[conspire] Post Mortum legal explosion
ruben at mrbrklyn.com
Thu Jan 17 19:03:02 PST 2013
On 01/17/2013 07:42 PM, Rick Moen wrote:
> Quoting Ruben Safir (ruben at mrbrklyn.com):
>> He is not the only legal opinion and there are many who disagree.
> I'm underwhelmed by your data. (In short, you are posting bullshit.)
"This week, the Fourth Circuit Court of Appeals affirmed that decision.
The CFAA is primarily a criminal statute designed to combat hacking
it permits a private party "who suffers damage or loss by reason of a
violation of [the statute]" to bring a civil action "to obtain
compensatory damages and injunctive relief or other equitable relief."
Although proof of at least one of five additional factors is necessary
to maintain a civil action, a violation of any of the statute's
provisions exposes the offender to both civil and criminal liability.
A person can be liable under the CFAA if he:
1. Intentionally accesses a computer without authorization or exceeds
authorized access, and thereby obtains ... information from any
2. Knowingly and with intent to defraud, accesses a protected computer
without authorization, or exceeds authorized access, and by means of
such conduct furthers the intended fraud and obtains anything of value.
3. Intentionally accesses a protected computer without authorization,
and as a result of such conduct, recklessly causes damage, or causes
damage and loss.
Here, WEC alleged that Miller and Kelley violated the Act because they
were not permitted to download confidential and proprietary information
to a personal computer under WEC's policies, and they breached their
fiduciary duties by doing so. Based on that breach, they either lost all
authorization to access the confidential information or exceeded their
WEC sought to hold Arc liable because it claimed that Miller and Kelley
undertook this conduct as Arc's agents.
The defendants moved for a 12(b)(6) dismissal, and the district court
held that WEC failed to state a claim for which the CFAA provided
relief. The Fourth Circuit Court of Appeals affirmed the district court,
noting that Miller and Kelley didn't hack WEC's system. (Remember, the
CFAA was created to combat hacking, not an employee data breach.)
Judge Henry Floyd, writing for the three-judge panel, said, "We are
unwilling to contravene Congress's intent by transforming a statute
meant to target hackers into a vehicle for imputing liability to workers
who access computers or information in bad faith, or who disregard a use
policy. Providing such recourse not only is unnecessary, given that
other legal remedies exist for these grievances, but also is violative
of the Supreme Court's counsel to construe criminal statutes strictly
In April, the Ninth Circuit Court of Appeals dismissed a federal hacking
against a California man, finding that the Computer Fraud and Abuse Act
(CFAA), which outlaws computer use that "exceeds authorized access," was
inapplicable to the case. For months, we've wondered whether the Justice
Department would appeal that decision to the Supreme Court.
This week, we got our answer. The DOJ has decided not to petition for
Supreme Court review
from Harvard Business School
The Author wrote for Yale Law review:
"Bazelon was raised in Philadelphia and attended Germantown Friends
<http://en.wikipedia.org/wiki/Emily_Bazelon#cite_note-27> She graduated
from Yale College <http://en.wikipedia.org/wiki/Yale_College> in 1993
and from Yale Law School <http://en.wikipedia.org/wiki/Yale_Law_School>
in 2000 and was an editor of the /Yale Law Journal
<http://en.wikipedia.org/wiki/Emily_Bazelon#cite_note-yal-1> She was
selected for and participated in the Dorot Fellowship in Israel from
After law school she worked as a law clerk
<http://en.wikipedia.org/wiki/Law_clerk> for Judge Kermit Lipez
<http://en.wikipedia.org/wiki/Kermit_Lipez> of the United States Court
of Appeals for the First Circuit
Bazelon is the granddaughter of David L. Bazelon
<http://en.wikipedia.org/wiki/David_L._Bazelon>, formerly a judge on the
United States Court of Appeals for the District of Columbia Circuit
second cousin twice removed <http://en.wikipedia.org/wiki/Cousin> of
feminist Betty Friedan
<http://en.wikipedia.org/wiki/Emily_Bazelon#cite_note-30> She lives in
New Haven <http://en.wikipedia.org/wiki/New_Haven>, Connecticut
<http://en.wikipedia.org/wiki/Connecticut> with her husband, Paul Sabin,
an assistant professor of history at Yale, and their sons, Eli and
^From the LA Times:
^" Some legal experts believe the charges are unfounded since Swartz had
been a university fellow, which gave him the right to access the articles."
They could be lieing, of course since there is no source quoted.
This is also worth a review and discusses both the legal and the ethical
By Lawyer Stephen L Carter
Stephen L. Carter is a professor of law at Yale, where he teaches
courses on contracts, professional responsibility,
While Kerr sat down and gave a long and detail writing of his analysis,
his is not a whole accepted opinion.
>> Where was there a applicable case like this? This case is unique, FWIW
> Reference was to all other past cases under 18 U.S.C. 1343 (wire fraud),
> 18 U.S.C. 1030(a)(4) (computer fraud), 18 U.S.C. 1030(a)(2)(C) and 18
> U.S.C. 1030(c)(2)(B)(iii) (unauthorised access), and 18 U.S.C.
> 1030(a)(5)(B) and 1030(c)(4)(A)(i)(I) & (VI) (computer damage).
Which one involves a political activist?
> I'm sure Swartz's case was 'unique' in many ways, but none of them
> relevant to the question.
That would be your opinion. None involve the taking of data from an
opened accessed computer by a political activist who never even released
>> Prosecution of the law and public opinion are not ever seperate issues.
> Are you comprehensively misreading what I said deliberately, or is it
HAH - am I now your chew toy?!?
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