3 ms·

Other than the fact that it's so vague that it ought to be void?

pdabbadabba 12y ago
I've never found it especially vague. (At least, not substantially more vague than any number of other criminal statutes.) The problem, rather, is that as it's written it seems to criminalize more than we want it to. That's bad, but not something the judiciary can fix for us.
- sarciszewski 12y ago
  You never received explicit authorization to access ycombinator.com did you, criminal?
  - pdabbadabba 12y ago
    1. Your point has nothing to do with vagueness. It has to do with precisely what I described: criminalizing too much. 2. The CFAA says nothing about explicit authorization. It just requires "authorization." There will be fringe cases where it will be difficult to determine what that means, but usually (including the example you helpfully provided -- yes, of course I'm authorized to access news.ycombinator.com) it could not be easier.
    - sarciszewski 12y ago
      I'm not a lawyer (in fact, I hate lawyers), so here's some literature on the subject. http://minnesotalawreview.org/wp-content/uploads/2012/03/Kerr_MLR.pdf http://minnesotalawreview.org/wp-content/uploads/2012/03/Ker...
      - pdabbadabba 12y ago
        Thanks for the literature. I've actually already read it, and, though Orin Kerr is certainly a smart guy, I think he's wrong. (IAAL, by the way. Sorry you hate me.) I'm not sure what more there is to say, though, if you're not willing to actually defend your view. I'll just finish with this though: not even the article you sent me suggests that CFAA will ever be struck down on vagueness grounds. Rather, he thinks that the void-for-vagueness doctrine will create some outer limit on courts' interpretation of the statute. These are what I referred to as the inevitable fringe cases. Note, though, that this article was written four years ago, and I've seen no indication that the trend he has identified has continued to develop in any significant way.
        sarciszewski 12y ago
        > (IAAL, by the way. Sorry you hate me.) I meant in general. When you see prosecutors, defense attorneys, and judges deciding the plea bargain deals at strip clubs (with the pretense that they would merely "go through the motions" under public scrutiny) ahead of time, you tend to not respect the profession. > I'm not sure what more there is to say, though, if you're not willing to actually defend your view. My view is simple: I want that law to cease to exist through any legal means necessary because it gives prosecutors far too much potential for abuse. If vagueness isn't sufficient or is too disputable, let's find another attack vector.
        pdabbadabba 12y ago
        I'm happy to hear we're on the same side, then. This time I agree with what you say about CFAA. The punishments are too high which, as you say, gives prosecutors an unfair amount of leverage. I'm simply trying to inject a dose of realism into the YC conversation on this issue: unfortunately, I don't think any judge is going to strike down, or meaningfully limit CFAA any time soon. The legal arguments just are not there. If we want it fixed, we need to come up with a strategy to get Congress to fix it. That won't be easy, but I think it may be the only way. (Of course, CFAA is only one of many criminal laws that need to be reformed in precisely the same way. Drug laws are, of course, another great example.) I do want to try to dispel just a bit of your cynicism about the criminal justice system, though. Unfortunately, I can't say a lot about the state systems, but I can tell you from extensive first hand experience behind the scenes in the federal court system that the plea bargaining process (and all the rest of it) works pretty much as advertised. While prosecutors may be overzealous, there is no shady back room business going on behind judges and prosecutors in strip clubs or anywhere else. (I'm not saying, of course, that it NEVER happens, but that, if it does, it would be a rarity and all the other judges would be aghast. The actual culture among federal judges would never condone what you've described.) This doesn't mean that defendants always get a fair chance. They typically have few resources, little knowledge of the system, and are threatened with huge penalties (though at least in federal court the appointed representation actually tends to be decent). But at least the courts themselves are not rigged against them. (I suspect much the same can be said for many state courts, but not, unfortunately, all.)
  - PhantomGremlin 12y ago
    HN allowed me to create an account. If that isn't "explicit authorization", then I don't know what is.
    - sarciszewski 12y ago
      Infragard allowed me to create an account, which was also not even used to find a hole in their system. Yet I was still charged with exceeding authorization via CFAA.

