April 16, 2012 2:00:21 PM by
My new research assistant Zachary Bloom and I recently co-authored a piece in Forbes.com in which we discuss the Ninth Circuit Court of Appeals' ruling in favor of a narrow interpretation of a Computer Fraud and Abuse Act. The CFAA is a vague, dangerous statute that is open to a wide number of readings. The Department of Justice's broad understanding of the law would criminalize much of the everday online activity of nearly every American. Fortunately, the Ninth Circuit did not see the merits of such a reading, and has limited its interpretation of the law to criminalize only the act of hacking into a computer system. This ruling is a positive step forward. But as we point out, the circuit courts are now in disagreement over the meaning of the CFAA, and the final outcome of the controversy will affect all of our lives.
January 13, 2012 2:01:26 PM by
In December of 2011, a series of arrests for gun possession charges in New York City raised a number of important—if perhaps unexpected—legal issues. A number of individuals with valid conceal/carry gun permits issued outside of the city had attempted to “check” their guns—whether at the Empire State Building lobby, the airport, or in one case the 9/11 memorial—and were arrested under the NYC gun law, which recognizes the validity of no outside permits, and carries with it a mandatory minimum sentence of three and a half years in state prison for possession of a loaded weapon. Many commentators have focused their ire on the specific nature of the New York City gun law itself, or have otherwise used the cases as a launching point for a discussion of the Second Amendment’s requirements.
In the piece we posted today on Forbes.com, Daniel Schwartz and I discuss, instead, the dangerously diminishing importance of “intent” in the criminal law—the so-called mens rea requirement that an individual be aware that he is committing a crime before he can be found guilty. Combined with the existence of mandatory minimum sentences, this creates a toxic soup that invites a seemingly radical remedy: “jury nullification,” or the controversial idea that juries have the power (even if not the clear right) to “nullify” unjust laws by voting for acquittal even when a person is, technically, in violation of the statute. Jury nullification, we argue, is essential in a free society that has gone off the rails in terms of prosecutorial abuse. While my book Three Felonies a Day: How the Feds Target the Innocent (updated paperback June 2011 from Encounter Books) details federal law injustices, Schwartz and I point out in this forbes.com piece that state legal systems are not entirely immune from similarly abusive tactics.