Sure, and usually policy violations that matter do involve civil consequences (e.g. litigation to recover damages) but not handing out felonies or putting someone in prison for a decade+.
The Opinion says he “was charged with and convicted of honest-services wire fraud,” though that it was vacated in a separate holding [1].
[1] https://www.supremecourt.gov/opinions/20pdf/19-783_k53l.pdf
It also adds a lot more pressure on the person charged to take a plea deal.
In my country any information related to a on-going investigation is automatically classified. Police are not allowed under the law to divulge to the press any such information.
That's to say: it'd be up to each state to create its own criminal laws regarding what they consider confidential information (if any) and make sure those laws are constitutional by explicitly writing them into the police officers' contracts. Much of the time, changing internal policy is all that states can realistically do because some federal statute or constitutional clause has supremacy - even something that's normally a fireable offense at a private business might run afoul of constitutional protections when done by a state government or agency.
I wonder if obstruction of justice can impact someone who has not made any agreement beforehand. A random pedestrian who tries to stop the police, in a public space where they otherwise would have a right to be, could still end up in jail if I understand the laws right. If they can do that with their physical body I suspect the same punishment can occur if they do that with their own first amendment voice given special circumstances and results of that speech.
It is however difficult for a random pedestrian to commit obstruction of justice out of accident, but a lot of actions done by a police officer would obstruct justice by the nature of their own work. Similar if a person were employed at a court, if they misbehaved erroneously, I would guess that it would carry a bit more legal risk just given the environment.
Nothing of this has anything to do with internal policy. Obstruction of justice is mostly about the intention and results.
If you have insider information on an ongoing investigation and you tell it to your buddy at the bar who doesn't care one bit about it and immediately forgets, that's not obstruction of justice because the speech itself isn't the criminal act. If you tell that same information to the suspects though, then that's obstruction of justice.
With classified (natsec) information, on the other hand, telling it to anyone who you're not absolutely certain has clearance to see it is a violation and could land you in jail for years if you get a bloodthirsty DA. (again, IANAL)
It is a bit of a special situation since the interfering was over a fake case, through the legal frame work of sting operations has always been a bit grey. It seems to me however that it flights clearly above that of first amendment rights. It seems simply that the prosecutor chose to go after CFAA because the case is about a sting case rather than a real one. Had the police officer interfered in a real case, where a criminal had been given information that obstructed police officers in their job, the case had been about that.
If that is true then the case has very little to do about internal policy decisions, exceeded permissions, unauthorized vs authorized users, employee contracts and so on. It is actually about sting operations and a prosecutor who attempts to bypass that discussion by using a law designed for a different purpose.
> In addition, I have been advised that any unauthorized disclosure of classified information by me may constitute a violation, or violations, of United States criminal laws, including the provisions of sections 641, 793, 794, 798, 952 and 1924, title 18, United States Code; the provisions of section 783(b}, title 50, United States Code; and the provisions of the Intelligence Identities Protection Act of 1982. I recognize that nothing in this Agreement constitutes a waiver by the United States of the right to prosecute me for any statutory violation
(again, IANAL and this is definitely not legal advice)
[1] https://www.gsa.gov/cdnstatic/SF312-13.pdf?forceDownload=1
Companies have gotten into trouble for doing research that might be used to build an atomic bomb, even though the research had other applications.
This is fundamentally different than e.g. the British approach, where the official secrets act applies to everyone whether or not they have signed it.
It's also the case that while the doctrine of born secret has not been tested in court, it is generally regarded as unconstitutional and likely to be struck down by the courts of they are given the opportunity.
Most of what I’ve read emphasized how controversial this is. As you said, there are severe first amendment implications.
Yet the law ignores these implications.
It is probably unconstitutional, but the SCOTUS has never ruled on it.
I hate to be the guy saying “cite your sources,” but I have quite a few sources that say “born secret” applies to everyone. Can you show me some evidence it doesn’t?
This source is about a related, but distinct, topic. It contains numerous example of the US government attempting to obligate non-cleared people to keep official secrets:
https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?articl...
This source is a Wikipedia page, but it describes the government attempting to use “born secret” to censor a newspaper:
https://en.m.wikipedia.org/wiki/United_States_v._Progressive....
PS: From the first source:
In 1978, journalist James Bamford sent a Freedom of Information Act (FOIA) request to the Justice Department. He wanted documents related to the Department’s investigation of illegal wiretapping performed by the NSA. Among the surveillance programs the Justice Department investigated was Operation MINARET, which spied on Martin Luther King, Jr., Jane Fonda, and other opponents of the Vietnam War. The chief of the Justice Department’s special litigation unit, the unit that led the investigation into the NSA, took ten months to review the request. In the end, the Justice Department declassified and released 250 pages of documents to Bamford. When the NSA found out about the disclosure, however, it argued that the documents should never have been released and demanded that the Justice Department label them as classified. The Justice Department refused.
