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September 15, 2011

Is Congress to make unauthorized use of coffee-makers (and even some commenting on this blog) a federal felony?

The seemingly crazy question in the title of this post is prompted by this new op-ed appearing today in the Wall Street Journal and authored by computer-crime guru Orin Kerr.  The piece is headlined "Should Faking a Name on Facebook Be a Felony?  Congress contemplates draconian punishment for Internet lies," and here are excerpts:

Imagine that President Obama could order the arrest of anyone who broke a promise on the Internet.  So you could be jailed for lying about your age or weight on an Internet dating site.  Or you could be sent to federal prison if your boss told you to work but you used the company's computer to check sports scores online.  Imagine that Eric Holder's Justice Department urged Congress to raise penalties for violations, making them felonies allowing three years in jail for each broken promise.  Fanciful, right?

Think again. Congress is now poised to grant the Obama administration's wishes in the name of "cybersecurity."

The little-known law at issue is called the Computer Fraud and Abuse Act. It was enacted in 1986 to punish computer hacking.  But Congress has broadened the law every few years, and today it extends far beyond hacking.  The law now criminalizes computer use that "exceeds authorized access" to any computer.  Today that violation is a misdemeanor, but the Senate Judiciary Committee is set to meet this morning to vote on making it a felony.

The problem is that a lot of routine computer use can exceed "authorized access."  Courts are still struggling to interpret this language.  But the Justice Department believes that it 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....

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....

Remarkably, the law doesn't even require devices to be connected to the Internet. Since 2008, it applies to pretty much everything with a microchip. So if you're visiting a friend and you use his coffeemaker without permission, watch out: You may have committed a federal crime.

Until now, the critical limit on the government's power has been that federal prosecutors rarely charge misdemeanors.  They prefer to bring more serious felony charges.  That's why the administration's proposal is so dangerous.  If exceeding authorized access becomes a felony, prosecutors will become eager to charge it.  Abuses are inevitable.

Real threats to cybersecurity must be prosecuted.  Penalties should be stiff.  But Congress must narrow the Computer Fraud and Abuse Act before enhancing its penalties.  There's no reason to make breaching a promise a federal case, and certainly not a felony crime.

I am, of course, eager to assume that everyone who visits and comments on this blog is doing so from a computer on which they have authorized access.  And yet, I also suspect that a hard-headed federal prosecutor, perhaps one who does not think former federal prosecutor Bill Otis gets all the respect he deserves in this forum, might be eager to investigate if some commentors who regularly attack Bill are possibly exceeding their authorized access when posting comments.  Or perhaps this new proposed Computer Fraud and Abuse Act would even allow a hard-headed federal prosecutor to go after commentor "federalist" simply because that chosen commentor has been using a "fake" name which (falsely?) suggests he has some link to the authors of The Federalst Papers.

September 15, 2011 at 10:55 AM | Permalink

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Comments

Talk about the continual CRIMINAL STUPIDITY of our govt!

Posted by: rodsmith | Sep 15, 2011 11:20:09 AM

Isn't Bill Otis that really intelligent and attractive man that always has something spot on to say in a very diplomatic manner?

Or is he the guy that does the science things on TV with baking soda?

Posted by: S.cotus | Sep 15, 2011 11:28:18 AM

Tell me if this is wrong:

Since anonymous posting is protected by the Constitution, it is "authorized access" to this blog provided an individual did not gain their own ISP access by using identity theft or fraud, like using someone's credit card to set up their Internet account.

But it would not be surprising if Congress passes another unconstitutional law in the name of security.

Posted by: Anon | Sep 15, 2011 12:07:55 PM

Them persecutors need to get real lives.

However, ah'm glad ta know some other folks might start lookin' out fer my bud Bill - cuz ah'm a bit concerned about him lately myself.

I think he's been hangin' out with those CJLF boys out there in Califoreignia fer too long.

BILL! AH'M CONCERNED FER YA! I THINK YER GETTIN A BIT OUTA BALANCE! IT'S LIKE YA GOT TWO EARS ON ONE SIDE O' YOR HAID, AND NONE ON THE OTHER! AH'M AFEARED YA MIGHT TIP RIGHT OVER AND LAND IN THE PACIFIST OCEAN!!

