A California-based federal appeals court has blocked an astonishing power grab by the Obama Justice Department, which sought the power to file criminal charges against Americans who misuse their employer's computer. Civil rights attorney Harvey A. Silverglate, below left, published a column in Forbes underscoring the vast discretion that the DOJ sought under Attorney Gen. Eric Holder, right -- and apparently holds currently through part of the nation except in the West Coast states governed by U.S. Ninth Circuit Court of Appeals legal interpretations.
Silverglate, below, and his co-author Zachary Bloom wrote:
This case is just the latest example of the danger posed to all of us by federal statutes so vague as to be veritable traps for the average, honest citizen unaware of the potentially expansive (and often unknowable) reach of the DOJ’s power. Since the vast majority of us use computers, we are all vulnerable to the abusive use of this statute unless the Supreme Court upholds the Ninth Circuit’s opinion.
Their full column, Careful What You Click: The CFAA, The Ninth Circuit, And Your Right to Read This Blog, is well worth reading. So are the excerpts from the full court's opinion by Chief Judge Alex Kozinski, a libertarian/conservative nominated to the bench in 1985 by President Reagan. A three-judge panel of the Ninth Circuit, which is widely criticized by conservatives as too liberal, had upheld the DOJ's expansive interpretation of its powers until the full-court reversed. So have three other major jurisdictions around the country. This sets up a potential Supreme Court test.
Silverglate authored an important book in 2009 called, Three Felonies a Day: How the Feds Prosecute the Innocent. The book documents how almost anyone violates at least some law. This widespread "law-breaking" in effect grants to police and prosecutors the power selectively to enforce laws, paving the way to tyranny. His examples, articulated at a 2009 conference in Washington DC sponsored by the Cato Institute, illustrated how what may appear to be random injustices may be evidence of a more sinister pattern of political prosecutions.
I saw this first-hand in researching the federal prosecution of the distinguished forensic medicine expert Dr. Cyril Wecht, left, on more than 40 felony counts of using an office computer to send personal faxes during his 20-years as a part-time county medical examination in Allegheny County, surrounding Pittsburgh. Wecht, a consultant and medical school professor, was a world-famous author of more than 40 books and 500 professional articles and county chairman of his local Democratic Party. He had to spend $8.6 million million to defend himself from the vicious charges by a politically ambitious Bush-appointed prosecutor. She was notorious for prosecuting Democrats in the era of the "Loyal Bushies" as Justice Department prosecutors. Her charges s could have put Wecht, 78, when the charges were dismissed, in prison for the rest of his life. This would have, among other things, deprived the nation of one its most expert and courageous investigators of assassinations and other deaths.'
The Obama administration fought dismissal of the Wecht indictment, illustrating that the DOJ seemingly seeks to sustain and increase its powers no matter what the party. Wecht was using a county computer at a part-time job, thus illustrating that the federal justice department sought to criminalize conduct even at a local level.Under the government's theory, it could have prosecuted him -- or nearly anyone else -- for sending an email or making a phone call home on government equipment.
That pattern exists also in the the California case. Holder's Justice Department pursued an expansive definition of its powers to prosecute criminally those misusing private computers. the Forbes column quoted Kozinski’s opinion as noting that Facebook’s Statement of Rights and Responsibilities is one of myriad such agreements that users violate unknowingly and frequently.
"Many friends and couples share passwords to each other’s Facebook accounts, unaware that Facebook specifically forbids it," the authors wrote. "Regardless of that policy’s merits, it seems silly to think that perusing a friend’s News Feed would result in anything more than a sternly worded message from Mark Zuckerberg’s minions. Yet if the DOJ had gotten its way, that minor violation would be a federal crime."
And what about that Sox or Ravens game whose score you just need to know – even though you’re at work? Browse carefully, because most companies have policies forbidding the use of company computers for personal purposes – which includes anything ranging from a quick email telling your wife you’re running late to a day wasted playing Words With Friends. Most companies won’t begrudge you the occasional glance at the score, of course. But Judge Kozinski points out that while a company can (and probably should) fire an employee who spends six hours a day playing FarmVille during work, “that’s quite different from having him arrested as a federal criminal.”
Related News Coverage
Forbes, Careful What You Click: The CFAA, The Ninth Circuit, And Your Right to Read This Blog, Harvey A. Silverglate with Zachary Bloom, April 13, 2012. This week, American parents should breathe a sigh of relief and then immediately give thanks to the Ninth Circuit United States Court of Appeals. On April 10, that Court rejected the Department of Justice’s suggested interpretation of the federal Computer Fraud and Abuse Act (CFAA), by which the parent of a minor who uses Google could be considered an accessory to juvenile delinquency under federal law. That’s because Google’s little-read Terms of Service forbid the use of their products by anyone too young to enter into a binding contract. Under definitions outlined by the DOJ, a violation of Terms of Service “exceeds authorized access” as stipulated by the CFAA, and is therefore a felony. At issue is the precise meaning of the CFAA’s vague prohibition of activity that “exceeds authorized access” to obtain “information from any protected computer.”
