South Capitol Street

A former city employee in Stamford has pleaded guilty and agreed to be sentenced to five years in prison in connection with stealing more than $ 300,000 from the city during the administration of then-Mayor Dannel P. Malloy.

Fred Manfredonia was one of three Stamford employees in different departments who were arrested last year in alleged embezzlement cases that were uncovered by the new Republican administration that took office in December 2009.

Manfredonia’s arrest became an issue during the gubernatorial election campaign when Lt. Gov. Michael Fedele - a Stamford resident for 50 years - criticized Malloy in late July for a lack of management control after the three employees were charged with stealing more than $ 400,000 from the city.

Two of the three workers had been named “employee of the month” during the Malloy years, and one of them - Manfredonia - was photographed with Malloy as they smiled during the employee of the month ceremony in June 2005. He was nominated to be employee of the month by Ben Barnes, a longtime colleague of Manfredonia’s who is now Malloy’s state budget director.

Manfredonia was fired last year amid the embezzlement controversy.

“The question is: who was watching the store when all of this was going on?” Fedele asked at the time. ”What management controls were in place and who was watching when all this took place?”

Fedele was running in the Republican gubernatorial primary at the time, and Malloy was running in the Democratic primary. Malloy’s opponent, Ned Lamont of Greenwich, declined to criticize Malloy on the issue.

Malloy emphasized at the time that he was no longer the mayor and did not have additional details on the arrests beyond what he read in the newspaper.

“Obviously, you do your best to set up systems” of financial controls, Malloy said. “The city’s books are audited on a regular basis. Two of those individuals were caught very quickly, and one was not. It’s hard to protect people from dishonesty. … You have systems. No system is foolproof.”

“Let’s be fair. None of these people were direct reports to me,” Malloy said.

Manfredonia’s attorney, Philip Russell of Greenwich, told Capitol Watch on Friday that his client will be formally sentenced on March 3 under the plea agreement. He said that Manfredonia is trying to avoid any protracted civil cases with the city over potential restitution.

“His pension has been forfeited,” Russell said. ”He’s making no claim for pension benefits.” 

Knowing that a prison sentence was likely in the case, Manfredonia agreed to be incarcerated in advance of his sentencing and has been serving time since September 20, Russell said.

Until Manfredonia’s arrest, he had been deemed as a good employee as the human resources director, Russell said.

“He was a go-to guy in city government because he was trusted and he was good at solving problems,” Russell said. “He was a trusted city employee, and the city leaders appropriately feel betrayed.”

A former New York City prosecutor who handled homicides and assaults, Russell now practices in a two-attorney Greenwich firm with Stamford resident Kathleen O. Malloy - the new governor’s niece.

Capitol Watch

Last week Illinois Governor Pat Quinn signed a pension overhaul bill that could lead to a walloping property tax increase for Chicagoans and presumably, other Illinoisans such as myself.

Which led Mayor Richard M. Daley to comment on New Year’s Eve with a Halloween-like warning:

The direct result of the governor’s actions will be a massive property-tax hike for Chicago residents of at least $ 550 million, or about a 60 percent increase in our current property-tax levy.

Yesterday the Illinois Policy Institutes’s John Tillman discussed the dire pension situation of the Fox Business Network. The graphics are interesting-look for “The Land of Red Inkin” and ILLinois. That’s us.

As some time very soon, our onerous pension debt will lead to cutbacks in government services-unless these pension deals are renegotiated.

Technorati tags: news Patrick Quinn pat quinn government taxesillinois politics illinois policy institute labor unions news government politics pensions Richard Daley

Marathon Pundit

Today's starter topic: Is the gravy train for public employee unions finally grinding to a halt?

On Wednesday, for example, New York’s new Democratic governor, Andrew M. Cuomo, is expected to call for a one-year salary freeze for state workers, a move that would save $ 200 million to $ 400 million and challenge labor’s traditional clout in Albany.
 

read more

NewsBusters.org - Exposing Liberal Media Bias

(Orin Kerr)

Last week, the Eleventh Circuit decided an important case, United States v. Rodriguez, on the computer crime statute known as the Computer Fraud and Abuse Act, 18 U.S.C. 1030. The decision by Judge Pryor touches on the same issue that was in play in the Lori Drew case: When does violating express conditions on computer use constitute a crime? The court’s conclusion seems right on its specific facts, but I worry that it will be construed as adopting a very broad theory that would be very troubling. So I wanted to introduce the legal issue, then talk about the Rodriguez case, and then return to the legal issue and talk about how it might apply going forward.

