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Are All Computer Crimes Now Federal Computer Crimes? A Review of Recent Legislative Changes:
One of the remarkable developments in federal computer crime law in the last few years is Congress's elimination of the federal jurisdictional hooks that Congress has traditionally required for crimes to be a matter of federal rather than merely state or local concern. These important changes have gone almost entirely unnoticed, but I was really struck by them in the course of putting together the 2nd edition of my computer crime law casebook. I think readers interested in federalism, as well as readers interested in criminal law generally, might want to know the details.

  First, some background. As recently as 2007, federal computer crime prosecutions generally required a showing of an interstate communication involved in the crime, or at least use of a computer used in interstate communications. The exact meaning of the statutory jurisdictional requirements were often somewhat unclear, but the idea was conceptually very important: Not all computer crimes are automatically federal computer crimes. If a computer crime is purely an intrastate matter, it's not a federal question. Some hook to interstate commerce, no matter how small, must be shown.

  In the context of the federal child pornography laws, the statutory hook was usually that the images of child pornography were distributed or had at some point been distributed "in interstate or foreign commerce." That means that for the feds to get involved, the images had to have actually crossed state lines. In the context of the federal unauthorized access law, Section 1030, the requirement was that the computer be "used in interstate commerce," and in some cases that the information obtained by the unauthorized access cross state lines. The requirement that the computer be "used in interstate commerce" was never exactly clear -- used how and when? -- but the basic idea was that the computer had to be a networked computer or some computer that could have some connection to data crossing state lines.

  Enter Congress, acting, as always, in its infinite wisdom. In the last two years, Congress has essentially eliminated the jurisdictional hurdles in these important computer crime statutes. It has done so by adding language to both the child pornography and unauthorized access laws that expand the scope of the statute to computers and data merely "affecting" interstate commerce, not actually "in" interstate commerce. In 2007, the Effective Child Pornography Prosecution Act of 2007, Pub. L. No. 110-358, replaced the jurisdictional requirement "in interstate or foreign commerce" with the new requirement "using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce." In 2008, Section 207 of the Former Vice President Protection Act, Pub.L. 110-326, expanded the definition of protected computer regulated by the statute to a computer that is "used in or affecting interstate or foreign commerce or communication" (new language in italics), and removed the requirement that information obtained had to be information that crossed state lines.

  The switch from prohibiting conduct "in interstate commerce" to regulating conduct "affecting interstate commerce" is easy to overlook, but it turns out to be a critical change. When Congress uses the phrase "affecting interstate commerce," that is generally understood to express Congress's intent to regulate as far as the Commerce Clause will allow. See Russell v. United States, 471 U.S. 858, 849 (1985) (noting that prohibition regulating conduct "affecting interstate or foreign commerce" expresses "an intent by Congress to exercise its full power under the Commerce Clause"); Scarborough v. United States, 431 U.S. 563, 571 (1977) ("Congress is aware of the distinction between legislation limited to activities 'in commerce' and an assertion of its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce."). When Congress uses the jurisdictional hook of "affecting interstate commerce," or its close cousin "affecting interstate or foreign commerce," then the scope of the jurisdictional hook is generally understood to be defined by Commerce Clause jurisprudence.

  But here's the rub. Under Gonzales v. Raich, 545 U.S. 1 (2005), it seems awfully difficult to find any computer or any type of data that is actually beyond the scope of the federal commerce power. If you can aggregate the effect of all computers and all data, you're going to identify a rational basis for identifying a substantial effect on interstate commerce. Maybe I'm just too much of a Commerce Clause pessimist -- and if so, please let me know in the comment thread -- but it seems to me that under Raich, if it's a computer, it's going to be a computer that Congress can regulate. See, e.g., United States v. Jeronimo-Bautista, 425 F.3d 1266 (10th Cir. 2005).

  The end result: In the last two years, Congress has essentially gutted the idea of computer crimes that are beyond the reach of the federal government. If a computer is involved -- any computer -- it's very likely to be a federal issue. The federal government can always decline to prosecute a case, and it can consider the fact that it's just a local crime in the course of making that call. But that's a matter of discretion, not law. For those of us who care about federalism, it's a very sad state of affairs.

  An interesting question is, how did this happen without anyone noticing? I'm not entirely sure, but here are two possibilities. First, the press isn't too likely to pick up on a subtle change like this. In a bill, the language is easy to overlook: it will be something like, "insert 'or affecting' after the term 'used in'." You would need to be pretty sharp to see the issue. Second, there are no natural constituents to object to Congress gutting federalism provisions in criminal law. These sorts of changes are generally framed as efforts to help the feds catch the bad guys by getting rid of annoying technicalities. Framed in that way, the legislation is likely to have broad popular support.

