Wednesday Writs: Brief Edition, Including Van Buren v United States
Supreme Court of the United States during Obergefell vs Hodges
decision, 26 June 2015. Ted Eytan Via Wikimedia Commons
L1: If the federal government has its way, according to an argument made before SCOTUS this week, lying on a dating website profile or using your company-provided Zoom account to chat with your family will be a federal crime. The Court was hearing arguments in Van Buren v United States, in which a Georgia police officer was charged with violating the Computer Fraud and Abuse Act by using his credentials to access confidential information about a woman in exchange for payment. The would-be briber was actually working for the FBI, and Van Buren was hit with federal charges. But he says this is too broad an interpretation of the Act, which prohibits only “hacking” but also “exceeding authorized use” of a computer system. Van Buren’s counsel made the slippery slope argument before the High Court on Monday that such a broad application of the CFAA implicates behaviors many of us engage in every day.
His lawyers argued that Van Buren’s credentials gave him access to the information and thus he did not exceed authorized use under the CFAA (even if he violated department policy and possibly state law.) To hold otherwise is to hold that what essentially amounts to a violation of terms of service rises to the level of a federal crime. Dating website TOS usually prohibit putting false information in one’s dating profile, but if one does so, has that person exceeded unauthorized use, as contemplated by the CFAA? Absurd, say prosecutors. That would obviously never happen.
Wouldn’t it? As pointed out in the link, folks have been prosecuted for “misusing” JSTOR and Ticketmaster, employing “scraping” software to extract academic papers or buy up tickets for resale. Where is the line between hacking and TOS violations? Maybe SCOTUS will tell us when they decide Van Buren’s fate.
L2: Also this week at the Court, justices heard arguments in Trump v New York, in which the government seeks to keep undocumented immigrants from being counted when congressional districts are drawn next year. The Court seemed skeptical. Notable, from Justice Barrett: “A lot of the historical evidence and longstanding practice really cuts against your position… Illegal aliens have never been excluded as a category from the census.”
L3: Someone tried to bribe the president for a pardon. This might be an interesting story. Or it might not. It’s hard to tell, since the only public document related to the case is redacted so as to be devoid of any discernable details. No word on whether said briber was ultimately successful.
L4: Apparently, there exists a very popular South Korean pop group –a “K-Pop” group – called BTS. The oldest member of the group is about to turn 28, which in South Korea means a mandatory 20 month stint in the military. But so popular is BTS that the very thought of one of those dreamy guys leaving his music career to join the South Korean army was unthinkable; the country has passed a law allowing K-pop stars to postpone their mandatory service for two additional years. That seems extreme, but then again, I remember New Kids on the Block Day.
L5: The latest news on the great election fraud caper – at least as of 7:45pm, EST, on Tuesday, December 1, 2020, can’t swear things won’t have progressed by publication – AG William Barr says the DoJ has found no evidence of widespread fraud that could have swung the election. The Elite Strike Force had thoughts.
L6: A sheriff’s refusal to respond to a FOIA for records concerning its dealings with ICE will cost Knox County, Tennessee taxpayers over $78,000.
L7: The funeral home that fired Aimee Stephens, the trans woman whose case was part of Gorsuch’s Bostock decision but died before the Court issued its ruling, will pay $250,000 to her surviving spouse and the ACLU lawyers who represented her.
L5: and in other news the sun rose in the East today . . .
L3: My guess is this is either Roger Stone or Mike Flynn. If the latter then both need to be tried and convicted. IN a functioning government this revelation would reignite impeachment hearings both to seek the early removal of the President form office and the ensure his legacy is appropriately trashed.Report
[L1] lol. This argument is starting to sound like “well there wasn’t a SIGN ON THE SUPPLY CLOSET DOOR saying not to go in there and take stuff, and there wasn’t a SIGN ON THE JANITOR’S DESK saying not to take the keys that she just left lying around, and anyway I didn’t SIGN ANY PIECE OF PAPER saying that I wouldn’t or shouldn’t take all the toilet paper home…”
I mean, the court system turns heavily on the “reasonable person” standard, and it seems entirely reasonable to me that an agent of the state using an information system for unauthorized personal reasons is entirely within the definition of “unauthorized access”. If nothing else, that understanding is what keeps NSA agents from just rifling through cell-phone transcripts on a whim (side note: the lack of a hard-and-fast software-level block on doing that was one of the reasons Snowden rabbited, because he didn’t believe that people could be trusted not to do it!)