Two years later, with a new administration in the White House and new leaders atop the two agencies, the NSA tried again. This time, the Attorney General agreed. Bamford recalled a meeting with NSA and Justice Department officials. “They threatened to use the espionage statute against me,” Bamford recounted, “if I continued to refuse to return the documents.” A letter from the Justice Department soon followed: “You are currently in possession of classified information that requires protection against unauthorized disclosure,” it said, adding that Bamford should be aware of his “continuing obligation not to publish or communicate the information.”Keeping quiet was not enough for the Justice Department, however. “It is . . . your duty and obligation as a United States citizen to return this information to the Department of Justice,” the letter insisted.
Is that surprising? There's no physical law forcing legislators to write Constitutional laws or the executive branch to enforce them. They're just empty words until people actually implement them and then it's up to the Judiciary to review those implementations and resolve the ambiguities and inconsistencies between the laws and the real world. Unfortunately, there's nothing stopping bad laws from destroying lives on their way through courts, which often takes decades.
The Supreme Court hasn't decided the constitutionality of the born secret doctrine because the real world hasn't presented an opportunity. A core constitutional restriction of the courts is that they can't legislate, only rule on the cases that go before them. The doctrine has been abandoned by the government when push came to shove, likely because it knew the doctrine is indefensible before SCOTUS and only useful for the threat of litigation and criminal charges against civilians.
No, you don't. The government can ask you to do a great many things. They can use big, scary words that are designed to coerce you to do it. But that's not the same thing as being legally compelled to do it.
No charges were filed, there was no prosecution, and he's not in jail. Strongly worded letters are worth approximately the paper they're written on.
I would imagine information about informants or people with hidden identities would be considered privileged information in whatever state/local law enforcement jurisdiction created it, but penalties for leaking or distributing it would be a local matter, and many localities might not have specific laws on their books to deal with it.
Regarding on-going investigations, police aren't supposed to publicly discuss information about investigations, but they may if they deem that there is a public interest in doing so, or that doing so will help them with their case. I may very well be wrong here, but my gut suggests that in most places in the US there are likely not specific laws against public disclosure of details of ongoing investigations.
It's just the law in this case doesn't fit what happened.
That is only an argument, not a fact. They would have to persuade a court you are violation of the CFAA. That requires evidence. In almost all the previous cases with similar facts, the plaintiff provided notification and an instruction to cease and desist. Apparently, the plaintiff's lawyers or prosecutors thought they needed that as evidence. If you received such notfication, and you wished to avoid a CFAA claim, then you would follow the instruction and stop doing whatever Comcast is complaining about. And that would be the end of it.
The thing about the Swartz case is that he broke into a network closet and connected his laptop with ethernet cable directly to an MIT computer (networking equipment) in the closet. Even with this latest USSC decision, how could that ever be "authorised [physical] access".
>The idea that you could be authorized, but suddenly not
They were never authorized to use this system in this way, so there was not a "authorized but then suddenly not". The officer's authorization was static: not authorized.
Authorization is more than just the technical controls in a system, and lack of a technical control to prevent an officer using a system in certain ways does not mean said officer is authorized to use the system in any way they please.
The officer's actions were unauthorized on a system he was provided access to. He didn't gain unauthorized access to a system, he failed to follow the rules on a system he already had access to.
Er, no, that's specifically not the case. The officer's actions on the system in fact were authorized; he was authorized to look up licence plate information. The officer's actions later - specifically sharing private information with a third party - were criminal[0], and would be criminal regardless of whether a computer was even involved.
0: Give or take legislative and judicial corruption a al misrepresenting theft as 'civil forfeiture', but that's not really the point.
I don't think GP is in disagreement with you that it's potentially illegal, just that the CFAA shouldn't apply here.
I am confused about how(/whether?) confused you are about what I said.
> > > The officer's actions were unauthorized on a system he was provided access to.
The CFAA does not apply here, because the officer's actions on the system were authorized. He did not "failed to follow the rules on a system he already had access to", he followed those rules, then separately did something illegal[see previous footnote] with the information he obtained in accordance with those rules.
If his actions (on the system) were unauthorized, that would be a CFAA violation, even he was authorized to access the system in some other way.
- Logging onto the system: officer has technical access to log on and is authorized to log on, no problem
- Accessing normal data the officer needs for legitimate reason: officer has technical access to this data and is authorized to access it, no problem
- Accessing data for the purpose of a bribe: officer has technical access to this data, but is not authorized to access it, thus they are exceeding their authorized access
Put another way, he didn't work around any computer controls to get at the information.
That's irrelevant. You can do unauthorized things without having to "work around" controls.
>He clearly did not hack into the computer system to get the data, and that's what the CFAA was meant to prosecute.
The CFAA was meant to prevent computer-related crimes including but not limited to unauthorized access, fraud, abuse, etc, which this clearly was.
