Following my efforts to draw out shy and reticent lawprofs, like Dan Solove, to join in a broader conversation that will do little to enhance tenure opportunities but may well result in a benefit by advancing legal thought (yes, I haven’t given up yet on this topic despite Dan’s reluctance to jump into the trenches), comes Judge George Wu’s decision in the Lori Drew case, officially dismissing the misdemeanor conviction under the Computer Fraud and Abuse Act.
Judge Wu’s decision goes to great lengths to parse the language of the CFAA, and does so with reference to a number of law review articles, foremost of which is Orin Kerr’s Cybercrime’s Scope, 78 N.Y.U. L. Rev. 1596 (2003). Notably, Judge Wu finds many of the older decisions unhelpful, and perhaps out of touch, when it comes to figuring out what the future of cybercrime ought to be, as noted in footnote 21:
Commentators have criticized the legislatures’ understandings of computers and the accessing of computers as “simplistic” and based upon the technology in existence in the 1970’s and 1980’s (e.g. pre-Internet) rather than upon what currently exists. See, e.g., Kerr, Cybercrime’s Scope, 78 N.Y.U. L. Rev. at 1640-41.
As one reads the decision, particularly in the context of the developing caselaw relating to computer searches and crimes, it’s impossible not to appreciate how true this is. Judges are, to be blunt, the last people one would want defining the parameters of the law relative to technology or the internet, given how limited their understanding of it is. The corollary is that they are constrained to rely on law review articles in this developing area, and the law is being crafted by judges who can’t tell Youtube from Twitter and lawprofs.
Judge Wu held that using a websites clickwrap terms of service as the basis for a crime is unconstitutionally vague, both from the public notice side (since no one must, or wants to, read the clickthrough terms) and from the objective limits on law enforcement side. Enter Dan Solove, who posts that this has been his position as well:
The Lori Drew case has finally been decided. Background about the case is here. In previous posts ( here and here), I argued that the CFAA should be held to be unconstitutionally vague.In an opinion released on August 28, Judge George Wu struck down, on unconstitutional vagueness grounds, the prosecution’s attempt to enforce violations of website terms of service as crimes under the Computer Fraud and Abuse Act (CFAA):
[I]f any conscious breach of a website’s terms of service is held to be sufficient by itself to constitute intentionally accessing a computer without authorization or in excess of authorization, the result will be that section 1030(a)(2)(C) becomes a law “that affords too much discretion to the police and too little notice to citizens who wish to use the [Internet].” City of Chicago [v. Morales], 527 U.S. [41] at 64 [(1999)].
One of Dan’s scholarly foci is internet privacy, which puts this right up his alley. Indeed, his book, The Future of Reputation, which received a very positive review here, will be the standard upon which much understanding of the impact of online privacy will be determined for a long time, and will likely have a significant impact on the developing law as well.
See where this is going? For fellow trench lawyers, we cannot afford to ignore the lawprofs because we see them as being too theoretical, too disconnected from the real practice of law. It is their writings, their thoughts, that will provide the bases upon which our efforts will be judged. Judge Wu did, and other judges will as well, look to their writings to determine the future of the law as it relates to computers, the internet, and all technological advancements, because these are areas so far outside the courts’ ken that they are finally becoming aware that it can’t be decided using horse and buggy law.
And the problem for us is that the lawprofs are developing their theories, their thoughts, the very foundation that will later come back to bite us in the butt, without us. It doesn’t matter whether we think they’re brilliant and fascinating, or unrealistic and disconnected. The fact remains that judges have, and will continue, to look to their work to decide our work. In the meantime, it would behoove all of us to remember that legal scholarship is not just a game to be played with the winner receiving tenure or perhaps an endowed chair. It eventually filters down to real life and real people, and impractical or misguided scholarship can do a great deal of harm to many, even if created with the best of intentions.
It’s time that peer review in the area of law be broadened beyond the practical and theoretical camps, and include everyone interested in the subject. I suspect that Orin came to realize how some of his theories came back to haunt him during his work on behalf of the defense in this case, and perhaps might now wish somebody had challenged his thoughts at the time. Regardless, we would all do better to hash it out now rather than end up with fascinating theories that put people in prison for the wrong reasons.
