like to call 7 Norman Kirth (phonetic). 8 MR. TINTERA: Your Honor, I'm going to object to 9 taking any testimony. It's my understanding that a 10 demurrer is purely a legal issue. It does not require the 11 production of any facts and, in fact, the case law supports 12 proposition that facts are not to be considered at the 13 trial court level in regard to a demurrer. And I'm 14 referring specifically to State v. Waldo, 93 Or App 613 and 15 State v. Reed 116 Or App 58 which deal with the -- a trial 16 court taking evidence in regard to a demurrer where the 17 Court of Appeals found that that was improper. I don't 18 think it's -- that's my objection. 19 THE COURT: What's the nature of the testimony 20 that this witness is (indiscernible). 21 MR. SUSSMAN: Your Honor, the statute deals with 22 some specific -- specifically deals with a very narrow 23 area, the use and operation of computers, computer systems, 24 and computer networks. 25 The -- Mr. Kirth is a computer engineer, a LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 14 1 consultant, an expert in the operation of computer systems 2 and then familiar with the kind of work that is done by 3 systems analysts such as Mr. Schwartz, and is called to 4 point out to the Court the issues that are raised by the 5 statutory definitions, what the industry standard is, what 6 kind of work Mr. Schwartz would be doing, what kind of 7 operations would fall within the purview of that statute as 8 under these various interpretations and what would not. So 9 that it would be instructive to -- 10 THE COURT: How is that appropriate in a demurrer? 11 MR. SUSSMAN: Well, the -- 12 THE COURT: This is a legal argument. It's not 13 factual. So how is it appropriate? 14 MR. SUSSMAN: Because the -- we are -- the 15 Court's going to have to make some assessment as to whether 16 or not the statute, you know, in terms of Graves is -- 17 provides the kind of meaning to the person who are -- 18 who's -- who this statute is directed at in a way that 19 is -- makes it understandable and gives them fair notice of 20 what the proscribed conduct is. 21 And we have a definition in here which has no 22 meaning. It has different meanings in the community in 23 which Mr. Schwartz is working. And it has different -- and 24 it's proposed -- perhaps even different meanings proposed 25 by the State. And to -- because of the specialized nature LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 15 1 of the terminology used among people who are in the 2 industry and who are the -- frequently are the subjects of 3 the statute and the differences in the statutory 4 definitions and the absence of definition with respect to 5 this particular key element of "alter," that that factual 6 basis and understanding would be necessary for the Court to 7 assess whether or not the conduct that would be -- that 8 could be -- that is being proscribed here, can and does go 9 beyond offensive or socially unacceptable conduct to 10 conduct which would be perfectly socially acceptable and 11 would be within the -- would be outside the bounds of what 12 the statute could cover. And it's for that reason we -- 13 THE COURT: Sustain the objection. 14 MR. SUSSMAN: Okay. 15 THE COURT: Any additional legal argument? 16 MR. SUSSMAN: Yes. Perhaps Mr. Tintera would -- 17 want to -- I don't know if he wants to respond to the 18 previous argument first or I -- 19 THE COURT: Why don't you just go through it and 20 then we'll let Mr. Tintera and then -- 21 MR. SUSSMAN: I don't want to repeat the 22 memorandum. 23 THE COURT: Sure. I appreciate that. 24 MR. SUSSMAN: But so I will -- I want to 25 highlight a couple of what I think are key points here. LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 16 1 The statute -- it's important -- I think it's 2 critical in evaluating the statute to read the definitions 3 that are there along with the statute and the statutory 4 provision in Section 3. We have a statutory definition of 5 "access" which covers virtually all means of functioning or 6 operating a computer. 7 As we have discussed in our memorandum, "alter," 8 which has no definition, if -- you know, can have -- has to 9 have a separate meaning from the word "access." If it does 10 not have a separate meaning from the word "access," then 11 it's a redundancy, it's a meaningless act. And as the 12 Court has said in 1000 Thousand Friends case cited -- which 13 is at 299 Oregon, at pages 357 to 358 -- the courts cannot 14 and will not presume that the terminology or that that kind 15 of act of the Legislature in creating terms is meaningless. 16 Well, if we were to take the State's position 17 that "alter" has a very simple, straightforward 18 dictionary-type definition which means simply to change or 19 to modify, you know, to do something that -- different to a 20 computer system, that would contain -- that would cover 21 virtually any activity that a computer operator can and -- 22 you know, may do to any of these systems. 