Furthermore, if you’re honestly concerned that someone adding a couple inches in significant locations in their description on a dating site would result in legal action, add a line to the TOS saying “we don’t check everything here for accuracy, proceed at your own recognizance”.
“[F]olks have been prosecuted for “misusing” JSTOR and Ticketmaster, employing “scraping” software to extract academic papers or buy up tickets for resale.”
…and that’s a good thing, a happy thing, a proper use of these services that we should allow and encourage? That’s the way things ought to be, you think? That’s something that we just have to accept as The Way The World Is, nothing to be done about it?Report
The reasonable person standard exists in civil law, particularly the tort of negligence, not so much criminal law. Van Buren’s lawyers are making a pretty standard argument in a criminal case, that the law literally says this and Van Buren’s activities were perfectly legal under the black letter of the law even though they were skivvy. This argument has a very good track record of success.Report
Especially for cops behaving badly.Report
The recent cases over this-or-that killing often cite the relevant portions of the law, and “reasonable” and “reasonable person” appear in them quite often.
And it’s a bit weird to see who’s suddenly treating “The Cop Was Acting By The Book So We Can’t Touch Him” as an acceptable argument.Report
“The specific political distinction to which political actions and motives can be reduced is that between friend and enemy.”
–Carl SchmittReport
[L3] “Haha, let’s see Trump wriggle out of this jam!”
(Trump wriggles out of the jam easily)
“Ah, well. Nevertheless…”Report
I’m quite sure he will attempt to wriggle out of it, the same way that he wriggled out of any relationship to the multiple convictions and guilty pleas of people in his first campaign that Meuller indicted. Looking at the timing, however, indictments are not likely to drop before the inauguration, which means he won’t be protected from prosecution.Report
What we have is a rumor that someone in, or close to, Trump’s office either did something illegal or was approached about something illegal. That’s not enough information to judge that he’s even accused of anything.
The way to bet is the press is spinning us up over something that’s not really meaningful.
Bill and HRC already showed us how high the bar is for what’s needed to convict a President in this situation and the answer is “seriously, crazy high”. Without a signed contract spelling out who gets what, the way to bet is what happened was legal.Report
What is being overlooked here is why and how Trump is able to “wriggle out” of charges of corruption.
Is it because he is shown to be innocent?
No.
Its because his faithful supporters repeatedly excuse or even embrace his behavior no matter how corrupt.
So the line about him “wriggling out of” jams seems like it is a jibe at his critics, but it is actually a scathing indictment of his supporters.Report
L1: Van Burens are having their moment in the legal system this week.
https://www.arlnow.com/2020/12/01/court-docs-metro-station-manager-beat-coworker-for-helping-customer/Report
L4 – the Wikipedia indicates there was a lot of maneuvering by both sides over Elvis Presley’s draft status and fulfillment, but in the end he decided to just go regular soldier route. (A decision made somewhat easier that we were in the interregnum between Korea & Vietnam)Report
Van Buren’s counsel made the slippery slope argument before the High Court on Monday that such a broad application of the CFAA implicates behaviors many of us engage in every day.
And this is like saying that you’re 5’10” on a dating website, is it?
I wouldn’t mind defenses like the whole “if you arrest me for this, that will open the floodgates!” defenses if stuff like “I was growing marijuana in accordance with state law!” wasn’t regularly shut down before the fact. Like, “you cannot use this as a defense” shut down.
But *THIS* defense is allowed? In a case where the cop took a bribe to access confidential info that he oughtn’t have?
“If you arrest me for this, you’ll have to arrest everybody for everything” strikes me as far, far more specious an argument than “I was doing this in accordance with state law.”Report
He wasn’t saying that it was legal, just that, in order to find it illegal under that particular law, one has to interpret that law more broadly than it was intended.Report
“This law was not intended to be read so broadly as to find police officers taking bribes to help stalkers to be guilty.”Report
Sure. Most laws weren’t written for that particular case.Report
This.
