That's One Less Federal Crime You'll Commit Today

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19 Responses

  1. Shawn says:

    Is the decision available to be viewed online? I would like to read this.

  2. Patrick says:

    You can find it by clicking the link which begins "divided Ninth Circuit".

  3. Bill Poser says:

    That's sure a relief: I live in Canada and didn't even know about the donut requirement. But, if I did, isn't it a problem getting donuts in case quantities through US customs?

  4. Marc says:

    Ken, quick hypothetical:

    Since it is a violation of Facebook's TOS to provide others with your login information, When a potential employer asks for a persons Facebook password, can they refuse on the grounds that he is asking them to break the law? If he refuses to hire them based on this, is there any potential recourse?

  5. Ken says:

    Marc, there are a couple of components to your question. The first is whether letting someone else log in to you Facebook could be a crime. I think the answer is, under the broader interpretation that the Ninth Circuit rejects, yes.

    The second component is whether a potential employer can refuse to hire you for refusing to do something illegal. That's a state-by-state question. In some jurisdictions, firing someone — or refusing to hire them — because they won't break the law is a tort.

  6. ShelbyC says:

    Wrt the facebook thing, I would think that the employer logging in using somebody else's credentials, without Facebook's authorization, would be a violation even under the 9th circuit's interpretation. Surely if Nosal's friend had given Nosal his credentials, and Nosal had logged in and gotten the information himself, that would have been a violation, no? The "protected computers" at issue belong to Facebook, not the account holder.

  7. ScottH says:

    They got Tim Hortons in the US now; we could send him donuts from one of them, eh? Hey, Hosehead – do you like Pineapple Crullers?

    They could be useful in researching your cases:

  8. Jess says:

    Well, Bill if you bring them over yourself you risk a strip search by customs. I mean if they'll strip search Loretta Van Beek over a few accidentally undeclared rasberries I can only imagine what they would do for donuts. I take that back, I don't want to imagine.

  9. Jerryskids says:

    YOU MUST READ TH?E OPINION! Most entertaining thing I've read all day.

    But it was rather disconcerting to read the opinion and see this in the dissent" " I fail to see how anyone can seriously
    conclude that reading in contravention of office
    policy could come within the ambit of 18 U.S.C. § 1030(a)(4),
    a statute explicitly requiring an intent to defraud, the obtaining
    of something of value by means of that fraud, while doing
    so “knowingly.” And even if an imaginative judge can conjure
    up far-fetched hypotheticals producing federal prison
    terms for accessing word puzzles, jokes, and sports scores
    while at work, well, . . . that is what an as-applied challenge
    is for.

    In other words, oh, don't worry, that's not what they meant and even if they did they would never enforce it and even if they did enforce it, you would probably find some judge down the line after some lengthy and expensive legal proceeding that would cut you lose anyway.

    Cold comfort, that.

  10. Jerryskids says:

    That is my biggest frustration over the law as it has become to be an attempt to legislate "fairness". A law that calls for the death penalty for spitting on the sidewalk is fair insofar as it makes the crime and the punishment quite clear – it draws a "bright line" between what is permissible and what is prohibited.

    Is it "fair" in some cosmic sense? Well, that meaning of "fairness" has been debated by thousands of eminent scholars for thousands of years. If access to a "fair" ruling depends on which philosophy book the judge most recently read, we are all subject to seemingly random rulings.

    It seems so many laws now have some component of "reasonableness" written right into the law. What is reasonable? Well, we will let a judge and jury decide that after the fact; but you have no way of knowing ahead of time whether or not you are about to break the law. You might as well throw out the entire code and replace it with a single law: Thou shalt not do bad things.*

    *For further details, consult the judge and jury at your trial.

  11. Mercury says:

    Once pretty much everything is illegal (we're almost there!), selective enforcement will make our political/legal system indistinguishable from totalitarianism. Official whimsy in other words will be basically all that stands between your at-liberty self and jail/legal hell at any given time.

    The Feds are pushing in this direction the most, especially with the myriad (and very recent) rules and regs dreamed up by the always expanding list of federal agencies (also magic-wanded into existence).

    The WSJ did a long article recently about huge laundry lists of shiny new federal crimes that are ensnaring all kinds of people for engaging in essentially harmless activity.

  12. Hortensio says:

    You have a preferred flavour of Timbit you'd like sent over?

  13. Jordan says:

    "The employees used their log-in credentials to download source lists, names and contact information from a confidential database on the company’s computer, and then transferred that information to Nosal. The employees were authorized to access the database, but Korn/Ferry had a policy that forbade disclosing confidential information."

    Interesting facts.

  14. Orin Kerr says:

    Thanks for the shoutout, Ken. The interesting question now is whether DOJ will petition for cert. Stay tuned on that one.

  15. Mercury says:

    Here's the link to the (even better) online version of the WSJ series on federal crime expansion I mentioned above:

  16. mojo says:

    HAH! I just ripped the "Do Not Remove Under Penalty of Law" tag off the bottom of my chair!


  17. Crissa says:

    This isn't much different than felony trespass, though. It really is as simple as walking on someone's lawn when they requested you not to. Or walking on the sidewalk outside a business that has kicked you out (actual law in California).

    I'm not sure how to write it – not to say it can't be better – and not leave some iffy loopholes that couldn't be exploited. This is just basically trespass electronically… But do need a law penalizing braking and entering into someone's electronics.

  1. April 13, 2012

    […] as well as common user violations of website terms-of-service. [Orin Kerr, Volokh Conspiracy, Ken at Popehat] Earlier here, here, here, […]

  2. April 13, 2012

    […] on Popehat, the Ninth Circuit rejects the government's attempts to base criminal prosecution on violations… The majority opinion is a pretty entertaining read, […]