23 Something as simple as taking the -- changing the 24 color configuration on the monitor, on the screen, is a 25 change to the computer system or the computer program. It LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 17 1 may not be -- and the definition, I believe, the State 2 offered was one that doesn't require a change -- you know, 3 it doesn't have to be a substantive change, but it's one 4 that simply creates some kind of change to that program or 5 system. That kind of definition doesn't give guidance. 6 Any definition suggested such as to modify the 7 basic functioning of the computer, computer network or 8 system, involves doing the very acts covered in the word 9 "access." It would be virtually -- I suggest it would be 10 impossible for a systems analyst such as Mr. Schwartz to be 11 told you may have access to this computer, as defined in 12 the statute, you know, which means that you may instruct 13 the computer, you may store data in it, you may retrieve 14 data from that computer or you otherwise may make use of 15 the resources of the computer, computer system or network 16 but you may not change anything. You may not alter it. 17 In that context the only way you can alter 18 something would be to either delete -- as we've suggested 19 in our memorandum -- delete something completely or, you 20 know -- and that is not what -- the definition which is 21 suggested by the State and it is not the plain common-sense 22 definition of the meaning of the word as we use the term 23 "alter." 24 Given the -- those, you know, the fact that 25 you've got these other -- you've got a scheme with LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 18 1 definitions and you have this term which is not defined, 2 and the definitions that are there subsume, virtually, all 3 the activity that a person who is subject to that statute, 4 a person working with the computer systems, inside or 5 outside, would be involved in. 6 That term is either so broad as to be meaningless 7 or so broad as to offend the holding in State v. Sanderson 8 which is that it covers socially acceptable, even if 9 offensive, behavior as well as behavior which may be 10 proscribed by criminal statute. 11 Now, going beyond that, this type of problem 12 also, not even hypothetically but as the facts in the 13 discovery in this case establish, it creates a potential 14 First Amendment issue. As we have pointed out in the 15 memorandum, computer communication is protected by Article 16 I, Section 8 of the Oregon Constitution and the First 17 Amendment of the United States Constitution. 18 The privacy of E-Mail and E-Mail communication is 19 also federally protected, you know, by statute and 20 recognizing that there is -- that it's protected speech and 21 entitled to statutory protection in the Electronic 22 Communication Privacy Act, 18 USC 2701 through 2711. 23 Now, what this statute and this also would do, 24 then, would mean that any change, any modification, any new 25 program, anything that Mr. Schwartz or anybody does to a LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 19 1 computer network or system which might impede, you know, 2 which -- to be done in order to communicate electronically, 3 to access E-Mail, which is an electronic equivalent of 4 sending of mail by postage through the postal service, 5 would be prohibited if there was a question about -- if 6 anybody said that that was unauthorized. 7 And I would suggest that because the statute can 8 sweep broadly enough to include a proscription on that kind 9 of conduct, and in fact it is in part -- it appears to be 10 in part, according to the discovery, a basis for the 11 allegations against Mr. Schwartz; that is, the allegation 12 at least appears to be the allegation behind the 13 allegation, the Count I which alleges the alteration of 14 this Brillig and Mink system, that the statute does affect 15 some protected First Amendment rights. 16 Now, I want to make one additional point. I 17 think that an employer would certainly have the right to 18 tell an employee that you may not use company postage, you 19 know, or the typewriters to mail personal mail. But I do 20 not believe that the State could make that criminal, you 21 know, unless it were done separately as a theft of 22 services. But the act of communicating and using the 23 resources to -- you know, using the -- 24 THE COURT: Try to separate that out. You mean 25 it's okay to -- you can't tell them -- LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 20 1 MR. SUSSMAN: You could not tell them that -- 2 THE COURT: You can't type it? You can't -- I 3 mean, as soon as you type it, you've used the typewriter, 4 you've used the ribbon, you've used the time. 5 MR. SUSSMAN: Right. 6 THE COURT: They can prohibit all of that -- 7 MR. SUSSMAN: They can prohibit that -- 8 THE COURT: -- and make it a crime. In fact, 9 they have. It's theft of services. 