Sunday, October 04, 2015

Case o' The Week: 1,600 Pages, Yet Called "Briefs" - Christensen and Federal Hacking Statute

“Defendants have raised a staggering number of issues on appeal. Their briefs – fourteen in all – totaled over 900 pages.” . . .  “The government is similarly verbose. Its answering brief was nearly 700 pages.” United States v. Christensen, 2015 WL 5010591, at *2 & n.1. (9th Cir. Aug. 25, 2015), decision available here.
We’ll skip an issue or two here, and focus on (the winning) one.

Players: Decision by Judge Clifton, joined by Judges Fisher and Chief D.J. Christensen. NorCal’s own CJA Counsel Steven Gruel on the briefs (among others).

Facts: Private investigator Anthony Pellicano (above) illegally tapped calls for his clients. Id. at *2. He paid Turner, a phone employee, to grab needed data. Id. He paid LAPD Officer Arneson, to search confidential police databases for information about targets. Id. Along with other defendants, Turner and Arneson were charged with a bevy of wiretapping and RICO crimes and convicted after trial. Id. at *1. 

Specifically, Turner was convicted of aiding and abetting computer fraud under the Computer Fraud and Abuse Act (“CFAA”). Arneson was convicted of unauthorized computer access of US agency information. Id. at *11.

Issue(s): Was the jury erroneously instructed that it was a crime if Turner and Arneson accessed computers with authorization, but used that access to obtain data beyond that authorization. Id. at *12.  

Held: “Following the convictions, this court decided United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc). Nosal held the term “exceeds authorized access,” an element of both offenses under the CFAA, to be ‘limited to violation of restrictions on access to information, and not restrictions on its use. Id. at 864. Based on Nosal, we vacate the convictions under the CFAA.” Id. at 11 (emphasis in original). 

“The jury instructions defining both computer fraud and unauthorized computer access of United States agency information were plainly erroneous under Nosal. The error was prejudicial. We therefore vacate Turner’s conviction for aiding and abetting computer fraud, Arnerson’s convictions for computer fraud and unauthorized computer access, and Pellicano’s convictions for aiding and abetting both computer fraud and unauthorized computer access.” Id. at *13.

Of Note: One of (many, many) issues in this appeal was the alleged targeting and ultimate dismissal of a juror in one of the trials involved. Id. at *50 (Christensen, Chief D.J, concurring in part and dissenting in part). Judge Christensen (D. Montana) pens a particularly compelling dissent, strongly suggesting that the juror was targeted for questioning (and excused) not because on his ability to follow the law, because of his (pro-defense) views of the merits of the case. Id. 

This thoughtful dissent on juror independence – and the majority’s counterpoint on jury nullification – is buried in a long opinion, but is an important issue. As Chief Judge Christensen explains, the issue bears directly on the “Sixth Amendment right to a unanimous and impartial jury.” Id. at *53. Worth wading through a long decision to get to this most-troubling dispute.

How to Use: Trying to save Arneson’s conviction (the cop), the government argued that Nosal doesn’t limit criminal liability for access of government information – state and federal laws prevent such access. Id. at *12. The Ninth isn’t buying it. “Congress has created other statutes under which a government employee who abuses his database privileges may be punished, but it did not intend to expand the scope of the federal anti-hacking statute.” Id. 

This Christensen holding is a good Nosal brush-back for the government: the CFAA is an anti-hacking statute, not a general computer crimes catch-all. The sharp lines drawn by the Ninth are handy to have, when facing expansive theories of criminal liability under the CFAA.
For Further Reading: In a doubly sad day for the Ninth Circuit and the Central District of California, Circuit Judge Harry Pregerson, and his son, District Judge Dean Pregerson have both announced their intention to take senior status this winter. See article here 

The year will bring many more celebrations and reflections on both of their careers – a well-earned transition for both, but a big loss for us all.

Steven Kalar, Federal Public Defender, Northern District of California. Website at


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