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Omission in Democrats' lawsuit text against Russia: lawyer

Democrats filed a lawsuit against Russia and the Trump campaign, but their lawyers didn't properly define 'computer'.

A lawsuit filed by Democrats alleging a conspiracy between the Trump campaign, Russia and WikiLeaks could be derailed by a glaring omission in its legal text, a prominent legal expert said. 

Democrats filed the suit on Friday, alleging that Russia, the Trump campaign and WikiLeaks worked together to put US President Donald Trump in office. 

The complaint argues that Trump's campaign "gleefully welcomed Russia's help", which included a cyberattack on Democratic National Convention (DNC) computers that resulted in the theft of a large amount of private data - including damaging emails that were later released - from the Democratic Party.

Trump himself is not named as a defendant. 

The lawsuit further alleges the conspirators violated the Computer Fraud and Abuse Act (CFAA), a 1986 anti-cybercrime measure that criminalised accessing "protected computers" without authorisation.

Fred Jennings, a lawyer who specialises in cybercrime, said that "it sure looks like the DNC complaint failed" to include a necessary definition of a "computer".

The CFAA is the US' primary law against cybercrime and is often used to prosecute hackers for alleged "unauthorised access" of "protected computers".

But the CFAA requires that lawyers clearly define "computers" and then "protected computers" - which have two separate definitions.

In order for a computer to be "protected", it must first be defined as a "computer". 

The suit could face trouble in court because it failed to define hacked DNC computers as "computers" under CFAA guidelines, Jennings said. 

Importance of definitions

The lawsuit "didn't bother to plead facts sufficient to show that DNC computers were in fact 'computers' as the CFAA defines them under 1030(e)(1)", Jennings, the head of information technology and e-discovery management programmes at Tor Ekeland Law, said, citing a specific section of the law.

Tor Ekeland Law's lawyers have worked on a number of high-profile CFAA lawsuits and have been dubbed "the lawyers hackers call" by the Columbia Journalism Review.

Jennings said the CFAA is a "core part" of his practice as a lawyer and this omission "jumped out" at him.

The CFAA defines computers as a "high speed data processing device" and "includes any data storage facility or communications facility" that works with such devices.

However, the suit skips defining DNC computers as such, jumping straight to the definition of "protected computers", which include those used by the US government or financial institutions.

Lawyers for the defendants would "have to notice and move to dismiss" this part of the lawsuit, which would affect their overall argument, as DNC hacks are a substantial portion of their allegations. 

'Trump - and Russia - won'

The 66-page lawsuit uses strong language, including a heading of "Trump - and Russia - Won" to describe Trump's victory in the 2016 presidential elections, to allege cooperation between the plaintiffs.

Some political commentators in the US have said the lawsuit was more a ploy shift attention to the DNC in advance of crucial midterm elections for US Congress in November.

"It's hard to see that they're really going to prove these allegations in court," Reihan Salam, a conservative US political commentator, told PBS, "but the litigation is definitely going to get the DNC and DNC Chair Tom Perez in the news".

Typically, foreign governments are immune from legal action in the US, but the DNC alleges the hacking was a trespass of their private property, which they contend removes Russia's immunity. 

Most of the allegations in the complaint were sourced from publicly available court documents and news reports.

The Trump team's connections to foreign actors have been well documented in the press and through the special counsel investigation.

Several Trump associates, including former National Security Adviser Michael Flynn and former campaign officials Paul Manafort and Rick Gates have been indicted because of the probe into possible collusion between the Trump campaign and Russia.

Still, it is possible the lawsuit might reveal new details. The DNC's lawyers could request documents related to the alleged collusion in the discovery phase of the trial, during which lawyers on both sides ask for material relevant to the suit.

"It might lead to additional discovery of events and relationships that we don't yet know about," Leonard Williams, a political science professor at Manchester University, was quoted as saying by Reuters news agency.

Trump has also praised the lawsuit for giving his campaign the ability to ask Democrats for damaging information relative to alleged misconduct from the Hillary Clinton campaign during the discovery phase. 

Added complexity

But Jennings said that the DNC's lawyers failing to properly define their computers means that claim might be vulnerable to a motion to dismiss from defence lawyers "before any fact discovery" occurs in the discovery phase.

But even if a judge did dismiss the claim, "it's almost certain the DNC would be permitted to file an amended complaint to fix the error," the lawyer explained.

The definition of a computer won't end legal proceedings, Jennings said, but it's more that "this was an easily avoided error that could add a substantial amount of time, cost, and complexity to the DNC's case."

Added cost would do the DNC no favours. The DNC was reportedly so low on funds for the 2016 election that it had to borrow money from the Clinton campaign. 

DNC fundraising in 2017 amounted to $67m, half of Republican's $132.5m raised. Democrats reportedly had $6.5m in cash on hand at the end of 2017 but owed $6.2m in debts, Politico reported. 

In February, the DNC took out a $1.7m loan, according to filings with the US Federal Elections Commission. 

Even if the failure to define "computers" in the lawsuit adds cost to the economically disadvantaged DNC, the lawsuit might be beneficial in the long run.

If the DNC wants "to be influential and important, it has to raise money," commentator Salam said. The lawsuit could help if it "really fires up the base and the small-dollar donors, many of whom are very passionate about the Russia story", Salam added.


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