And just because things worked out for Lori Drew this time doesn’t mean everything will be fine the next time. Technology is still developing, and judges are still judges. Those of us in the practical blawgosphere need to engage with the lawprofs. And those shy lawprofs need to come out of hiding.
Update: I’ve received a private email from Dan Solove, which will put to rest my poking him on the subject of cross-discussion. Suffice it to say that Dan doesn’t see the divide between practitioner and professor that I do, and in any event feels that my tone has been so disrespectful that he doesn’t care to engage in further discussion with me. That being the case, I will respect his wishes and leave this issue behind.
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Shout-out to UC law prof Caron and (former) UC law librarian Hodnicki for starting the law profs blog (http://www.lawprofessorblogs.com/).
All the law prof blogs are in one place (imagine the hassle if they were not). They legitimized law prof blogs — think Berman — from the getgo and offered them an opportunity to be heard.
Most law profs, I’ve found, are more than willing to engage the general public and/or fellow bloggers. Can you comment on any given law review article? Not really.
You’re kinda stumbling into the middle of this, so it would probably be best for you to read the earlier posts so you know what it’s all about rather than miss the boat. There are a few lawprofs, mentioned in earlier posts (Berman being one) that are exceptions to the rule. That said, I doubt you’ll find much agreement with your statement. In fact, I doubt you’ll find any lawyer agreeing with you. In fact again, I think that you’re absolutely, totally, utterly, completely off base, but that’s why I’ve written about this.
By the way, I’ve written about a number of law review articles, as well as reviewed a books written by law profs. They like it when they receive positive mention, but hate it when it’s critical. Of course, that’s a bit of an inhibition to discussion, if you can only say nice things. But hey, what do I know. I’m just a trench lawyer with a blawg.
On another note, I ordinarily delete links to blogs in the comments, but I’ve left yours intact despite the fact that the appropriate place for you to shout out to anyone is your blog rather than mine.
Scott writes: “I suspect that Orin came to realize how some of his theories came back to haunt him during his work on behalf of the defense in this case, and perhaps might now wish somebody had challenged his thoughts at the time.”
To the contrary! I joined the defense, wrote the motions, and argued the case based on the “theories” I had articulated in my article in 2003. In particular, let me quote a passage the article:
*************
A contract-based approach to authorization [that is, the view that mere breach of a contract like TOS] may also render unauthorized access statutes void for vagueness on the ground that the statutes “fail to provide the kind of notice that will enable ordi-
nary people to understand what conduct it prohibits.” Few users read the terms of service or terms of use of any of the computers they access, much less all of them, and many restrictions feature ambiguous terms that can be quite difficult to interpret. It is difficult, if not impossible, for a typical user to know for sure whether he is in compliance with all of the contractual restrictions regulating each of the computers he has accessed at any given time. Under the broad contractual theory of authorization, however, any violation of the terms of service or terms of use of any computer a person accesses violates the statutory prohibition on unauthorized access.
State v. Allen provides a notable example of a court harnessing constitutional objections to narrow the scope of an unauthorized access statute. In Allen, the Kansas Supreme Court relied on vagueness and overbreadth concerns to reject a broad statutory definition of “access” and adopt a dictionary definition instead. “We read certain conduct as outside a statute’s scope rather than as proscribed by the statute if including it within the statute would render the statute unconstitutionally vague,” the court wrote. “Consequently, although [the Kansas computer crime statute] defines ‘access,’ the plain and ordinary meaning should apply rather than a tortured translation of the definition that is provided.” Although the Allen court opted to narrow the scope of “access” rather than “without authorization,” its approach also could be used to narrow the scope of “without authorization” to the circumvention of code-based barriers to access.
