## Facts

- The government charged Fabio Gasperini, an Italian citizen, with offenses tied to an alleged botnet-driven computer intrusion and click-fraud scheme.
- Investigators alleged the botnet exploited vulnerabilities in QNAP network-attached storage devices, installed “backdoor” accounts with elevated privileges, and enabled remote control and malware installation.
- The alleged click-fraud scheme routed infected devices to websites registered to Gasperini to inflate ad views and generate revenue.
- The government obtained account-content and related data using warrants issued under the Stored Communications Act (SCA), 18 U.S.C. § 2703, served on U.S.-based service providers; some responsive data was stored on servers outside the United States.
- The government also sought to use (i) Linode, LLC business records purportedly linking servers used in the scheme to Gasperini and (ii) Internet Archive (Wayback Machine) screenshots depicting historical versions of websites tied to Gasperini.
- Gasperini moved pretrial to suppress evidence obtained via the SCA warrants and to exclude or limit Linode records and Internet Archive screenshots.

## Issues

1. Whether SCA § 2703 warrants served on U.S. providers are invalid (and require suppression) when they compel production of data stored on foreign servers, based on the presumption against extraterritoriality.
2. Whether Linode’s business records are inadmissible under Federal Rule of Evidence 803(6) because prior cybersecurity breaches allegedly make the records untrustworthy.
3. Whether Internet Archive (Wayback Machine) screenshots can be authenticated and admitted under the Federal Rules of Evidence, including Rules 901 and 803(6).

## Decision

- The court denied the motion to suppress evidence obtained under the SCA warrants.
- The court held that the SCA’s focus is the compelled disclosure obligation imposed on a domestic service provider; compelling a U.S. provider to produce data it controls is a domestic application even if the data is stored abroad.
- The court declined to order suppression as a statutory remedy, noting the SCA does not generally provide suppression for § 2703 violations absent an applicable statutory exclusionary rule or an independent constitutional basis.
- The court denied exclusion of Linode records, holding they are admissible as business records if the government lays the Rule 803(6) foundation; generalized claims about prior hacks went to weight, not admissibility.
- The court ruled that Wayback Machine screenshots could be admitted if properly authenticated, including through testimony describing the Internet Archive’s automated capture and retrieval processes and other supporting proof.

## Legal Principles

- In applying the presumption against extraterritoriality, courts identify the statute’s “focus”; for SCA § 2703, the regulated conduct is the compelled disclosure by a provider subject to U.S. jurisdiction, not the physical location of the data.
- Suppression is generally unavailable for purely statutory violations absent clear statutory authorization or a constitutional violation.
- Business records are admissible under Federal Rule of Evidence 803(6) when made and kept in the regular course of business, unless the opponent shows the source, method, or circumstances indicate a lack of trustworthiness; prior security incidents alone do not establish untrustworthiness of particular records.
- Authentication under Federal Rule of Evidence 901 requires evidence sufficient to support a finding that the item is what it is claimed to be; archived webpage screenshots may be authenticated through testimony about standardized, automated archiving processes and corroborating evidence linking the pages to relevant domains or actors.

## Conclusion

The court allowed the government to use evidence obtained through SCA § 2703 warrants served on U.S. providers despite foreign data storage and permitted admission of Linode business records and Internet Archive screenshots, subject to standard evidentiary foundations for business records and authentication.


United States v. Gasperini, No. 16-CR-441 (NGG), 2017 U.S. Dist. LEXIS 114166 (E.D.N.Y. July 21, 2017)