  Finally, I'm more than a little annoyed with myself for not seeing this earlier, while the legislation was pending, and when there was at least a chance (albeit extremely remote) that blogospheric objections could make a difference. I didn't really sit down to look at these changes until I was putting together the jurisdictional chapter of the 2nd edition of my casebook in the past few weeks. When I looked closely at the new legislation, I was very surprised by the textually subtle but (to my mind) far-reaching changes. I'll try to watch these issues more closely in the future, but that's easier said than done.
Dick:
Do § 1343 cases show a trend towards your expected result even with the old "in interstate commerce" language? In the good old days, courts at least required the wire transmission to have crossed state lines, but I vaguely recall my prof mentioning that in the post-Lopez world, intrastate transmissions suffice in some jurisdictions.
6.3.2009 1:22am
Gabriel McCall (mail):
Under Gonzales v. Raich, 545 U.S. 1 (2005), it seems awfully difficult to find any computer or any type of data that is actually beyond the scope of the federal commerce power.

I believe you cited the wrong case- rather than Gonzales v. Raich, shouldn't that have been National Labor Relations Board v. Jones &Laughlin Steel Corporation? There hasn't been any real limitation on the commerce power since the New Deal.
6.3.2009 1:37am
Dick Hall (mail):

There hasn't been any real limitation on the commerce power since the New Deal.


http://en.wikipedia.org/wiki/United_States_v._Lopez
6.3.2009 1:59am
Guy:
The Commerce Clause has become a bit of a monster, but from a practical (rather than theoretical) standpoint, I'm not sure how much this changes. I don't know, but I'd imagine most computer crimes are interstate anyway. And even when they aren't, they're probably pretty commercial (unlike carrying a gun onto a school campus, as was the case in Lopez). Doesn't seem any more far-fetched than to say that segregation in public facilities relates to interstate commerce. In the few cases where the crime is intrastate and noncommercial, the Courts could still find the law to be inapplicable. I'd be interested to see the result if this ever came up.
6.3.2009 3:53am
Guy:
Whoops, by public facilities I meant privately owned restaurants and hotels, I need an edit button.
6.3.2009 3:56am
Slocum (mail):
Maybe I'm just too much of a Commerce Clause pessimist -- and if so, please let me know in the comment thread -- but it seems to me that under Raich, if it's a computer, it's going to be a computer that Congress can regulate.

It seems to me that you might as well say, "if it's an 'x', it's going to be an 'x' that Congress can regulate." If growing and consuming your own product -- that not only never crosses state lines, but is also never even bought, sold, or given away -- if that can be claimed to 'affect' interstate commerce, what could not? At this point, I don't see that the commerce clause constrains the federal government in any meaningful way. The bit of verbiage tacked on about "affecting interstate commerce" seems at this point just a empty, vestigial formality.
6.3.2009 7:46am
cboldt (mail):
Having recently reviewed federal law as to bomb threats made over the telephone, I'm not at all surprised that all computer crimes that involve connection to the internet are federal crimes.
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There have been federal prosecutions of bomb threats made from one phone to another -IN THE SAME BUILDING- where the telephones could and did obtain outside dialtone.
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When I was a kid, the joke was "don't make a federal case out of it." The new joke will be "Hey, don't make a local case out of it!"
6.3.2009 8:18am
cboldt (mail):
-- An interesting question is, how did this happen without anyone noticing? --
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ROTFL. I haven't checked EFF or others, but I bet a substantial number of people (> 10,000) noticed. I think your more interesting question came later. So what if anybody notices and objects?
6.3.2009 8:23am
geokstr (mail):
Can federal legislation regulating and/or criminalizing "hate speech" and "offensive speech" on the internet be far behind?
6.3.2009 8:32am
Guy:
Geokstr, yes, it can be. Not only would enforcing such laws be impossible, and enacting them be unpopular, they would almost certainly be unconstitutional under the First Amendment.
6.3.2009 8:37am
cboldt (mail):
-- Not only would enforcing [hate speech over the internet] laws be impossible, and enacting them be unpopular, they would almost certainly be unconstitutional under the First Amendment. --
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No law is enforced against every actor, so the notion that such a law would be impossible to enforce is false. Popularity is no bar to enactment, the only consequence is some of the legislators are vote out of office, but as a practical matter, the public re-elects them regardless of the unpopularity of any individual Congressional enactment.
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The 1st amendment argument has some play. I would not be so quick to assume that hate speech laws are "clearly unconstitutional." There is some line drawing to be done there.
6.3.2009 8:47am
Guy:
Cboldt, Fair enough, but since both sides of the political spectrum would most likely agree those laws would be unconstitutional, I don't think we need to worry about them being enacted anytime soon.

