Bored Lawyer

Without wading into the details of the zoning debate, it seems to me that any zoning regulation has to be religion neutral.

A regulation which allowed you to have a bridge-club meeting in your house once a week but which forbade you to a prayer meeting in your house once a week (assume same number of people — e.g. 12 attendees), would run afoul of the Free Exercise Clause.

In our town, they allow a gathering of up to 49 people in a private residence — for any purpose. If you do it regularly, you need to get a safety certificate from the Fire Marshall (about $25). Again, any purpose, religious or secular. ... See all content Hide content

2 weeks, 1 day ago onWordpress in volokh.com

Good Lord, for once I agree with Harry Reid!

In the districts where I usually practice (SDNY, EDNY) most judges were NOT judges prior to their being appointed to the bench. (Most were prosecutors or private litigators). While we have had our share of both stars and duds, I cannot see any correlation between those who were previously judges and those who weren’t. Not by a long shot.

(If anything, the prior state court judges sometimes get hung up on procedural issues, which do differ.) ... See all content Hide content

1 month ago onWordpress in volokh.com

I disagree completely. That kind of agency or contract theory of unauthorized access is a bad idea. By that reasoning, what’s to prevent criminal liability for reading the volokh conspiracy from your work computer? Is it really just the indulgence of my employer that prevents posting this comment from my work computer from being a crime?

That is inherent in the kind of statute CFAA is — one that protects property interests (trespass being the closesg analogy.) Property owners have an absolute right to decide who does or does not get to use their property. If I trespass despite the property owner’s express wishes, then I have committed the crime of trespass.

The CFAA incorporates that idea when it criminalizes only “unauthorized” access. The working assumption is that the computer owner will, in fact, “authorize” some people and not authorize other. Only the latter are subject to the criminal sanctions.

Same is true for many property crimes. If I let you borrow my lawn mower, you are merely a bailee. If you take it without permission, you are a thief.

The problem, of course, is that the owner can make the issue of who it will or will not authorize to have access be rather complicated. An easy case is where the owner says, “My employees are authorized, everyone else is not.” A harder case is where the owner says, “anyone among the public is authorized, but only under certain conditions or for certain purposes.”

To some extent, the vagueness doctrine of the Due Process Clause blunts this — it has to be clear that you are unauthorized, otherwise you cannot be subject to criminal sanctions. But there are still many cases — the disloyal employee stealing a customer list — where there is no vagueness involved. Assuming it was made clear to the person beforhand that, under the circumstances, his access was unauthorized, why is there a problem?

That way of using the CFAA criminalizes conduct that would be legal but for the use of a computer. If an employee has access to trade secrets on paper and misuses them in the exact same manor, accessing / copying the documents isn’t illegal; so why would should doing the same via computer be an criminal?

First of all, such copying would indeed be illegal. It is at least a civil wrong. In some jurisdictions, theft of trade secrets is criminal. (Is there such a thing as criminal trespass to chattels?)

Second, so what? The statute, by definition, is to protect integrity of computer systems. Why does the fact that it does not protect the integrity of paper files make it unfair?

but in those cases, don’t you have to be told to cease your disallowed conduct and/or to leave before it becomes trespass? For example, if a mall puts up a sign disallowing chewing gum, and I chew gum there that’s not an instant trespass, is it? I’m under the impression it wouldn’t be trespass till a mall cop tells me to spit it out or leave

Why isn’t that trespass? I don’t see why you have to be warned first. The sign is the warning.

(The chewing gum case is a bit off, since the person may well have come there to shop.

Change the case: Store puts up sign: “We permit entrance only to employees and those who are here to shop our premises. Solicitation of any kind not allowed.”

If you enter and start passing out literature, I would think you are a trespasser.

Maybe the best solution would be to adopt a strong CFAA type law that prohibits hacking attacks (maybe closer to breaking & entering) and a weaker law that prohibits these kinds of unappreciated uses (closer to normal trespass).

Broad laws like this usually have a wide sentencing range to encompass the different shades of wrongdoing. A trespasser who simply comes onto property and sits there for five minutes but causes no harm is not going to be punished the same as someone who entered and trashed the place. ... See all content Hide content

1 month ago onWordpress in volokh.com

I think in the end, we may need to treat unauthorized computer access similar to physical trespass. We’ve had hundreds of years to come up with shared notions of what is and isn’t trespass.

