Top Five Appellate Daily Posts of 2012

Below are the five most popular Appellate Daily posts of 2012, with a few notes and updates. Thanks to everyone for reading and following the news feed. Hope your 2013 is happy!

1-How Paul Clement Wishes He Could Prepare for Argument

• My interview with the former Solicitor General tops the list this year. It is also the most popular post in the blog's history, by far.

2-Circuit Split Watch: Is Personal Use of a Work Computer a Federal Crime?

• The United States decided not to appeal the Ninth Circuit decision featured in this post, perhaps "scared off by [Chief] Judge Kozinski's opinion" for the en banc majority, according to Professor Orin Kerr quoted in Wired. "It would have been the first document that the [Supreme Court] justices read, and it's a pretty powerful brief against the government's position," said Kerr.
• The computer-use issue is still alive, though. A pending petition for certiorari from the Fourth Circuit on the issue (12-518) gives the Supreme Court the chance to weigh in.

3-Circuit Split Watch: A New Abortion Battleground

• This split is ready and waiting for a vehicle to get it to the Supreme Court. The Oklahoma state court case, mentioned at the end of the post, is the one to watch right now. On December 4, the state supreme court struck down Oklahoma's pre-abortion ultrasound requirement. That day, the state attorney general said in a press release that his office is considering an appeal.
• The Texas federal case is over; it was not appealed to the Supreme Court. The North Carolina federal case is still pending below. See Abortion Ultrasound Cases (Updates and Correction).

4-Judge Wilkinson on Cri de Coeur, Law Clerks, and a Germophobic Third Circuit

• The Green Bag recently recognized Judge Wilkinson's book, discussed in this post, in its 2012 Exemplary Legal Writing honors.

5-Circuit Split Watch: Former Federal Judge Seeks Restitution for Victims

• Judge Cassell has asked the Supreme Court (12-651) to review the Ninth Circuit decision highlighted in this post. Other petitions could follow in the coming months.

Circuit Split Watch: Is Personal Use of a Work Computer a Federal Crime?

This article first appeared in the June 4, 2012, issue of the National Law Journal’s Supreme Court Insider.

Could the Computer Fraud and Abuse Act be used to “turn ordinary citizens into criminals”? Or is this fear based on “far-fetched” and “wacky hypotheticals”?

Yes and yes, say the majority and dissent in United States v. Nosal, a recent 9-2 decision of the U.S. Court of Appeals for the 9th Circuit, sitting en banc. Chief Judge Alex Kozinski, writing for the majority, acknowledged that its reading of the CFAA splits from other federal appellate court decisions. A petition for certiorari could be filed this summer.

Employees of an executive search firm allegedly accessed the firm’s computer database to obtain information, which they gave to David Nosal, a former employee. Nosal intended to use the information to compete with the firm.

After this came to light, Nosal was indicted on twenty counts, including trade secret theft, mail fraud, conspiracy, and CFAA violations.

At issue on appeal is the phrase “exceeds authorized access” to a computer under the CFAA.

To Chief Judge Kozinski, access and misuse of information are two separate questions. The employees who allegedly fed Nosal information were authorized to access the firm database. They had permission. The problem was subsequent misuse of firm information. The solution is to prosecute the misuse or look to Congress to amend the CFAA, not to imagine words that are not there.

Otherwise, Kozinski said, scores of unsuspecting people who are authorized to use their work computers for business only, under computer-use policies, but check sports news, send personal emails, or engage in other non-work uses, even occasionally, could be guilty of a federal crime—exceeding authorized access.

Kozinski was also concerned that violating particular sites’ terms of use could be criminalized. For instance, eHarmony’s terms of use prohibit giving “inaccurate, misleading or false information.” Saying that you are “‘tall, dark, and handsome,’ when you’re actually short and homely, will earn you a handsome orange jumpsuit,” Kozinski surmised.

Kozinski noted that the majority’s reading of the CFAA veers from 5th, 7th, and 11th Circuit decisions and invited those circuits to reconsider.

Judge Barry Silverman, in dissent, was unimpressed.

This case is not about “playing sudoku, checking email, fibbing on dating sites, or any of the other activities” the majority discussed, Judge Silverman wrote. It is about “stealing an employer’s valuable information to set up a competing business with the purloined data.” The majority’s “far-fetched” and “wacky hypotheticals” miss the point.

Nosal’s co-conspirators were authorized to be in the firm system for firm business, not to steal its information. Silverman gave this example: “A bank teller is entitled to access a bank’s money for legitimate banking purposes, but not to take the bank’s money for himself.”

Other circuits got it right, Silverman explained. Those courts found that authorized access had been exceeded under the CFAA when a Citigroup employee used information from a company database to commit fraud, a Social Security Administration employee tracked old flames and potential new ones via the SSA system, and an employee of a government contractor used her work access to view then-candidate Barack Obama’s student loan records.

The Obama student loan case, from the 8th Circuit, was not discussed in the majority opinion.

At the request of the United States, the losing party in Nosal, the 9th Circuit stayed its mandate pending filing of a petition for certiorari. The en banc decision was issued in April, so a petition could be filed with the Supreme Court as late as July.

Judges Series: Chief Judge Alex Kozinski

Later in 2010, Alex Kozinski, whose chambers are in Pasadena, California, will mark twenty-five years on the U.S. Court of Appeals for the Ninth Circuit, the last three as Chief Judge.  In many ways, Chief Judge Kozinski needs no introduction.  The media has covered him extensively; see here, here, and for several pieces, here.  Recent mentions from 2010 are here and here.

Perhaps Kozinski's best-known media moment came several years ago when he nominated himself for (and won) the title of #1 Male Superhottie of the Federal Judiciary in a blog contest, noting, among other things, his earlier win on the Dating Game.  (Last month, Kozinski alluded to his hottie title in a dissenting opinion.)  In tandem with the light-hearted "Alex K.," though, is a substantive jurist and prolific writer.  Some items of note: