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Computer Fraud Opinion is Classic Kozinski Legal Pad,[link widoczny dla zalogowanych]
"Minds have wandered since the beginning of time and the computer gives employees new ways to procrastinate,[link widoczny dla zalogowanych], by gchatting with friends, playing games,[link widoczny dla zalogowanych], shopping or watching sports highlights. Such activities are routinely prohibited by many computer-use policies,[link widoczny dla zalogowanych], although employees are seldom disciplined for occasional use of work computers for personal purposes. Nevertheless, under the broad interpretation of the CFAA,[link widoczny dla zalogowanych], such minor dalliances would become federal crimes. "Ubiquitous,[link widoczny dla zalogowanych], seldom-prosecuted crimes invite arbitrary and discriminatory enforcement," he says. "Suppose an employee spends six hours tending his FarmVille stable on his work computer,[link widoczny dla zalogowanych]," he explains in a footnote. "The employee has full access to his computer and the Internet, but the company has a policy that work computers may be used only for business purposes. The employer should be able to fire the employee,[link widoczny dla zalogowanych], but that's quite different from having him arrested as a federal criminal. Given that the employee deprives his company of six hours of work a day, an aggressive prosecutor might claim that he's defrauding the company,[link widoczny dla zalogowanych], and thereby violating section 1030(a)(4)."
The judge also takes us back to the infamous MySpace bullying case. "The government assures us that, whatever the scope of the CFAA,[link widoczny dla zalogowanych], it won't prosecute minor violations. But we shouldn't have to live at the mercy of our local prosecutor. And it's not clear we can trust the government when a tempting target comes along. Take the case of the mom who posed as a 17-year-old boy and cyber-bullied her daughter's classmate,[link widoczny dla zalogowanych], he said referring to the Lori Drew prosecution tossed by a district judge. "The Justice Department prosecuted her . for violating MySpace's terms of service,[link widoczny dla zalogowanych], which prohibited lying about identifying information,[link widoczny dla zalogowanych], including age. Lying on social media websites is common: People shave years off their age,[link widoczny dla zalogowanych], add inches to their height and drop pounds from their weight. The difference between puffery and prosecution may depend on whether you happen to be someone an AUSA has reason to go after."
The majority opinion points out that in the Internet Age, we are all using websites without fully understanding their terms of use. Our access to those remote computers is governed by a series of private agreements and policies that most people are only dimly aware of and virtually no one reads or understands."
And a little sidenote for appellate geeks. Kozinski opinion follows the trail "blazed" by LVRC Holdings LLC v. Brekka,[link widoczny dla zalogowanych], the circuit controlling case written by none other than Judge Sandra Ikuta.
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