I've never found it especially vague. (At least, not substantially more vague than any number of other criminal statutes.) The problem, rather, is that as it's written it seems to criminalize more than we want it to. That's bad, but not something the judiciary can fix for us.

sarciszewski 12y ago
You never received explicit authorization to access ycombinator.com did you, criminal?
- pdabbadabba 12y ago
  1. Your point has nothing to do with vagueness. It has to do with precisely what I described: criminalizing too much. 2. The CFAA says nothing about explicit authorization. It just requires "authorization." There will be fringe cases where it will be difficult to determine what that means, but usually (including the example you helpfully provided -- yes, of course I'm authorized to access news.ycombinator.com) it could not be easier.
  - sarciszewski 12y ago
    I'm not a lawyer (in fact, I hate lawyers), so here's some literature on the subject. http://minnesotalawreview.org/wp-content/uploads/2012/03/Kerr_MLR.pdf http://minnesotalawreview.org/wp-content/uploads/2012/03/Ker...
    - pdabbadabba 12y ago
      Thanks for the literature. I've actually already read it, and, though Orin Kerr is certainly a smart guy, I think he's wrong. (IAAL, by the way. Sorry you hate me.) I'm not sure what more there is to say, though, if you're not willing to actually defend your view. I'll just finish with this though: not even the article you sent me suggests that CFAA will ever be struck down on vagueness grounds. Rather, he thinks that the void-for-vagueness doctrine will create some outer limit on courts' interpretation of the statute. These are what I referred to as the inevitable fringe cases. Note, though, that this article was written four years ago, and I've seen no indication that the trend he has identified has continued to develop in any significant way.
      - sarciszewski 12y ago
        > (IAAL, by the way. Sorry you hate me.) I meant in general. When you see prosecutors, defense attorneys, and judges deciding the plea bargain deals at strip clubs (with the pretense that they would merely "go through the motions" under public scrutiny) ahead of time, you tend to not respect the profession. > I'm not sure what more there is to say, though, if you're not willing to actually defend your view. My view is simple: I want that law to cease to exist through any legal means necessary because it gives prosecutors far too much potential for abuse. If vagueness isn't sufficient or is too disputable, let's find another attack vector.
        pdabbadabba 12y ago
        I'm happy to hear we're on the same side, then. This time I agree with what you say about CFAA. The punishments are too high which, as you say, gives prosecutors an unfair amount of leverage. I'm simply trying to inject a dose of realism into the YC conversation on this issue: unfortunately, I don't think any judge is going to strike down, or meaningfully limit CFAA any time soon. The legal arguments just are not there. If we want it fixed, we need to come up with a strategy to get Congress to fix it. That won't be easy, but I think it may be the only way. (Of course, CFAA is only one of many criminal laws that need to be reformed in precisely the same way. Drug laws are, of course, another great example.) I do want to try to dispel just a bit of your cynicism about the criminal justice system, though. Unfortunately, I can't say a lot about the state systems, but I can tell you from extensive first hand experience behind the scenes in the federal court system that the plea bargaining process (and all the rest of it) works pretty much as advertised. While prosecutors may be overzealous, there is no shady back room business going on behind judges and prosecutors in strip clubs or anywhere else. (I'm not saying, of course, that it NEVER happens, but that, if it does, it would be a rarity and all the other judges would be aghast. The actual culture among federal judges would never condone what you've described.) This doesn't mean that defendants always get a fair chance. They typically have few resources, little knowledge of the system, and are threatened with huge penalties (though at least in federal court the appointed representation actually tends to be decent). But at least the courts themselves are not rigged against them. (I suspect much the same can be said for many state courts, but not, unfortunately, all.)
- PhantomGremlin 12y ago
  HN allowed me to create an account. If that isn't "explicit authorization", then I don't know what is.
  - sarciszewski 12y ago
    Infragard allowed me to create an account, which was also not even used to find a hole in their system. Yet I was still charged with exceeding authorization via CFAA.