Final version, ‘Norms of Computer Trespass’

My latest paper, “Norms of Computer Trespass,” is off to the presses for publication in the May 2016 issue of the Columbia Law Review. I first posted a draft of the paper on SSRN a year ago, but I substantially revised it since then. (Sometimes a paper comes out of the box fully formed, and sometimes you need to hammer it into better shape over time. This was a case of the latter.) You can read the final version here.

The abstract:

This Essay develops an approach to interpreting computer trespass laws, such as the Computer Fraud and Abuse Act, that ban unauthorized access to a computer. In the last decade, courts have divided sharply on what makes access unauthorized. Some courts have interpreted computer trespass laws broadly to prohibit trivial wrongs such as violating terms of use to a website. Other courts have limited the laws to harmful examples of hacking into a computer. Courts have struggled to interpret authorization because they lack an underlying theory of how to distinguish authorized from unauthorized access.

This Essay argues that authorization to access a computer is contingent on trespass norms — shared understandings of what kind of access invades another person’s private space. Judges are unsure of how to apply computer trespass laws because the Internet is young and its trespass norms are unsettled. In the interim period before norms emerge, courts should identify the best rules to apply as a matter of policy. Judicial decisions in the near term can help shape norms in the long term. The remainder of the Essay articulates an appropriate set of rules using the principle of authentication. Access is unauthorized when the computer owner requires authentication to access the computer and the access is not by the authenticated user or his agent. This principle can resolve the meaning of authorization before computer trespass norms settle and can influence the norms that eventually emerge.

Thanks very much to the readers who helped me improve the paper over the past year. Oh, and please ignore the note on the SSRN page that the paper posted is a November draft; the version up now is the final version.

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Supreme Court calls for a response in the ‘you can’t use Facebook, but you can use the Paula Deen Network instead’ case

Last week, I blogged about a brief my students and I filed — on behalf of many leading First Amendment law professors — in Packingham v. North Carolina, supporting a petition asking for Supreme Court review; here’s our Summary of Argument:

N.C. Gen. Stat. Ann. § 14-202.5 bans convicted sex offenders from accessing a vast range of social networking sites — sites that have become indispensable places for speech about family life, politics, and religion. Yet the North Carolina Supreme Court upheld the law on the grounds that it supposedly left open “ample alternative channels.”

True, the court acknowledged, the statute banned access to Facebook and the like. The dissent also noted that the statute banned access to LinkedIn, Instagram, Reddit, Myspace, and the New York Times Web site. But, the court argued, the statute left open access to other social networking websites:

  • The Paula Deen Network, a site that lets registered users to swap recipes and discuss cooking techniques;
  •, the site of a local TV station;
  •, an online job searching tool;
  •, a photo-sharing website.

This looks more like a parody of the “ample alternative channels” analysis than a serious application of that analysis.

Indeed, this government-friendly approach to the “ample alternative channels” inquiry is sharply inconsistent with this Court’s most recent precedent on the matter, City of Ladue v. Gilleo, 512 U.S. 43 (1994). It is also inconsistent with circuit court cases that have taken seriously the requirements that the alternatives indeed be “ample.” See Part II.A (discussing such cases from the Second, Sixth, Seventh, Ninth, and D.C. Circuits).

Unfortunately, though, the North Carolina court is not alone in interpreting the “ample alternative channels” prong so feebly. Perhaps because of the subjectivity of the term “ample,” some federal circuit court cases have similarly departed from this Court’s teachings in City of Ladue, and from the other circuit court decisions we cite above. See Part II.B. This Court ought to grant review to provide lower courts with more guidance about how demanding the “ample alternative channels” analysis should be.

I was glad to see that yesterday the court called for a response in the case, which suggests that at least one justice thinks there might be something to it. I hope to blog more about this as the state’s response and Packingham’s reply brief come in.

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If a magazine lies about Prince having had AIDS, could Prince’s estate sue?

The National Enquirer alleges that Prince had AIDS. Say that the Enquirer is wrong; could Prince’s estate sue?

No: In America, defamation of the dead generally can’t give rise to a civil libel lawsuit. See, e.g., Gugliuzza v. K.C.M.C., Inc. (La. 1992) (“In the United States, the common law rule denying a cause of action for defamation of a dead person has been uniformly followed in every jurisdiction which has addressed this issue.”); Saari v. Gillett Communications (Ga. Ct. App. 1990); Lambert v. Garlo (Ohio Ct. App. 1985); Flynn v. Higham (Cal. Ct. App. 1983).

This may indeed be a First Amendment requirement, but the court hasn’t had occasion to reach that question, because it just hasn’t arisen often enough. Historically, defamation of the dead could give rise to a criminal prosecution — the prohibition was generally justified either on moral grounds, or on the grounds that libels of the dead can lead to fights or even duels — and some state statutes still authorize that. But I don’t know of a single such prosecution in the past 30 years; I doubt that such laws would be viewed as constitutional today; and these laws have not eroded the common-law rule that there is no civil liability for defaming the dead.