I. The Prohibition on Unauthorized Access

First, some context. Federal law makes it a crime to “exceed authorized access” to a “protected computer” and thereby obtain “information.” 18 U.S.C. 1030(a)(2)(C). Essentially everything on the planet Earth that contains a microchip is a “protected computer”; any data at all counts as “information”; and merely reading information counts as “obtaining” it. As a result, whenever you’re using a computer, the line between computer use that is legal and computer use that can have you arrested and thrown in jail hinges almost entirely on what makes computer use “exceed authorized access.”

The phrase “exceed authorized access” is a defined phrase, but unfortunately the definition is almost entirely circular. According to 18 U.S.C. 1030(e)(6), “exceeds authorized access” means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled to obtain or alter.” That’s not a very helpful definition, if you think about it. Entitlement and authorization mean the same thing. As a result, the definition just says that you exceed authorized access when you have authorization but then you, well, exceed it, by doing something you’re not authorized to do. The missing aspect of the definition is what principle governs authorization (or entitlement, if you prefer). Is it just the computer owner’s say so? Does it require the computer owner to put up some sort of password gate that limits authorization? How do you know what you’re entitled to do for purposes of the criminal law?

This is a really hard question, I think. To see why it’s hard, consider the following eight scenarios. Specifically, consider which of the people in these scenarios “exceeded authorized access” to a computer in violation of federal law:

1) A government employee who has access to a sensitive national security database that he is only permitted to use for official reasons instead uses the database in order to collect private data and sell it to the Chinese government.
2) An Social Security Administration employee who has access to a Social Security database that he is only permitted to use for official reasons instead uses the database just to check out private information on friends and others for purely personal reasons.
3) An associate of a consulting company who is told that he can only access his employer’s computer files for work-related reasons instead looks through the employer’s files because he is thinking of leaving to start a competitor business and is looking for ideas of future clients and services.
4) A city employee who is told that he can only access the city’s computer for work-related reasons instead spends five minutes a day surfing the Internet for pornography.
5) A mother who signs up for a MySpace account that the Terms of Service condition on being entirely truthful in setting up a profile instead lies on the profile and uses the MySpace account anyway.
6) A law student who is forbidden by law school policy to access the law school network during class decides to do so anyway to check his e-mail during a particularly boring lecture.
7) The New York Times reports that there is a website set up at www.dontvisitthiswebsite.com that has some incredible pictures posted. But there’s a catch: The Terms of Service of the website clearly and unambiguously say that no one is allowed to visit the website. A reader of the Times wants to see the pictures anyway and visits the website from his home Internet connection.
The Volokh Conspiracy announces a new rule that you are only allowed to the visit the blog is your goal in doing so is to further libertarianism. Someone visits the blog to post comments criticizing libertarianism.

So which of these eight scenarios violate the federal criminal law prohibiting exceeding authorized access to a computer? In my experience, almost everyone says that the first scenario does. Most say that the second does, too. Scenarios #3, #4, and #5 draw a mixed reaction. Finally, most people think #6 isn’t a crime, and pretty much everyone agrees it would be utterly ridiculous for #7 or #8 to be a crime.

The problem is that the statute doesn’t provide an obvious way to get to these intuitive results. The intuitive results are based on intuitions of harm. We instinctively think that harmful things should be a crime, while entirely innocuous things shouldn’t be. But the prohibition on unauthorized access does not include a harm element. The statute prohibits exceeding authorized access in the model of a trespass statute, not exceeding authorized access in a way that is likely to cause a lot of harm. (Harm matters to get to the felony provisions, but not the misdemeanor provisions.) All eight scenarios listed above are variations on the same basic theme: In each case, the person was told by the owner/operator of the computer that they were not permitted to use the computer in that way or for that reason — but they did so anyway. All of which raises a profoundly important question: What principle governs when the announced restrictions on using a computer triggers criminal liability?

II. United States v. Rodriguez

The new case, United States v. Rodriguez, involved Scenario #2. Rodriguez was a Social Security Administration employee who used the SSA computers for purely personal reasons. The opinion explains:

From 1995 to 2009, Roberto Rodriguez worked as a TeleService representative for the Social Security Administration. Rodriguez’s duties included answering questions of the general public about social security benefits over the telephone. As a part of his duties, Rodriguez had access to Administration databases that contained sensitive personal information, including any person’s social security number, address, date of birth, father’s name, mother’s maiden name, amount and type of social security benefit received, and annual income.