Ah'd like to invite Bill to spend some time back here in real America (Texas) fer a spell. There's all kinds of Texasses like him down here, and we'd all be better hangin' together. (I'd be happy to show 'im the ropes...heh heh heh.)

Posted by: Al Ammo | Sep 15, 2011 12:21:15 PM

Doug --

You designed this one to make it impossible for me to resist, and, as usual, you've succeeded.

1. Since you wisely (and graciously) allow freedom of speech here, within every reasonable limit, "regularly attacking" me would not be outside the authorized terms of use. Any prosecution based on that theory would therefore be a non-starter.

2. Were it otherwise, I'd decline to prosecute anyway. First, I wouldn't give Eric the satisfaction, and second, I've grown so used to being called a bloodlusting Puritanical Nazi nerd that I wouldn't know what to do without it.

3. As to the merits (sort of): Q: Now let's see, who's the Chairman of the Senate Committee that's going to consider this thing? A: Pat Leahy (D-Vt.).

Q: Who was AG when the the 2009 MySpace case got brought? A: Eric Holder.

Q: Who was AG when the 2010 Ticketmaster case got brought? A: Ditto.

Q: Who has a fairly consistent record of criticizing Sen. Leahy and the prosecution decisions of Eric Holder's DOJ? A: Your truly.

4. I have had the pleasure of meeting federalist, and I assure you he's much too young to have had any connection to the authors of the Federalis Papers. In this, he is to be distinguished from me.

Posted by: Bill Otis | Sep 15, 2011 12:30:19 PM

Bill: "I've grown so used to being called a bloodlusting Puritanical Nazi nerd...."

I don't recall anyone calling you a nerd.

Al Ammo: "I think he's been hangin' out with those CJLF boys out there in Califoreignia fer too long."

Bill has never been to CJLF's office, though he would be most welcome to visit if he chose to. He posts on our blog but is not otherwise affiliated with CJLF.

Posted by: Kent Scheidegger | Sep 15, 2011 1:42:02 PM

Kent,

Well, I went to Stanford about 30 years ago. Palo Alto is about, what, three hours from Sacramento? That might be close enough for Al.

I'll work on my nerdiness. I have faith there's not far to go.

Posted by: Bill Otis | Sep 15, 2011 2:11:02 PM

People it's not just politics it's about stupidity on both sides of the aisle and selective enforcement by the DOJ.

Posted by: Gary | Sep 15, 2011 2:13:07 PM

First, to prosecute as a felony everybody who has ever lied about something on the internet would incarcerate a majority portion of the users of the internet. IMDB posters seem to all be professionals in the movie and TV industry, while most users on eHarmony/Match are older, heavier, or have less hair than is represented in their profile. Of course these are gross over-generalizations, but the insanity of what is proposed in the OP remains.

Also, was that comment above directed at me, Mr. Otis? Or would Eric Holder get the satisfaction from you prosecuting a felony excess of authorized access case? Strangely, I may feel honored.

Posted by: Eric Matthews | Sep 15, 2011 2:58:26 PM

I plead the Fifth.

Posted by: Res ipsa | Sep 15, 2011 3:12:45 PM

Kent/Bill,

I stand corrected on the technolocality.

Actually, I do appreciate the work the CJLF boys are doin' out there. If it weren't fer yer spiritual presence, that whole state woulda fallin' off the edge of the earth a long time ago.

I give ya about a 2 gallon tip o' my ten-gallon hat.

Al

Posted by: Al Ammo | Sep 15, 2011 4:17:17 PM

Res ipsa --

"I plead the Fifth."

It won't do you any good. As is well known, I'll have my goons beat it out of you.

Posted by: Bill Otis | Sep 15, 2011 4:47:56 PM

Eric Matthews --

"Also, was that comment above directed at me, Mr. Otis?"

Nope. If you've ever called me a nerd, I'm not aware of it. But, please, don't hesitate.

Posted by: Bill Otis | Sep 15, 2011 4:51:17 PM

Doug, are you trying to sic the feds on me? LOL.