If such a statement was made when Prince was alive, he could win a libel lawsuit if the Enquirer knew the statement was false, or knew it was quite likely false but printed it in reckless disregard of its likely falsehood. That’s the legal standard required for a living public figure — such as someone of Prince’s fame — to recover in a libel case. But now that he is dead, civil libel law no longer applies, however much the statement might upset Prince’s relatives (or even if the statement economically damages the estate and thus the relatives).

Note, though, that a statement about the dead might also defame the living, and the living can sue for injury to their own reputations. Thus, for instance, saying that Don, who is dead, was a criminal is not civilly actionable, even if it’s an outright lie, and even if it understandably upsets his son Stan. But if the statement is that Don is a criminal and Stan was his co-conspirator, that defames Stan, and Stan can sue for the injury to his own reputation.

See also this article in The Wrap, which reaches a similar conclusion.

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Texas AG refuses to defend Texas ban on using legislative footage in political ads

The San Antonio Express-News reports that the Texas attorney general’s office “has declined to represent the Texas Ethics Commission” in defending Texas Gov’t Code § 306.005. That statute bans (on pain of a penalty of up to $5,000), “us[ing] audio or visual materials produced by or under the direction of the legislature or of a house, committee, or agency of the legislature in political advertising,” except when “quoting the verbal content” of the materials, or using a photograph of a legislator. A Texas House candidate, Briscoe Cain, wants to use footage of his opponent, Rep. Wayne Smith, in Cain’s campaign ads.

The attorney general, I think, is quite right. My view is that state AGs should generally defend state statutes that are arguably constitutional, even if there’s a good argument that they’re unconstitutional. But this statute is clearly unconstitutionally overbroad, and thus violates the First Amendment: It’s a content-based restriction on the use of publicly available materials, which means that it can be upheld only if it’s narrowly tailored to a compelling government interest — and that test can’t be met here.

The law can’t be justified on the theory that the state has a property right in the recordings. (Under copyright law, states can have copyrights in works that their employees create.) Federal copyright law doesn’t bar all uses of recordings: The fair use defense would authorize many political uses, yet the statute here would apply even when the use is a fair use under copyright law. And, as Harper & Row v. Nation Enterprises (1985) makes clear, that is a principle of First Amendment stature: Even if a state can set up trans-copyright property rights in video and audio that it records (which I doubt, since I think copyright law would likely preempt such rights), it can do so only if it offers a fair use defense, something this statute does not do.

Now narrower rules might be defensible. If, for instance, a state legislature had made footage available on its site but required users to sign a contract promising not to use it in political ads, that might be permissible (see the debate in L.A. Police Dep’t v. United Reporting (1999)). I think it would still be unconstitutional, but an AG could plausibly choose to defend it.

But the statute has no such narrowing feature. It’s broad. It covers speech that’s outside any possibly relevant First Amendment exception. It’s content-based, because it distinguishes “political advertising” from other speech. There’s no compelling government interest that can justify this sort of restriction (and the compelling interest is very hard to satisfy when it comes to content-based speech restrictions). The Texas attorney general got this one right.

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D.C. Circuit rules against Amtrak — again!

Longtime readers will be familiar with my involvement with the Amtrak case, DOT v. Ass’n of American Railroads. Here’s a link to last year’s decision in the case from the Supreme Court, and this post collects links to my various posts on the subject. Most recently, the Supreme Court reversed the D.C. Circuit’s original opinion and sent the case back to the D.C. Circuit. I thought the D.C. Circuit’s opinion was right for the wrong reason (because there is no private non-delegation doctrine), and I said so in an amicus brief in that case. The Supreme Court’s reversal was on a different ground (whether Amtrak was private), so a similar private non-delegation theory was still available to the D.C. Circuit on remand.

I filed an amicus brief in the D.C. Circuit to try to convince the D.C. Circuit to resolve the case on Due Process, not non-delegation, grounds. (My lawyer was fellow Alito clerk Chris Paolella, of Reich & Paolella; my research assistant was Ryan Pulley.)

Today, the D.C. Circuit handed down its new opinion in the case. Most importantly, it cites my Harvard Journal of Law & Public Policy article, The New Private-Regulation Skepticism: Due Process, Non-Delegation, and Antitrust Challenges. Second most importantly, it resolves the case pretty much exactly how I argued it should be resolved, both relying mostly on Due Process (there’s also an interesting Appointments Clause section at the end) and not going at all in the direction of private non-delegation. Here’s some language from the opinion:

However, despite acknowledging that “[a] dependence on the people is, no doubt, the primary control on the government,” id. at 322, the Framers never expected political accountability would be sufficient on its own to check self-interest. Id. “[E]xperience has taught mankind the necessity of auxiliary precautions.” Id. So the Framers fashioned devices that would “supply[], by opposite and rival interests, the defect of better motives.” Id. But of one thing we may be sure, these “auxiliary precautions” against “ambition” that were built into our Constitution—bicameralism, presentment, judicial independence and life tenure, etc.—were designed for a government of three branches, not four. The Framers “could not have anticipated the vast growth of the administrative state,” which “with its reams of regulations would leave them rubbing their eyes.” Fed. Maritime Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 755 (2002). Those original checks on self-interest, custom-fitted for legislators, presidents, and judges, loosely drape administrators like outsized hand-me-downs.