The Administration established a policy that prohibits an employee from obtaining information from its databases without a business reason. The Administration informed its TeleService employees about its policy through mandatory training sessions, notices posted in the office, and a banner that appeared on every computer screen daily. The Administration also required TeleService employees annually to sign acknowledgment forms after receiving the policies in writing. The Administration warned employees that they faced criminal penalties if they violated policies on unauthorized use of databases. From 2006 to 2008, Rodriguez refused to sign the acknowledgment forms. He asked a supervisor rhetorically, “Why give the government rope to hang me?” To monitor access and prevent unauthorized use, the Administration issued unique personal identification numbers and passwords to each TeleService employee and reviewed usage of the databases.

In August 2008, the Administration flagged Rodriguez’s personal identification number for suspicious activity. Administration records established that Rodriguez had accessed the personal records of 17 different individuals for nonbusiness reasons. The Administration informed Rodriguez that it was conducting a criminal investigation into his use of the databases, but Rodriguez continued his unauthorized use. None of the 17 victims knew that Rodriguez had obtained their personal information without authorization until investigators informed them of his actions.

Based on his conduct, Rodriguez was charged with 17 counts of unauthorized access, convicted, and sentenced to serve a year in prison. On appeal, he argued that his conduct did not exceed authorized access. In an opinion by Judge Pryor, the Eleventh Circuit treated that argument as almost frivolous:

The policy of the Administration is that use of databases to obtain personal information is authorized only when done for business reasons. Rodriguez conceded at trial that his access of the victims’ personal information was not in furtherance of his duties as a TeleService representative and that “he did access things that were unauthorized.” In the light of this record, the plain language of the Act forecloses any argument that Rodriguez did not exceed his authorized access.

In a subsequent part of the opinion, Judge Pryor made clear that “Rodriguez exceeded his authorized access and violated the Act” because “he obtained personal information for a nonbusiness reason.” Rodriguez tried to argue that he should not be held liable because his violation of SSA policy did not cause a greater harm or have a greater scheme to cause harm. But Judge Pryor properly noted that the basic prohibition on unauthorized access did not require a harm:

The misdemeanor penalty provision of the Act under which Rodriguez was convicted does not contain any language regarding purposes for committing the offense. See id. § 1030(c)(2)(A). Rodriguez’s argument would eviscerate the distinction between these misdemeanor and felony provisions. That Rodriguez did not use the information to defraud anyone or gain financially is irrelevant.

III. Commentary: What Are The Limits of Rodriguez?

Just based on its facts, the result in Rodriguez seems sound. In a sense, it is unremarkable. Indeed, the First Circuit noted the same conclusion in dicta in an early case with almost identical facts. See United States v. Czubinski, 106 F.3d 1069 (1st Cir. 1997) (noting, in an unauthorized access prosecution of an IRS employee who accessed the IRS database for personal reasons, that the defendant “unquestionably exceeded authorized access” by using the sensitive database for personal reasons). See also Commonwealth v. McFadden, 850 A.2d 1290 (Pa Super. Ct. 2004) (interpreting a state unauthorized access statute to punish use of a sensitive police computer system for personal reasons). And I suspect most people will say that based on the facts of Rodriguez, the result was correct. Rodriguez seems like a really bad guy, and his conduct was a pretty serious privacy violation.

What troubles me is that the Eleventh Circuit’s rationale seems broader than the facts of this one case. The rationale of the opinion suggests that the issue was trivially easy: There was a policy on access; the defendant violated it after being told not to; and therefore he exceeded authorized access. Pretty straightforward. The clarity of the rationale seems to support the view that accessing an employer’s computer for “a nonbusiness reason” after being told not to do so is a crime not just in this case, but for any limitation imposed and for any nonbusiness reason. In other words, while the rationale covers scenario #2, it also seems to cover scenario #3 and #4. And I suspect some readers will read the opinion to support even more of the scenarios — maybe #5, maybe even #6 and #7.

In a recent article, I tried to offer a way out of this mess: constitutional vagueness doctrine, the doctrine used in the Lori Drew case. In my essay, Vagueness Challenges to the Computer Fraud and Abuse Act, 94 Minn. L. Rev. 1561 (2010), I argued that defense attorneys should challenge readings of the unauthorized access as unconstitutionally vague in order to force the courts to adopt narrow interpretations. My view is that the requirements of vagueness doctrine should force courts to say that only certain kinds of restrictions on computer use in certain kinds of contexts can constitutionally be used to trigger the criminal prohibition on unauthorized access.

