CTIC’s Jeffrey Vagle part of amicus briefs on computer use and First Amendment rights

  • Penn Law's Jeffrey Vagle is part of an amicus brief which argues that a recent court decision could lead to millions of ordinary individuals being criminally liable for behaviors such as checking personal email from a work computer.

Jeffrey Vagle, Executive Director of the Center for Technology, Innovation and Competition, was part of two amicus briefs filed by the Electronic Frontier Foundation in the case United States v. Gilberto Valle. The first brief recommends that the U.S. Court of Appeals for the Second Circuit overturn a decision that would make employees criminally liable for violating an employer’s computer use restriction. The second argues that a district court judge was correct for throwing out a jury’s conspiracy verdict in the case.

The case involves Gilberto Valle, a New York City police officer who was convicted under the Computer Fraud and Abuse Act (CFAA) for accessing a police database without a valid law enforcement purpose. His previous conviction of conspiracy to kidnap, resulting from his participation in chat rooms on fantasy role-playing fetish websites involving cannibalism, was reversed by the trial court.

The brief makes the distinction between “access” and “use” restrictions. Courts have found that access restrictions are a violation of the CFAA, and the brief argues that true access restrictions are code-based, technological barriers to entry, which was not the case for Valle, who was misusing a system to which he had access.

The result of the district court’s ruling to uphold Valle’s CFAA conviction, the brief argues, is that millions of ordinary individuals could be criminally charged for behaviors such as checking personal email from a work computer, which can be violations of an employers’ computer use policy.

Furthermore, the government has appealed the trial court’s reversal of the conspiracy conviction, and the second brief filed by the EFF asserts that because there were no real-world steps taken to kidnap anyone, the trial court ruling was correct. Convicting Valle of conspiracy for his online statements, the brief argues, would make him guilty of “thoughtcrime” and violate his First Amendment rights.

The amici for the second brief include the EFF, the Center for Democracy & Technology, the Marion B. Brechner First Amendment Project, Pennsylvania Center for the First Amendment, and UCLA law professor Eugene Volokh.

In addition to being the Executive Director of CTIC, Vagle is a Lecturer in Law at the Law School. His research interests include surveillance law, cryptography and cybersecurity law, electronic privacy, Internet architecture, and networked economies and societies, and his work focuses particularly on the study of the societal, political, historical, and economic effects of government surveillance, especially among marginalized or disenfranchised populations. 

The Center for Technology, Innovation and Competition is dedicated to promoting foundational research that aims to shape the way legislators, regulatory authorities, and scholars think about technology policy, intellectual property, privacy, and related fields. Through major scholarly conferences, symposia, faculty workshops, and other activities, CTIC is committed to providing a forum for exploring the full range of scholarly perspectives on these issues.