The opinion of the court was delivered by: WILLIAM PAULEY, District Judge
By Indictment dated January 3, 2005, the Government charged the
defendant, William P. Genovese, Jr., with one count of unlawfully
downloading and selling a trade secret in violation of
18 U.S.C. § 1832(a)(2). Genovese moves to dismiss the Indictment pursuant
to Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure.
Genovese contends that the statute criminalizing trade secret
theft is facially overbroad in violation of the First Amendment
and unconstitutionally vague as applied to him. For the reasons
set forth below, Genovese's motion to dismiss the Indictment is
In February 2004, portions of Microsoft Corporation's source
code for two of its computer operating systems, Windows NT 4.0
and Windows 2000, appeared on the Internet.*fn1 (Complaint, dated Nov. 4, 2004 ("Compl.") ¶¶ 3-4; Declaration of
Sean Hecker, dated Mar. 16, 2005 ("Hecker Decl.") ¶¶ 3-4.)
The Indictment charges Genovese with downloading, copying,
selling and attempting to sell Microsoft source code without
authorization. (Indictment ¶ 1.) Specifically, the Government
contends that on February 12, 2004, Genovese posted a message on
his website offering the code for sale: "win2000 source code
jacked . . . and illmob.org got a copy of it . . . im sure if you
look hard you can find it or if you wanna buy it ill give you a
password to my ftp."*fn2 (Government's Memorandum in
Opposition to Motion to Dismiss ("Govt. Mem.") at 4.) According
to the Complaint, an investigator retained by Microsoft responded
to the message later that month by sending Genovese an email that
offered twenty dollars for the code. (Compl. ¶ 6.) After Genovese
accepted the offer, the investigator transferred twenty dollars
to Genovese through an online payment service. (Compl. ¶ 6.)
Genovese then provided access to the source code through his FTP
server. (Compl. ¶ 6.) Microsoft alerted the FBI. (Compl. ¶ 7.) In
July 2004, an undercover Government agent contacted Genovese and
purchased the Microsoft source code. (Compl. ¶¶ 7-8.) Genovese
was arrested and charged with violating 18 U.S.C. § 1832(a)(2).
Section 1832 was enacted as part of the Economic Espionage Act
of 1996, Pub.L. No. 104-294, 110 Stat. 3488 (the "EEA"). In
relevant part, the statute applies to anyone who, with intent to convert a trade secret, that is
related to or included in a product that is produced
for or placed in interstate or foreign commerce, to
the economic benefit of anyone other than the owner
thereof, and intending or knowing that the offense
will, injure any owner of that trade secret,
knowingly . . . without authorization copies,
duplicates, sketches, draws, photographs, downloads,
uploads, alters, destroys, photocopies, replicates,
transmits, delivers, sends, mails, communicates, or
conveys such information.
18 U.S.C. § 1832(a)(2). "Trade secret," in turn, is defined to
all forms and types of financial, business,
scientific, technical, economic, or engineering
information, including patterns, plans, compilations,
program devices, formulas, designs, prototypes,
methods, techniques, processes, procedures, programs,
or codes, whether tangible or intangible, and whether
or how stored, compiled, or memorialized physically,
electronically, graphically, photographically, or in
writing if (A) the owner thereof has taken reasonable
measures to keep such information secret; and (B) the
information derives independent economic value,
actual or potential, from not being generally known
to, and not being readily ascertainable through
proper means by, the public.
18 U.S.C. § 1839(3). The statute carries a ten-year maximum term
of imprisonment. 18 U.S.C. § 1832(a).
A. Standard on a Motion to Dismiss the Indictment
The allegations of an indictment are accepted as true on a
motion to dismiss. See United States v. Nat'l Dairy Prods.
Corp., 372 U.S. 29, 33 n. 2 (1963); Boyce Motor Lines, Inc. v.
United States, 342 U.S. 337, 343 n. 16 (1952); United States v.
Goldberg, 756 F.2d 949, 950 (2d Cir. 1985). "Contrary assertions
of fact by the defendant? will not be considered." Goldberg,
756 F.2d at 950 (citing United States v. Von Barta,
635 F.2d 999, 1002 (2d Cir. 1980)). B. Overbreadth in Violation of the First Amendment
Genovese argues that Section 1832 violates the First Amendment
because it restricts protected speech and sweeps more broadly
than necessary. A statute is unconstitutionally overbroad if
there exists "a substantial risk that application of the
provision will lead to the suppression of speech." Nat'l
Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998);
see Virginia v. Hicks, 539 U.S. 113, 118 (2003); accord
Lerman v. Bd. of Elections in New York, 232 F.3d 135, 144 (2d
Cir. 2000). "When a litigant challenges a statute on its face as
overly broad, the prudential limitations against third party
standing are relaxed, and the litigant may assert the rights of
individuals whose interests might be affected by the statute but
who are not before the court." Lerman, 232 F.3d at 144; see
Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973).
While the First Amendment protects the formulation of source
code and other types of trade secrets encompassed by the EEA,
see Universal City Studios, Inc. v. Corley, 273 F.3d 429,
445-46 (2d Cir. 2001), the statute criminalizes their
unauthorized copying, duplicating, downloading and uploading.
18 U.S.C. § 1832(a)(2). Moreover, the EEA limits its reach to such
conduct that is done "with intent to convert a trade secret . . .
to the economic benefit of anyone other than the owner thereof."
18 U.S.C. § 1832(a)(2). Such conduct is not protected speech.
See United States v. Thompson, 76 F.3d 442, 452 (2d Cir.
1996) ("A prohibition against corrupt acts `is clearly limited to
. . . constitutionally unprotected and purportedly illicit
activity.'" (quoting United States v. Jeter, 775 F.2d 670, 679
(6th Cir. 1985))). Because Section 1832 is specifically targeted
toward illegal activity and does not reach protected speech, the
statute is not unconstitutionally overbroad. See Thompson,
775 F.2d at 452. Accordingly, Genovese's First Amendment
challenge fails. C. Void for Vagueness
The void-for-vagueness doctrine requires that a statute define
the criminal offense with sufficient precision "that ordinary
people can understand what conduct is prohibited." Kolender v.
Lawson, 461 U.S. 352, 357 (1983); accord United States v.
Ansaldi, 372 F.3d 118, 122-23 (2d Cir. 2004); United States v.
Rahman, 189 F.3d 88, 116 (2d Cir. 1999). Courts must also
"consider whether the law provides explicit standards for those
who apply it." Chatin v. Coombe, 186 F.3d 82, 87 (2d Cir.
1999); see Kolender, 461 U.S. at 357. "[V]agueness challenges
to statutes which do not involve First Amendment freedoms must be
examined in ...