I don’t think such an argument would have worked for the defendant in the Rodriguez case, to be clear. Those facts strike me as pretty close to the core of the prohibition. But I’m worried about the next case. And I don’t think these are idle concerns. Scenarios #3, #4, and #5 are based on real criminal cases charged in the last two years. Scenario #3 is based on United States v. Nosal, 2009 WL 981336 (N.D. Cal. 2009); Scenario #4 is based on State v. Wolf, 2009 WL 1152185 (Ohio App. 2009); and Scenario #5 is based on the Lori Drew case. State and federal prosecutors have shown that they’re willing to take favorable precedents like Rodriguez and run with them through the different scenarios. Given that, it’s troubling to me when a court endorses the government’s theory in a case like this without any apparent realization of where the government is going next or the broader possible impact of the decision. To be clear, I’m not blaming the panel: This was a very strong panel; the opinion was authored by an excellent judge; and the facts of this case were pretty egregious. But I think the issue is a bit more complicated than the opinion suggests, and it’s frustrating when defense attorneys don’t successfully bring out these complications in ways that judges can factor in to their decisions.

Finally, if vagueness doctrine doesn’t help cure some of the problems with Section 1030, it would be nice if Congress revisited the statute to explain just what it wanted to criminalize. But then I wouldn’t hold my breath expecting that to happen any time soon.

For more on the overbreadth concerns raised by the Computer Fraud and Abuse Act, see my article Cybercrime’s Scope: Interpreting ‘Access’ and ‘Authorization’ in Computer Misuse Statutes published in the NYU Law Review in 2003.

The Volokh Conspiracy

(Orin Kerr)

Last week, the Eleventh Circuit decided an important case, United States v. Rodriguez, on the computer crime statute known as the Computer Fraud and Abuse Act, 18 U.S.C. 1030. The decision by Judge Pryor touches on the same issue that was in play in the Lori Drew case: When does violating express conditions on computer use constitute a crime? The court’s conclusion seems right on its specific facts, but I worry that it will be construed as adopting a very broad theory that would be very troubling. So I wanted to introduce the legal issue, then talk about the Rodriguez case, and then return to the legal issue and talk about how it might apply going forward.

I. The Prohibition on Unauthorized Access

First, some context. Federal law makes it a crime to “exceed authorized access” to a “protected computer” and thereby obtain “information.” 18 U.S.C. 1030(a)(2)(C). Essentially everything on the planet Earth that contains a microchip is a “protected computer”; any data at all counts as “information”; and merely reading information counts as “obtaining” it. As a result, whenever you’re using a computer, the line between computer use that is legal and computer use that can have you arrested and thrown in jail hinges almost entirely on what makes computer use “exceed authorized access.”

The phrase “exceed authorized access” is a defined phrase, but unfortunately the definition is almost entirely circular. According to 18 U.S.C. 1030(e)(6), “exceeds authorized access” means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled to obtain or alter.” That’s not a very helpful definition, if you think about it. Entitlement and authorization mean the same thing. As a result, the definition just says that you exceed authorized access when you have authorization but then you, well, exceed it, by doing something you’re not authorized to do. The missing aspect of the definition is what principle governs authorization (or entitlement, if you prefer). Is it just the computer owner’s say so? Does it require the computer owner to put up some sort of password gate that limits authorization? How do you know what you’re entitled to do for purposes of the criminal law?

This is a really hard question, I think. To see why it’s hard, consider the following eight scenarios. Specifically, consider which of the people in these scenarios “exceeded authorized access” to a computer in violation of federal law:

1) A government employee who has access to a sensitive national security database that he is only permitted to use for official reasons instead uses the database in order to collect private data and sell it to the Chinese government.
2) An Social Security Administration employee who has access to a Social Security database that he is only permitted to use for official reasons instead uses the database just to check out private information on friends and others for purely personal reasons.
3) An associate of a consulting company who is told that he can only access his employer’s computer files for work-related reasons instead looks through the employer’s files because he is thinking of leaving to start a competitor business and is looking for ideas of future clients and services.
4) A city employee who is told that he can only access the city’s computer for work-related reasons instead spends five minutes a day surfing the Internet for pornography.
5) A mother who signs up for a MySpace account that the Terms of Service condition on being entirely truthful in setting up a profile instead lies on the profile and uses the MySpace account anyway.
6) A law student who is forbidden by law school policy to access the law school network during class decides to do so anyway to check his e-mail during a particularly boring lecture.
7) The New York Times reports that there is a website set up at www.dontvisitthiswebsite.com that has some incredible pictures posted. But there’s a catch: The Terms of Service of the website clearly and unambiguously say that no one is allowed to visit the website. A reader of the Times wants to see the pictures anyway and visits the website from his home Internet connection.
The Volokh Conspiracy announces a new rule that you are only allowed to the visit the blog is your goal in doing so is to further libertarianism. Someone visits the blog to post comments criticizing libertarianism.