There’s all sorts of reasons that what the police officer did should be illegal. Hell, there might be some existing laws it’s illegal under. I suspect it’s illegal under _bribery_ laws…looking up someone’s information would seem to be an ‘official act’, which means paying someone to do it is bribery. There also should obviously be privacy laws in some manner where police officers can’t just _tell people_ things.
But it’s not hacking. He had permission to access the database. The fact he proceeded to do something unauthorized with the information gained does not retroactively make that hacking.
This isn’t even ‘lying on a dating site’, this is ‘any computer operator can invent _any_ rules clients are required to follow, even ones completely unrelated to the computer system, and have you arrested for it’.
I mean, here’s a fun example. Twitter’s TOS says: You may not engage in the targeted harassment of someone, or incite other people to do so.
Which is perfectly fine. But should Twitter be able to have people who do that _arrested for hacking_? And now we’re into the point of…who exactly is interpreting your behavior under this rule? Right now, Twitter can say whatever they want is ‘targeted harassment’. But if someone gets arrested for ‘hacking’ by breaking Twitter rules, the state will, in fact, have to prove they broke those private Twitter rules!
But wait. The example gets worse. What if Twitter says you can’t do that _even off Twitter_? (This is not impossible. There are plenty of services that have rules of behavior that cover off-site behavior, usually so they can pre-emptive kick people off who are problematic elsewhere.)
And you do that off Twitter, and then log into Twitter and do anything. You are now in violation of their TOS…which is now a literal crime.
We tend not to want _private individuals_ (Yes, this particular example is a law enforcement agency, but there appears to be nothing that would limit this sort of ‘hacking’ to them.) invent _crimes_ for other people, even if those other people hypothetically agree to be bound by them.
If the argument is ‘This only applies to law enforcement’…I honestly can’t comprehend how. Hacking laws generally don’t have special definitions when dealing with government computers.
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Hacking is, or at least _should be_, a pretty clearly defined offense under the law: Guessing or stealing credentials, or using something that clearly isn’t intended for the public to us via some sort of bug, especially if deliberately you end up in an area that is supposed to be protected. There’s some vagary there, but the problem is generally the interpretation, not the rules.
It’s actually rather like physical trespassing laws. You can’t take someone else’s keys, you can’t pick locks or jimmey doors, and you can’t go into areas that are posted as offlimits, or areas that a reasonable person would know are off-limits (I.e., sitting on someone’s front porch waiting for them to get home, legal, wandering around in their backyard shed, not so legal.)…
But people can’t make signs that give directions you have to follow or you’re trespassing, that’s not how trespassing law works. I’m now imagining a restaurant calling the police because someone walked past a ‘Please wait to be seated’ sign and sat down. Yeah, that’s not illegal.
You either have permission to be somewhere, or you don’t, and if you have permission to be there, you can do anything legal you want. And if they don’t want you doing that thing, they _have to ask you to leave_…and then it becomes trespassing if you don’t.
Same with computers. Or it should be.Report
…folks have been prosecuted for “misusing” JSTOR…, employing “scraping” software to extract academic papers…
In recent years? If JSTOR has made it available, then Library Genesis (or the increasing number of mirrors) almost certainly has a better-than-screen-scraped copy. Same for Elsevier. Increasingly true for books, both non-fiction and fiction. Recently the lag between publication and Library Genesis having a copy is about two weeks.
Several years back a friend wrote a textbook on an obscure subject. One of the university presses published it. The book was never released as an e-book, only a dead-tree version. At some point I checked and Library Genesis had it. I downloaded it for comparison purposes: perfect match to my paper copy, including a couple of typos that made it through the publication process. My friend checked with the publisher and it was a bit-for-bit copy of the PDF file the publishing office sent to the printer, including hi-res images and proprietary font information. No one knows — or at least, no one is admitting — how the copy was made.Report
L5: This is all very normal, as are the calls from retired generals and former NSAs for martial law to overturn the election.Nothing to see here.Report