Friday, April 29, 2011

Sweet Jebus: Unauthorized Access Edition

(via The Volokh Conspiracy) You've got to wonder what kind of crack was the 9th Circuit smoking:

Nosal’s argument that the government’s “Orwellian” interpretation would improperly criminalize certain actions depending only on the vagaries and whims of the employer is foreclosed by Brekka, which held unequivocally that under § 1030 the employer determines whether an employee is authorized. Therefore, as long as the employee has knowledge of the employer’s limitations on that authorization, the employee “exceeds authorized access” when the employee violates those limitations. It is as simple as that.

How 2/3rds of the panel could buy that is beyond me. I mean, really, the implications of the decision are staggering. Surely Judges Trott and O'Scannlain must have appreciated that it makes criminals out of damn near everyone who works for a company of any size. Have they read a standard, corporate AUP recently? They're best summed up by a Rev. Lovejoy quote: "Technically, we're not allowed to go to the bathroom". And if you do, it's now a Federal offense.

I really love Orin's signoff on the subject:

And if you have to go to the Ninth Circuit, remember, don’t consent to anything and tell the cops you need to speak with a lawyer.

Also, random thought: Since this interpretation of the CFAA clearly benefits employers does that mean that the 9th Circuit has a pro-business agenda?

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