John Kane, 54, and Andre Nestor, 41, still face wire fraud charges; however, following a public outcry, the “exceeding authorised use” counts under the Computer Fraud and Abuse Act (CFAA) of 1986 have been dropped.
Judge Miranda Du of the US District Court for the District of Nevada cited a recent Ninth Circuit Court of Appeals ruling which sought to more strictly confine the ambiguous wording of the CFAA to prevent abuse. She demanded prosecutors to justify their use under the Ninth Circuit’s Nosal ruling; federal prosecutors were unable to so they dropped the CFAA charges against the defendants.
Four years ago, Kane, an avid gambler stumbled onto a software bug in IGT’s Game King video poker machine that allowed him to effectively play back a prior winning hand at ten times the original value. He phoned his friend Andre Nestor, who joined Kane in Vegas to allegedly exploit the bug at a string of casinos. Nestor then returned to Pennsylvania and used the bug at a casino there to the tune of $400,000 in winnings.
Shortly after, engineers from Nevada’s Gaming Control Board followed up on suspicions that something was not quite right with the video poker game on the floor of the Silverton Casino Lodge. After dismantling the machine and taking it back to the lab, it was found that the software had a bug which was being exploited by the defendants. The Gaming Control Board accused the players of fraud and took them to court under contravention of the CFAA. This controversial act was originally passed to punish hackers who remotely access banks or defence systems, but in this case, prosecutors were using it against those who win at video games. They argued that the complex sequence of button presses needed to activate the bug made it a form of hacking. But defence lawyers argued that Kane and Nestor only played by the rules imposed by the machine.
“The case never should have been filed under the CFAA,” Kane’s lawyer, Andrew Leavitt told Wired. “It should have been just a straight wire fraud case. And I’m not sure it’s even a wire fraud. I guess we’ll find out when we go to trial.”
The pair are due to go to trial later in April.