10 MR. SUSSMAN: Okay. 11 THE COURT: So what is it that the employer is 12 allowing them to do? 13 MR. SUSSMAN: What I'm saying is that an employer 14 may say that you -- that as a policy we do not want you 15 using our resources to send private communication. We do 16 not want you to use the telephone to communicate, you know, 17 for -- on private business. As a policy matter that 18 interferes with our -- with the smooth operation of our 19 business. 20 THE COURT: Costs us money. 21 MR. SUSSMAN: Costs us money. 22 THE COURT: All right. So they've prohibited 23 that. You do it. 24 MR. SUSSMAN: You do it. If the -- I do not 25 believe, though, that the State could make the prohibition LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 21 1 on the communication criminal, the use of the mail 2 services, you know, through there. 3 THE COURT: So how -- but they've stopped the 4 communication. You can't talk on the telephone, you can't 5 type a letter, you can't drop a -- we can't do it here. 6 We can't -- I can't mail my personal mail from within -- 7 drop it in the mailbox and have a county or state employee 8 pick up my personal mail and put it in the mailbox. I 9 can't do that. 10 I have to take my own -- and that's fine -- take 11 my own personal mail down and mail it. I can't do that, 12 because that's taking a state employee to do my personal 13 business, and I can't do that. And it's illegal for me to 14 do that. Now, I can write all the letters I want. I just 15 can't do that. 16 MR. SUSSMAN: That -- 17 THE COURT: So the employer is -- this isn't a 18 First Amendment issue. There's nothing to stop E-Mail if 19 it's otherwise authorized. You can do all the 20 communicating you're authorized to do. You may not be able 21 to do it through the computer if it's personal business. 22 MR. SUSSMAN: Well, and if it is company business 23 but it is done in a way that the company policy says we 24 don't usually do it this way, that would affect the -- 25 THE COURT: It's not First Amendment issue. LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 22 1 MR. SUSSMAN: Well, I think so because I think it 2 involves business communication and it involves also the 3 right to use the electronic kind of equivalent of the mail 4 (indiscernible). 5 THE COURT: First Amendment is a personal right. 6 It has nothing to do with my communication on business. I 7 have no First Amendment right to communicate beyond what my 8 employer wants me to communicate, as far as my job is 9 concerned. That's not a First Amendment right. 10 First Amendment is personal to me or my company 11 if it were an entity. It's that company may have some kind 12 of a First Amendment right. But the First Amendment right 13 is personal. And what I have yet to hear is how this is a 14 First Amendment issue for Mr. Schwartz. 15 MR. SUSSMAN: Because -- and we suggest that 16 it is -- that the statute which can reach -- which can make 17 it criminal for him to -- or a person in his situation to 18 make any entry onto a computer, to take any act, you know, 19 computer stroke, any -- do anything to the computer in 20 order to communicate, say, through E-Mail, whether or not 21 even -- setting aside the question of whether there's 22 company policy that says that it is criminal to do that, is 23 something which restricts communication of -- you know, 24 electronic communication of computers which is recognized 25 as a form of communication protected under the Oregon LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 23 1 Constitution and which, you know, restricts -- would 2 restrict that individual's right to the First Amendment 3 communication through the electronic E-Mail or, you know, 4 Internet computer system network. 5 We think that it does reach that far. And in 6 fact, in a case where the allegations involve charges of 7 making some changes in a system to do precisely that, it 8 affects Mr. Schwartz's right to gain access to his mail. 9 THE COURT: His personal mail? 10 MR. SUSSMAN: Electronic mail. Personal and 11 business. 12 THE COURT: This isn't a First Amendment issue. 13 I've yet to hear anything that convinces me that this is a 14 First Amendment issue on vagueness. So unless you have 15 more, I need to hear how this statute affects him on 16 vagueness, not the broad -- 17 MR. SUSSMAN: Well, let's separate the First 18 Amendment -- the First Amendment is an overbreadth, not a 19 vagueness. 20 THE COURT: Correct. 21 MR. SUSSMAN: And so -- but the vagueness 22 argument is a separate one from which we distinguish. And 23 I ask you to distinguish the argument that we've -- you 24 know, the discussion we've just been having about access to 25 mail, restriction on communication, because that can be LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 24 1 very clear. And there can be a very clear -- for instance, 2 a policy which simply says you may not use the mail while 3 you work here, you may not have any access to E-Mail while 4 you are here, may be very clear. 