September 2009 Archives

September 9, 2009

The MySpace Opinion is Here!

As I blogged about before, it is not a crime to violate MySpace's terms of use. And, now, there's a judicial opinion that sets forth the court's reasoning!


Here's the key language:

[T]he question is whether individuals of "common intelligence" are on notice that a breach of a terms of service contract can become a crime . . . . Arguably, they are not.

And, as any good student of fair notice jurisprudence knows, if it's arguable that a course of conduct isn't within the scope of a criminal statute, the constitution says the conduct isn't subject to prosecution.

Thus, the court concludes that,

Treating a violation of a website's terms of service, without more, to be sufficient to constitute "intentionally access[ing] a computer without authorization or exceed[ing] authorized access" would result in transforming section 1030(a)(2)(C)

into an overwhelmingly overbroad enactment that would convert a multitude of otherwise innocent Internet users into misdemeanant criminals.

The opinion is thorough in its analysis and makes a number of great points. My hope is that this is a high water mark in federal government over prosecuting, but my fear is that this case will be cited a lot. If you've read this far, you should probably check it out.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

September 8, 2009

[Don't] Stop [the] Snitching [Blog]

There's a new blog in the criminal justice world - the Snitching Blog. It's young, but looks quite promising. Snitching is an important enough topic to get it's own treatment and the blog looks to be a good, if slightly diffuse, start.

Also, it's run by Alexandra Natapoff who, like me, is an alumni of the Federal Public Defender's Office for the District of Maryland.

Check it out!

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

September 2, 2009

A Wisconsin Judicial Protest of Federal Prosecutions?

In July, I blogged about a federal district court judge in Milwaukee who was mandamused after meeting with a Federal Public Defender and a United States Attorney and questioned the U.S. Attorney's office's judgment in bringing a case federally.

Now, as they say, the plot thickens.

Apparently the mandamused Judge has announced that he is no longer taking criminal cases. It isn't clear if he'll resume when a new U.S. Attorney is appointed, but that appears to be the rumor. NPR has excellent coverage, in a story in tonight's All Things Considered.

My understanding is that the Judge has issued an order in every pending case he had, which said that he was concerned there may be an appearance of impropriety by taking cases. Apparently he doesn't explain why, but one has to assume it's because the U.S. Attorney's Office has successfully had him removed from a case, and a neutral observer (like, say, me) might think that he would be upset about that.

[Note that it isn't just that the Judge isn't taking new criminal cases, he's also getting rid of the criminal cases he already had.]

NPR has a more interesting explanation, that this Judge was the U.S. Attorney back in the day; back when "don't make a federal case out of it" really meant something; back when AUSA's were more than just a backstop for state courts. According to NPR, this judge really wants to return to that gentler time, and he doesn't think federal prison is the most effective place to put people who are found in a bad neighborhood with a gun.

I hope they don't take my Prius away for saying it, but I disagree with NPR on that score. State crime has been federalized for a while now. The Judge has an awfully slow reaction time if that's why he's bowing out of criminal work.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.