After the 9th Circuit’s en banc ruling in United States v. Nosal (Nosal I), it appeared for a brief and shining moment that some clarity was being brought to the Computer Fraud and Abuse Act, that the court held that violating the terms of service did not elevate whatever private crap a website owner used into the foundation for a federal offense. But as so often happens, the clouds rolled in and obscured the sunlight.

“[W]ithout authorization” is an unambiguous, non-technical term that, given its plain and ordinary meaning, means accessing a protected computer without permission. This definition has a simple corollary: once authorization to access a computer has been affirmatively revoked, the user cannot sidestep the statute by going through the back door and accessing the computer through a third party. (Emphasis added.)

For an unambiguous, non-technical term, “without authorization” has caused the murder of a great many words in explanation. But there is some foreshadowing in there, perhaps not clearly noticed in Nosal II, but apparent now that the 9th Circuit has issued its decision in Facebook v. Power Ventures, which held that while no CFAA violation occurs based upon a violation of the terms of service per se, failure to abide by a cease and desist demand by the website owner based upon the violation gives rise to a violation of the CFAA.

In other words, violating TOS doesn’t make it a crime, but accessing a website after the owner has demanded you cease and desist does. Remember, “affirmatively revoked”?  Continue reading →

Public Citizen does some great work, and I have enormous respect for Paul Alan Levy, who has always been there for me and others who have been threatened for exercising their First Amendment rights.  So it came as something of a surprise to receive an email from Public Citizen about a separately named group called “Coalition for Sensible Safeguards.”

Coalition for Sensible Safeguards Calls on Lawmakers to Oppose Legislation That Seeks to End Chevron Deference

For those of you unfamiliar with Chevron deference, it comes from a Supreme Court decision that held courts must defer to the “expertise” of federal government agencies in interpreting their enabling statutes. In the educational agency arena, it’s referred to as Auer or Seminole Rock deference. Same deal, different case names.

Apparently, there is a move in Congress to enact legislation to do away with Chevron deference. Continue reading →

Carl David Ceder in happier days

While the internet doesn’t forget, it does fade from memory. But that’s not enough for some sad young lawyers, whose butt is still sore from a well-deserved beating they endured as a result of getting caught doing nasty things. Carl David Ceder still felt the pain.

And worse still, he paid good money to J.C. Penney for his promotional headshot, having to endure the mommies and daddies and their little rug rats crying as they awaited their first picture to send to grandma.  But Carl was stoic. He would gaze into the abyss and look lawyerish. No one could stop him from being the lawyer he pretended to be.

Then some mean, old lawyer from New York went and took his best baby lawyer promo pic and besmirched it. “This will not stand!”   Continue reading →

A guy walks into a bar in San Antonio with a gun strapped to his leg. The start of a funny joke? Nah. The start of a conundrum.  The guy has a right to open carry, a fundamental right according to the Supreme Court in Heller and McDonald,* and one that is widely accepted in Texas culture.

What does this mean? It means that it’s a perfectly lawful exercise of constitutional rights, until it’s not. It means that gun guy should not be subject to seizure and interrogation to prove to the satisfaction of police (or anxious observers) that he’s entitled to exercise his constitutional right to bear arms. It means that no one knows, until something bad happens, that the gun guy is a bad dude whose possession of a weapon crosses the line between an exercise of a constitutional right and the commission of a crime. It means that there is a conundrum.

The conundrum was obvious in Dallas.

The state has long been a bastion of pro-gun sentiment and the kind of place where both Democrats and Republicans openly talk about the guns they own and carry, on their person, in their vehicles, at their offices, at their homes and even in the halls of the Texas Capitol.

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It was interesting, if not surprising, to watch the twitter feed of ignorance following yesterday’s post about Deray Mckesson’s arrest in Baton Rouge.  There were the puny defensive retorts of people who hated Deray and sought any nit, no matter how wrong, to impugn him or justify his arrest. There were the emotional retorts that were devoid of meaning, but seemed important enough for someone to publish.

Neither tribe could bring themselves to rise above their prejudices. Not even for a day.

In the aftermath, there are the finger-pointers and rationalizers making the usual excuses. Then there are voices trying to accomplish the same goals, but wrapped in packages that make the unwary believe they are seeking unity when they remain stuck in their tribalism. They use softer, kinder words, but they still put their tribe in the right, and tacitly blame the other.

Charles Blow tells of a conversation with his daughter the morning after the Dallas killings. Friday morning, after the Dallas shootings, my college student daughter entered my room before heading out to her summer job. She hugged me and said: “Dad, I’m scared. Are you scared?” We talked about what had happened in the preceding days, and I tried to allay her fears and soothe her anxiety.

How does a father answer such a question? I’m still not sure I got it precisely right. Continue reading →

Two new lawyers had a novel idea they wanted to try. And they did what most can’t be bothered to do. They asked first.

