Chief Judge Alex Kozinski, Ninth Circuit U.S. Court of Appeals
Image: Jason Doiy/The Recorder
Toss together Alex Kozinski and an untested computer-crime statute, and you can imagine the result.
At oral arguments before an 11-judge panel on Thursday, the 9th U.S. Circuit Court of Appeals chief judge repeatedly challenged the Justice Department's position on the scope of the Computer Fraud and Abuse Act -- a position that could lead to the criminalization of seemingly innocuous computer activity, like providing false information on Facebook or Match.com in violation of terms of use agreements or using work computers in violation of employer policies.
"We don't really want to allow everybody in the country to be at the mercy of their local U.S. attorney, do we?" Kozinski asked Justice Department lawyer Jennifer Ellickson, to the obvious delight of her opposing counsel. "That would be exceedingly bad policy and to be avoided at all costs -- to give the hands of the government the ability to prosecute everybody who has access to a computer and say 'I can't imagine they would go after it.' That would be a really dangerous thing to do, wouldn't it?"
Ellickson, who is fighting to reinstate CFAA charges against a criminal defendant and retain a more expansive definition of when a computer user "exceeds authorized access," responded: "The fact that this statute may cover conduct in which many people engage does not mean the statute is improper or broad."
Kozinski's questions had defense lawyer Dennis Riordan grinning. But it wasn't clear that Kozinski had enough votes to command a majority -- Judge Richard Tallman seemed eager to side with the government, and most of the others didn't tip their hands.
The defendant in Thursday's en banc argument, David Nosal, worked at the executive search firm Korn/Ferry before leaving to start a competing business. Federal prosecutors say he and other employees ransacked Korn/Ferry's computers for Nosal's new business. A San Francisco district judge tossed several of the counts against Nosal in light of a 2009 9th Circuit case, LVRC Holdings LLC v. Brekka, 581 F. 3d 1127. Under that case, Nosal's lawyers argue, he can't be charged with violating the CFAA if his co-conspirators -- who were still employed at time of the alleged unauthorized downloads -- had authorized access to the files.
In April, a split 9th Circuit panel reinstated those counts. None of the judges from that panel were drawn for Thursday's en banc arguments. However, Judge Margaret McKeown, who was on Brekka, weighed in seemingly in favor of Nosal on Thursday.
McKeown suggested the federal trade secret statute was a more "appropriate" tool for Nosal's case than the CFAA statute "which is at best ambiguous on what 'exceeds authorized access.'"
The government doesn't think the statute is ambiguous, Ellickson responded, and Congress can pass multiple statutes governing the same kind of conduct.
Riordan, who lost the last round before the court, deferred for Thursday's argument to his co-counsel, Ted Sampsell-Jones, a Minnesota-based lawyer and law professor.
Sampsell-Jones faced his toughest questions from Tallman, who suggested the court could rule for the government without upsetting the Brekka precedent.
And Tallman threw out one of the many hypothetical scenarios of the day: "So how do we handle the social security employee who stalks women with information that he gets from the confidential government computer?"
Sampsell-Jones responded: "Your honor, not every bad thing that happens needs to be covered by this statute."
Judge Barry Silverman also weighed in skeptically, noting that other circuits haven't gone Nosal's way. Just as Sampsell-Jones said there was a 6th Circuit case that could be helpful, McKeown jumped in with a laugh: "Don't forget the 9th Circuit," she said, referring to Brekka.
The other panel members were Judges Richard Clifton, Mary Murguia, Jay Bybee, Barry Silverman, and Kim McLane Wardlaw, Harry Pregerson, participating by telephone, and Ronald Gould, appearing via video conference.
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It bit of history: Kozinski was assigned an obscenity case in which Ira Isaacs is accused of distributing videos depicting bestiality and other images, similar to the 1973 Miller v. California case. During the trial, on June 11, 2008, the Los Angeles Times reported that Kozinski had "maintained a publicly accessible Web site featuring sexually explicit photos and videos" at alex.kozinski.com. The Times reported that Kozinski's site included a photo of naked women on all fours painted to look like cows, a video of a half-dressed man cavorting with a sexually aroused farm animal, images of masturbation and public and contortionist sex, a slide show striptease featuring a transsexual, a series of photos of women's crotches as seen through snug fitting clothing or underwear, and content with themes of defecation and urination. Kozinski agreed that some of the material was inappropriate, but defended other content as "funny." Kozinski had previously been involved in a dispute over government monitoring of federal court employees’ computers. Administrative Office head Ralph Mecham dropped the monitoring program, but protested in the press.
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