The Councilman, Spyware and the Computer Fraud and Abuse Act

This post is about a federal prosecution that was brought in South Carolina in the fall of 2009. The defendant – Harold Anthony "Tony" Trout – was elected to the Greenville County Council in 2004 and held that office until he was indicted on the charges we’re going to examine in this post. Appellant’s Opening Brief, U.S. v. Trout, 2009 WL 3398217 (U.S. Court of Appeals for the 4^th Circuit).

In discussing the facts, the charges and most of the issues in the case, I’m going to rely on the briefs the parties filed with the U.S. Court of Appeals for the 4^th Circuit after Trout was convicted. U.S. v. Trout, supra. I’m relying primarily on the briefs because Trout raised only one issue on appeal and the 4th Circuit rather summarily rejected his arguments on that issue (so the opinion is short).

While I think the 4^th Circuit’s ruling on that issue is probably correct. I found other aspects of this case interesting, and so decided to write about it. Here, according to the appellate brief Trout filed with the 4^th Circuit, is how the prosecution arose:

[Councilman,] Trout focused on procurement . . . .[His] requests for information on county procurement often resulted in excuses and delays. . . . Trout's battle for public disclosure of information on county procurement put him at odds with the majority of the council. . . .Eventually the chairman and county council began to resist Trout's attempts to make procurement information public, first through statements and later by passing resolutions contrary to his efforts. Trout responded by attempting to have the grand jury investigate several matters involving the county's administration and procurement. . . .

[In] 2008, council chairman Butch Kirven approached Trout about trouble Kirven was having at his home and office. Kirven [asked] Trout if he had any knowledge about security programs for computers. . . . Trout purchased and sent Kirven . . . a computer program (Remote Spy) from a company called Cyberspy. . . .

Kirven forwarded the email from Trout, with the Remote Spy attachment, to county administrator Kernell. Kirven [said he] didn't recognize the sender . . . and was having trouble opening the attachment; [he] did not alert Kernell of the Remote Spy attachment. When Kernell attempted to open the email . . . the program deployed on Kernell's county computer. . . . [and] began to monitor the use of Kernell's county computer by sending information. . . to a server in Texas where the information was available for retrieval using the password provided with the purchase of the program.

Trout later accessed the information on the Texas server and discovered information which apparently originated from Kernell's county computer. Believing the county's computer policy provided no expectation of privacy through Kernell's use of a county computer Trout monitored information being sent to the Texas server. Trout discovered several things sent from Kernell's computer that appeared to be against the law, county policy, or both. [He] discovered what appeared to be . . . grand jury tapes Kernell was accessing. There appeared also to be evidence Kernell was accessing websites and having personal communications contrary to county policy. From information Kernell had entered on the county computer Trout was also able to access Yahoo email accounts used by Kernell. This led to additional discoveries of numerous violations by Kernell of the County's electronic media policy. . . .

Trout maintained a website he used to inform the public of his efforts against public corruption. [He posted] . . . information and screen shots from the Texas server, as well as information . . . from . . . Kernell's Yahoo account . . .on his website. . . . [He also] provided . . . information . . .from Kernell's county computer to the foreman of the grand jury, the attorney general, judges, a public corruption task force [and] the newspaper. This resulted in at least one matter being turned over to the Ethics Committee. Trout also provided information from Kernell's computer to a friend, David Smith, for delivery to the FBI. Based on his understanding of the county computer policy, Trout never believed at any time prior to his arrest that he might have broken the law. Trout's understanding of the county's policy was that Kernell had, by signing the policy document, consented to the monitoring of his county computer and that none of the information on the computer had any expectation of privacy associated with it. . . . Trout was surprised when the . . . FBI execut[ed] search warrants at his home on the morning of election day.

Appellant’s Opening Brief, supra. You can read more about the facts here.

On October 22, 2008, a federal grand jury indicted Trout on 5 counts of violating three federal criminal statutes. Brief of Appellee, U.S. v. Trout, 2009 WL 4623515 (U.S. Court of Appeals for the 4^th Circuit). He was charged with 2 counts of violating 18 U.C. Code § 1030(a)(2)(C); 2 counts of violating 18 U.S. Code § 2511; and one count of violating 18 U.S. Code § 1519.

