Over at Volokh Conspiracy, Orin Kerr writes about the 11th Circuit’s decision in United States v. Rodriguez, the latest decision on the crime of exceeding authorization in the use of a computer, per the Computer Fraud and Abuse Act, 18 U.S.C. 1030.
Belying the decision is a Social Security Administration employee, Roberto Rodriguez, who looked up 17 people on his government computer to, well, you know, just find out what they were up to. Curiosity may kill the cat, but got Rodriguez fired and convicted. The circuit affirmed.
Orin’s issue isn’t so much with poor Mr. Rodriguez and the 12 month sentence he received, but with the lackluster decision.
The phrase “exceed authorized access” is a defined phrase, but unfortunately the definition is circular. According to 18 U.S.C. 1030(e)(6), “exceeds authorized access” means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled to obtain or alter.” That’s not a very helpful definition, if you think about it.An exercise ensues, listing 8 options that all reflect an excess of authority, but along the spectrum of excess that most would consider serious enough to be criminal and trivial enough to be good for a laugh. The problem, of course, is that they all fall within the plain language of the statute, and only by courtesy of the prosecution does it not result in indictment. Relying on the kindness of the government is not a sound foundation for criminal law.
The missing aspect of the definition is what principle governs authorization (or entitlement, if you prefer). Is it just the computer owner’s say so? Does it require the computer owner to put up some sort of password gate that limits authorization? How do you know what you’re entitled to do for purposes of the criminal law?
Orin’s discussion covers his issues well, and there’s no need to revisit it here. But there is an aspect of concern expressed by Orin that compels me to write.
State and federal prosecutors have shown that they’re willing to take favorable precedents like Rodriguez and run with them through the different scenarios. Given that, it’s troubling to me when a court endorses the government’s theory in a case like this without any apparent realization of where the government is going next or the broader possible impact of the decision. To be clear, I’m not blaming the panel: This was a very strong panel; the opinion was authored by an excellent judge; and the facts of this case were pretty egregious. But I think the issue is a bit more complicated than the opinion suggests, and it’s frustrating when defense attorneys don’t successfully bring out these complications in ways that judges can factor in to their decisions.The issue is, I agree, more complicated that the opinion suggests. So how does that become the fault of the defense lawyers?
The problem is one of case versus cause. While I haven’t seen the brief on behalf of Rodriguez, and it may be brilliant or miserably bad (it doesn’t really matter), the attorney(s) charged with representing him on appeal are dealing with the life of a specific individual, Roberto Rodriguez. It’s neither their job, nor their concern, to argue the theoretical viability and limitations of an overbroad, poorly drafted and as yet unclarified law, disconnected from the issues raised in the defense of their client.
That’s what lawprofs are for. Where are the amicus briefs raising arguments relating to the very significant issues that concern Orin? Sure, the parameters of this terribly written law need to be set, and set wisely enough that the absurd examples of criminality created by third party fiat don’t result in similarly absurd prosecutions. But that isn’t going to help Rodriguez much, since his conduct was pretty egregious and certainly fell well within what most would believe to be appropriate parameters.
From the outside, we are often concerned with the significance of decisions for future purpose. How will it apply to other, less egregious, situations? What does it mean in the big picture? I have a rule here that commenters aren’t allowed to include links in the body of comments. Under this decision, you are committing a crime if you do so. Don’t worry, I won’t rat you out, but you get the point. The law is lousy and needs limits.
Yet shifting the duty to get a thoughtful, indeed helpful, decision out of the circuit to the shoulders of the criminal defense lawyer is out of line. Years ago, when I was amicus chair for the NYSACDL, these were the types of cases I would seek out so that the Association could put in its two cents on the bigger issue that fell outside the realm of the specifics of the case. We recognized that the lawyers representing the appellant had a different focus than others watching from the wings. We picked up the slack for the sake of the law.
So where are all the concerned, brilliant law professors who can file dozens of briefs whenever a second amendment case rears its ugly head, but are nowhere to be found when the case is about internet crime? Grading blue books? Fair enough. We all have other things to do, even practicing lawyers who write amicus briefs for the love of the law. Remember, there’s no tenure for practicing lawyers.
I take no issue with Orin’s characterization of the panel who decided Rodriguez as being “very strong,” or that the author of the opinion is “excellent.” But he forgives the panel its trespasses because of this, thus needing a scapegoat for the decision. As usual, the criminal defense lawyer gets the blame.
Maybe they could have done a better job, arguing the issues that still taint this law. Like Orin, I would certainly like some clarification of whether my errant commenters are susceptible to prosecution, just in case they annoy me too much. But if scholars want to find fault here, look in the mirror.
Don’t blame the appellant’s lawyer because they didn’t fight for the cause. They represent the defendant. If you want a better argument for the cause, make it yourself.