Manning Trial and the Computer Fraud and Abuse Act

April 10, 2012 8:46 PM

In 1984, Congress passed a law called the Computer Fraud and Abuse Act, in the wake of some high profile incidents of hacking. Designed to prosecute hackers, the law is written vaguely enough that it has, in recent years, been used (with varying degrees of success) to prosecute people violating terms of an employer's computer usage policies, or in the infamous case of Lori Drew, a Terms of Service agreement. But today, the 9th circuit court of appeals ruled that employees can not be prosecuted under the CFAA for violating an employer's computer use policies, dealing a blow to the Obama administration’s Justice Department, which is trying to use the same theory to prosecute alleged WikiLeaks leaker Bradley Manning.
posted by to sir with millipedes (29 comments total)

Manning's case is a bit different, of course: since following the policy was the subject of a lawful military order, he's not in the same position as an ordinary employee.
posted by tyllwin at 8:54 PM on April 10, 2012 [2 favorites]

OBAMA'S DEALING BLOW!
posted by srboisvert at 9:21 PM on April 10, 2012 [3 favorites]

They are throwing the book at Manning and this takes a paragraph out.
posted by humanfont at 9:39 PM on April 10, 2012 [6 favorites]

There was some rumbling about the CFAA and Facebook's Terms of Service when it came out that employers / job interviewers were requesting Facebook passwords. This ruling would seem to deflate that counterarugment.
posted by radwolf76 at 9:43 PM on April 10, 2012

I can't really see how they distinguish the cases. Is there a link to the judgment?
posted by Joe in Australia at 9:47 PM on April 10, 2012

Full text of the opinion.
posted by grimmelm at 9:56 PM on April 10, 2012 [2 favorites]

WTF?

I'm lost. I thought Manning divulged classified information.

I used to have TSC clearance when I was a REMF in Japan. The suits told me that divulging any of that stuff would earn me ten years (per disclosure) in a cell in Leavenworth.

I have a certain sympathy for what Manning said his motives were: I'm always ready to give a whistle-blower an attaboy if his heart is good.

Still....
posted by mule98J at 10:03 PM on April 10, 2012 [2 favorites]

Thanks, Grimmelm.

To be clear, violation of the CFAA is not the ONLY charge against Manning, but it features prominently in the list of laws he's accused of breaking.
posted by to sir with millipedes at 10:11 PM on April 10, 2012

I occasionally fantasize about the A-Team breaking him out of prison. Or at least a large, angry crowd, like with Anthony Burns.
posted by dunkadunc at 10:15 PM on April 10, 2012 [3 favorites]

Christ, if life was as easy as the A-Team.
posted by dunkadunc at 10:16 PM on April 10, 2012 [2 favorites]

Julian Assange has now been held for over 500 days without charge. Manning? He rots for years, even after Amnesty International described his treatment as inhumane.

Maybe we can work this all out after the election when it is more convenient for everyone.
posted by furiousxgeorge at 10:41 PM on April 10, 2012 [18 favorites]

There was some rumbling about the CFAA and Facebook's Terms of Service when it came out that employers / job interviewers were requesting Facebook passwords. This ruling would seem to deflate that counterarugment.

It leaves completely open suits in the civil court system, or in certain states (thanks, Maryland) in the State court system. But just not the Federal system.

I'm perfectly happy with this ruling. I hope it stands.
posted by sbutler at 10:51 PM on April 10, 2012

My interpretation of this ruling is that it is legal for me to surf porn at work. Is that right?

Actually, I don't care if it's legal. It feels so good.
posted by twoleftfeet at 10:53 PM on April 10, 2012 [4 favorites]

I predict, I hope: if Congress tries to pass a law to "fix" the CFAA that you'll see a bunch of CSPAN videos emerge showing Congress(men|women) using their laptop during sessions in a way that violates the Congressional AUP.
posted by sbutler at 10:56 PM on April 10, 2012 [2 favorites]

Incidentally, the court's decision is written by Chief Judge Kozinski. He is an excellent, excellent writer. His prose is plain and simple, and it epitomizes the ideal that court opinions should, as much as possible, be comprehensible to regular folk who didn't go to law school. If you are ever going to read a court opinion before commenting on it (ha), Kozinski would be an excellent choice.

In this particular case, and in the context of this FPP, if you can't make it through the entire decision you could skip ahead to pages 3866–70. Then jump to page 3878, the end of the dissent. Kozinski is so much fun that even the dissenting judge can't resist breaking a smile.
posted by cribcage at 11:28 PM on April 10, 2012 [4 favorites]

Ars Technica: Terms of service violations not a crime, appeals court rules
posted by XMLicious at 1:22 AM on April 11, 2012

It's well known that the 9th Circuit is comprised of deranged liberals who Hate America.

