OrinKerr.com

WiFi Crime in Illinois

The Rockford Register Star has a story about a man who was convicted of a crime for using the unencrypted wireless network of a nearby non-profit agency without first obtaining the agency’s permission. The article doesn’t say, but I gather the prosecution was brought under the Illinois computer misuse statute, which prohibits unauthorized access to a computer. The prosecution appears to have been a largely symbolic one for deterrent effect: the defendant pled guilty and received a $250 fine plus a year of court supervision, and the prosecutors released statements to the press about how this should be a warning to others.

I have written a long law review article on when access to a computer network should be consider “unauthorized,” and I won’t repeat the argument here. But one of the interesting stories in criminal law in the last decade or so is the remarkably expansive interpretation courts have given to these new computer misuse statutes. Much of the problem is that the federal statute has civil remedies, and businesses have used these remedies to get federal jurisdiction in all sorts of spats over competitors and opponents. Courts are much more likely to construe the language broadly in civil cases than in criminal cases: it takes a lot less to convince a judge to stop a sneaky business practice than it does to convince a judge to put someone in jail for that practice.

A good example is the recent Posner opinion in International Airports v. Citrin, which adopts the remarkable position that an employee who uses his employer’s computer with a subjective intent to help his employer’s competitor is committing an unauthorized access under federal law. Under Posner’s view, the statute acts as sort of a nationwide employee loyalty test. Maybe there is an argument that this makes sense in civil cases, but it seems like an astonishing interpretation for a criminal statute.