And unlike the Second Amendment we were discussing on the other thread, modern jurisprudence interprets First Amendment guarantees fairly broadly. Since the internet doesn't use public airwaves, the case for FCC-like speech regulation is pretty weak. And in light of Yates v United States, Brandenburg v. Ohio, and the ACLU Skokie case, I can't see how prohibiting hate speech would be constitutional. (Ok, technically that last one involved prior restraint, but I think we can reasonably expect the courts to stick to the basic philosophy)
6.3.2009 9:06am
Charles Sims (mail):
How has Congress "gutted federalism" by reaching use of computers that (a) invariably were created in the course of interstate (and international) commerce, and (b) if they're connected to the internet, are necessarily immersed in and part of a stream of interstate commerce? The new law isn't reasonably subject to criticism on the ground that Congress has reached to federalize something that isn't subject to federal regulation; it plainly is, under 75-year old precedents and even under the views of the most retrograde federalism proponents, like Chief Justice Rehnquist. The only basis for criticism is, instead, that, although the statute covers no more than it can properly cover, Congress should not use its commerce power, and should, instead, leave the country's laws balkanized to the maximum possible extent. That's a permissible view, but it was basically rejected in 1787.
6.3.2009 9:21am
cboldt (mail):
-- since both sides of the political spectrum would most likely agree those laws would be unconstitutional, I don't think we need to worry about them being enacted anytime soon. --
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Another way to break down the issue is as between the public and the politicians, rather than as between political factions. If one were to compose hate speech directed against a politician, one might obtain a visit from the Secret Service. Strongly worded objection to an individual legislator is one form of unprotected hate speech.
6.3.2009 9:29am
Gabriel McCall (mail):


There hasn't been any real limitation on the commerce power since the New Deal.


http://en.wikipedia.org/wiki/United_States_v._Lopez

Four justices of the Supreme Court wanted to hold that the commerce power extended even that far. If the only thing holding back the government is the cohesiveness of the Rehnquist federalist majority on any given day, I don't consider that a "real limitation": witness Raich.

(To be fair, even random happenstance is a "real" limitation albeit far from a reliable one, and reliability is what we're looking for here.)
6.3.2009 9:57am
Just an Observer:
An interesting question is, how did this happen without anyone noticing? I'm not entirely sure, but here are two possibilities. First, the press isn't too likely to pick up on a subtle change like this. In a bill, the language is easy to overlook: it will be something like, "insert 'or affecting' after the term 'used in'." You would need to be pretty sharp to see the issue. Second, there are no natural constituents to object to Congress gutting federalism provisions in criminal law. These sorts of changes are generally framed as efforts to help the feds catch the bad guys by getting rid of annoying technicalities. Framed in that way, the legislation is likely to have broad popular support.

Even that analysis is too optimistic in its expectation of the press. Legislative reporters focus mostly on politics, not policy. Reporters are not lawyers, and typically they do not read legislative language at all. Rather, they rely on paraphrased explanations from interested parties in Congress (mostly staff), the administration or outside interest groups to understand what a bill would do. And that is easily spun.

As a result, very often even top-rank news organizations get the legislative facts all wrong.

For that matter, I doubt that most members of Congress study the language of legislation they are voting on.

The most reliable documentary explanation of legislative language is typically found in committee reports, which are not always fully informative and often not available publicly during the heat of congressional debate. It would be interesting to see if the significant expansion of scope that Orin describes was noted in such reports.
6.3.2009 10:05am
geokstr (mail):

Guy:
Geokstr, yes, it can be. Not only would enforcing such laws be impossible, and enacting them be unpopular, they would almost certainly be unconstitutional under the First Amendment.

I hope you are still following this site for the next couple years so I can at least have the satisfaction of saying "I told you so", FWIW.

If you go back and look at the posts here for the last month or so, you will find a couple at least that deal with legislation already proposed that attempts to control/criminalize content on the internet.

