Government Reply in Lori Drew Case:
I have posted the initial briefs on the Rule 29 motion filed in the Lori Drew case, and here is one more filed by the government in response to our reply: Government's Sur-Reply to Defendant's Supplement to Rule 29 Motion. Tomorrow morning, there will be a hearing relating to the motion; I expect to be present.
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I've been frustrated in the past trying to get a decision out of Judge Wu, rather than deferral after rebriefing after re-hearing. I hope it goes better for you. This is an important case.
But what she was convicted of doesn't mention malicious (or tortious) activity, right? My understanding was that she was specifically only found to have accessed information from a computer without authorization across state lines, and that these actions alone amounted to a misdemeanor. Then why is it part of their argument that this behavior was part of a malicious act?
It seems irrelevant that the information-gathering was for malicious purposes, and according to their theory (which speaks of the plain meaning of the statute), gathering information for non-malicious purposes would also be a misdemeanor.
Am I misinterpreting something?
The defendant's claim is that US v. Lainier and Screws v. US state that civil interpretations can only carry over to criminal cases if three conditions apply. And the government's claim is that Marcus v. Hess states that civil and criminal interpretations must be consistent.
Any help resolving this apparent contradiction?
Of course. You've heard of the "ship of state", haven't you? And we all know that ships are female.
I know the vagueness cases support Drew's argument that statutes do not have to be given identical constructions in a criminal as well as a civil case.
See Horvath v. Chicago, 510 F.2d 594, fn. 6 (7th Cir. 1975) (sorry no pinpoint page, no Westlaw at home) quoting Lanzetta v. New Jersey, 306 U.S. 451 "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes"). The aforementioned case seems to indicate there is a higher standard for criminal cases, a lower standard for criminal cases involved economic activity (citing Parker v. Levy, 417 U.S. at 756--757), and another lower standard for civil statutes. The citations suck, I am lazy, but I think the point gets across.
This makes sense, the level of due process is required naturally varies with what is at stake.
Marcus v. Hess is only correct about harmonizing construction if the statute is not rendered unconstitutional when given the civil construction. This argument compliments the argument about the rule of lenity and I think is based on the same rational as the rule of lenity itself.
In short, criminal statutes require more exacting constitutional standards. In theory a civil statute can be constitutionally permissible where applying the same statute criminally would be violative of due process. Therefore, a statute may be interpreted differently in a criminal case than in a civil case in order to save the constitutionality of the statute.
I feel for the attorneys in this case, as these areas of the law are far from clear and the courts seem to give very little guidance.
So to summarize the government's argument:
The only way to override Marcus v. Hess is if the civil interpretation applied to criminal cases would render it unconstitutional. And they reject the claim that 18 USC 1030 would be rendered unconstitutional in this case because they reject the claims of overbroadness (related to the First Amendment) and of lenity, and they argue that due process was not violated.
The First Amendment argument is basically that this law only restricts obtaining information, not speech. So you can violate the TOS and say anything you want, but you can't violate the TOS and obtain information; therefore it's not a violation of the First Amendment.
The lenity argument is basically that lenity only applies when there's ambiguity, and they argue that this law is not ambiguous, at least not grievously so.
And finally, they argue that due process was not violated because Drew knew that what she was doing was illegal (or at least thought that it was).
Is that a fair summary of what's going on here?
This last point makes me wonder the following. Drew's reply states that the three "fair warning" doctrines are there to ensure that due process is followed and that it's clear at the relevant time that the conduct was criminal. If the fair warning doctrines are not satisfied, but it's found that it was clear that the conduct was criminal, then is it okay to use the civil interpretation?
In any case, I have to say that I find the government's First Amendment argument somewhat convincing, since speech itself doesn't seem to be limited. The lenity argument I have no idea about, since it seems to be based on precedents that I don't know about.
In the introduction, the govt states: "This plain reading of the statute has been embraced by courts throughout the United States."
In the argument, however, it seems that the only thing that "courts throughout the United States" are doing is applying the general principles (to other statutes) that the government argues support its interpretation in this case.
I haven't read the cases the govt cites in its argument section, so I could be way off base with this, but it appears that the only section 1030 case the government cites is in the footnote at page 3... where the court rejected a completely different argument.
It could be that I'm giving the government too little credit because I haven't read the cases. It appears from a brief skim, though, that the government's subtly overselling its argument.
And for the flyspecking pedants out there, footnote 4 has a subject/verb agreement problem... and footnote 5 seems to make a distinction without an apparent difference
I would add something to your point. The EFF Amicus brief addresses your point more closely. In essence, they contend:
1) Application of this statue to mere terms of service violations has not been consistently upheld in the civil cases and have often been rejected.
2) The courts have often ruled that this statute does not affect agency or mere contractual doctrines of authorization.
I would add that in the main cases I can think of where the idea of a terms of service were held in civil proceedings to be subject to this statute, there was actual notice of the problem delivered to the offender who ignored it prior to the case going forward.
In particular:
The other requirements being fiduciary duty or financial gain, both of which were absent here.
In other words, if I send spam through your email server and you tell me not to, and I ignore that, the statute might apply. Applying it in this case would pose additional problems. In particular see America Online Inc. v. LCGM, Inc.
The thing is I don't see any case where an intentional ToS violation by itself has EVER been held to be a per se violation of the CFAA absent other compelling circumstances.
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