## Facts

- Anthony A. Allen, age 18, used a home computer and modem to “wardial” by calling blocks of telephone numbers and logging those that returned a modem tone.
- Two calls connected briefly to unlisted Southwestern Bell computer-system numbers intended to be known only to authorized persons.
- The connections ended once a modem tone was detected; the calls were short in duration.
- The Southwestern Bell systems presented a username/password login requirement.
- There was no evidence Allen entered credentials, attempted to bypass security, issued commands, retrieved or stored data, or altered, copied, destroyed, or impaired any data, software, or equipment.
- After discovering the calls, Southwestern Bell upgraded passwords and security measures, spending nearly $24,000.
- The State charged Allen under K.S.A. 21-3755 with unauthorized access and damage causing a loss between $500 and $25,000 (felony level).

## Issues

1. Whether the evidence at the preliminary hearing established probable cause that Allen “gained access” to Southwestern Bell’s computer systems within K.S.A. 21-3755.
2. Whether Southwestern Bell’s post-incident security-upgrade expenditures constituted “damage” or “loss” attributable to Allen sufficient to satisfy the felony damage element under K.S.A. 21-3755.

## Decision

- The Kansas Supreme Court affirmed the dismissal of the complaint for lack of probable cause.
- The court held the State failed to show probable cause that Allen “accessed” the computers as defined by K.S.A. 21-3755.
- The court held the State failed to show probable cause of statutory “damage” or “loss,” where the only asserted loss was Southwestern Bell’s voluntary security-upgrade costs.

## Legal Principles

- Under K.S.A. 21-3755, “access” requires more than a transient modem connection; it contemplates some meaningful interaction with or use of a computer system’s resources (e.g., instructing, communicating, storing, retrieving, or otherwise making use of resources).
- Establishing a brief telephone/modem connection that ends upon detecting a modem tone, without further interaction (such as credential entry or command transmission), is insufficient to show “access” for probable-cause purposes.
- A computer owner’s discretionary expenditures to improve security after detecting suspicious activity, without evidence of impairment, alteration, destruction, copying, or functional degradation caused by the defendant, do not alone establish statutory “damage” or “loss” under a felony computer-crime provision requiring damage.

## Conclusion

The court affirmed dismissal at the preliminary-hearing stage because wardialing that merely detects modem tones, without using system resources or breaching authentication, does not establish probable cause of unauthorized “access,” and voluntary security-upgrade costs do not by themselves satisfy the statute’s damage or loss requirement.


State v. Allen, 260 Kan. 107, 917 P.2d 848 (Kan. 1996)