5 And we would argue that that is overly broad 6 because it would infringe -- I would argue it would 7 infringe on First Amendment communication or Article I, 8 Section 8 communication privileges. 9 But setting that aside, if you don't accept that, 10 that's totally separate from the issue of whether or not 11 the terms -- the term "alter" -- 12 THE COURT: Right. 13 MR. SUSSMAN: -- is -- you know, is vague. 14 THE COURT: And "without authorization." 15 MR. SUSSMAN: And "without authorization" does 16 not provide the guidance. Because even within the accepted 17 workplace activity that this person who was an employee or 18 through a contract, and working with these systems was 19 involved in his everyday activities, those -- the "alter" 20 definition is so uncertain that it could mean virtually any 21 activity that he was to take. 22 THE COURT: Right. Okay. 23 MR. SUSSMAN: And the "without authorization" 24 leaves no guidance as to whether or not it has to be from a 25 specific place, whether it's by office practice, whether it LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 25 1 has to be done -- whether he had to know there was no 2 authorization or whether he simply had to know he did the 3 act. And that's -- I would -- that vagueness argument, I 4 think, still is -- even if you don't accept the First 5 Amendment argument, that, you know -- 6 THE COURT: I clearly don't accept the First 7 Amendment argument. 8 MR. SUSSMAN: But we ask you not to -- 9 THE COURT: No. You do have -- the words that 10 are used have to convey some meaning. 11 MR. SUSSMAN: Yes. 12 THE COURT: They can't be so amorphous that you 13 can't determine what your behavior is, and that's a 14 separate issue from the First Amendment. The drift of my 15 not buying the First Amendment is true. I don't buy it as 16 a First Amendment issue, but the other one is still an 17 issue that needs to be resolved. 18 MR. SUSSMAN: Okay. 19 THE COURT: Unless you want to put something more 20 on the record on the First Amendment part of it, you don't 21 need to for me, but you may want to for the record, and 22 that's fine. 23 MR. TINTERA: No, Your Honor. Your Honor, in 24 regard to the actual definitions, I think my memo, although 25 simple in its approach, is on point in regard to the LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 26 1 meanings of these. 2 If you take any words out of context, they 3 perhaps lose some of their meaning. But if you put them 4 back in the statute and read the sentences in which they 5 exist, I think -- at least in my mind -- it's fairly clear 6 what these words mean. 7 I would -- the mental state is "knowingly, 8 without authorization" would be an element, and that 9 does -- "...person alter, damage or destroy any 10 computer..." 11 THE COURT: I'm going to interrupt you. 12 MR. TINTERA: Sure. 13 THE COURT: Because is it your position that Mr. 14 Schwartz must knowingly alter and do it knowing he's 15 without authorization or does he only need to know he's 16 altering it and the authorization is a strict liability 17 issue? 18 MR. TINTERA: Well, you know, when I read that in 19 defendant's memo, I thought about it. I thought about it 20 in -- as a trial strategy-type thing. But I think in 21 fairness, I think it's that he has to know that he's 22 without authorization, that it's not a strict liability. 23 THE COURT: So it's a two. He's got to know he's 24 altering it -- 25 MR. TINTERA: Right. LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 27 1 THE COURT: -- or the other problem with 2 knowingly, and he has to knowingly do it without 3 authorization. 4 MR. TINTERA: Yes. I think that's a fair reading 5 of the statute. I think that's what was intended, but... 6 THE COURT: Okay. Go ahead. 7 MR. TINTERA: I mean, obviously it would be 8 easier if I answer differently at trial time, but I don't 9 think that's a correct reading of the statute. 10 And I disagree with counsel in regard to the 11 "access" argument is the same as "alter," especially since 12 the inclusion of the language "without authorization." And 13 I liken it -- as I was listening to Mr. Sussman, I was 14 trying to think of analogies. I'm not going to go over my 15 memo. I know the Court has read it. 16 But the "access" in my mind is like opening up a 17 diary, if you want to analogize it to a book. You can 18 access it, you can make entries, you can read what's there, 19 but you can't -- if you want to go over to the "alter" -- 20 you can't without authorization tear out a page, damage it, 21 white-out areas of it. That would be without 22 authorization. You're altering, damaging or destroying a 23 particular diary. So it seems to me that that's a 24 legitimate analysis. 