Document 1 Filed 07/06/11 Page 1 of 16 UNITED STATES DISTRICT COURT vs. SANFORD WALLACE, a/k/a ?The Spam King,? a/k/a ?Spamford? a/k/a ?David Frederix? INDICTMENT COUNTS 1. 3 and 7: 18 U.S.C. 1037(a)(1) and - Fraud and Related Activity in Connection with Electronic Mail; COUNTS 2. 6 and 9: 18 U.S.C. 1030(a)(5)(A) and - Intentional Damage to a Protected Computer; COUNTS 4 and 8: I 18 U.S.C. 1037(a)(2) and and Related Activity . in Connection With Electronic Mail; COUNT 5: 18 U.S.C. 1037(a)(4) and - Fraud and Related Activity in Connection With Electronic Mail; COUNTS 10 and 11: 18 U.S.C. 401(3) Criminal Contempt. A true bill. Foreperson Filed in open court this day of?y? 1 4.0. 2011 I 353T if: (53qu 3? 1:2 Unitell StateMlagts' Tr?ale Judge Bait. ?Wom? Case Document 1 Filed 07/06/11 Page 2 of 16 MELINDA HAAG (CABN 132612) 13:; United States Attorney 1 3-w- new? UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION UNITED STATES OF AMERICA, . 5 - Plaintiff, VIOLATIONS: . 3% and Fraud and Related Activity in v. Connection With Electronic Mail; 18 U.S.C. 1037(a)(2) and - Fraud and SANFORD WALLACE, Related Activity in Connection With a/k/a ?The Spam King,? Electronic Mail; 18 U.S.C. 1037(a)(4) a/k/a ?Spamford,? and - Fraud and Related Activity in a/k/a ?David Frederix,? Connection With Electronic Mail; 18 U.S.C. 1030(a)(5)(A) and - Defendant. Intentional Damage to a Protected Computer; 18 U.S.C. 401(3) Criminal Contempt (Felony); 18 U.S.C. 1030(i) and - Criminal Forfeiture; 18 U.S.C. 103 7(0) - Criminal Forfeiture SAN JOSE VENUE IN I The Grand Jury charges: INTRODUCTORY ALLEGATIONS At all times relevant to this indictment: 1. Facebook, Inc. (Facebook) owned and operated the popular social networking site located at which has more than 500 million users worldwide. The company was headquartered and maintained its computer network in Palo Alto, California, and other locations. INDICTMENT Case Document 1 Filed 07/06/11 Page 3 of 16 2. In order to establish an account with Facebook, a user must register and create a unique usemame and password. Once registered, the user can customize his or her pro?le by, among other things, adding contact information, lists of personal interests, and photographs, that the user can share with other Facebook users. Only a registered user may access Facebook user pro?les, invite other Facebook users to be a ?friend,? and use the Facebook network, service, or applications. acebook ?friends? have the ability to send and receive messages, and share information with each other, and have complete control over those with whom they chose to interact with on Facebook. A user also has the ability to control access to the user?s pro?le through a privacy setting. A Facebook user may only be contacted by registered Facebook users, authorized Facebook Pages and Groups, or Facebook itself. I I I 3. When an individual accesses Facebook?s website, he or she must agree to Facebook?s Terms of Use, which set forth the permissible and impermissible uses of Facebook?s network. For example, a user is prohibited from accessing Facebook?s website to engage in the following: a. harveSting or collecting e?mail addresses Or other contact information of other users from Facebook by electronic or other means for purposes of sending unsolicited e- mails or other unsolicited communications; b. using the Facebook?s website in a manner that 'could damage, disable, overburden, or impair the website; 0. uploading, posting, transmitting, sharing, or. otherwise making available any unsolicited or unauthorized advertising, solicitation, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation; (1. using or attempting to use another?s account, service, or system without authorization from Facebook, or create a false identity on Facebook. SCHEME TO SPAM FACEBOOK USERS 4. SANFORD WALLACE was a resident of Las Vegas, Nevada. 5. From approximately November 2008 through March 2009, WALLACE deve10ped and executed a scheme to send spam messages to Facebook users that compromised INDICTMENT 2 Case Document 1 Filed 07/06/11 Page 4 of 16 approximately 500,000 legitimate Facebook accounts, and resulted in over 27 million spam messages being sent through Facebook?s servers. 6. To accomplish his scheme, WALLACE ?rst tested his spamming capabilities between two Facebook accounts. On November 4, 2008, WALLACE used a fake Facebook account of ?David Frederix? and his legitimate Facebook ?Sanford MasterWeb Wallace? account to test variations of spam messages in order to evade Facebook's ?ltering mechanisms. Once WALLACE evaded Facebook?s spam ?lters, he employed an automated scripting process to sign into a compromised Facebook user?s account, retrieve a list of all of the user's friends, and then post a spam message to each of the user?s friends? Facebook walls. 