Forgive Me My Trespasses

Last month, a federal appeals court in California dramatically and unwarrantedly expanded the scope of the federal criminal law prohibiting "unauthorized access" to computers and electronic mail.

This ruling, reported on Security Focus, opens the door for civil lawyers and prosecutors alike to punish as computer "hacking" and "trespass" a whole host of activities that have virtually nothing to do with computer crime.

You can now go to jail for computer crime even if you never touch a computer, and know nothing about computers (indeed, particularly if you know nothing about computers.) The ruling was an unwarranted expansion of federal computer crime powers -- one which will come back to haunt even the most zealous privacy proponents.

The case arose out of an ordinary civil lawsuit between two parties. During the course of discovery (legal jargon for a fishing expedition to seek out virtually any kind of dirt about the other side) one of the parties to the lawsuit subpoenaed the other party's ISP for all of the e-mail the opposing party had ever sent or received.

Now, you have to understand how a civil subpoena is actually issued in the United States. A lawyer with a pending lawsuit asks the clerk of the court for a stack of blank subpoenas. They have the seal of the clerk of the court, and they read something like, BY ORDER OF THE CLERK OF THE COURT... for whatever district, you are COMMANDED to produce ... whatever documents and records are listed on the subpoena.