25 And, you know, Mr. Sussman says well, it could be LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 28 1 so much as altering the color of a screen. The fact of the 2 matter is if you want to do that and you're not authorized, 3 I suppose you could be subject to criminal prosecution 4 under this law. The prosecutor's office must have an awful 5 lot of time on their hands to pursue that type of thing. 6 But you could imagine if someone accessed the 7 state system of computers, and assuming that the type is 8 black and that they changed the background color of the 9 screen to black, that would be an alteration of the system. 10 It wouldn't damage it or necessarily destroy it, but it 11 would certainly alter how the system was working. And 12 doing that without authorization would certainly be a 13 criminal act, because what -- essentially what it would do, 14 would make your computer useless. Because with a black 15 background and black letters, you would see nothing but a 16 black screen. 17 So even though I think the demonstration, or the 18 example, was meant to show how absurd this could get, I 19 think within this particular statute that's exactly what 20 it's addressing. Not looking or taking or instructing a 21 computer to print something, but going in and damaging it, 22 destroying it, or altering the way that it works in the 23 mechanism of the computer, not the data that it holds. 24 THE COURT: Well, the fact that the DA's office 25 may be too busy to prosecute the fact that the screen now LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 29 1 has a hot pink background as opposed to the standard IBM 2 green, or whatever it is, that may be comforting to some 3 people, but I don't think that's the standard as to whether 4 or not it is -- 5 MR. TINTERA: Right. It is a -- 6 THE COURT: -- so (indiscernible). 7 MR. TINTERA: -- a criminal act to do that under 8 this statute. 9 THE COURT: Without authorization. 10 MR. TINTERA: Exactly. 11 THE COURT: So you have to have the two together. 12 MR. TINTERA: Yes. I think that's clear. 13 THE COURT: No matter what the alteration is, if 14 the alteration is without -- even if it's in -- even if the 15 alteration doesn't affect the working of the -- nothing 16 wrong with a hot pink background. You may not like it, but 17 there's nothing wrong with it as opposed to the black 18 background with the black letters -- 19 MR. TINTERA: Right. 20 THE COURT: -- since you can't use the 21 material -- 22 MR. TINTERA: Right. 23 THE COURT: -- on it. 24 MR. TINTERA: I think that's clear. If a 25 person -- if you happen to have a modem at home that allows LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 30 1 you access to, like, let's say, the Internet that we've 2 been hearing about a lot about lately, and a person somehow 3 gains your password and without your knowledge or 4 authorization they go into your computer and change 5 anything, that is a criminal act. 6 This statute is addressed at people without 7 authorization going into computers and changing the 8 functioning of the computer or damaging it or destroying 9 it. 10 THE COURT: Okay. 11 MR. SUSSMAN: May I briefly respond? 12 THE COURT: Certainly. 13 MR. SUSSMAN: I think the State's argument, the 14 point that Mr. Tintera makes, shows precisely the problem 15 and why this statute's vague and can't be saved. 16 The -- because as I understand the argument, what 17 we're saying is that the term "without authorization" then 18 defines what the criminal conduct becomes, because any -- 19 virtually any change is going to be criminal as long as 20 somebody says it's not authorized. And what that does, 21 then, is give such broad discretion not just to the 22 prosecution in deciding what cases they will or will not 23 take, but to the other people in the work force, that it 24 doesn't provide the kind of specific guidance that is 25 required under due process in the cases that govern how a LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 31 1 criminal statute should read. 2 That is the precise -- and it -- as the State 3 concedes, since it is broad enough to cover something as 4 innocuous as the changing-the-color-of-the-screen argument, 5 or something which might be clearly intended to be 6 business-related but may be done outside of procedure -- of 7 normal procedures -- something that could be the subject of 8 a routine employment reprimand, could become criminal under 9 this. 10 And as the State argues, it is criminal under 11 this statute if the office chooses to prosecute the case. 12 That creates precisely the kind of problem that State v. 13 Sanderson said was, you know, impermissible in sustaining a 14 vagueness challenge to the statute in question in that 15 case. 16 The other thing is that -- I'm sorry, I've just 17 spaced out on the specific case, but it's also sort of like 18 the case cited in -- which we cited where it says that 19 sometimes it's not sufficient to have a mental state 20 attached to the -- where you describe certain conduct 21 and -- in order to try to save it. Because if the 22 described conduct itself is so elastic and is so, you know, 23 uncertain that you still don't have clear direction -- 24 direct as a clear understanding of what the parameters of 25 that conduct is, the fact that you add "knowingly" or LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 32 1 "intentionally" to that, still doesn't save an otherwise 2 vague phrase. 