26 August 2001. Thanks to DH.

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