7. It was part of the scheme that WALLACE purposely deceived legitimate acebook account holders into visiting the website mentioned on the spam message that was purportedly from a Facebook friend. 8. It was part of the scheme that WALLACE collected users? e-mail addresses and passwords by deceiving users into providing the user?s full name, valid e?mail address, and password. Once the user entered his or her information, the user would be redirected to an af?liate website where WALLACE earned substantial revenue for directing Internet traf?c. 9. WALLACE continued his spamming scheme by storing the information provided by Facebook users, such as e?mail addresses and passwords. used the user?s e-mail address and password to log into Facebook in order to continue to send spam messages. 10. It was further part of the scheme that WALLACE hid his identity as the sender of Spam messages. On May 21, 2008, he opened an account at the domain registrar Moniker Online Services under the name of an individual identi?ed as in order to register over 1,000 domain names. WALLACE used at least one domain name, registered through Moniker, to post spam messages in Facebook users? accounts in November 2008. Neither nor other individuals linked to the account gave WALLACE permission to use their names to establish an account at Moniker. I 1. In addition, on December 14, 2008, WALLACE opened an account at the domain registrar Dynadot, LLC under the ?ctitious name ?Laura Frederix,? and registered approximately 3 new Case Document 1 Filed 07/06/11 Page 5 of 16 1,500 domain names. WALLACE used these domain names in spamming attacks on Facebook users in December 2003 and February 2009. DEFINITIONS 12. As used herein, ?spam? refers to the fraudulent commercial electronic mail messages sent to multiple individuals over the Internet, or to the act of sending such messages. 13. The term ?commercial electronic mail message? means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service, including content on an Internet website operated for a commercial purpose. 14. A domain name is an identi?cation label that de?nes a realm of administrative autonomy, authority, or control in the Internet. Domain names are host names that identify Internet Protocol resources such as websites. Domain names are formed by the rules and procedures of the Domain Name System. Domain names are often referred to simply as domains and domain name registrants are frequently referred to as domain owners, although domain name registration with a registrar does not confer any legal ownership of the domain name, only an exclusive right of use. I 15. A server is a centralized computer that provides services for other computers connected to it via a network. The other computers attached to a server are sometimes called "clients." Server computers can be physically stored in any" location; it is common for a network's server to be located hundreds (and even thousands) of miles away from the client computers. 16. The Internet Protocol address (or simply address) is a unique numeric address used by computers on the Internet. An IP address Consists of a series of four numbers, each in the range 0-255, separated by periods 121.56.97.178). Every computer attached to the Internet computer must be assigned an IP address so that Internet traf?c sent from and directed to that computer may be directed properly from its source to its destination. Most Internet service providers control a range of IP addresses. 17. A proxy or proxy server is a computer system or an application that acts as an INDICTMENT 4 mmi?-1'Case Document 1 Filed 07/06/11 Page 6 of 16 intermediary for request from clients seeking resources from other servers. A client connects to the proxy server, requesting some service, such as a file, connection, web page, or other resource, available from a different server. COUNT ONE: (18 U.S.C. 1037(a)(1) and - Fraud and Related Activity in Connection With Electronic Mail) 18. The factual allegations contained in Paragraphs One through Eleven above are realleged and incorporated herein as if set forth in full. 19. From on or about November 5, 2008, and continuing to on or about approximately November 6, 2008, in the Northern of California and elsewhere, the defendant, SANFORD WALLACE, knowingly accessed a protected computer without authorization, and intentionally initiated