We'll see what Justice Kennedy has to say about this.
posted by Trurl at 5:42 AM on April 11, 2012 [1 favorite]

you could skip ahead to pages 3866–70

If that's not the funniest thing I'll read on MetaFilter today, it will be a good day indeed.
posted by Trurl at 5:44 AM on April 11, 2012 [3 favorites]

I'm actually glad to see it, since I've always thought the idea of calling ToS violations a crime was absurd (much as it emotionally appealed to me in the case of Lori Drew). I just don't expect the removal of this single charge to help Manning much. Charging Manning with this at all is was just what prosecutors always do: try and multiply the charges as much as possible.

if Congress tries to pass a law to "fix" the CFAA

God, I hope not. Since it'd probably include expansions of the Patriot Act, and provisions culled from SOPA and ACTA. But then, what law that touches on the Internet does not?
posted by tyllwin at 6:30 AM on April 11, 2012

There was some rumbling about the CFAA and Facebook's Terms of Service when it came out that employers / job interviewers were requesting Facebook passwords. This ruling would seem to deflate that counterarugment.

That was me. If this district's ruling ends up winning at the Supremes (and this will go there at some point, it's not like it's a small question of different interpretations between circuits) I'll be much happier to have floated an argument that got shot down in court in favour of less insanely intense enforcement of T&Cs that normal humans can't understand without legal assistance by design.
posted by jaduncan at 6:42 AM on April 11, 2012

I thought so too, but it turns out the first page of the decision is numbered 3855.
posted by nebulawindphone at 6:58 AM on April 11, 2012

Reading Wired to get legal news is like reading USA Today to learn about a scientific study published in Nature. No wonder so many people are confused.
posted by Muddler at 7:03 AM on April 11, 2012 [1 favorite]

What is with the "Obama administration’s Justice Department"? The department rather pre-dates Obama (and Bush, etc) and is staffed with many many professionals who have worked across multiple administrations. They have a budget of over $27B and employ over 100,000 people. It is just the plain old Justice Department. It is inflammatory and somewhat ridiculous to attribute the entire department to the president.
posted by Bovine Love at 7:47 AM on April 11, 2012 [1 favorite]

It is inflammatory and somewhat ridiculous to attribute the entire department to the president.

You get to appoint the top dog jobs, you take responsibility for where they steer the ship and what mischief the crew is doing below deck. Buck stops here and all that.

Useful shorthand also for historians when they wish to castigate or praise the works of earlier administrations.
posted by IndigoJones at 8:06 AM on April 11, 2012 [1 favorite]

> What is with the "Obama administration’s Justice Department"? [...] It is inflammatory and somewhat ridiculous to attribute the entire department to the president.

Hardly. As the Chief Executive, Mr. Obama does have a high degree of control over the Justice Department - he can hire and fire, at least at the top level, and can make policy (subject, at least theoretically, to the actual law of course).

He's had this power for over three years. By this time, considering Justice Department actions as representing the policy of Mr. Obama is completely accurate.
posted by lupus_yonderboy at 8:19 AM on April 11, 2012 [3 favorites]

Iif Congress tries to pass a law to "fix" the CFAA that you'll see a bunch of CSPAN videos emerge showing Congress(men|women) using their laptop during sessions in a way that violates the Congressional AUP.

As long as they're not also wearing hoodies they'll be OK.
posted by NorthernLite at 8:44 AM on April 11, 2012

It is just the plain old Justice Department

Especially when politically expedient.
posted by Blazecock Pileon at 9:32 AM on April 11, 2012

Mr. Obama does have a high degree of control over the Justice Department - he can hire and fire, at least at the top level

I think your definition of "high degree" is very different then mine, or you have never worked for a very large company or government department.

Indeed, he picks the top and sets out some broad policy guidelines. But blaming everything (or, for that matter, giving him props) on Obama is ridiculous. All this fist shaking at Obama, or for that matter, Bush before him, ignoring that the congress, senate and supreme court are all responsible for the state affairs with hundreds of years of precedent and policy is greatly oversimplifying things and keeps people from examining real issues, like the nature of the laws involved, and what they are trying to achieve, and whether their goals are good or not, and how we can best achieve those goals without sweeping up people we shouldn't. But, no, its that Obama guy, he went down and told them what charges to lay on Manning.

I'd prefer actual discourse on the issue rather then Fox-style blame games. You know, what Manning did, whether moral or not, is a very serious issue; for the system as a whole, you really can't have people just publishing this stuff unless you are a fan of anarchy. Now we may judge that his public good outweighs the bad (disclosure of very national security data), ala whistle-blower, but that decision needs to go to a court, and he needs to be charged, and if he wasn't serving the social good, then he should be charged under good laws, and maybe we should be looking at those laws instead of politically charging everything with Obama, or right or left wing, or the like.

ok, I'll admit, I'm ranting, but you know it isn't just "the right" who plays divisive politics. If we want solutions, we all have to stop making everything political and for/against binary positions.
posted by Bovine Love at 9:51 AM on April 11, 2012

Either Obama is not doing his job in reigning in the DOJ or he actually supports it.
posted by humanfont at 1:22 PM on April 11, 2012