As I’ve noted before, 18 U.S. Code § 1030 (a/k/a the Computer Fraud and Abuse Act) is the general federal computer crime statute. Section 1030(a)(2)(C) makes it a crime to intentionally access a computer without authorization of by exceeding authorized access and thereby obtain information from the computer. As I’ve also explained, 18 U.S. Code § 2511 makes it a crime to unlawfully intercept electronic communications. So Trout is basically charged with 2 counts of hacking and 2 counts of illegal wiretapping. Section 1519 creates an obstruction of justice offense; under this statute, it’s a federal crime to alter, destroy, conceal and/or falsify any record with the intent to obstruct a federal investigation. I really don’t know what facts supported this particular charge.

Trout was convicted and appealed, arguing that the trial court admitted evidence in violation of Rule 404(b) of the Federal Rules of Evidence. U.S. v. Trout, supra. As I noted in an earlier post, Rule 404(b) is an exception to the general evidentiary rule that bars using prior acts to prove a defendant’s character in order to show that what he did which led to his being charged was consistent with what he’d done before.

Trout argued that the trial judge violated Rule 404(b) when he let the government introduce evidence concerning his behavior as a councilman. Specifically, he said the prosecution “attempted to show Trout as a rogue official who bullied county employees in his attempts to obtain information” and sought to link that “character” evidence to the facts at issue in the indictment. Appellant’s Opening Brief, supra. This evidence was used to rebut Trout’s claim that he believed he was not violating the law when he used the Remote Spy program to acquire information from county files and from Kernall’s email account. Appellant’s Opening Brief, supra.

The prosecution had a very different take on all this. Its appellate brief says Kirven didn’t ask Trout for help with his computer; instead, according to the government’s witnesses, Trout bought the spyware program and then emailed it using “an anonymous email account that he created . . . prior to sending the RemoteSpy bug to Kirven.” Brief of Appellee, supra. And, again according to the government, Trout used the program to obtain

screenshots, keystroke logs, and username and password information from the county administrator's computer. The usernames and passwords included a credit card account, a bank account, an account with the South Carolina Department of Natural Resources, and two private email accounts. [Trout] then used the usernames and passwords that he had intercepted to separately access Kernell's private email accounts.

Brief of Appellee, supra.

Trout, remember, said he lacked criminal intent when he did all this (which pretty clearly violated both § 1030 and § 2511). To rebut that argument, the prosecution used the testimony of Kirven and Kernell and the testimony of Mark Tollison, the Greenville County Attorney; Tollison testified “about the lack of authority that individual members of county council have when it pertains to the management and investigation of county employees” and about “three formal measures that were taken . . . to limit the repeated and abusive demands from defendant on county employees.” Brief of Appellee, supra.

In responding to Trout’s Rule 404(b) argument, the prosecution pointed out that the “violations in this case did not occur in a vacuum. Instead, they occurred within the broader context of an extended pattern” of Trout’s efforts to conduct investigations and gather information. Brief of Appellee, supra. The prosecution argued that it needed the testimony of the witnesses noted above plus other evidence of the measures the county council (and, apparently, other agencies) had taken in an effort to put a stop to Trout’s unauthorized efforts to conduct his own investigations. Brief of Appellee, supra. The government, then, pointed out that the evidence was relevant to charges in the case and that Trout didn’t object to some of it, including a memo by the chair of the county council that said “`only the council can authorize and initiate . . . investigations”. Brief of Appellee, supra.

Given all this, it’s probably not surprising that the 4^th Circuit didn’t spend much time on Trout’s appeal. After noting the purpose and limitations of Rule 404(b), the 4^th Circuit said that “[h]aving carefully reviewed the record, we “hold that the evidence pertaining to Trout's history with the other council members, Kernell, and other county staff is intertwined with and provided context to Trout's conduct underlying the charges.” U.S. v. Trout, supra. The appellate court did not find it necessary to hear oral argument in the case, instead deciding it on the factual record and the briefs submitted by the parties. U.S. v. Trout, supra.

That, I assume, leaves Mr. Trout to finish serving the sentence the federal judge imposed on him after he was convicted. As this news story explains, Trout was sentenced to 12 months and 1 day in prison, that to be followed by 3 years of supervised release by the U.S. Probation Office. The story says he qualifies for credit for good behavior, and so could serve as little as 10 months. I don’t know when he began serving the sentence, but as this story notes, he was in prison in mid-March, when this decision came down. If you’d like to see an interview Trout gave just after being convicted (and other videos related to this case), you can find them here.

I cannot imagine what possessed Mr. Trout. I’m sure he honestly believed he was trying to clean up local government, but how could anyone believe that desire justifies gaining unlawful access to government computers, and bank, credit card and email accounts?