News Release ~ 08/06/2010

Government Abuses Computer Crime Law to Boost Criminal Charges

EFF, NACDL Ask Appeals Court to Block Attempt to Turn Misdemeanors into Felonies

Washington, DC (August 6, 2010) – The Electronic Frontier Foundation (EFF) and the National Association of Criminal Defense Lawyers asked a federal appeals court Thursday to block the government''s attempt to wrongly expand federal computer crime law, turning misdemeanor charges into felonies.

In an amicus brief filed in U.S. v. Cioni, EFF and NACDL argue that federal prosecutors abused computer crime law when they brought felony charges against Elaine Cioni for accessing others'' email. Under the Computer Fraud and Abuse Act (CFAA), a first-time unauthorized access offense is a typically a misdemeanor. But in Cioni''s trial, the government pushed for felony convictions, claiming that the CFAA violations were in furtherance of violations of the Stored Communications Act (SCA). However, the acts that they claimed violated the SCA were identical to acts that violated the CFAA.

"The government has piggybacked computer crime violations to punish misdemeanor conduct as two felonies," said EFF Senior Staff Attorney Marcia Hofmann. "This misreading of the law would let the government charge anyone who accesses someone else''s email with a felony. That was not Congress''s intent when it created these statutes."

The CFAA is increasingly recognized as an overbroad statute that could be used to improperly criminalize a wide variety of online activities. Last month, for example, EFF filed an amicus brief in U.S. v. Lowson, arguing against a government attempt to use the CFAA to turn a violation of the terms of service on Ticketmaster''s website into a criminal act.

"We''re asking the appeals court to reject this attempt to broaden the CFAA and reduce the charges against Ms. Cioni back to misdemeanors," said EFF Civil Liberties Director Jennifer Granick. "Congress decided that certain computer crimes should be punished as misdemeanors. Courts shouldn''t let any prosecutor make an offense more severe than Congress intended."

For the full amicus brief:$FILE/Cioni_Amicus.pdf 

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation

Marcia Hofmann
Senior Staff Attorney
Electronic Frontier Foundation

Jack King
Director of Public Affairs and Communications
National Association of Criminal Defense Lawyers

Related Cases: US v. Cioni 

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 9,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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