What's a good way to win a criminal appeal? Convince the appellate judges that unless you win, they're defining their own conduct as criminal as well.
That's what happens here.
It's no surprise that Judge Kozinski writes this opinion. Or that he writes it the way he does. He's had his own troubles with computers in the past. He's uniquely sensitive to concerns that defining "unauthorized access" broadly -- and making it criminal -- may well create serious problems. And the vast majority of the judges on the en banc panel agree with him.
Which is not surprising. Because he makes darn good points.
But I must say that Judge Silverman's dissent makes a decent point as well. As do the facts of the case itself. Footnote 7 of the opinion is its weakest link. The best argument against Judge Kozinski's view of the statute is to respond that all of the things that he says would be criminal under the government's view of the statute aren't criminal at all since the statute requires the specific intent to defraud. Which the defendant totally had here -- he (allegedly) stole his employer's trade secrets off its computers in order to create a competing business -- but which doesn't exist in the ordinary cases cited by Judge Kozinski in which you exceed a site's terms of service.
Judge Kozinski's response is to say that if you play Farmville at work for six hours you might well be "defrauding" your employer with your time. But even if that particular example is true, the intent to defraud response still knocks out the overwhelming majority of the other scenarios that AK articulates in his opinion, which don't involve an intent to defraud. And in even the Farmville at work example the fraud argument is pretty weak. For one thing, it only even arguably works for hourly (not salaried) employees, because we're paid the same for even a second at work -- no fraud there. And even for an hourly worker, the fraud argument seems incredibly weak, and we could respond to that problem in a particular case (or maybe, in an egregious one, in which the employee did indeed certify that he was working hard all day -- maybe on a government contract -- when he was instead playing Farmville all day, we would be fine imposing liability).
It's not that I don't see where Judge Kozinski is coming from. I do. And I empathize.
We nonetheless need to recognize that the court's a bit results-oriented here. And to understand where that orientation comes from.
Not that this means that the opinion is necessarily wrong. But let's recognize that there's a reason why the majority's citing the rule of lenity here even though ninety-eight percent of the time they'd reject an identical argument in an analogous criminal case.
Because this one matters to us. And we're not criminals. Even if drug dealers and murderers are.