E.D. Wis.: Malware is a Device Under the Wiretap Act

On Monday, Judge J.P. Stadtmueller issued a decision, United States v. Hutchins, No. 17-CR-124-2-JPS, 2019 U.S. Dist. LEXIS 21674 (E.D. Wis. Feb. 11, 2019), upholding a magistrate judge's ruling denying a motion to suppress and motions to dismiss. The Plaintiff in this case is Marcus Hutchins, a whitehat hacker who disabled the WannaCry malware. The government indicted Hutchins for his use of Kronos and UPAS Kit malware.

In his decision, Judge Stadtmueller addressed the issue of whether or not malware can be considered a 'device' for the purposes of Wiretap Act, 18 U.S.C. § 2510, which criminalizes the use of a device to intercept electronic communications. Hutchins argued that his malware software was not a device for the purposes of the Act. Software would have to be installed on a computer to intercept communications.

The Court cited several decisions which found different kinds of software, including spyware and keylogging programs, were devices under the Wiretap Act. "The Court also agrees with the government's position that Section 2510(5)'s reference to 'mechanism,' which is commonly defined as a 'process, technique, or system for achieving a result' seems to encompass software." 2019 U.S. Dist. LEXIS 21674, at *30.