Author’s Note: This post is a self-indulgent academic rumination about the area of law in which I do a lot of writing. I don’t know how many readers will be interested, but it’s probably not that many. So feel free to skip.
Around a decade ago, when I first went on the teaching market, one of my ideas was to help establish computer crime law as an academic field. My thinking at the time was that the role of computers in crime and criminal investigations was likely to be a major focus of attention in criminal law scholarship in my lifetime. Strangely, few if any people were writing in the area, so the field seemed wide open. And having spent a few years practicing in the area at DOJ already, I had the advantage of a head start. So I decided that I would try to spend a chunk of my academic efforts helping the field come into being.
A decade later, I’ve been reflecting on how the field has developed. There are different criteria that could be used, but here I want to pick just one: its importance as an academic subject of study. On the whole, the results have been mixed.
On the plus side, there has been much more interest in academic works on these topics among judges, practitioners, and legislative staffers than I ever expected. On the minus side, there has been much less interest among other academics than I would have expected. Today, for example, there are still only five or six law professors who write with any regularity on topics related to computer crime law. Computer crime law just isn’t part of conversation among legal academics these days. Ten years ago, I didn’t expect that would be the case in 2010.
Why so few professors writing in the area? My best sense is that there are two main reasons.
The first problem is the relatively high barrier to entry. Most current law professors who might become interested in computer crime law are either intellectual property professors (interested in technology law generally) or criminal law professors (interested in criminal law issues generally). To teach and write in computer crime law, each group needs to spend some time studying. The IP professors need to get up to speed in criminal law subjects; the criminal law professors need to get up to speed on technology. And to really get the subject, both types need to spend a lot of time studying complicated statutes like the Electronic Communications Privacy Act and the Computer Fraud and Abuse Act. It’s obviously doable, but it does take some time, and that will tend to limit the number of people writing and teaching in the area.
The second problem is that none of the major questions raised by computer crime law have hit the Supreme Court yet (at least until Quon, presently pending, this Term). Supreme Court decisions tend to draw a lot of law professor attention, especially in criminal law. As soon as the Supreme Court gets involved, the issue becomes important. But with most of the issues raised by computer crime law still being in the lower courts, and the case law often remaining sparse at that, the cases haven’t been on the radar screen of a lot of academics.
The interesting question is how that will change when computer crime law questions begin to reach the Supreme Court relatively regularly. A handful of circuit splits in the field were created just in the last year or two, including whether disloyal employee computer use violates the CFAA; whether the CDT warnings are required; plain view for computer files; search of a cell phone incident to arrest; and whether Georgia v. Randolph applies to a computer search. There are a few more issues that are probably a year or two away from a circuit split. My guess is that the arrival of these issues at the Supreme Court in the next few years will push at least some law professors to get involved more in these topics. But then it’s hard to predict.
Anyway, just some thoughts. Now back to our regularly scheduled programming.