So which of these eight scenarios violate the federal criminal law prohibiting exceeding authorized access to a computer? In my experience, almost everyone says that the first scenario does. Most say that the second does, too. Scenarios #3, #4, and #5 draw a mixed reaction. Finally, most people think #6 isn’t a crime, and pretty much everyone agrees it would be utterly ridiculous for #7 or #8 to be a crime.

The problem is that the statute doesn’t provide an obvious way to get to these intuitive results. The intuitive results are based on intuitions of harm. We instinctively think that harmful things should be a crime, while entirely innocuous things shouldn’t be. But the prohibition on unauthorized access does not include a harm element. The statute prohibits exceeding authorized access in the model of a trespass statute, not exceeding authorized access in a way that is likely to cause a lot of harm. (Harm matters to get to the felony provisions, but not the misdemeanor provisions.) All eight scenarios listed above are variations on the same basic theme: In each case, the person was told by the owner/operator of the computer that they were not permitted to use the computer in that way or for that reason — but they did so anyway. All of which raises a profoundly important question: What principle governs when the announced restrictions on using a computer triggers criminal liability?

II. United States v. Rodriguez

The new case, United States v. Rodriguez, involved Scenario #2. Rodriguez was a Social Security Administration employee who used the SSA computers for purely personal reasons. The opinion explains:

From 1995 to 2009, Roberto Rodriguez worked as a TeleService representative for the Social Security Administration. Rodriguez’s duties included answering questions of the general public about social security benefits over the telephone. As a part of his duties, Rodriguez had access to Administration databases that contained sensitive personal information, including any person’s social security number, address, date of birth, father’s name, mother’s maiden name, amount and type of social security benefit received, and annual income.

The Administration established a policy that prohibits an employee from obtaining information from its databases without a business reason. The Administration informed its TeleService employees about its policy through mandatory training sessions, notices posted in the office, and a banner that appeared on every computer screen daily. The Administration also required TeleService employees annually to sign acknowledgment forms after receiving the policies in writing. The Administration warned employees that they faced criminal penalties if they violated policies on unauthorized use of databases. From 2006 to 2008, Rodriguez refused to sign the acknowledgment forms. He asked a supervisor rhetorically, “Why give the government rope to hang me?” To monitor access and prevent unauthorized use, the Administration issued unique personal identification numbers and passwords to each TeleService employee and reviewed usage of the databases.

In August 2008, the Administration flagged Rodriguez’s personal identification number for suspicious activity. Administration records established that Rodriguez had accessed the personal records of 17 different individuals for nonbusiness reasons. The Administration informed Rodriguez that it was conducting a criminal investigation into his use of the databases, but Rodriguez continued his unauthorized use. None of the 17 victims knew that Rodriguez had obtained their personal information without authorization until investigators informed them of his actions.

Based on his conduct, Rodriguez was charged with 17 counts of unauthorized access, convicted, and sentenced to serve a year in prison. On appeal, he argued that his conduct did not exceed authorized access. In an opinion by Judge Pryor, the Eleventh Circuit treated that argument as almost frivolous:

The policy of the Administration is that use of databases to obtain personal information is authorized only when done for business reasons. Rodriguez conceded at trial that his access of the victims’ personal information was not in furtherance of his duties as a TeleService representative and that “he did access things that were unauthorized.” In the light of this record, the plain language of the Act forecloses any argument that Rodriguez did not exceed his authorized access.

In a subsequent part of the opinion, Judge Pryor made clear that “Rodriguez exceeded his authorized access and violated the Act” because “he obtained personal information for a nonbusiness reason.” Rodriguez tried to argue that he should not be held liable because his violation of SSA policy did not cause a greater harm or have a greater scheme to cause harm. But Judge Pryor properly noted that the basic prohibition on unauthorized access did not require a harm:

The misdemeanor penalty provision of the Act under which Rodriguez was convicted does not contain any language regarding purposes for committing the offense. See id. § 1030(c)(2)(A). Rodriguez’s argument would eviscerate the distinction between these misdemeanor and felony provisions. That Rodriguez did not use the information to defraud anyone or gain financially is irrelevant.

III. Commentary: What Are The Limits of Rodriguez?

Just based on its facts, the result in Rodriguez seems sound. In a sense, it is unremarkable. Indeed, the First Circuit noted the same conclusion in dicta in an early case with almost identical facts. See United States v. Czubinski, 106 F.3d 1069 (1st Cir. 1997) (noting, in an unauthorized access prosecution of an IRS employee who accessed the IRS database for personal reasons, that the defendant “unquestionably exceeded authorized access” by using the sensitive database for personal reasons). See also Commonwealth v. McFadden, 850 A.2d 1290 (Pa Super. Ct. 2004) (interpreting a state unauthorized access statute to punish use of a sensitive police computer system for personal reasons). And I suspect most people will say that based on the facts of Rodriguez, the result was correct. Rodriguez seems like a really bad guy, and his conduct was a pretty serious privacy violation.