SCOTUS disagrees with you, and so do I.
> The CFAA was meant to prevent computer-related crimes including but not limited to unauthorized access, fraud, abuse, etc, which this clearly was.
He didn't do any of those with respect to the computer system. He accessed a resource that he had authorization to access as part of his job. He misused it, but didn't break into the system or gain access by fraud. His reasons for accessing the data were wrong, but his access was authorized.
If the officer was explicitly told 'you can use the computer system, and it can do plate lookups, but you're not allowed to perform plate lookups ever', then he went ahead and made a plate lookup anyway, I'm not entirely clear that the ruling would exclude that from being a CFAA charge, even without there being any password or permission model to lock him out of that functionality. I could be wrong there - there may be other caselaw on that - but I didn't read much in the ruling that suggested they were interested in the extent to which the system technically restricted access to this functionality.
But in this case he had legitimate technical access, he was authorized to use it to look up plate data, and the SCOTUS verdict, sensibly, concludes that using that access for an illegitimate purpose does not merit a CFAA charge.
This, by definition, makes his access unauthorized. That's the point. "Authorization" is more than just technical controls. He was not authorized to access the data for this reason.
You are applying too broad a definition to "authorization." In this context it refers specifically to the configured authorization behavior of the computer system. They gave him the equivalent of a key to a lock implemented in the computer system, and the law is meant to address the equivalent of someone who pick locks, not someone who misuses the access provided by keys they were given.
SCOTUS just literally said the opposite.
The term "unauthorized" is overloaded. There is one sense in which he was unauthorized by policy. There is another sense by which he was authorized by technical access. These are separate scenarios and separate violations. It makes no sense for unauthorized-by-policy to be a violation of a computer hacking statute.
At the "seems pretty clearly like unauthorized access" end of the spectrum, we can imagine someone brute-forcing a password to gain access to a system. They're "authorized by technical access" once they have the username/password, but that's surely a focal case of the kind of crime that the statute was intended to address.
Alternatively, say there was a guest account activated with a default password.
Would we argue that someone with no relationship to the owner who discovered the account was active and then used it was "authorized by technical access"?
Presumably the answer is that authorization in that case depends on whether it was the intent to allow strangers to use the system as a guest or whether it was some kind of technical oversight.
What about if you were hired as a data entry operator, but your account was accidentally set up as a superuser? The owner of the system intended to give you one level of access but accidentally gave you another. Are you a hacker if you use the unintended access grant to snoop around? Again, you're "authorized by technical access".
What about if your boss puts his username/password on a post-it note on his monitor and you use his account without his knowledge? What about if you use it with his knowledge and agreement?
> That's irrelevant. You can do unauthorized things without having to "work around" controls.
You are conflating bypassing security measures (which in the digital world would be equivalent of lock picking) and abuse of trust (throwing a party and trashing the home of someone who trusted you with the keys to only feed the cat).
Say I give a neighborhood kid a key to come water my plants while I'm out of town. If they use that key to gain access and throw a party they're trespassing. I don't see why it should be different for a CPU
For purposes of this law, it is. The Government agreed “that Van Buren ‘access[ed] a computer with authorization HK’ when he used his patrol-car computer and valid credentials to log into the law enforcement database” [1].
“The dispute is whether Van Buren was ‘entitled so to obtain’ the record.” The Court found that Van Buren was entitled so to obtain the record, in that entitlement is the operative word. If the file is electronically accessible to the user, they have entitlement to so, *i.e. electronically, obtain it. They aren’t properly authorised or permitted or something else to it. But those weren’t the words used. "Authorized," unadorned, and "entitled so to."
[1] https://www.supreme court.gov/opinions/20pdf/19-783_k53l.pdf
Did he steal your key? Or did you give it to him? If he stole your key, he wasn't entitled to your house. But if you gave him the key, he had entitlement to it.
If this were a friend, not a kid, you might be able to sue her for throwing a party in your house without permission. You would not be able to get her charged with breaking and entering because she overstepped the conditions that came with your key.
Presume they had intent to water and steal at a felony level when they entered.
If they had to break open the door, entering would be burglary.
Using a key they were supposed to have, to enter a building they were supposed to be able to enter? I would say it should be treated like the former case, not the latter case.
US law may not always agree with me, and apparently there are states where shoplifting can count as burglary. But I say stretching the definition that far is ridiculous.
This is a policy violation, and maybe that should be illegal in some way or have consequences. I'd be ok with that, but it's just not "exceed authorized access". The person in this case was authorized.
The idea that you could be authorized, but suddenly not because of a policy doesn't make sense to me and that's kinda weird because that seems right up Thomas's literal interpretation alley (come on Thomas, use it right for once).
Imagine Comcast changes a policy, and suddenly you're in violation of Computer Fraud and Abuse Act (CFAA).