Lawyer and professor Harvey Silverglate writes in a book of the same title, that we all commit Three Felonies a Day. This is because the criminal codes — especially the federal — have criminalized so many acts that it is nearly impossible for anyone to function day to day without running afoul of, on average, at least three that could be felonious.
The Senate Judiciary Committee is considering an amendment to the Computer Fraud and Abuse Act that would make it a felony to “exceed authorized access” to any computer. This law was originally passed in 1986 to deal with the problem of hacking into computers for nefarious purposes such as identity theft, stealing trade secrets, and the like. It has been considerably broadened in recent Congresses.
While the law has laudable intentions, much mischief can be made by overzealous prosecutors and those with less than pure motives. This, and laws like it, are treasure troves for prosecutors to go after political opponents.
As Orin S. Kerr, a former federal prosecutor and professor at George Washington University Law School writes in today’s Wall Street Journal:
“[T]he Justice Department believes that [the Act] applies incredibly broadly to include ‘terms of use’ violations and breaches of workplace computer-use policies.
“Breaching an agreement or ignoring your boss might be bad. But should it be a federal crime just because it involves a computer? If interpreted this way, the law gives computer owners the power to criminalize any computer use they don’t like. Imagine the Democratic Party setting up a public website and announcing that no Republicans can visit. Every Republican who checked out the site could be a criminal for exceeding authorized access.
“If that sounds far-fetched, consider a few recent cases. In 2009, the Justice Department prosecuted a woman for violating the “terms of service” of the social networking site MySpace.com. The woman had been part of a group that set up a MySpace profile using a fake picture. The feds charged her with conspiracy to violate the Computer Fraud and Abuse Act. Prosecutors say the woman exceeded authorized access because MySpace required all profile information to be truthful. But people routinely misstate the truth in online profiles, about everything from their age to their name. What happens when each instance is a felony?
“In 2010, the Justice Department charged a defendant with unauthorized access for using a computer to buy tickets from Ticketmaster. Ticketmaster’s website lets anyone visit. But its “terms of use” only permitted non-automated purchases, and the defendant used a computer script to make the purchases.
“In another case, Justice has charged a defendant with violating workplace policies that limited use to legitimate company business. Prosecutors claimed that using the company’s computers for other reasons exceeded authorized access. The Ninth Circuit Court of Appeals recently agreed.”
For Professor Kerr’s complete essay, see here
Silverglate’s thesis, as well as Ayn Rand’s observation that the totalitarians’ strategy is to make us all criminals, and then selectively enforce the laws against disfavored persons – “troublemakers” – has been validated. The felony classification used to apply only to acts which seriously harm an individual or the public and require direct and palpable and has an intentional, knowing, or reckless state of mind. No more. While elimination of a culpable mental state for s serious crime might be a violation of due process, the cost to contest an indictment would financially ruin most of us. Ignorance of the law has traditionally be held to provide no excuse for its violation. That adage, however, came before the time when the federal criminal code (and those of most states) came to rival the content of most libraries. I suppose that means full employment for lawyers, but that does us no good when everyone else is languishing in prison or unemployed because no one wants to run a business for fear they will be next.
Call (or write) your senators and representatives and urge them to vote against this amendment.
Bob Reagan
