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Reading Legal Insurrection is SFW in the 9th Circuit

Reading Legal Insurrection is SFW in the 9th Circuit

An interesting decisionwas handed down by the 9th Circuit Court of Appeals, written by Chief Judge Alex Kozinski.

The case involved employees who had downloaded confidential company information which they were permitted to access, but not permitted to share.  The issue wasn’t whether the employer had a remedy, such as a civil injunction or money damages, but whether the conduct constituted a federal crime.

As described by The Wall Street Journal, the Court held that the conduct did not constitute a violation of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 103, if the only basis for criminal liability was violation of the employer’s work rules:

No, checking Facebook on work computer isn’t a federal crime.

That’s the opinion of the U.S. Court of Appeals for the Ninth Circuit, anyway. In a ruling by Chief Judge Alex Kozinski Tuesday, the court rejected the government’s broad interpretation of an anti-hacking statute called the Computer Fraud and Abuse Act.

Judge Kozinski, writing for an 11-judge panel, explained the stakes in the introduction of his ruling:

Many employers have adopted policies prohibiting the use of work computers for nonbusiness purposes. Does an employee who violates such a policy commit a federal crime? How about someone who violates the terms of service of a social networking website? This depends on how broadly we read the Computer Fraud and Abuse Act.

The government argued that CFAA targeted both hackers and people who are authorized to use a computer, but do so for an unauthorized purpose. The Ninth Circuit, however, ruled that the law doesn’t extend to violations of use restrictions.

“Were we to adopt the government’s proposed interpretation, millions of unsuspecting individuals would find that they are engaging in criminal conduct,” Kozinski wrote.

But, as the WSJ notes, this puts the 9th Circuit at odds with several other Circuits, where violation of employer policies using a computer, even surfing the web, could be considered a crime.

The result obviously makes sense.  Did Congress really intend to criminalize a wide range of online conduct which violated a company’s — some company’s — terms of use?



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Prof, the 9th Circuit Court of Appeals is the most overturned liberal activist court in the nation…

Do you actually believe they read Legal Insurrection or is it that you think they should start?

Because the 9th circuit is so liberal, this decision is a surprise. This was an ideal opportunity to extend government power by criminalizing fairly routine behavior. This would have been another predictable step along Hayek’s Road to Serfdom. But they passed. That’s what makes it so interesting. Even a stopped clock, etc.

Note that this was an en banc decision by the 9th…the whole enchilada on board.

This seems to me to be a sterling example of prosecutorial misconduct.

What kind of tyrannical thug would try to criminalize this kind of conduct?

I could see lots of companies wanting to have use of company equipment be a criminal offense – typically, severance pay is withheld unless you agree to sign a waiver against suing the company. Now, the company can demand that you quit, or else they’ll call the cops. Saves the company all kinds of money and risk. There’ll be no more ‘layoffs’, just ‘mass resignations’. Not that HR is evil, mind you – they’ve just built up that reputation over decades for some reason.

Did Congress really intend to criminalize a wide range of online conduct which violated a company’s — some company’s — terms of use?

Is that a trick question?

We have a Congress that, Democratic or Republican, is interested in centralizing power so that it can be the final arbiter of the goodies to be given away. It’s part and parcel of how the ‘elite’ would like to rule (not govern) us.

And it fits very well with the proliferation of laws such that an average citizen can’t help but trip over them and engage in behavior that a zealous prosecutor could somehow find not just wrong, but illegal and punishable given a pliable judge and a gullible jury.

So sure the Congress could, nod-nod, wink-wink, write a law that would allow a ‘violation of use’ on the web to be a federal crime. Given all the other stuff that is a federal crime these days (and we don’t know the whole list of those crimes, even if the US Attorney does), it wouldn’t be a surprise at all.

Kozinski is great.

“this puts the 9th Circuit at odds with several other Circuits”

It’s like deja vu all over again!

Nobody in their right mind wants to give individual companies the ability to write customized criminal laws solely for use against their own employees.