Posted by: federalist | Sep 15, 2011 6:57:11 PM

Bill -

Pardon if I sound self-centered, but I was talking about this comment (Sep 15, 2011 12:30:19 PM):


"2. Were it otherwise, I'd decline to prosecute anyway. First, I wouldn't give Eric the satisfaction...."

Posted by: Eric Matthews | Sep 15, 2011 9:01:17 PM

Given that there are three Eric references in the comment and the other two are expressly Eric Holder, I'm not quite sure how you got the idea he was referring to you.

Posted by: Kent Scheidegger | Sep 15, 2011 9:22:10 PM

Kent -

Two reasons. First, that AG Holder was specified by last name in both latter references. Second, because of some exchanges that Bill and I have had in the past. Due in part to those exchanges, I may be among those who Bill feels "regularly attacked" by as being a "bloodlusting Puritanical Nazi nerd".

In that regard, I'll breakdown that four-part insult. I take no ideological stance for or against the death penalty as a practice, so "bloodlusting" wouldn't be an adjective I would use in reference to any prosecutor unless he were nicknamed something like "Vlad".

Puritanical? Well, some founding societies of the U.S. were Puritans, so it doesn't surprise me that there are still Scarlet Letters handed out by American law. That somebody like Mr. Otis may support these could classify him as having Puritanical beliefs. Whether that is an insult is in the eye of the beholder.

Nazi is an inflammatory term used by many Trolls. I've never used that term to insult another online or otherwise. That said, Adolf Hitler himself lauded the American lawmaking use of "Protecting Children" as a justification to pass laws that infringe on civil liberties (Mein Kampf page 403).

And as for Nerds. I have far too many friends who are nerds, geeks, etc. to use that as a derogatory term. I have too many traits in common with these words myself to truly use them as insults.

Posted by: Eric Matthews | Sep 15, 2011 10:42:04 PM

Eric Matthews --

The reference is to Eric Holder, not you. Eric Holder is a prosecutor, and I was referring to him as the particular prosecutor to whom I would not give the satisfaction of undertaking a case with me cast as the "cyber-victim."

To the best of my memory, you have not used any of the words I listed in describing me.

Posted by: Bill Otis | Sep 15, 2011 11:12:06 PM

What a wonderful new weapon of mass lawyer destruction. Thank you.

I have strongly urged innocent defendants, victims of federal inquisitors, to be pitiless in their efforts to destroy the lives of the prosecutors and judges, with all out campaigns of personal attacks, including calls to their mothers.

One such suggestion was to demand total e-discovery on the personal and work computers of the federal thugs. One is looking for an improper motive in the prosecutor, and for bias in the judge, or any ex parte communications with the prosecutors. I thought there was a good chance of finding child porn, then sending the computer to the FBI for an investigation of the prosecutor. They would say it was for work, and research. But that is what all perpetrators say.

Now, we have this proposed law. And the odds of finding false information transmitted is around 100%. If any made an EBay bid on a government computer, whoa.

Posted by: Supremacy Claus | Sep 16, 2011 4:43:11 AM

Federalist: If the feds come for you, you are not using a fraudulent, phony name. You are writing as a fictional character, like James Bond. Should Ian Fleming be arrested for the extra-judicial assassinations carried out by the fictional character in his novels? That would be ridiculous, despite some of the action being based on his experience in the intelligence service.

I am not a lawyer, but it is not unauthorized practice of law to give legal advice to a licensed lawyer. I want to be your consultant for free, on the personal destruction of the FBI agents, the federal prosecutors, and the judges. They deserve no quarter. If they do not all quit the business after I get through with them, I eat something, since I do not have a hat. If some commit suicide, so much the better.

Posted by: Supremacy Claus | Sep 16, 2011 9:09:51 AM

Thanks a lot for sharing this with us, was a great post and very interesting

Posted by: cooltasche | Sep 16, 2011 9:44:38 PM

And Bill shows the range of his mentality.

I became a rich, white, old man and you can too if you don't analyze like a scientist/engineer and swallow enough BULLSHIT!

Bill, (and TQ), for the sake of our country, try to think and stop swallowing.

The gubermint can be (and is) very dangerous to liberty.

Posted by: albeed | Sep 19, 2011 10:56:13 PM

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