I was thinking the same thing, except that isn’t physical trespass also governed to some extent by what the owner does and does not allow?

Suppose the owner of the store puts up a sign: You are welcome to enter the store to shop, but not for other purposes.

If someone enters to, say, distribute political literature, isn’t that trespass?

(Put aside the cases that create a right of access to certain private areas, like shopping malls, for speech purposes.) ... See all content Hide content

1 month ago onWordpress in volokh.com

Consider a common fact pattern: Employee is granted access to Employer’s computer system for the purpose of his work. Employer tolerates a low-level of personal use, but officially the computers are to be used only in furtherance of Employer’s business.

Employee then decides he is going into competition with Employer (either he is going to set up his own shop or work for his competitor). Before he leaves, and before he tells Employer about his plans to leave and compete, he accesses the computer system and downloads valuable trade secrets (a customer list, a secret formula, etc.)

If employee tries to use the info. in competition with Employer, there is no doubt he has committed several civil wrongs — he has breached his duty of loyalty and has misappropriated trade secrets.

Has he violated the CFAA?

On the civil side where I practice, this is an important question not because of criminal liability, but because the civil claims under the CFAA open the door to federal court, where Employer usually wants to be. (You then throw in the common law claims as pendent claims.)

Courts are divided on whether you can rely on the CFAA for this situation. (There are other side issues — whether the damages suffered are the type which the civil provisions are meant to cover.)

In any event, I think it is clear that the access here is unauthorized. It’s one thing to check the sports scores. It’s quite another to download the customer list to set up a competing business. As a factual matter, it seems clear to me that the employer did not intend to allow access for that purpose — not to mention that it is proscribed by other laws. ... See all content Hide content

1 month ago onWordpress in volokh.com

professors are still generally very smart and knowledgeable in their own areas. Moreover, whatever the weaknesses of professors, the notion that ordinary folks are inherently wiser than the highly educated strikes me as quite mistaken.

You are conflating several different talents — smartness, knowledge and wisdom.

One can succeed as an academic by being very smart and knowledgeable (let’s call that intelligence), while not being very wise. Conversely, one can be quite wise without being a superstar in intelligence.

Presidents, at least the successful ones, have needed wisdom more than intelligence, although many had both. ... See all content Hide content

1 month ago onWordpress in volokh.com

otched his remand motion for apparently technical faults (did not include a satisfactory proposed order and adequate contact information), and has now been dismissed and precluded from refiling.

Whoa Nelly! I thought it was a universal rule that the requirement of subject matter jurisdiction cannot be waived, and that federal courts have an independent duty to scrutinize every case for subject matter jurisdiction. Furthermore, the Supreme Court has instructed (I forgot the citation) that a federal cannot may not examine the merits until it has determined that it has subject matter jurisdiction — even if the motion to dismiss can more easily be decided on “does not state a claim” grounds than on “no subject matter jurisdiction” grounds.

Even if the remand motion was defective, the district judge should first have determined that he had subject matter jurisdiction. Without that determination, the opinion as to the merits is worthless. Sounds like a good ground for appeal. ... See all content Hide content

1 month, 1 week ago onWordpress in volokh.com

Further to my last post, I see the opinion does address subject matter jurisdiction. Not very convincingly — Title X seems like an affirmative defense here.

1 month, 1 week ago onWordpress in volokh.com

The operative clause of the Constitution states:

He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law . . .

There is no indication how deferential the “Advice and Consent” should be. One could fairly read that as leaving it to the discretion of the Senate.

That would in turn vary with respect to the details of the job: how important it is, how much tenure, etc. If someone is being appointed Dog-Catcher-In-Chief, one would think that might require less Senate scrutiny than Secty of Defense.

(A similar reading applies to the due process clause. The amount of process that is “due” varies as to the seriousness of what is at issue. There are more procedural protections for cases involving felonies than for misdemeanors, and more in criminal cases than civil cases.) ... See all content Hide content

1 month, 1 week ago onWordpress in volokh.com

I second K Dackson and Mark Field’s posts. There is a big difference between a Cabinet Secty and a Supreme Court nominee, not only in terms of tenure (at pleasure of President v. lifetime) but also the person’s place in the Constitutional division of power (part of the Executive branch v. part of independent Judicial Branch). I’d give much less deference to the latter pick than the former.

1 month, 1 week ago onWordpress in volokh.com