3 And I see both of those problems in the State's 4 concessions about what the statute means, and I think those 5 are the things that make that -- those flaws in the statute 6 fatal. 7 THE COURT: But shouldn't the owner-controller, 8 whatever the entity is that is in control of the computer, 9 have the ability to say you can and you cannot do 10 something. And it may be that they want all their computer 11 screens to be blue. That's their trademark. They want 12 that. They don't want it hot pink or yellow or green or 13 any other color, and that the instructions are clear: you 14 are not to change the background color. 15 That's a silly example, perhaps, but -- and then 16 the employee goes ahead and knowingly changes the 17 background color. That's altering -- 18 MR. SUSSMAN: Mm-hmm. 19 THE COURT: -- it's without authorization. As a 20 society we may not -- we may want that authority there with 21 computers. I don't -- 22 MR. SUSSMAN: And that is -- you see, again, I 23 think it becomes an important legislative decision to make. 24 And the problem -- and I want to again refer back to 25 Sanderson because I think this is squarely on point. And LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 33 1 the Court there said that the phrase: 2 "Alarms or seriously annoys..." -- you know, in 3 the harassment statute there -- "...gives no basis for 4 distinguishing between antisocial conduct which was 5 intended to be prohibited and socially tolerable 6 conduct which could not reasonably have been intended 7 to be the subject of the criminal sanction." 8 9 Now, when you look at the legislative history 10 behind this particular statute, there are two things that 11 are striking about it. One is that the legislative -- the 12 Legislature really didn't consider this at all and so that 13 there's very little discussion of the implications of what 14 does this mean when we use this term "definition of 15 access," what does "alter" mean in this context. 16 But it also is very clear that the prohibit -- 17 the social -- the conduct which was intended to be 18 proscribed was the danger of outside hackers coming into a 19 business who had no connection to things and doing -- and 20 then taking -- and gaining access to and doing things to 21 the computers, computer network, and computer system, of a 22 business where they had no internal controls in their 23 employment process, you know, and people who had -- were 24 doing this totally outside of their authority and control. 25 That seems to be -- the legislative history seems to LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 34 1 indicate that that was the thrust of the legislation. 2 Now, the problem is that the reach of the 3 legislation has gone way beyond that, and it has gone 4 beyond it to the point where, as the State concedes, then a 5 company or a manager in a company can say, I told so-and-so 6 not to run the computer this way or not to get access to 7 E-Mail in this manner and this person did it, and I'm going 8 to the District Attorney's office because not only is it a 9 violation of the direct authorization, but I can see -- the 10 statute says it's a crime. 11 Is that -- and I suggest that that is expanding 12 the reach of this criminal statute so far that it includes 13 conduct which the Legislature -- I don't believe we can 14 assume the Legislature intended to make -- to criminalize, 15 because that's not socially intolerable conduct. It's 16 something which can and should be handled strictly within 17 the terms of the employment relationship. 18 There are plenty of civil ways to do that, and I 19 don't think the Legislature really wanted, and there's 20 nothing in that history to suggest, that they would have 21 intended to deal with that kind of activity which this 22 statute clearly covers. 23 THE COURT: Thank you. Anything further? 24 MR. TINTERA: Just a brief point, Your Honor. 25 The Sanderson case that counsel has mentioned was dealing LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 35 1 with free speech issues. And I think the analysis is very 2 much different when we're talking about upholding a free 3 speech point as opposed to this particular analysis. So 4 I'm not necessarily sure that Sanderson would overlay 5 perfectly on these particular facts. Beyond that, I don't 6 have anything to add, Judge. 7 THE COURT: Okay. Well, I want to read the 8 recent information that's come out, and you've got, what, a 9 trial setting in September? 