120 COMPUTER MISUSE CRIMES CH. 2
IP blocking may be an imperfect barrier to screening out a human being Orin Kerr 10/27/2014 2:45 AM who can change his IP address, but it is a real barrier, and a clear signal Deleted: from the computer owner to the person using the IP address that he is Orin Kerr 10/27/2014 2:45 AM no longer authorized to access the website. Formatted: Indent: Left: 0", First line: 0" Orin Kerr 10/27/2014 2:14 AM Is the District Court correct? Formatted: Text Paragraph Orin Kerr 10/30/2014 2:03 AM Formatted: Justified, Line spacing: single D. 18 U.S.C. § 1030(A)(2) AND ITS FELONY Orin Kerr 10/30/2014 2:03 AM ENHANCEMENTS Formatted: Font:10.5 pt Orin Kerr 10/30/2014 2:03 AM Formatted: Font:10.5 pt, Italic On page 88, at the end of Note 2, add the following: Orin Kerr 10/30/2014 2:03 AM Formatted: Font:10.5 pt United States v. Auernheimer, 2012 WL 5389142 (D.N.J. 2012), Orin Kerr 10/30/2014 2:03 AM vacated on other grounds, 748 F.3d 525 (3d Cir. 2014), raised an Formatted: Font:10.5 pt, Italic interesting variation on Cioni. In Auernheimer, the government argued Orin Kerr 10/30/2014 2:03 AM that a misdemeanor violation of 1030(a)(2) becomes a felony under Formatted: Font:10.5 pt 1030(c)(2)(B)(ii) if the act also violates a state unauthorized access statute. In that instance, the government argued, the offense becomes a Orin Kerr 10/27/2014 2:14 AM federal unauthorized access crime in furtherance of a state unauthorized Deleted: access crime. The district court agreed, at least when the state Orin Kerr 10/30/2014 2:03 AM unauthorized access includes an extra element that 1030(a)(2) does not Formatted ... [18] have: Orin Kerr 10/30/2014 2:03 AM Formatted ... [19] Although there is an overlap of facts for the first two elements of each Orin Kerr 10/30/2014 2:10 AM offense, N.J.S.A. 2C:20–31(a) requires the additional component that Formatted ... [20] defendant “knowingly or recklessly discloses or causes to be disclosed Orin Kerr 10/30/2014 2:03 AM any data ... or personal identifying information.” Hence, an essential Formatted ... [21] N.J.S.A. 2C:20–31(a) element requires proof of conduct not required Orin Kerr 10/30/2014 2:03 AM for a CFAA offense Formatted ... [22] Orin Kerr 10/30/2014 2:03 AM 2012 WL 5389142 at *4. Formatted ... [23] On appeal, the defendant argued that the district court had Orin Kerr 10/30/2014 2:03 AM misapplied Cioni. According to the defendant, the key question under Formatted ... [24] Cioni was whether the government had charged two different acts, not Orin Kerr 10/30/2014 2:03 AM two different statutes. Otherwise, mere overlap with analogous state Formatted ... [25] unauthorized access statutes would transform every 1030(a)(2) Orin Kerr 10/30/2014 2:03 AM misdemeanor into a felony. The Third Circuit vacated the defendant’s Formatted ... [26] conviction on venue grounds without reaching the felony enhancement Orin Kerr 10/30/2014 2:03 AM issue. If the Third Circuit had reached the issue, how should it have Formatted ... [27] ruled? Orin Kerr 10/30/2014 2:03 AM
Formatted ... [28] Orin Kerr 10/30/2014 2:03 AM
Formatted ... [29]
CHAPTER 3
TRADITIONAL CRIMES