Sep 102010
 September 10, 2010  Posted by  Court, Online, Surveillance

You might want to wait until you’ve had your second cup of coffee before tackling this one, but Orin Kerr has an interesting blog post over on The Volokh Conspiracy that deals with how courts interpret (or misinterpret, in his opinion) statutes that have both criminal and civil components.  Here’s a snippet:

To understand the problem, let’s start with the basic structure of the statutory privacy laws. Such laws generally follow the following structure:

1) Anyone who intentionally does privacy-invading thing “X” commits a crime,
2) However, the government can do “X” if it has an appropriate court order based on a certain level of cause, and
3) Victims of “X” have a civil remedy against whoever does “X.”

Because of this structure, statutory privacy laws generally serve three distinct functions all at once: First, they impose criminal punishment for conduct that violates privacy interests (part 1 above); Second, they provide a civil remedy for victims against those who invade privacy interests (part 3 above); and Third, they enact a code of criminal procedure regulating law enforcement investigations by which the government can obtain court orders allowing them to invade privacy interests in appropriate cases (part 2 above).

This structure creates interpretive challenges for courts because judges often have very different instincts when interpreting criminal statutes, civil statutes, and codes of criminal procedure. Sound statutory interpretation requires understanding all of the remedial contexts, and how they work together: Otherwise a judge will confidently interpret the statute based on the assumptions of one remedies scheme in ways that are clearly mistaken (and create very odd result results) in the other contexts.

The civil cases interpreting the Computer Fraud and Abuse Act (18 U.S.C. 1030), which prohibits “unauthorized access” to a computer, demonstrate the problem. In civil cases, computer owners come in to court asking judges to stop people from using their computers in ways the owners don’t like: Judges are very sympathetic to the request, so they are very willing to say that conduct the owner doesn’t like is “unauthorized” and that the behavior has to stop. But the same statute is a criminal statute, too. As a result, the civil cases interpreting the law inadvertently end up criminalizing a great deal of innocent conduct. (The usual rule of interpretation is that precedents from one setting are equally applicable to another setting, so the civil cases apply in the criminal realm.)

Read more on The Volokh Conspiracy.

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