The Opinion was issued in response to this request by Stephanie Lynn Ramos and Miriam Lacroix, who at the time had just graduated law school and were looking for a way to fund a practice – initially conceived of as a non-profit – that would provide quality services to immigrants in need of competent legal representation.

Sure, it was only the New York State Bar Association, which has no authority to decide anything, but this was the only game in town to get an advisory opinion on the ethics of crowdsourcing the funding to start their law firm. And the NYSBA’s response was sound.

A law firm may engage in certain types of crowdfunding but not others.  Any form of fundraising that gives the investor an interest in a law firm or a share of its revenue would be prohibited.  However, in some circumstances a law firm may give the funding source some kind of reward. For example, a law firm may send a funder non-confidential memoranda discussing legal issues (provided the law firm complies with any applicable advertising rules), or may agree that the law firm will provide pro bono legal services to certain charitable organizations, provided that the lawyer complies with Rule 1.1 regarding competence and the representation does not involve conflicts in violation of Rule 1.7 or Rule 1.9.

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Nick Selby is one of the cops who takes his life into his own hands by questioning the herd. Even though he may not always ask the same questions you or I might ask, we don’t have to worry about our backup pulling a Serpico when our life is on the line. Nick does, but he asks the questions anyway. For this, he deserves respect.

For me, though, the pride was over more than just those acts of bravery; it was over the commitment to professionalism, trust and respect by the Dallas police that will allow the department to be as levelheaded in the aftermath of the massacre as it was in the midst of it.

Friday morning, after our brothers were assassinated for being white and for being officers, the word was sent out: more protests are expected, and we must not interfere with them. And that is the way it should be.

This may not seem so bold to outsiders, but there are a lot of cops who will view the murders in Dallas differently, who will see Selby’s call for calm in the “aftermath of the massacre” as heresy. They are not as concerned about the right to protest as they are about the assassination of their “brothers.” Continue reading →

While electing judges makes little sense, it sometimes gives people a judge who wouldn’t be picked by the party power brokers who put up the names to be appointed by their minions in office.  Kelly Case was elected in 2012 to serve as a 9th Judicial District Court Judge in Montgomery County, Texas.  His term lasted until 2016. Judge Case did not.

District Judge Kelly Case on Wednesday announced plans to resign effective next month in a letter to Gov. Greg Abbott. Case, who didn’t seek a second term, submitted the letter the day after Grant effectively won the seat by capturing the Republican nomination in a runoff.

Case’s staff said he wouldn’t comment on his resignation. But he has said that he is leaving the bench “to make more money” to pay for the college educations of his four children.

This will come as a shock to some, but no one gets rich by being a judge, and the benefit of lawyers laughing at your jokes doesn’t pay for shoes for your kids. Still, there is likely more to the story of Judge Kelly’s resigning before the end of his term, as his tenure was, ahem, controversial. Continue reading →

It was, to be blunt, disappointing to read the comments to my post in the aftermath of the Dallas murder of five cops. I want to believe that I have a better class of reader than reddit. Not that anyone is less inclined to favor a side, but that you have the capacity to appreciate that no side is pure and perfect, no side evil and wrong. While specific instances of conduct can be carefully fit into their proper place, the generalizations upon which we rely are mere generalizations. They are no definitive, reliable absolutes.

All cops are not racist killers.  Even the cop who is a little too racist,* a little violent, will be the nice guy who saves a kitten up a tree or helps an old woman cross the road.  Then some will gush, “he’s the one good apple,” because you’ve reduced a human being to one act, good or bad, like a cartoon character. People are like that, variable, inconsistent, sometimes good, sometimes bad, sometimes in between.  You know that, right? Right?

So the comments to the post disappointed me. I trashed almost all of them. I refused to allow that post to become the soapbox for more of the same generalizations of the other side, the one you hate the most, the one you love the least.  For one post, one friggin’ post, could you not put down your team banner and not persist in arguing that, “but, but, but . . . we’re RIGHT and they’re WRONG!!!”  Some of you, many regular commenters here, could not. You just couldn’t do it. Continue reading →

There is nothing inconsistent about mourning the deaths of Alton Sterling and Philando Castile, while simultaneously mourning the murders of five Dallas cops and wounding of another six, who might have died but for where the bullets happened to strike.  The reasons behind these deaths are very different, yet inextricably related. The irony is undeniable, as the front page of the New York Times juxtaposes the competing tragedies.*

In its editorial, it asks When Will The Killing Stop?

Videos of two fatal shootings of African-American men have again documented what appear to be almost casual killing by the police. They prompt the deepest shock at what the nation has witnessed over and over again: a chance encounter with the police and an innocent black life ended.

Continue reading →