What troubles me is that the Eleventh Circuit’s rationale seems broader than the facts of this one case. The rationale of the opinion suggests that the issue was trivially easy: There was a policy on access; the defendant violated it after being told not to; and therefore he exceeded authorized access. Pretty straightforward. The clarity of the rationale seems to support the view that accessing an employer’s computer for “a nonbusiness reason” after being told not to do so is a crime not just in this case, but for any limitation imposed and for any nonbusiness reason. In other words, while the rationale covers scenario #2, it also seems to cover scenario #3 and #4. And I suspect some readers will read the opinion to support even more of the scenarios — maybe #5, maybe even #6 and #7.

In a recent article, I tried to offer a way out of this mess: constitutional vagueness doctrine, the doctrine used in the Lori Drew case. In my essay, Vagueness Challenges to the Computer Fraud and Abuse Act, 94 Minn. L. Rev. 1561 (2010), I argued that defense attorneys should challenge readings of the unauthorized access as unconstitutionally vague in order to force the courts to adopt narrow interpretations. My view is that the requirements of vagueness doctrine should force courts to say that only certain kinds of restrictions on computer use in certain kinds of contexts can constitutionally be used to trigger the criminal prohibition on unauthorized access.

I don’t think such an argument would have worked for the defendant in the Rodriguez case, to be clear. Those facts strike me as pretty close to the core of the prohibition. But I’m worried about the next case. And I don’t think these are idle concerns. Scenarios #3, #4, and #5 are based on real criminal cases charged in the last two years. Scenario #3 is based on United States v. Nosal, 2009 WL 981336 (N.D. Cal. 2009); Scenario #4 is based on State v. Wolf, 2009 WL 1152185 (Ohio App. 2009); and Scenario #5 is based on the Lori Drew case. State and federal prosecutors have shown that they’re willing to take favorable precedents like Rodriguez and run with them through the different scenarios. Given that, it’s troubling to me when a court endorses the government’s theory in a case like this without any apparent realization of where the government is going next or the broader possible impact of the decision. To be clear, I’m not blaming the panel: This was a very strong panel; the opinion was authored by an excellent judge; and the facts of this case were pretty egregious. But I think the issue is a bit more complicated than the opinion suggests, and it’s frustrating when defense attorneys don’t successfully bring out these complications in ways that judges can factor in to their decisions.

Finally, if vagueness doctrine doesn’t help cure some of the problems with Section 1030, it would be nice if Congress revisited the statute to explain just what it wanted to criminalize. But then I wouldn’t hold my breath expecting that to happen any time soon.

For more on the overbreadth concerns raised by the Computer Fraud and Abuse Act, see my article Cybercrime’s Scope: Interpreting ‘Access’ and ‘Authorization’ in Computer Misuse Statutes published in the NYU Law Review in 2003.

The Volokh Conspiracy

It’s quite clear that union supervisors in New York City told their charges to take their sweet time plowing the streets of America’s largest city after last week’s snowstorm.

These “public servants” care more about their union and their overtime dollars than doing their jobs.

Because NYC paramedics couldn’t maneuver snow-clogged streets, a newborn and an elderly woman died.  Politically-important and well-to-do neighborhoods were singled out for the union-laziness effort-the yobos way of making a perverse statement.

Besides runaway pension costs, high salaries and wages, and the offense of government conspiring for more government-which is what happens when public employee unions supply Democratic candidates with volunteers and contributions-the spectacle of the New York slowdown is another reason why government workers should be barred from joining unions.

Conservatives should be pleased with the victories of the Tea Party last fall. But a larger battle looms-the public versus public employee unions.

Technorati tags: new york city news politics government democrat tea party new york politics new york unions organized labor

Marathon Pundit

They have been a fiscal disaster for the taxpayer.
American Thinker Blog

(John)

In New York, sanitation workers have reported that their union ordered them to sabotage the city’s blizzard cleanup efforts. If that claim is true, the union may be responsible for at least one death. Mayor Bloomberg has vowed to investigate.

It remains to be seen what will come of this particular controversy, but the broader point is coming into ever-clearer focus: it is time to ban public employee unions.