Add that to:
- the FCC's Orwellian "Diversity Committee" packed with every leftwing group in existence, and local "advisory" boards dominated by "community organizers" designed to be a backdoor approach to reinstalling the also-Orwellian "Fairness Doctrine" on Talk Radio without calling it that
- the growth of state level "human rights" commissions modelled after the kangaroo versions of the Canadian system which is heavily involved in regulating politically incorrect speech on the internet
- the "speech codes" that are already in place on nearly every university in the country

I find these trends to be very troubling. I understand that some others do not, because there is little control exercised over their hate speech by the above.
6.3.2009 10:06am
Guy:
Geokster, if such laws are passed and found constitutional, I can assure you I'll be depressed enough without needing you to rub it in with an I told you so.
6.3.2009 10:24am
Philosopher:
I don't think the move from "in" to "affecting" interstate commerce, in this context, is nearly as important as you suggest.

First, the overwhelming majority of computer crimes are "in" interstate commerce, and that proportion will only increase going forward.

Second, federal criminal law already has a broad reach over other types of crimes. For example, narcotics and fraud. Your post could just as easily be entitled -- Are All Narcotics Crimes Now Federal Narcotics Crimes? -- and the answer was just as easily be yes. Mail/wire fraud has almost as expansive of a reach ... it's hard to imagine a fraudulent scheme that doesn't use some form of wire communication or the mail.

Your distinction may be interesting from an academic perspective, but in the real world it's not as big of a deal as your post makes it seem.
6.3.2009 11:22am
Bruce:
"Second, there are no natural constituents to object to Congress gutting federalism provisions in criminal law." My impression is that computer crimes are not a big enforcement priority for state and local law enforcement. If that's accurate it would remove the most likely source of federalism objections.
6.3.2009 11:28am
John P. Lawyer (mail):
I guess my question is - not knowing what the rest of the "federal computer crime" statutes look like - is which sort of crimes did you in mind as not being covered by federal law prior to the change in the statutory language?
6.3.2009 11:28am
OrinKerr:
cboldt:
ROTFL. I haven't checked EFF or others, but I bet a substantial number of people (> 10,000) noticed.


You're on, Cboldt. Here are 4 quick google searches for you:

"former vice president protection" site:eff.org yields 0 results.
"effective child pornography" site:eff.org yields 0 results
"effective child pornography" site:cdt.org yields 2 results, neither substantive (both just listing the fact that there is a pending bill by that name.
"former vice president protection" site:cdt.org yields 0 results

And keep in mind, these are references to the Acts as a whole, not specifically to the parts of the acts that gut the federalism provisions.
6.3.2009 11:36am
OrinKerr:
cboldt:
:Having recently reviewed federal law as to bomb threats made over the telephone, I'm not at all surprised that all computer crimes that involve connection to the internet are federal crimes.
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There have been federal prosecutions of bomb threats made from one phone to another -IN THE SAME BUILDING- where the telephones could and did obtain outside dialtone.
Yes, but in the cases like this that I know of, the threat was clearly interstate, as the path of the communication actually crossed state lines. See, e.g., United States v. Kammersell.
6.3.2009 11:39am
Roger Ford (mail):
Orin, is this a meaningful change? It sounds like before, any computer connected to the internet would bring it within the federal jurisdictional hook (setting aside cases in which the statute requires an actual interstate communication, though it seems likely that the vast majority of internet communications would qualify). How many computers are not connected to the internet? I mean, the child pornography laws now reach to someone who obtains, locally, digital images of child pornography (on CD-ROM at the flea market?) and views them on a computer that's deliberately left unconnected to the internet. Okay, so does this ever happen?
6.3.2009 11:47am
OrinKerr:
Roger,