the transmission of multiple commercial electronic mail messages from or through such computer, in and affecting interstate and foreign commerce, to wit: the defendant accessed Facebook?s computer network in order to initiate the transmission of program that resulted in more than 125,000 spam messages being sent to Facebook users. All in violation of Title 18, United States Code, Sections 1037(a)(1) and - COUNT TWO: (18 U.S.C. 1030(a)(5)(A) and - Intentional Damage to a Protected Computer) 20. The factual allegations contained in Paragraphs One through Eleven above are realleged and incorporated herein as if set forth in full. 21. From on or about November 5, 2008, and continuing until approximately November 6, 2008, in the Northern District of California, the defendant, SANFORD WALLACE, knowingly caused the transmission of a program, information, code, and command, and, as a result of such conduct, intentionally caused damage without authorization to a protected computer, and the offense caused loss to a person during a one-year period from the defendant?s course of conducting affecting protected computers aggregating at least $5,000 in value, in violation of Title 18, United States Code, Sections 103 and to wit: INDICTMENT 5 0340\Case Document 1 Filed 07/06/11 Page 7 of 16 Facebook?s computer network sustained damage from the large amount of computer network resources used during the defendant?s transmission of spam messages through its system, which resulted in Facebook spending a signi?cant amount of time, money, and resources responding to and ?xing the damage caused to its network as well as to protect and defend its network from future spam campaigns by the defendant. All in violation of Title 18, United States Code, Sections 103 and COUNT THREE: (18 U.S.C. 1037(a)(1) and - Fraud and Related Activity in Connection With Electronic Mail) 22. The factual allegations contained in Paragraphs One through Eleven above. are realleged and incorporated herein as if set forth in full. 23. On or about December 28, 2008, in the Northern of California and elsewhere, the defendant, SANFORD WALLACE, knowingly accessed a protected computer without authorization, and intentionally initiated the transmission of multiple commercial electronic mail messages from or through such computer, in and affecting interstate and foreign commerce, to wit: the defendant accessed Facebook?s computer network in order to initiate the transmission of program that resulted in nearly 300,000 spam messages being sent to Facebook users. I I All in violation of Title 18, United States Code, Sections 1037(a)(1) and COUNT FOUR: (18 U.S.C. 1037(a)(2) and - Fraud and Related Activity in Connection With Electronic Mail) 24. The factual allegations contained in Paragraphs One through Eleven above are realleged and incorporated herein as if set forth in full. 25. On or about December 28, 2008, in the Northern of California and elsewhere, the defendant, SANFORD WALLACE, knowingly used a protected computer to relay and retransmit multiple commercial electronic mail messages, in and affecting interstate and foreign commerce, with the intent to deceive and mislead recipients and an Internet access service, as to the origin of such messages, and the INDICTMENT 6 Case Document 1 Filed 07/06/11 Page 8 of 16 volume of electronic mail messages transmitted in furtherance of the offense exceeded 2,500 during any 24?hour period, 25,000 during any 30-day period, and 250,000 during any one-year period; to wit: the defendant accessed Facebook?s computer network from 143 IP addresses that were proxies in order to deceive Facebook and FacebOok users as to the origin of the messages and to initiate the transmission of program that resulted in nearly 300,000 spam messages being sent to Facebook users. All in violation of Title 18, United States Code, Sections 1037(a)(2) and COUNT FIVE: (18 U.S.C. 1037(a)(4) and - Fraud and Related Activity in Connection With Electronic Mail) 26. The factual allegations contained in Paragraphs One through Eleven above are realleged and incorporated herein as if set forth in full. 27. On or about December 28, 2008, in the Northern of California and elsewhere, the defendant, SANFORD WALLACE, knowingly registered, using information that materially falsified the identity of the actual registrant, two or more domain names, and intentionally initiated the transmission of multiple commercial electronic mail messages from such domain names, in or affecting interstate and foreign commerce, and the offense involved 10 or more falsi?ed domain name registrations, to