Since the beginning of time merchants of services or goods have been quick to toss a patron out of their premises and ask him or her to never come back if said person runs afoul of their rules. It’s common sense for most to know that if you get kicked out of a brick and mortar establishment there is a good chance that you will be “trespassed,” thereby giving you notice that if you come back, you could get arrested. As time passes and technology progresses, the law will have to evolve with it. To “trespass” in the time of our forefathers meant no more than to physically be where they aren’t invited after some form of notice. Back in those days the act of trespassing could upon one’s person, chattel, or physical property. Fast forward to now. With all things tech, a website becomes an interesting new forum for debate on whether or not one can “trespass” on the property of another.
I will preface this blog in that as a low tech criminal lawyer I know about as much about “tech” as I do brain surgery. I do understand that large and common websites like Craigslist can ban an IP range or individual IP address from coming to their site in much the same sense that an establishment can ban an individual or group of individuals from coming to their place of business. In my tiny tech brain I can only imagine a drunken bar patron being kicked out of a big bar in the sky and sent through some kind of multicolored warp tube into never-never land… I digress. So what happens when a person or group that has been trespassed or blocked from a website attempts to come back, using a different or cloaked IP address? As decided in the Craigslist v. 3Taps case, evidently now, at least in the opinion of one Federal District Court Judge, a person who does this runs afoul of the Federal Computer Fraud and Abuse Act (“Act”)! A potential Federal charge? This act is codified at 18 USC 1030. Judge Breyer opines that the Act was violated as applied to the 3Taps case in that 3Taps did intentionally access a computer without authorization and retrieved information from a Craigslist computer that was protected. In rendering his opinion, Judge Breyer compared a website trespass to trespass on private property in saying, “The law of trespass on private property provides a useful, if imperfect analogy. Store owners open their doors to the public, but occasionally find it necessary to ban disruptive individuals from the premises. That trespass law has enforced those bans with criminal penalties has not, in the brick and mortar context, resulted in the doomsday scenarios predicted by 3Taps in the internet context.”
Our Tampa Federal Criminal Lawyers share the opinion that this statute has long been overbroad and needs amending as it could criminalize otherwise innocent conduct of an individual stumbling onto an unauthorized site. This was at least considered by Judge Breyer as he mentioned in his ruling that the “broad reach” of the Act may impact the openness of the internet but that this issue is for the United States Legislature to address via amendment of the Statute. 3Taps allegedly took extreme measures to trespass upon Craigslist’s site and in doing so went so far as to buy technology to disguise their IP addresses used. If 3Taps is a spammer they should be sent to the Island of the Misfits and made to eat liver and drink sand water in perpetuity. That is just my opinion of spammers and solicitors…
In sum, as it stands today, the Act will likely act as a sword against those purposefully trying to trespass upon a website/computer. For those of us that accidentally access a protected website it seems likely that no charge would be pursued or at the least there would be a very viable defense. Federal criminal attorneys must, to an extent, understand the technology involved in the forbidden conduct with a Federal Statute. At the end of the day, most crimes come down to an allegation of a bad act with an active mental state to do so. High tech or low tech, some things never change.
Jason Mayberry is a Federal Criminal Lawyer in the Tampa Bay area. If you’ve been accused of a Federal crime, regardless of location, contact us immediately at 813-444-7435 or at 727-771-3847. We’re available 24 hours a day, 7 days a week.