10 MR. TINTERA: Yes. 11 MR. SUSSMAN: Yes. 12 THE COURT: And you have another omnibus in 13 September, as well? 14 MR. SUSSMAN: Yes. 15 MR. TINTERA: Yes. 16 THE COURT: I'm going to try to get this out next 17 week. But I'm leaving on vacation for two weeks after that 18 and I'm not -- I can't promise with a short week that I can 19 get an opinion out. Otherwise, I'll do it as soon as I get 20 back, so you'll have it by the end of July. But you had 21 some discovery, other things you needed to talk about 22 briefly? Or law (indiscernible.) 23 MR. TINTERA: Your Honor, we are in the process 24 of trying to resolve any discovery disputes between the 25 parties and not involve the Court. And I'm not sure if Mr. LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 36 1 Sussman -- I've indicated to him some things that I don't 2 think he's entitled to. I'm not sure if he wants to bring 3 those up today. 4 But what I would suggest, with leave for him to 5 bring up whatever he'd like today in regard to discovery, 6 that if the Court would entertain setting this over to a 9 7 o'clock August 5th hearing just to make sure. 8 We are in the process of trying to get to Mr. 9 Sussman what he requests. And I haven't satisfied all his 10 requests yet, but I'm in the process of trying to do that. 11 And my thought was if we could set this for a short 12 appearance at 9:00 a.m. on August 5th with leave for the 13 parties to cancel it if we -- nobody has a problem but then 14 to re-address any discovery issues. There may be some that 15 he'd like to talk about today, I'm not sure. 16 MR. SUSSMAN: Actually, that would be fine 17 because I think there were two issues that we had -- we 18 didn't have a chance to finish discussing this morning that 19 involved some uncertainty. And I think perhaps with 20 additional discussion we'll know if that's something we 21 have to argue -- 22 THE COURT: Okay. 23 MR. SUSSMAN: -- rather than ask you for a 24 decision on it. And August 5th will give us plenty of time 25 before the trial to finish complete discovery. LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 37 1 THE COURT: That gives you additional -- another 2 hearing, even yet, with the September 9 hearing -- 3 MR. SUSSMAN: Right. 4 THE COURT: -- to resolve any final problem. 5 MR. TINTERA: And, Your Honor, I would like to 6 point out that I filed a discovery request, and I do 7 consider the discovery door to swing both ways. And I 8 would expect by August 5th that I would have discovery from 9 the defense. 10 THE COURT: It's a revolving door. When it's 11 swinging, it tends to hit people when it swings, so we 12 rather it just revolve around. I assume the defense is 13 going to give you the discovery you're entitled to and if 14 not, at the August 5, 9 o'clock hearing we'll resolve both 15 problems. 16 MR. TINTERA: Thank you, Your Honor. 17 THE COURT: And so everyone knows, I'm a fan of 18 discovery, so I think it goes both ways and everybody ought 19 to have it. Okay. I hope to get it out next week. 20 (End of Proceedings.) 21 22 23 24 25 LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 Certificate 38 1 STATE OF OREGON ) 2 ) ss. 3 County of Washington ) 4 5 I, LINDA M. WRIGHT, court reporter, certify that 6 the foregoing, pages 1 through 37, inclusive, were 7 transcribed from the official audio record and constitute 8 a full, true, and correct transcript as far as is possible, 9 taking into consideration the quality of the official 10 audiotape record of the proceedings held in the 11 aforementioned matter on July 1, 1994. 12 Witness my hand at Portland, Oregon, this 29th 13 day of March, 1996. 14 15 16 17 Linda M. Wright, Court Reporter 18 and Notary Public for the State of Oregon 19 My commission expires: 4-26-98 20 21 22 23 24 25 LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847 1 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, ) Washington County Court 2 ) Case No. C940322CR Plaintiff-Respondent, ) 3 ) Appellate Case v. ) No. A91702 4 ) RANDAL LEE SCHWARTZ, ) NOTICE OF FILING AND 5 ) PROOF OF SERVICE Defendant-Appellant. ) 6 I certify that the original transcript from proceedings 7 on July 1, 1994, in the above case and a copy of this Certificate were filed with the clerk on March 29, 1996. 8 9 I certify that I personally reduced this transcript to typewriting from the official audio record, pursuant to 10 Oregon Rules of Appellate Procedure 3.76. 11 I certify that the original of this Certificate was 12 sent to the Administrator on March 29, 1996. 13 I certify that in compliance with ORS 19.078, I have 14 this date served a copy of this Certificate, together with a copy of this transcript by United States mail on: 15 Washington County District Attorney; 145 N. First 16 Avenue; Hillsboro, Oregon 97124 17 Marc Sussman, Attorney at Law; 135 S.W. Ash Street, Suite 600; Portland, Oregon 97204. 18 Dated this 29th day of March, 1996. 19 20 _______________________ Linda M. Wright, Shorthand Reporter 21 7200 SW Trillium Avenue Beaverton, OR 97008 22 € € 23 € € 24 25 LINDA WRIGHT, COURT REPORTER 7200 SW TRILLIUM AVENUE, BEAVERTON OR 97008 503.646-9836 FAX: 641-7847