The Supreme Court handed down its first major decision construing the Computer Fraud and Abuse Act last week. The decision is a major victory for those of us who favor a narrow reading of the CFAA. It doesn't answer everything. But it answers a lot.
Orin Kerr is a Professor at the University of California, Berkeley School of Law. He is a nationally recognized scholar of criminal procedure and computer crime law. Before becoming a law professor, Kerr was a trial attorney in the Computer Crime and Intellectual Property Section at the Department of Justice and a Special Assistant U.S. Attorney in the Eastern District of Virginia. He is a former law clerk for Justice Anthony M. Kennedy of the U.S. Supreme Court and Judge Leonard I. Garth of the U.S. Court of Appeals for the Third Circuit.
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An overlooked part of United States v. Moalin could have a major impact on surveillance law.
I recently posted a new draft article, “Implementing Carpenter,” on the Supreme Court's blockbuster June 2018 decision in Carpenter v. United States.
A recurring question in law-of-digital-evidence investigations is how the Fifth Amendment applies to acts of compelled decryption. In these cases, the government gets an order directing a person to enter a password to unlock a device. The subject of the order then pleads the Fifth. How should a court rule? I wanted to flag two of my recent writings on this issue.
The Fifth Circuit has handed down a fascinating computer search case in United States v. Reddick. Here's the question: If a private company runs a hash of a file and compares the hash to those of known images of child pornography, and it finds a match to a known image and forwards on the file to the government, is it a “search” for the government to then open the file to confirm it is child pornography?
Public Utility's Recording of Home Energy Consumption Every 15 Minutes Is a 'Search,' Seventh Circuit Rules
In a fascinating decision, Naperville Smart Meter Awareness v. City of Naperville, the Seventh Circuit has held that a public utility commits a "search" of a home when it records every 15 minutes how much electricity the utility is providing the home, at least until the smart readers that enable this data collection come into general public use.
As some readers know, I wrote a law school casebook on computer crime law. The first edition came out in 2006, and it has been updated over time: The fourth edition came out in January 2018. If you’re interested in checking out the casebook, its first 40 pages—which includes the introduction, the table of contents and the first 30 pages of text—is available for download here on SSRN.