Feds Drop "Hacking" Charges Against Video Poker Jackpot Winners
May 8, 2013 9:50 AM
comment(s) - last by
Men still face a single count of wire fraud for exploiting bug in the machines
Following an outburst of public outcry over a pair of men
facing up to five years in federal prison
for "exceeding authorized use" and
exploiting a bug in video poker casino machines to win big
, the two charged counts under the Computer Fraud and Abuse Act of 1986 (
18 USC § 1030
) have been dropped.
U.S. District Court for the District of Nevada
Federal Judge Miranda Du
cited a recent
Ninth Circuit Court of Appeals
[PDF], which sought to more strictly confine the ambiguous wording of the CFAA to prevent abuse. She demanded prosecutors to justify their use under the 9th Circuit's
ruling; federal prosecutors were unable to so they dropped the CFAA charges against co-defendants John Kane, 54, and Andre Nestor, 41.
Assistant U.S. Attorney Michael Chu wrote in a
[PDF] obtained by
, "The United States of America, by and through the undersigned attorneys, hereby moves this Court to dismiss Counts 2 and 3 of the Indictment."
Prosecutors had argued previously that the sequence of buttons needed to activate the programming error constituted "hacking". But they were unable to defend that opinion in the face of the recent regional scale-back of the CFAA, when defense lawyers argued that the co-defendants were simply playing by the rules of the machine (rules which were broken).
The pair used their trick on the Game King multi-game machine. [Image Source: IGT]
That leaves a single count of wire fraud against each man. The wire fraud charges (
18 U.S.C. § 1343
) are built on the premise that the defendants used phone conversations to plan to defraud the plaintiffs (the casinos), a federal offense. Of course, given that the feds couldn't even make the accusation that they "hacked" (a form of fraud) stick, the fraud-based claim seems pretty questionable.
Mr. Kane's counsel --
, a veteran LV lawyer -- comments, "The case never should have been filed under the CFAA, it should have been just a straight wire fraud case. And I'm not sure its even a wire fraud. I guess we'll find out when we go to trial.'"
In a previous interview he had stated, "They’re going to have real tough time with the wire fraud. I never really understood why the federal government took this case in the first place."
Now with one victory in hand he looks to beat back this final federal charge.
U.S. District Court for the District of Nevada via Wired [PDF]
This article is over a month old, voting and posting comments is disabled
5/8/2013 2:00:25 PM
No those hackers writes codes that explore a vulnerability. This guy is using a fixed function machine. He did not do anything besides what is allowed.
The fault is by whoever made the machine.
5/9/2013 11:37:41 PM
Add to that. Unless the instructions say wait until the prompt appears before you press a button, then you are following the printed instructions even though a programming error makes an early button press generate a winning hand.
This is a program bug and it is the responsibility of the casino to take the machines offline until they can be patched.
As private businesses they may sue to recover money lost due to the programming error, but finding a bug and failing to report it is (not yet) a crime.
The earlier vending machine example would clearly be theft as the instructions will clearly state that payment is expected for each item taken.
The ATM example (which has happened) is often handled as theft as users are expected to know that the amount dispensed is supposed to be the same as the amount charged to the account.
"Google fired a shot heard 'round the world, and now a second American company has answered the call to defend the rights of the Chinese people." -- Rep. Christopher H. Smith (R-N.J.)
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