Computer Fraud and Abuse Act

The Ohio Court of Appeals, in State v. Wolf, No. 08-16, slip op. (Ohio Ct. App. 5d April 28, 2009), recently upheld application of Ohio’s computer crime law to an employee who used his work computer to engage in criminal conduct (solicitation of a dominatrix-prostitute). While this holding may seem uncontroversial, another aspect of the decision might open the door to imposing criminal liability on employees for violating employer computer use policies.

Wolf was a Shelby City Wastewater Treatment Plant employee. The plant superintendent discovered nude photographs on Wolf’s work computer while performing routine maintenance. The superintendent notified police, who discovered that Wolf used the city-owned computer to solicit a prostitute, visit pornographic websites and upload nude photographs of himself during work hours.  At trial, the jury found him guilty of soliciting prostitution, theft in office and unauthorized use of a On appeal, Wolf challenged the trial court decisions overruling his motion for acquittal on both the charge of theft in office and the charge of unauthorized access to a computer. The Court of Appeals agreed that the trial court should have acquitted on the theft in office charge, but ruled that Wolf’s use of the office computer was unauthorized under Ohio law.

State governments and federal prosecutors are cracking down on individuals who use the internet to harass or threaten others.  On June 30, Missouri Governor Matt Blount signed into law a measure that criminalizes online harassment.  This new law represents a marked change in the legal treatment of this form of harassment, also known as “cyber-bullying.”  Other states have enacted legislation to help stop cyber-bullies, but none has gone so far as to impose jail sentences on violators.  The Missouri law, however, criminalizes the transmission of an electronic communication for the purpose of frightening or disturbing another.  V.A.M.S. 565.091 (not yet chaptered).  Adult violators of this new law face up to 4 years in prison if they perpetrate the offense against a child.

The legislation responds to the 2006 death of 13-year old Megan Meier, who committed suicide after being harassed repeatedly on MySpace.  The harassment was allegedly perpetrated by Lori Drew, a 47-year old woman who falsely assumed the identity of a fictitious teenage boy on MySpace and posed as this character to develop an online relationship with Meier.  The girl’s suicide was allegedly prompted by disparaging comments made by Ms. Drew disguised as the teenage boy.  The tragedy outraged the Missouri community in which it occurred, but local authorities were unable to prosecute Ms. Drew because cyber-bullying was not illegal.

Last week, a panel of the Ninth Circuit Court of Appeals held that in the absence of an announced monitoring policy, the mere act of connecting a computer to a network does not extinguish a user’s reasonable expectation of privacy, under the Fourth Amendment, in the contents of his or her computer. The panel announced its holding in United States v. Jerome T. Heckenkamp, Nos. 05-10322 and 05-10323 (9th Cir. April 5, 2007), wherein it upheld the introduction of evidence obtained by University of Wisconsin employees through remote and direct access of a student computer attached to a university network. Although it recognized the defendant’s reasonable expectation of privacy, the panel upheld the lower court’s admission of evidence under the judicially-created “special needs” exception to the Fourth Amendment because the alleged hacking posed an immediate threat to the university network and the searches were not conducted for a law enforcement purpose.