wit: the defendant accessed Facebook?s computer network-originating from 143 IP addresses utilizing over 1,500 domain names in order to deceive Facebook and Facebook users as to the origin of the messages and to initiate the transmission of a program that resulted in nearly 300,000 spam messages being sent to Facebook users. The domain names were registered under the ?ctitious name Laura Frederix and later changed to Victoria David, falsifying the identity of the actual registrant. All in violation of Title 18, United States Code, Sections 103 and COUNT SIX: (18 U.S.C. 1030(a)(5)(A) and - Intentional Damage to a Protected Computer) - 28. The factual allegations contained in Paragraphs One through Eleven above are realleged and incorporated herein as if set forth in full. INDICTMENT 7 Case Document 1 Filed 07/06/11 Page 9 of 16 29. On or about December 28, 2008, in the Northern District of California, the defendant, SANFORD WALLACE, knowingly caused the transmission of a program, information, code, and command, and, as a 'result of such conduct, intentionally caused damage without authorization to a protected computer, and the offense caused loss to a person during a one-year period from the defendant?s course of conducting affecting protected computers aggregating at least $5,000 in value, in violation of Title 18, United States Code, Sections 1030(a)(5)(A) and to wit: Facebook?s computer network sustained damage from the large amount of computer network resources used during the defendant?s transmission of spam messages through its system, which resulted in Facebook spending a signi?cant amount of time, money, and resources responding to and ?xing the damage caused to its network as well as to protect and defend its network from future spam campaigns by the defendant. All in violation of Title 18, United States Code, Sections 1030(a)(5)(A) and COUNT SEVEN: (l8 U.S.C. 1037(a)(1) and Fraud and Related Activity in Connection With Electronic Mail) 30. The factual allegations contained in Paragraphs One through Eleven above are realleged and incorporated herein as if set forth in full. 31. On or about February 17, 2009, in the Northern of California and elsewhere, the defendant, SANFORD WALLACE, knowingly accessed a protected computer without authorization, and intentionally initiated the transmission of multiple commercial electronic mail messages from or through such computer, in and affecting interstate and foreign commerce, to wit: the defendant accessed Facebook?s computer network in order to initiate the transmission of program that resulted in more than 125,00 spam messages being sent to Facebook users. I All in violation of Title 18, United States Code, Sections 103 and INDICTMENT 8 Case Document 1 Filed 07/06/11 Page 10 of 16 COUNT EIGHT: (18 U.S.C. 1037(a)(2) and Fraud and Related Activity in Connection With Electronic Mail) 32. I The factual allegations contained in Paragraphs One through Eleven above are realleged and incorporated herein as if set forth in full. 33. On or about February 17, 2009, in the Northern of California and elsewhere, the defendant, SANFORD WALLACE, knowingly used a protected computer to relay and retransmit multiple commercial electronic mail messages, in and affecting interstate and foreign commerce, with the intent to deceive and mislead recipients and an Internet access service, as to the origin of such messages, and the volume of electronic mail messages transmitted in furtherance of the offense exceeded 2,500 during any 24-hour period, 25,000 during any 30-day period, and 250,000 during any one?year period, to wit: the defendant accessed Facebook?s computer network from 501P addresses that were proxies in order to deceive Facebook and Facebook users as to the origin of the messages and to initiate the transmission of program that resulted in more than 125,000 spam messages being sent to Facebook users. All in violation of Title 18, United States Code, Sections 1037(a)(2) and COUNT NINE: (18 U.S.C. 1030(a)(5)(A) and - Intentional Damage to a Protected Computer) 34. The factual allegations contained in Paragraphs One through Eleven above are realleged and incorporated herein-as if set forth in full. 35. On or about February 17, 2009, in the Northern District of California, the defendant, SANFORD WALLACE, knowingly caused the transmission of a program, information, code, and command, and, as a result of. such conduct, intentionally caused damage without authorization to a protected computer, and the offense caused loss to a person during a 1-year period from the defendant?s course