The biggest impact is probably in the CFAA context. Almost every electronic device has a chip in it, which means that almost every electronic device is a protected computer. Given the extremely broad interpretations of the CFAA, the gutting of the federalism provisions are hugely important. For example, looking at someone's digital watch when the owner asks not to could now be a federal crime -- an unauthorized access into a protected computer. All laptops, thumb drives, etc. are now covered whether they are connected to the net or not.
6.3.2009 11:55am
OrinKerr:
Oh, and I should point out, Roger, that the problem is that the definition of the word "computer" extends beyond what we think of as a computer. Here's the statute:
the term “computer” means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device;
As Judge Easterbook explained in United states v. Mitra, before the latest change:
Section 1030 is general. Exclusions show just how general. Subsection (e)(1) carves out automatic typewriters, typesetters, and handheld calculators; this shows that other devices with embedded processors and software are covered. As more devices come to have built-in intelligence, the effective scope of the statute grows.. . . What protects people who accidentally erase songs on an iPod, trip over (and thus disable) a wireless base station, or rear-end a car and set off a computerized airbag, is not judicial creativity but the requirements of the statute itself: the damage must be intentional, it must be substantial (at least $5,000 or bodily injury or danger to public safety), and the computer must operate in interstate or foreign commerce.
What Congress has done is gut those protections that "protect people."
6.3.2009 12:01pm
Roger Ford (mail):
Interesting, thanks.
6.3.2009 12:09pm
cboldt (mail):
OrinKerr: -- Yes, but in the cases like this that I know of, the threat was clearly interstate, as the path of the communication actually crossed state lines --
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See US v Gary Sigmund Corum (8th Cir., 2004) (It is well-established that telephones, even when used intrastate, are instrumentalities of interstate commerce.); US v. RJS, (8th Cir, 2004) (extends Corum to the case where both phones are in the same building)
6.3.2009 1:17pm
methodact:
Professor Kerr, I commend you on your doubts. That is healthy. Previously you seemed more than happy to write computer search and seizure manuals as if you were trying to solely score points with the Department of Justice, perhaps towards becoming a federal judge by showing how completely you could play with the team. You probably did this because of how long you had been compartmentalized.

Sadly our judges are sick, pathological. If we take just one metric, the number of people incarerated in this country, compared to the rest of the world, we are many times over the global average. If Americans were to correct for even just this single outrage, (say a Constitutional Amendment to scrub the courts this one time), we would make a quantum leap towards the salvation of Humanity in this land.

With our present courts, Americans cannot give informed consent, i.e., are not allowed to challenge the national security apparatus that sucks up the entire data stream and data mines it for inside information for its possessors to use to their advantage both financially and politically, toward their perpetual increase of money, power and control.

According to the best thinkers at the Department of Defense, technology won't just double or triple in the next few decades. Following Moore's Law, technology will multi-fold by a billion times in the next 21 years.

According to The Register, DARPA is even now working towards having the machines figure out for themselves, what they will have by way of their own weapons systems design even as they they are being designed.

The child pornography laws are plain and simply wrong. They are a "cure" far worse than the "disease". They serve to kill the Arts and Humanities. They serve to enslave us and they violate the Constitution. They were meant to help abet the moral panic to keep us in check and control by the International Bankers long enough until the Grid is more fully in place so that those same eugenicists can eventually cull the population. It is a travesty that all that Art has been lost and/or never made because of those wicked laws and their dehumanizing and chilling effects. (If I were to give just one exmple, it would be the self-censored limited but otherwise wonderful display of the $multi-million legs on Dakota Fanning in the movie Push.

The laws against file-sharing that put penalties at a quarter million dollars and 5-years imprisonment per infraction are bought and paid for by a Fascist system and very emblematic of how our copyright laws were extended far beyond reason that our Founding Fathers gave. That system is broken and designed to enslave us and dumb us down, because those in power suck up EVERYTHING, and there is no other way at the moment, for the People to equalize for that.

Perhaps Sweden can ultimately save the world with their "Pirate Party", that our own US Government has been trying so hard to subvert and suppress.
6.3.2009 1:48pm
cboldt (mail):
OrinKerr: -- You're on, Cboldt. Here are 4 quick google searches for you --
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Thanks for those. I did a different one ("or affecting interstate" "hr 4120") ... and came up with these pieces of Congressional Record:
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House: Nov 13, 2007
Mr. CONYERS. ....

Members of the committee, H.R. 4120, the Effective Child Pornography Prosecution Act, addresses a truly unfortunate and, in my view, wrongly decided decision by the 10th Circuit Court of Appeals in the case of United States v. Schaefer.

Now, while the defendant was found to be in the possession of child pornography, the court nevertheless reversed his conviction because it concluded that the statute required, and the government had failed to prove, that the contraband had actually crossed State lines. This statute in question makes it illegal to possess child pornography "in commerce."

The court held that this phrase, "in commerce," meant that Congress intended that the contraband had to actually cross State lines. Had the statute instead used the phrase "in or affecting interstate commerce," the court held, the conviction would have been upheld, as that phrase is well understood as reflecting Congress' intent to use the full reach of its constitutional commerce clause power.