For the large majority of our history, public employee unions have been illegal. It is only since the 1960s and 1970s that they have been allowed. Currently, they are legal in roughly half the states. The United States has carried on a four-decade experiment in legalization, and the results are in: public employee unions are a cancer on our country.

Public employee unions flourish because government is, by its nature, a monopoly. Thus, there is no need for unionized government units to compete against non-unionized units. Moreover, public officials who negotiate with public employee unions generally lack the same incentives that private employers have to keep costs down. The result has been a fiscal disaster, with numerous states and municipalities now going over the waterfall of bankruptcy.

Meanwhile, public employee unions have become perhaps the dominant force in our political life. They extract dues from their members which goes to fund the candidacies of politicians who will pay public employees even more money. The unions’ ill-gotten clout has created a vicious cycle; at the same time that government units are going broke, public employees are now far better paid than their private sector counterparts, while enjoying better benefits and ridiculous job security.

Enough is enough. Legalization of public employee unions has been a disaster. It is time to make them illegal once again, at both the federal and state levels. I expect that this will become one of the great political issues of the next decade.

Power Line

As we’ve seen before, one category of lavish spending on public employees that Christ Christie likes is lavish spending on himself, as when he was a US Attorney he repeatedly came in over-budget for his travel expenses without proper justification. Similarly, Steve Benen’s been noting that Christie and his Lieutenant Governor decided to take simultaneous vacations, leaving the state in the hands of an Acting Governor during the snow emergency gripping the state.

It’s not the biggest deal in the world, but I do think it’s telling in a small way. After all, the whole point of having a Lieutenant Governor is that this kind of thing won’t happen. Imposing a “no simultaneous vacations” rule would be inconvenient—folks like to travel on Christmas—but failure to impose such a rule vitiates the public function of the offices. You’d think a governor so eager to be filmed dressing-down sundry public employees for living high on the taxpayer’s money would be more sensitive to these problems, but he seems to have a giant blind spot when it comes to his own conduct.

Yglesias

J O S H U A P U N D I T

Our guest blogger is Seth Hanlon, Director of Fiscal Reform for the Center for American Progress Action Fund’s Doing What Works project. One of the enduring myths of American politics is that the estate tax falls hardest on small businesses and family farms, forcing them to sell their farms and businesses to pay the tax. [...]
Wonk Room

Short-sighted and ultimately suicidal dhimmitude. “Red Cross Neglects Arrested Afghan Employee for Converting to Christianity,” from International Christian Concern, December 14 (thanks to Pamela Geller):

Washington, D.C. (December 14, 2010) - International Christian Concern (ICC) has learned that the Red Cross in Afghanistan (ICRC) has not intervened on behalf of a long-term employee who was arrested and imprisoned because he is Christian. This, despite that the Red Cross mandate includes “visiting prisoners” and “helping victims of conflict and internal violence, whoever they are.”

Sayed Mossa worked 15 years in ICRC’s orthopedic department in Kabul assisting amputees. In late May, footage of Muslim converts to Christianity being baptized was aired in Afghanistan. The broadcast triggered nationwide protests and a government-led crackdown against Christians. On May 31, being a Muslim convert to Christianity, Mossa was arrested by security officers working with the Ministry of Interior.

Aid workers in Kabul immediately contacted the Red Cross after hearing of the arrest. “The Protection office told us that Mossa will be visited like the others and that we must not interfere with their job. We are not his family and they will not tell us anything. We told them that he has been sexually abused and his condition has deteriorated badly, but nothing could move them,” said a friend of Mossa’s who inquired about his safety. When Mossa’s wife asked for help, the Red Cross paid her Mossa’s salary, but reportedly said they would not intervene to liberate her husband. It was two months before Mossa’s wife had heard where he was being held. She was not notified by the Red Cross, but by a released prisoner who had served time with Mossa.

In a final meeting with Reto Stocker, head of the Red Cross in Kabul, Mossa’s friends were again told that ICRC is neutral and would not intervene. They were also asked to not make the case public.

In another breach of the Red Cross’ mission, they refused to deliver hundreds of letters addressed to Mossa. Westerners organized the letter-writing campaign to both encourage the Christian and to publicly display the international community’s concern over his plight. “They won’t deliver the letters to Sayed. The Red Cross does not have the right to keep the letters from him. It’s their responsibility to ensure he receives letters written to him via the Red Cross address,” said an aid worker in Kabul who helped organize the campaign.

“If the Red Cross refuses to do something they stand for, shouldn’t the world know about such a gross violation of their stated practices?” said another aid worker. “I mean, if donors support the Red Cross’ work because of what they declare they do, shouldn’t the Red Cross be reproved for their refusal to do (the work they are supposed to do)?”…

Yes.