*****
Perhaps I should add, on this alleged divide between “real lawyers” and “law profs,” that I first started to think about these issues back in 1998 to 2001 when I was a “real lawyer” at the Justice Department’s computer crime section. I then became a lawprof and wrote the article, returning to “real lawyer” to litigate the Drew case. I think it’s one of the problems with claiming a divide between the two: There is no reason a lawprof can’t litigate and a litigator can’t write and teach.
Thank you for allowing me to be inappropriate!
Scott — Once again, I can’t resist commenting here. It strikes me as particularly ironic you use this issue to critique me again for not paying attention to practitioners, when in one of my earlier Lori Drew posts, I provide a link to one of your blog posts. Yes, surprisingly, a law professor who, according to you, never acknowledges the existence of practitioner blogs, once dropped a link to you, of all people!
But this irony aside, you’re right that I often don’t link here and don’t particularly want to engage you in dialogue — to “jump into the trenches” as you say.
Maybe one of the reasons why you’re finding law professors like me not receptive is the nasty, dismissive, and shrill tone often found here toward us. It is this tone that completely turns of any desire to be “in the trenches” with you or other bloggers who are in your particular circle.
Before you chalk up what I said above to thin skin or a dislike of disagreement, rest assured my skin is thick and I enjoy vigorous debate with those who disagree with me.
That’s because you’re special. But I will no doubt hear from someone else about how I let you do it and not them.
I didn’t mean to suggest that your work on Drew was anything less than terrific, and it was. But that’s why I said “some”. As I recall (without rereading the decision), Judge Wu did distinguish one definitional point made in your Cybercrimes article, while adopting most others, as an example.
While I agree, my effort is more modest. Just cross-discussion.
Sorry, Dan, but I’m not buying. It’s not about links, though links are always nice. It’s about the discussion, like the one wholly foreclosed on Cyber Civil Rights. And it’s not about me. So you find me nasty, dismissive and shrill. Fair enough. But then, there are plenty of other lawyers, and they aren’t included in the cross-discussion either. Are we all nasty, dismissive and shrill?
Perhaps the problem is, as I’ve said numerous times before, that we simply say what we think rather than couch our disagreement in the language of the academy? That’s Randazza’s view. But then, he may be as nasty, dismissive and shrill as I am. Of course, he wasn’t treated very kindly by the lawprofs, even though he certainly had his points, as extreme offense was taken to his “circle jerk” comment. It is an offensive description, and it was unfortunately accurate.
When I write supportive posts, I receive the occasional “thank you” comment. But when I write a critical post, I’m nasty, dismissive and shrill. Frankly, I have been more shrill as time goes on, about this subject at least, because of this division. Some of the lawprof posts on which I’ve commented lately have been bizarre, like the one about whether to take the bar exam. But the turning point for me was the Cyber Civil Rights debate. Even many lawprofs thought that one over the top. I certainly did.
I offered to call a truce to my use of language that offends you (meant generically) so that we could get beyond this problem, and you didn’t respond. Yes, it’s hard for me to couch my position in dulcet tones. I’m a trial lawyer. We make our points forcefully. But I am willing to try to avoid offense in order to achieve more fruitful dialogue. I specifically sent you a link by email so that you wouldn’t, by chance, miss it or think I was sandbagging you. You chose to ignore me. So be it. When I wrote this post, I remembered that you had linked to me in your post, and figured that you would pick up the irony. But it brought you out, and that was what I sought to accomplish.
So I again offer to take it down a few notches, to accommodate academic sensibilities, if you are willing to open the discussion between the profs and us lawyers. And if not me because I’ve annoyed you too much already, then other lawyers. The blawgosphere is lousy with us. If you enjoy vigorous debate, then let’s have some. Show us. Don’t tell us. And should you decide to challenge anything I post, feel free to use whatever tone you feel appropriate. I won’t mind, and I will still try to tone it down to be less offensive.
Again, this isn’t about showing each other love, but about getting something more out of all these letters and words posted on blawgs. I’ve explained why I read your posts, and that I learn from everything I read. You are concerned with the “nasty” tone. Let’s move beyond the petty issues and get to the ideas. I will do my part to make you and other lawprofs feel less offended by my trench lawyer language. And if not me, then others. But let’s put an end to this insularity. Deal?