H.R. 4120 makes clear that the Congress intends that the prohibitions against child pornography reach the full extent of its constitutional authority. And as hearings in the Judiciary Committee hearing demonstrated, the child pornography business is no respecter of national or international borders. Even conduct that may appear to be wholly localized in its manifestation can nevertheless have an unmistakable effect in interstate commerce.

So let there be no mistake that Congress intends to use its full commerce clause authority to reach activities concluded by this odious business. And we want to make it so clear that even the 10th Circuit Court of Appeals cannot be mistaken by that.



House: Sep 25, 2008
Ms. ZOE LOFGREN ...

Mr. Speaker, the bill we are considering today combines two bills the House passed last November to strengthen the Justice Department's ability to prosecute child pornography. The first fixes a glaring loophole in the Federal statute prohibiting possession of child pornography, which a Federal appeals court last year said requires as an essential element of the offense proof that the images, here kept on a computer desk, had actually crossed State lines.

Our colleague, Nancy Boyda of Kansas, introduced H.R. 4120 to clarify that this statute covers conduct "in or affecting interstate commerce," not just "in commerce." This small change will have great legal significance, allowing that statute to reach the full extent of Congress' commerce clause powers.


Granted, the Congressional Record is not common reading, nor is it common for people to follow proceedings on C-SPAN or C-SPAN2. But some people do, and my guess is the number is in the thousands.
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Of course, I am a single data point, but I can tell you that I personally become aware of many PUBLIC activities in the area of legislation, court cases, etc. that fly under the radar of the public; and only occasionally do I make an effort to try to bring it to anybody else's attention.
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If you took my statement that thousands noticed to mean that thousands voiced objection, then you are right. My point was that thousands noticed the change, and perhaps didn't understand or care enough to comment.
6.3.2009 1:52pm
Guy:
Orin Kerr:For example, looking at someone's digital watch when the owner asks not to could now be a federal crime

Surely you're being at least a little facetious, a claim like that would be laughed out of court. And the statute you cite later only weakens your point:

...but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device;
emphasis mine

I don't think It's too crazy to conclude that a digital watch is similar to a hand held calculator, at least insofar as it's too "primitive" to be a computer, and possesses even less computing power. Unless, of course, the watch has a calculator function, then clearly the two combined would be enough to tip the scales and make it a federal crime.
6.3.2009 2:09pm
methodact:
Slashdot notes that SCOTUS nominee Sonia Sotomayor is probably an RIAA team player and also looks at her cyberlaw record.
6.3.2009 2:18pm
OrinKerr:
cboldt,

I've asked a bunch of computer crime law experts if they were familiar with the legislation: they weren't. I don't think it's inaccurate to say that this was not widely known. As for your guess that more than ten thousand people read those statements in the Congresional Record, I wouldn't be able to comment: I don't know how many people read every page of the congressional record.

As to those cases you cite, I appreciate the cites. I was incorrectly assuming you were referring to the 875(c) cases, which would be the way to charge those cases if they involved computers. 875(c) has the interstate requirement. Of course, in the telephone setting, you need to use the network; in the computer setting, there no longer need be any network involved. Indeed, the old version of protected computer was a good match for the telephone cases you cite: the computer needed to be used in interstate commerce, even if the communication wasn't in interstate commerce. Now the computer never needs to be in interstate commerce at all: Tinkering with disk drive bolted to the ground is covered, as well.

Guy,

I admire your sense of confidence, but in recent years my sense of what would be "laughed out of court" in the context of a 18 USC 1030 case has become very different from what I would have said 5 or 10 years ago.
6.3.2009 2:18pm
Guy:
Also, have the "substantial" and "intentional" requirements been removed? Sounds like you said only the "interstate" hook was removed. As has already been mentioned, virtually all computer crime has an interstate commerce component, and no matter how the law is phrased, it's still limited by its constitutional source, the interstate commerce clause. Admittedly this isn't much of a limit under current jurisprudence, but if your complaint is that the commerce clause is too broadly interpreted, you're about 70 years too late, this change is just business as usual in modern federal criminal law.
6.3.2009 2:25pm
OrinKerr:
Guy,

What "substantial" and "intentonal" requirements do you have in mind?
6.3.2009 2:27pm
OrinKerr:
Guy, I should also add that not all computer crime is internet crime. All internet crime is likely to be federal, but the question here is what to do with stand alone computers and other storage or processing devices not connected to any network at all.

