That's One Less Federal Crime You'll Commit Today
. . . .
(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—
. . . .
(C) information from any protected computer;
Since "protected computer" means any computer in or affecting interstate commerce (any computer connected to the internet, basically), this can be read to criminalize logging onto a site beyond "authorized access" and getting information — including, hypothetically, registering for Facebook with any false information and getting information online from Facebook as a result.
The danger is not that the government will prosecute everyone who lies about their weight on Match.com or lets their 12-year-old register on Facebook or visits Popehat from Canada without sending us donuts. The danger is that the government will selectively prosecute people they don't like — that the government will use this statute to scratch their "there oughta be a law" itch when they are mad at someone who hasn't actually committed a real federal crime.
Fortunately, the government's ambitions have now been thwarted — at least in the Ninth Circuit. In United States v. Nosal, a divided Ninth Circuit panel rejected the broad interpretation of Section 1030 and adopted a narrower approach. I'm in appellate brief Hell, so I won't give you the full rundown. Look instead to Orin Kerr — the victor in the Drew case, who has been sounding the alarm on the dangers of this statute for years — or to Jacob Sullum. The decision — written in typically entertaining fashion by Judge Kozinski — does an excellent job of explaining how a broad interpretation of the statute could criminalize a vast swath of typical behavior. This ruling puts the Ninth Circuit at odds with other Circuits, but to a good end.
Last 5 posts by Ken White
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