of conducting affecting protected computers aggregating at least $5,000 in value, in INDICTMENT 9 Case Document 1 Filed 07/06/11 Page 11 of 16 violation of Title 18, United States Code, Sections 1030(a)(5)(A) and to wit: Facebook?s computer. network sustained damage from the large amount of computer network resources used during the defendant?s transmission of spam messages through its system, which resulted in Facebook spending a signi?cant amount of time, money, and resources responding to and ?xing?the damage caused to its network as well as to protect and defend its network ?om ?xture spam campaigns by the defendant. All in Violation of Title 18, United States Code, Sections 1030(a)(5)(A) and COUNT TEN: (18 U.S.C. 401(3) Criminal Contempt) 36. . On or about April 17, 2009, in the Northern District of California and elsewhere, the defendant, I SANFORD WALLACE, did willfully and knowingly disobey and resist a lawful order of a Court of the United States, that is, the orders issued by the Honorable Jeremy Fogel, United States District Court Judge, on March 2, 2009, and March 24, 2009, in the Northern District of California in the case of Facebook, Inc. v. Sanford Wallace, et al, No. 09-00798 JF, to wit: Judge Fogel ordered the defendant not to access Facebook?s computer network, and the defendant logged into his Facebook account while aboard a Virgin Airlines ?ight from Las Vegas, Nevada, to New York, New York. All in violation of Title 18, United States Code, Section 401(3). COUNT ELEVEN: (18 U.S.C. 401(3) Criminal Contempt) 37. On or about January 26, 2011, and continuing to at least to February 16, 2011, in the Northern District of California and elsewhere, the defendant, I SANFORD WALLACE, did willfully and knowingly disobey and resist a lawful order of a Court of the United States, that is, the orders issued by the Honorable Jeremy Fogel, United States District Court Judge, on March 2, 2009, March 24, 2009, and September 18, 2009, in the Northern District of California in the case of Facebook, Inc. v. Sanford Wallace, er al, No. 09-00798 JF, to wit: Judge Fogel ordered the defendant not to access Facebook?s computer network, and he refused to comply INDICTMENT 1 0 Case Document 1. Filed 07/06/11 Page 12 of 16 with the order of the Court by maintaining a Facebook pro?le entitled ?David Sinful-Saturdays Fredericks.? All in violation of Title 18, United States Code, Section 401 (3). FORFEITURE ALLEGATION ONE: (18 U.S.C. 1030(i) and and 21 U.S.C. 858) 38. The factual allegations contained in Paragraphs One through Eleven, and Counts Two, Six, and Nine are hereby realleged for the purpose of alleging forfeiture pursuant to Title 18, United States Code, Sections 1030(i) and 39. Upon conviction of the offense in violation of Title 18, United States Code, Section 1030(a)(5)(A) set forth in Counts Two, Six, and Nine of this Indictment, the defendant, SANFORD WALLACE, shall forfeit to the United States of America, pursuant to Title 18, United States Code, Section 103 0(i) and any personal property used or intended to be used to commit or to facilitate the commission of said violation or a conspiracy to viblate said provision, and any property, real or personal, which constitutes or is derived from proceeds traceable to the offenses, including but not limited to: a sum of money equal to the total amount of proceeds defendant obtained or derived from, directly or indirectly, from the violations. 40. If any of the property described above, as a result of any-act or omission of the defendant: a. cannot be located upon the exercise of due diligence; b. has been transferred or sold to, or deposited with, a third party; c. has been placed beyond the jurisdiction of the court; (1. has been substantially diminished in value; or e. has been commingled with other property which cannot be divided Without dif?culty, I the United States of America shall be entitled to forfeiture of substitute property pursuant to Title 21, United States Code, Section 853(p), as incorporated by Title 18, United States Code, Section 1 03 28. Case Document 1 Filed 07/06/11 Page 13 of 16 All pursuant to Title 18, United States Code, Section 1030(i) and and Title 21, United States Code, Section 853. FORFEITURE ALLEGATION TWO: (18 U.S.C. 1037(c) and 21 U.S.C. 853) 41. The factual allegations contained in Paragraphs One through Eleven and Counts One, Three through Five, Seven, and Eight are hereby realleged for the purpose of alleging forfeiture pursuant to Title 18, United States Code, Section 1037(c). 