To pick an example, imagine you are a guest in my house, and when I'm not looking, you take a DVD of mine, put it in my DVD player, and watch it, when I didn't want you to watch it. That DVD is a protected computer under the statute; viewing it when I didn't want you to could now be a federal crime.
6.3.2009 2:32pm
Guy:
The "substantial" and "intentional" requirements mentioned by Judge Easterbrook where you quoted him. For the DVD example, it wouldn't be substantial, if that requirement still exists. As to whether it would fall under the authority interstate commerce clause, I'm honestly not sure.

This reminds me of one time on C-SPAN someone (I'm fuzzy on the details, it was a while ago) asked a proponent of the federal partial birth abortion ban what the Constitutional source was for the law. The proponent was clearly taken aback, as this was a question rarely asked anymore. After regaining their composure, they thought for an answer and stammered "the Commerce Clause". Because, of course, when asked for the constitutional source of any law passed by Congress these days, the correct answer is always "the Commerce Clause". Like I said earlier in this thread, it's become something of a monster.
6.3.2009 2:41pm
OrinKerr:
Ah, got it. Those requirements are only for a felony 1030(a)(5)(A) violation. You can get other violations of the statute without them; indeed, the same 2008 act eliminated the substantial requirement for a new misdemeanor violation of (a)(5)(A).
6.3.2009 2:59pm
Guy:
Well, that is concerning, as it sets a lower threshold for the law to apply. But I'm still not convinced the removal of the interstate requirement from the text of the law makes a significant difference. The law is still constitutionally limited by the interstate commerce clause, whether it says so or not. Do you know if, prior to the change, the interstate requirements were interpreted any more narrowly than the interstate commerce clause itself? On the one hand, I would hope so, as the CC is ridiculously broad, on the other, it doesn't really matter anymore if the requirement's gone.
6.3.2009 3:33pm
methodact:
Of course it matters. In the words of Judge Stephen Reinhardt, "Censorship must be resisted in all its forms."
6.3.2009 3:39pm
cboldt (mail):
-- I've asked a bunch of computer crime law experts if they were familiar with the legislation: they weren't. I don't think it's inaccurate to say that this was not widely known. --
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I agree. Beyond the appearance in the Congressional Record, somebody was sufficiently incensed by United States v. Schaefer (10th Cir, 2007), to lobby for the change in the law. The entire point of HR 4120 seems to be to focused on adding the "or affecting" phrase.
.

Pedophiles, Politics, and the Balance of Power
(University of Denver, I don't know if this was published or not)
The Schaefer decision outraged Congress, which promptly responded by passing legislation to extend the reach of federal child pornography statutes to the full scope of Congress’s Commerce Clause powers.
With President George W. Bush’s signature on October 8, 2008, federal prosecutors gained jurisdiction over all production, distribution, receipt, and possession of child pornography that substantially affects interstate commerce.
While this knee-jerk reaction may close the loophole that allowed Schaefer to walk out of federal prison, it will also limit the application of state child pornography laws by vastly extending the federal government’s intrusion into these traditionally local crimes.


The pattern of adding "or affecting" to federal statutes was established some time ago. See Lopez and how Congress got around that decision. Same game, new venue.
6.3.2009 3:40pm
Guy:
Whoa, should have reread the article when I came back, I thought your complaint sounded more reasonable before, it's the adding of the "or affecting" part that's at issue, sorry about that.
6.3.2009 4:01pm
methodact:
It is ironic that that (dirty) "Justice" Department commingled over a million dollars into my community to target CP, and of which much was spent on propaganda (in an endless repetition of mythical numbers, deceits, frauds, and lies) and illegally on campaigns for state and local laws criminalizing the material.

Sometimes it is best to attack the totalitarians on the flank, instead of head on, such as by not forgetting that many of them are still unindicted war criminals, with hanging currently the penalty in many jurisdictions.

Other ways include supporting candidates outside traditional venues that do not appear to be beholden to the NWO, such as this young lady.
6.3.2009 4:23pm
Nick42 (mail):
OrinKerr / et all,

How broad can the definition of a computer really be?


IANAL, but the CFAA ( 1030 ) restricts computers to be "high speed data processing device"... "and includes any data storage facility or communications facility directly related to [such device]"

So presumably this is restricted to electronics ( ignoring any definition of biologicals as high speed data processing devices ), but would the physical space of a data center count as a related facility?


Even more scary is the definition used in the ITU model cybercrime tookkit:

(b) Computer
Computer means an electronic, magnetic, optical, electrochemical, or other data processing or communications device, or grouping or such devices, capable of performing logical, arithmetic, routing, or storage functions and which includes any storage facility or equipment or communications facility or equipment directly related to or operating in conjunction with such device(s), but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.

