Was there ever a case where Chief Judge Alex Kozinski was more in his element?
Tuesday's test of the Computer Fraud and Abuse Act was tailor-made for the tech-savvy judge skeptical of government.
His majority opinion is full of (very quotable) gems. Here are a few outtakes that didn’t make the Recorder story.
"Minds have wandered since the beginning of time and the computer gives employees new ways to procrastinate, by gchatting with friends, playing games, shopping or watching sports highlights. Such activities are routinely prohibited by many computer-use policies, although employees are seldom disciplined for occasional use of work computers for personal purposes. Nevertheless, under the broad interpretation of the CFAA, such minor dalliances would become federal crimes. While it’s unlikely that you’ll be prosecuted for watching Reason.TV on your work computer, you could be. Employers wanting to rid themselves of troublesome employees without following proper procedures could threaten to report them to the FBI unless they quit."
(Reason.TV, eh? It wouldn't be a stretch to think the chief is a fan of the site that brings you the "most compelling stories about freedom from all corners of the Internet." Legalpad hasn't heard back from his honor on that pressing inquiry.)
As for application of the CFAA against minor "workplace dalliances," Kozinski observes: "In a recent Florida case, after an employee sued her employer for wrongful termination, the company counterclaimed that plaintiff violated [the law] by making personal use of the Internet at work— checking Facebook and sending personal email—in violation of company policy."
And Kozinski and the majority make clear they aren't buying the feds' claim that they have no interest in bringing silly cases under the CFAA. "Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement," he says. "Suppose an employee spends six hours tending his FarmVille stable on his work computer," he explains in a footnote. "The employee has full access to his computer and the Internet, but the company has a policy that work computers may be used only for business purposes. The employer should be able to fire the employee, but that’s quite different from having him arrested as a federal criminal. Yet, under the government’s construction of the statute, the employee 'exceeds authorized access' by using the computer for non-work activities. Given that the employee deprives his company of six hours of work a day, an aggressive prosecutor might claim that he’s defrauding the company, and thereby violating section 1030(a)(4)."
The judge also takes us back to the infamous MySpace bullying case. "The government assures us that, whatever the scope of the CFAA, it won’t prosecute minor violations. But we shouldn’t have to live at the mercy of our local prosecutor. And it’s not clear we can trust the government when a tempting target comes along. Take the case of the mom who posed as a 17-year-old boy and cyber-bullied her daughter’s classmate,' he said referring to the Lori Drew prosecution tossed by a district judge. "The Justice Department prosecuted her ... for violating MySpace’s terms of service, which prohibited lying about identifying information, including age. Lying on social media websites is common: People shave years off their age, add inches to their height and drop pounds from their weight. The difference between puffery and prosecution may depend on whether you happen to be someone an AUSA has reason to go after."
And a little sidenote for appellate geeks. Kozinski's opinion follows the trail "blazed" by LVRC Holdings LLC v. Brekka, the circuit's controlling case written by none other than Judge Sandra Ikuta.