Huffington Post, Famed Physician Dr. Cyril Wecht: Fight Justice Department Misconduct, Andrew Kreig, Sept. 28, 2010. Forensic medical expert Cyril H. Wecht provides a vitally needed defendant’s perspective on the terrible Justice Department misconduct that USA Today just documented in a major investigative project. On Sept. 23, the paper reported 201 criminal cases in which federal judges found that prosecutors broke laws or ethics rules since 1997. Overall, the abuses put innocent people in jail, and set guilty people free. Wecht’s prosecution didn’t fall within the newspaper’s scope because his first judge in Pittsburgh coddled the prosecution instead of criticizing it. But we at the Justice Integrity Project, a non-partisan legal reform group, documented Wecht’s ordeal from 84 overblown felony charges in 2006 carrying long prison sentences for trivial matters.
Catching Our Attention on Justice & Integrity Issues
Washington Post, Convicted defendants left uninformed of forensic flaws found by Justice Dept., Spencer S. Hsu, April 16, 2012. Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people nationwide, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled. Officials started reviewing the cases in the 1990s after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials. Instead of releasing those findings, they made them available only to the prosecutors in the affected cases, according to documents and interviews with dozens of officials.
Washington Post, Google fined by FCC for impeding Street View probe, Hayley Tsukayama, April 16, 2012. The Federal Communications Commission has cleared Google of charges that it illegally collected WiFi data using its Street View cars, but fined the company $25,000 for obstructing the bureau’s investigation. According to the FCC filing, the company has not been helping U.S. regulators look into the matter. “For many months, Google deliberately impeded and delayed the Bureau’s investigation by failing to respond to requests for material information and to provide certifications and verifications of its responses,” the filing said.
BLT / Blog of the Legal Times, Stevens Prosecutor William Welch II Leaving DOJ, Mike Scarcella, April 16, 2012. A top federal prosecutor who led the botched prosecution of former Sen. Ted Stevens will be leaving the Department of Justice “for a job in the private sector,” the agency wrote in a court filing Monday. William Welch II led the Justice Department's Public Integrity Section during its now widely criticized pursuit of corruption charges against the late Alaska senator, a case that ultimately collapsed in 2009 and renewed national debate over the extent to which prosecutors are not playing fair with defense attorneys. It was a low point in the section’s history of handling some of the most sensitive and important cases and has led to hearings on Capitol Hill to discuss the debacle. A hearing before the House Judiciary Committee is scheduled for Thursday morning. DOJ prosecutors filed paperwork Monday morning stating that Welch would withdraw as prosecutor in a U.S. Court of Appeals for the Fourth Circuit prosecution of Jeffrey Sterling, confirming an NPR report that first broke the news. Sterling is accused of leaking secrets to New York Times reporter James Risen, a case that could set important precedent on the issue of whether reporters enjoy a legal privilege that could help them protect their sources, NPR reports.
Slate, How Artur Davis Learned to Stop Worrying and Team Up With Pro-Voter ID Tea Partiers, David Weigel, April 16, 2012. John Fund, the reporter and freelance pro-voter-ID speaker, encouraged the morning audience at Herman Cain's "Solutions Revolution" to mark April 27-28 on their calendars. On that weekend, the Tea Party spinoff group True the Vote will hold its second annual summit on election fraud -- or, at least, the threat of election fraud. The conference will feature some mainstays of the conservative voter integrity circuit. James O'Keefe; former DOJ lawyer/anti-New Black Panther crusader J. Christian Adams; and so on. But the star is Artur Davis, the former Democratic congressman from Alabama who has started irritating his old party by ringing bells about voter fraud.
"He seconded the nomination of Barack Obama at the Democratic convention," said Fund. "He was the only member of the Congressional Black Caucus to vote against Obamacare. And he's finally said, Enough! I've seen voter fraud. It's real, and I know it's real." Late last year, Davis jawed a little about a possible party switch, but worried that the Alabama GOP had "refused to accept" converts like him. He was being a little humble. The only danger in a Davis switch would come when party leaders sprinted through the same door for the chance to embrace him.
Legal Schnauzer, Caampus Crest CEO Ted Rollins Once Beat His Stepson to a Bloody Pulp, Roger Shuler, April 17, 2012. Ted Rollins is the CEO of a company that in late 2010 completed a $380-million IPO on Wall Street--and as head of Campus Crest Communities, Rollins markets student housing to young people. So it is grimly ironic that the same Ted Rollins once beat a young person so severely that the teen-ager's face was a bloody mask.