Knew a lawyer named Solove, some years ago, who apparently enjoyed vigorous debate so much that he came within inches, if not more, of being cited for contempt by Julius Hoffman, who definitely disagreed with him on a matter before his court, and was a stickler for form. (As I heard the story, in his chambers, he would get downright miffed if some lawyer would start talking until his bailiff had relieved him of his robes and replaced them with a suit jacket. I’m not sure why he found the robe uncomfortable for chamber wear; the only robe I wear is of the bath variety.)
Being a kid at the time, I was pretty impressed — this was around the time of the Chicago Seven trials, although he wasn’t one of those lawyers.
But I digress.
As willy-nilly consumer of the legal system, I don’t much care if those who educate people who work in it and those who work in play nice together, but it’s in my interest that they learn from each other, and if that requires some to learn to say, “After you, my dear Alphonse!” more often or others to grow some thicker skin, that’d be okay with me, long as it gets done.
Maybe one of the reasons why you’re finding law professors like me not receptive is the nasty, dismissive, and shrill tone often found here toward us. It is this tone that completely turns of any desire to be “in the trenches” with you or other bloggers who are in your particular circle.
Dan:
One of the problems with cyberspace is that tone is lost in the pixels. Fights often break out over people assuming one meaning when another was intended.
I think that Scott could say the exact same things to you over a beer and you would know, by his tone and demeanor, that he simply loves debate.
I say that from the perspective of having known him for about 15 years and had a couple of those beers with him.
The real trick is getting him to pay.
I’m not quite sure, but I think he’s impugned “other bloggers who are in [my] particular circle,” whoever that may be, via guilt by association. That may or may not include you.
And, as I recall, O’Keefe bought the beers last time around, so it’s your turn next time.
I’m not quite sure, but I think he’s impugned “other bloggers who are in [my] particular circle,” whoever that may be, via guilt by association. That may or may not include you.
I got impugned without knowing it? I hate when that happens.
I’ll buy the beer next time, but only if you can get Solove to join us.
First, I don’t know for sure that Dan even drinks beer. Second, if he does, I feel reasonably confident that he doesn’t want to have a beer with me. He may not want to have a beer with you either, according to how he defines my “circle”, but you have a better shot than I do.
Scott,
I think that my main objection to your claim is over generalization. You claim to be speaking for all practical lawyers, though obviously only a small minority of practitioners go to court, “fight” in the “trenches”, etc. And you claim to generalize about the views, sensitivity, etc., of a whole group of law professors, though there are probably upwards of 10,000 nationwide – and a rough guess would be that half practice in some way during the year. I think making smaller claims, and using discrete examples, would make it more likely you’d get responses from particular people, if that’s really what you want.
You are absolutely correct about my generalizing. At various points, I’ve noted certain limitations, such as some lawprofs who regularly fall outside my characterizations, and that I speak more for criminal defense lawyers (though I’m hardly the authorized spokesman for anybody other than myself) rather than all litigators, or non-litigators. I don’t repeat these points in every post on the subject just to avoid the tedium, and I avoid being specific about lawprofs, though I’ve dumped on poor Dan unfairly since he’sstood up on the subject, because my purpose isn’t to attack anyone specifically.
I really do owe Dan an apology, having used him as the whipping boy in my posts. It was never directed toward him personally, though it came off that way. I can’t tell you how much I’ve learned, and enjoyed, reading Dan’s, and your, posts. My circle tell me that I’ve gone soft and mushy, but the fact is that you guys have a lot to offer, even when we disagree.
I think I’ve done as you suggest in the posts addressing discrete issues or posts from other blawgs, where I address the issues and authors directly. But this one, and the handful before it that deal with the overarching topic of engaging in cross-discussion, is very general, and does, as you suggest, paint with too broad a brush.
On another subject, enjoy your sabbatical. I’m just jealous that I can’t have one. If I don’t work, my kids don’t eat, and they really like to eat.