Jihad Watch

On Monday, President Obama announced that he’d like to see Congress implement a two-year freeze in federal employee pay. “The hard truth is that getting this deficit under control is going to require broad sacrifice. And that sacrifice must be shared by the employees of the federal government,” Obama said.

Obama’s proposal was rightly panned by everyone except Republicans, who criticized the President for not going far enough. “Without a hiring freeze, a pay freeze won’t do much to rein in a federal bureaucracy that added hundreds of thousands of employees to its payroll over the last two years,” said incoming Speaker of the House Rep. John Boehner (R-OH). On Fox News this morning, Sen.-elect Rand Paul (R-KY), as well as his father, Rep. Ron Paul (R-TX), relied on a series of false characterizations to call for not only freezing pay for federal employees, but cutting it:

Well, you know, if you look at the statistics recently and you look at total compensation of federal employees, they’re making almost twice what the private sector employees are making. It’s $ 120,000 average total compensation for federal employees, over twenty percent of federal employees make over $ 100,000 a year now, so I agree with my dad, we need to cut their pay, not just freeze their pay. We need to cut their pay and approach back to what the private marketplace is paying.

Watch it:

As my colleague Zaid Jilani laid out in today’s Progress Report, the freeze was already an awful combination of bad policy and bad politics that saves little money, harms the economy, and was done without extracting any concessions from Republicans. It buys into a false conservative narrative regarding overpaid federal employees that has little basis in reality. And Paul’s statements are even less factual.

At first blush, federal employees do make more than private sector employees, but that is only because federal employees, on average, are higher educated, and there are very few low-skill, low-pay federal jobs (while such jobs drag down the private sector average). According to data from the U.S. Office of Personnel Management, federal workers actually earn 22 percent less than their counterparts in the private sector. Research by Harvard economist George Borjas shows that, at the top-end, private sector pay is so much better that the public sector has “found it increasingly more difficult to attract and retain high-skill workers.”

And while Paul is more than willing to slice pay for federal workers, he is far more reluctant to cut federal payments to doctors (a profession he conveniently shares). “Physicians should be allowed to make a comfortable living,” he says, when the prospect of such cuts is broached.

The federal government is in the process of implementing both health care reform and financial regulatory reform, which requires highly-skilled, motivated workers. The government also needs to attract highly-skilled individuals to, among other things, inspect oil rigs and staff VA hospitals. But Paul is more than willing to cut their pay, while leaving payments to those in his chosen profession, including himself, untouched.

Read more in today’s Progress Report, “Freezing Hope.”

Wonk Room

Longtime state employee Howard Rifkin is taking over as interim executive director at a non-profit housing partnership in Hartford.

Rifkin will replace Diane Randall at the Partnership for Strong Communities, a key supporter of affordable housing whose headquarters at The Lyceum Resource and Conference Center is within walking distance of the state Capitol.

The partnership is a policy advocacy organization with a strong base of support - and it hosted both Democrat Dannel Malloy and Republican Tom Foley for discussions on housing during the recent gubernatorial campaign.

After 12 years with the partnership, Randall is leaving on December 31 for a new job at the Friends Committee on National Legislation in Washington, D.C. She will serve as executive secretary at the nonpartisan organization that lobbies for social justice.

Rifkin, who asked Foley about his views on housing during his campaign appearance, has served since 2004 on the partnership’s board. He helped create the state’s $ 110 million Housing Trust Fund and has served on the board of the Connecticut Housing Finance Authority as the representative of the state treasurer’s office. Rifkin had served as the deputy treasurer until his retirement on July 1, but he returned to state service under a 120-day agreement that allows retirees to continue in their jobs.

Capitol Watch

Speaking at a meeting of the Republican Governors Association in San Diego yesterday, Governor-elect Rick Snyder called cutting public employee compensation “one of the toughest things I need to do as the next governor.”

The Washington Post reports:

“You’re talking about people and their livelihoods and their families. So it’s a very serious topic. I want to do it working with them. But you have to ask two questions from a fiduciary point of view. What’s comparable with the private sector, and what’s financially affordable? And my view is I don’t believe you can check either one of those boxes today. And if you can’t check either of those boxes, we need to sit down and have a dialogue.”

Snyder went on to say that efforts to cut public employee health care and pension expenses in other states have “only scratched the surface” and noted that “some are looking at teachers first.”

Snyder was speaking on a panel titled “The GOP’s Midwest Resurgence” along with newly elected Scott Walker of Wisconsin, John Kasich of Ohio and Tom Corbett of Pennsylvania.

Michigan Messenger