FALL 2007

Computer Law

Course No.  9200 711 001
Th 6:30 - 9:30 p.m.
Room W-214
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
dratler@uakron.edu, dratler@neo.rr.com
Copyright © 2000, 2001, 2002, 2004, 2007   Jay Dratler, Jr.   For permission, see CMI.

Notes and Questions on Czubinski

1.  Czubinski might be called a "data voyeur": he looked but he didn't touch.  His case is interesting for three reasons.  First, it demonstrates how prosecutors may attempt to "stretch" general-purpose criminal laws, adopted for other purposes, to cover computer crimes.  Prosecutorial overreaching of this sort is understandable and hardly uncommon.  Cf. Dowling v. United States, 473 U.S. 207, 228-229 (1985) (reversing conviction, under federal statute criminalizing interstate transportation of solen goods, for copyright infringement involving interstate distribution of "bootleg" phonorecords).  Overreaching often results in congressional action to cover explicitly conduct that the general-purpose statute could not be strectch to reach.  Second, Czubinski demonstrates the extent—and the limitations—of the Computer Fraud and Abuse Act.  Finally, it demonstrates another understandable but troubling phenomenon: the tendency of prosecutors to select defendants who, they believe, will not "play" well before juries.  What about Czubinski made him an ideal candidate for prosecution in this regard?

 Was the court right to discount Czubinski's malodorous views in applying the statute?

2.  The prosecutor's first attempt to nail Czubinski involved the general wire-fraud statute, 18 U.S.C. 1343, which is quoted in footnote 4 of the court's opinion.  Among other things, that statute requires "a scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses[.]"  Did Czubinski perpetrate such a "scheme or artifice"?  Doesn't the quoted language, at least in ordinary understanding, contemplate some sort of fraud or theft?  Did Czubinski perpetrate a fraud or theft?

In an effort to convince the court that he did, the prosecutor cited cases involving bribery or corruption of public officials.  In those cases, the prosecution had proceeded on the theory that a corrupt public official "defrauded" or "stole from" the public by depriving the public of his or her honest services.  As the Czubinski court notes, the Supreme Court threw out this creative interpretation, but Congress restored it by amending the statute to include a definition of "scheme or artifice to defraud" that makes explicit reference to "honest services."

Before Congress so amended the statute, was it clear that the statute should cover bribery, corruption, and conflict of interest?  See McNally v. United States, 483 U.S. 350, 361 (1987).  Would a public official of ordinary intelligence expect that accepting a bribe or having a conflict of interest would result in a successful prosecution for fraud or theft?

3.  Lack of clarity in criminal statutes is more than a mere drafting pecadillo.  It can offend fundamental notions of due process and thereby reach constitutional diminesion.  As the Supreme Court explained:
    "That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law."
Connally v. General Construction Co., 269 U.S. 385, 391 (1926).  Does/should the same principle apply when a statute is otherwise clear but a zealous prosecutor attempts to assert an overreaching construction?

4.  Once Congress amended the wire-fraud statute to insert the new definition of "scheme or artifice to defraud," the overreaching interpretation became law, however odd it might seem linguistically.  Was court here correct in concluding that cases involving bribery, corruption, and conflicts of interest were inapposite, and that Czubinski did not deprive the public of his "honest services" to the same extent?

If Czubinski had practiced his "data voyeurism" while he was supposed to be on the job, he would have deprived the public of his services (honest or not) during that time.  Would/should that be enough to convict him?  Would an affirmative answer make a federal felon out of every federal employee who "plays hookey" or takes too long a coffee break?

5 .  Congress adopted the Computer Fraud and Abuse Act in part because of the difficulty of prosecuting computer crimes under general-purpose fraud and theft statutes.  Suppose a "hacker" breaks into a computer system, uploads her video games, and uses the system without authorization to play them.  Has she "defrauded" the system's owner?  Has she stolen anything that can be characterized as "property"?

Some states have statutes criminalizing "theft of services," which can be adapted to such cases.  See N.Y. Penal Law § 165.15(10) (McKinney Supp. 1992) ("A person is guilty of Theft of Services if he [obtains or has] control . . . over . . . business, commercial or industrial equipment or facilities of another person, knowing that he is not entitled to the use thereof, and with intent to derive a commercial or other substantial benefit for himself or a third person, he uses or diverts to the use of himself or a third person such . . . equipment or facilities").  Yet these statutes are also subject to both abuse and interpretation.  See Weg v. Macchiarola, 995 F.2d 15, 16-17 (2d Cir. N.Y. 1993) (noting failure of state prosecution for personal use of state computer by systems manager in Board of Education, where state court declined to find that computer was "business equipment").  Rather than stretch a general-purpose statute to fit, many states and Congress designed statutes specially for computer crimes.  The Comuter Fraud and Abuse Act was one of those statutes.

7.  What specific subsection—and what specific words and phrases in it—arguably applied to Czubinski's "data voyeurism"?  What specific words and phrases got him off the hook?

Does the relevant subsection read the same way today as it did when this case was decided?  If not, would a prosecution of Czubinski under that same subsection be successful today?  Is the answer clear?

Could a prosecutor today nail Czubinski under any other subsections?  If so, which ones?  Does their language raise any question of interpretation?
Back to Top