42. Upon conviction of the offense in violation of Title 18, United States Code, Section 1037(a)(1) and set forth in Counts One, Three, Four, Five, Seven, and Nine of this Indictment, the defendant, SANFORD WALLACE, shall forfeit t0 the United States of America, pursuant to Title 18, United States Code, Section 103 any personal property used or intended to be used to commit or to facilitate the commission of said violation or a conspiracy to violate said provision, and any property, real or personal, which constitutes or is derived from proceeds traceable to the offenses, including but not limited to: a sum of money equal to the total amount of proceeds defendant obtained or derived from, directly or indirectly, from the violation. 43. If any of the property described above, as a result of any act or omission of the defendant: a. cannot be located upon the exercise of due diligence; b. has been transferred or sold to, or deposited with, a third party; 0. has been placed beyond the jurisdiction of the court; .has been substantially diminished in value; or c. has been commingled with other property which cannot be divided without dif?culty, I the United States of America shall be entitled to forfeiture of substitute property pursuant to Title 12 unwrap Case Document 1 Filed 07/06/11 Page 14 of 16 21, United States Code, Section 853(p), as incorporated by Title 18, United States Code, Section 1030(c). All pursuant to Title 18, United States Code, Section 1037(c) and Title 21, United States Code, Section 853. DATED: FOREPERSON MELINDA HAAG United States Attorne MATTHEW A. PARRELLA Chief, CHIP Unit (Approved as to form: INDICTIVIENT 1 3 Case Document 1 Filed 07/06/11 Page 15 of 16 A0 257 (Rev. 6.78) DEFENDANT INFORMATION RELATIVE TO A CRIMINAL IN U.S. DISTRICT COURT BY: COMPLAINT El INFORMATION Name of Dis rt?i'Cgmg, and?owud agistrate Location El SUPERSEDING I NORTH RN . LIFORNIA m? saw JOSE DIVISION OFFENSE CHARGED ear-r: set. -0 i3 m? DEFENDANT - U.S it] itnr 3 . i - . SANFORD ti ?Tenure Lyon: SEE ATTACHMENT PROCEEDING IS NOTIN CUSTODY . . . Has not been arrested. pending outcome this proceeding. Name of Complaintant Agency, or Person Title, If any) 1) If not detained give date any prior summons was served on above charges . Fi. it i. person is awaiting trial in another Federal or State Court. 2) Is a Fugitive CI give name of court 3) is on Baii or Release from (show District) this personlproceeding is transferred from another district CI per (circle one) 20. 21, or 40. Show District - IS IN CUSTODY 4) On this charge this is a reprosecution of charges previousiy dismissed which were dismissed on motion Federai State of: DOCKET NO. 6) El Awaiting trial on other charges SHOW 5) On another conviction U.S. ATTORNEY DEFENSE If answer to (6) is "Yes", show name of institution this prosecution relates to a If "Yes" pending case involving this same Has detainer Yes_ give date defendant MAGISTRATE been ?led? :1 No ?led - CASE NO. two prior proceedings or appearance(s) DATE OF . on 33' ear before U.S. Magistrate regarding this ARREST defendant were recorded under if Arresting Agency Warrant were not Name and Of?ce of Person DATE TRANSFERRED Montthale ear Furnishing information on this form MELINDA HAGG TO U.S. CUSTODY . U.S. Attorney [3 Other U.S. Agency Name of Assistant U.S. This report amends A0 25? previously submitted Attorney (if assigned) SUSAN F. KNIGHT ADDITIONAL INFORMATION OR COMMENTS PROCESS: summons [3 NO WARRANT Bail Amount: None If Summons, complete following: Arraignment initial Appearance Defendant Address: Where defendant previousiy apprehended on compiaint, no new summons or warrant needed, since Magistrate has scheduied arraignment Date/Time: I Before Judge: Comments: Case Document 1 Filed 07/06/11 Page 16 of 16 COUNTS 1. 3 and 7: COUNTS 2. 6 and 9: COUNTS 4 and 8: COUNT 5: COUNTS 10 and 11:- ATTACHMENT TO PENALTY SHEET U.S. V. SANFORD WALLACE 18 U.S.C. 1037(a)(1) and - Fraud and Related Activity in Connection with Electronic Mail 3 years imprisonment, $250,000 ?ne, 1 year supervised release, 100 special assessment. 18 U.S.C. 1030(a)(5)(A) and - Intentional Damage to a Protected Computer 10 years imprisonment, $250,000 ?ne, 3 years supervised release, $100 special assessment. - 18 U.S.C. 103 and and Related Activity in Connection With Electronic Mail 3 years imprisOnment, $250,000 ?ne, 1 year supervised release, $1 00 special assessment. 18 U.S.C. 103 and - Fraud and Related Activity in Connection With Electronic Mail 3 years imprisonment, $250,000 ?ne, 1 year supervised release, $100 Special assessment. 18 U.S.C. 401(3) - Criminal Contempt Penalties determined by the court