ITU Cybercrime Toolkit )

The "other data processing or communications device" sounds like it could be so broad as to include two cans and a piece of string or an abacus.

The definition of access is also remarkably over broad - it includes viewing a protected computer. Until the Lori Drew case, I wouldn't be so worried about these being interpreted broadly, but now I don't know.

Per United states v. Mitra, it would seem that the courts have no problem including everything under the sun in the definition of a computer. Aside from running into violations of constitutional law, is there anything to stop this from happening?
6.3.2009 5:10pm
godelmetric (mail):
Guy, I should also add that not all computer crime is internet crime.

Exactly.

Orin, you are thinking about this issue harder than the people who wrote the statute were. It shouldn't be difficult to see why this sort of intellectual sloppiness would get missed in a bill intended to deal with child pornography -- which seems to imply some sort of communication of the material at some point. It's just a case of not being sufficiently attentive -- this may be problematic but that doesn't mean it would hold up in court if the issue you're articulating was actually presented.

Is there any caselaw that you're specifically concerned about or a decision that you think came down the wrong way? Raich seems pretty remote, and the holding in Jeronimo-Bautista is too politically-charged for me to worry much about it. Courts are generally pretty permissive about child-pornography prosecutions in ways they might not be in other cases, for obvious reasons.
6.3.2009 8:11pm
godelmetric (mail):
In other words, even the Jeronimo-Bautista decision cites the familiar market rationale rather than claiming that the federal government has absolute power over teh entire intarwebs.

This is your specialty, Orin, but is the computer-use issue really the lynchpin here? The market rationale alone seems sufficient for the court to justify its decisions, for better or for worse.
6.3.2009 8:16pm
methodact:
"...for obvious reasons"
It was obvious to the Founding Fathers that some men were to be counted as three-fifths persons, for "expedediency", ofc.

"Terrorists have no rights."
That same brand of propaganda was paid for by the DoJ and broadcast hours on end, day after day in my community, conditioning those within the broadcast's range, that those in possession of CP had no rights. "Obvious", to some, not so obvious to others.

The story of this country is a repeat history of one minority after another being denied its rights. The First Amendment is absolutely clear, "Congress may make no law", prohibiting like that.

One of the more compelling questions these days, is about the stories of Stanley Milgram's "secret" work, and what we don't yet know, about such blind obedience to "authority". Such lockstep gave rise to the likes of the Nazis' Nurenberg Defense.

Wilhelm Reich was persecuted to death by the US Government for his revolutionary ideas in the field of pychology:

"I am well aware of the fact that the human race has known about the existence of a universal energy related to life for many ages."

"It is sexual energy which governs the structure of human feeling and thinking. ~~ The Sexual Revolution
The list is long of similar cases of such people the US Government has destroyed.
6.3.2009 9:08pm
Seamus (mail):
It was obvious to the Founding Fathers that some men were to be counted as three-fifths persons, for "expedediency", ofc.

Since you seem to think the three-fifths clause was absurd, I take it you think the South should have been able to count all its slaves at 100% for purposes of congressional apportionment? Or maybe you think it was outrageous for the Radical Republicans to provide, in the 14th Amendment, that disenfranchised freedmen should be counted as 0/5 of a man?

(It annoys the piss out of me when people cite the three-fifths clause without any recognition that it was an effort to *restrict* the power of slaveholders to dominate the federal government.)
6.4.2009 1:05pm
Bill Harshaw (mail) (www):
Pardon a non-lawyer jumping in, but this seems to me to be a nice sample case for current discussions on achieving greater transparency, both in the executive and the legislative branch. It turns out the background was there, in the Congressional Record, but the information didn't get to interested parties (like Prof. Kerr). The way Congress writes and revises laws, the way the executive writes and revises regulations were not handed down as an appendix to the Ten Commandments.

Suppose the USCode were in a wiki, so that so that Prof. Kerr and others could have that section in their "watchlist"? Or instead of amending by inserting words, lawyers were taught to draft legislation by repeating the whole section with the changes made and "before" and "after" was available on line, with links to the discussion on the floor of the intent. (After all, word processors have been able to do that for years.) Or suppose Thomas.gov were redone so the contents are accessible to Google, so Prof. Kerr could set up a Google Alert for this section? Or suppose there were links between the legislation and the implementing regulations? Or suppose--I'll shut my mouth now.
6.4.2009 1:44pm

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