Indeed, government’s increasing reliance on public-private partnerships portends an even more ill-fitting accommodation between the exercise of regulatory power and concerns about fairness and accountability. Curbing the misuse of public power was the aim of the Magna Carta, and the Supreme Court has consistently concluded the delegation of coercive power to private parties can raise similar due process concerns. See Eubank v. City of Richmond, 226 U.S. 137 (1912); City of Eastlake v. Forest City Enters., Inc., 426 U.S. 668, 677–78 (1976); see also Silverman v. Barry, 727 F.2d 1121, 1126 (D.C. Cir. 1984). Wherever Amtrak may fall along the spectrum between public accountability and private self-interest, the ability—if it exists—to co-opt the state’s coercive power to impose a disadvantageous regulatory regime on its market competitors would be problematic. See, e.g., Alexander Volokh,The New Private-Regulation Skepticism: Due Process, Non-Delegation, and Antitrust Challenges, 37 Harv. J. L. & Pub. Pol’y 931 (2004).

For these reasons, Carter Coal, not Association of National Advertisers, dictates our answer to this constitutional conundrum. We conclude, as did the Supreme Court in 1936, that the due process of law is violated when a self-interested entity is “intrusted with the power to regulate the business … of a competitor.” Carter Coal, 298 U.S. at 311. “[A] statute whichattempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property” and transgresses “the very nature of [governmental function].” Id.

Judge Brown adopts my reading of Carter v. Carter Coal (1936), a turnabout from the previous opinion’s reading of the opinion. (Much better than the Supreme Court, which entirely ignored my amicus briefs because they resolved the case on a different ground.) I’m glad the D.C. Circuit got the reasoning and result right!

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Don’t kill the candidate

I would like to conclude my week of blogging with a call to action.

If no candidate wins a majority in the electoral college, the House of Representatives will choose our next president in a “contingent election,” from among the top three candidates. This is a much less remote possibility than usual this year.

As I explained on Monday, there is no way to replace a candidate who dies in a contingent election. This would disenfranchise an entire side of the election, so it provides an unfortunately heightened incentive for assassins.

We don’t award assassins this prize at any other point in the process. Imagine that Bobby Kennedy had won the Democratic nomination before being assassinated in 1968. It would have been insane if his death had eliminated the Democratic Party entirely from the election. Imagine that Ronald Reagan had been killed the day before his inauguration in 1981. It would have been insane if his death meant that Jimmy Carter took the oath instead of George H.W. Bush.

Now imagine that this November, Hillary Clinton, Donald Trump and Gary Johnson keep each other from winning 270 electoral votes. The country waits for the House to choose the winner in January. But then an assassin kills your favorite candidate, knowing that there is an excellent chance that your side will now be completely eliminated from contention.

It makes no sense.

We adopted Section 4 of the 20th Amendment in 1933 for the specific purpose of preventing this sort of disenfranchisement. Section 4 empowers Congress to pass a simple statute to provide for dead candidates in contingent elections to be replaced.

There are multiple reasonable approaches that a Section 4 law could take. As such, it is essential to pass a law in advance of an actual case, while nobody knows yet which solution would benefit which side. We cannot take it on faith that in the midst of a deadlocked election all sides would instantly reach consensus and pass an optimal law on the fly. The stakes would be too high for the living candidates’ parties to blithely concede their advantage.

We amended the Constitution to give Congress this power. We need Congress to use it. But for 83 years and counting, Congress has done nothing.

Enough is enough. Unlike many other deficiencies in our system, this one involves few moving parts and has nobody defending it. It could be fixed in a matter of days. Everyone would benefit and nobody would suffer if Congress would pass a simple Section 4 law like the one I have drafted, and which I discuss in detail in my forthcoming article in the Harvard Journal on Legislation.

Contact your representative and senators. Contact the Committee on House Administration and the Senate Committee on Rules & Administration (which have jurisdiction over elections). Send them a link to this blog post and tell them to introduce and then pass this statute.

More important, tell your friends and colleagues who might be interested. Post a link to this blog post on Facebook and on Twitter (#dontkillthecandidate). Spread the word.

This proposal does not have the backing of any powerful interest groups. The only way that Congress will ever pass a statute like this is if it starts getting calls and emails and tweets from a lot of people.

The remedy is in your hands. Thank you for using your power to protect our system and our nation!

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