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Judge: Checking Facebook at work is not a crime

'Sometimes we use computers for ... play'

Checking your personal email on a work computer is not a federal crime, a judge in San Francisco has ruled (PDF), despite the US government trying to argue otherwise.

Judging on the case of US v Nosal, maverick San Fran judge* Alex Kozinski concluded that doing non-work things on work facilities was not criminal, though he accepted that it could breach the terms of employment.

Kozinski booted out computer abuse charges against a IT worker, David Nosal, who filched company information from confidential databases and used it to help start his own business. Nosal was indicted on several accounts, which included theft of trade secrets and a breach of the Computer Fraud and Abuse Act (1984). It was the Computer Abuse charges that were at issue in the appeal that came before Kozinski in the US Ninth Court of Appeals in San Francisco.

The ruling yesterday clears Nosal of the Computer Fraud and Abuse charges and at the same time redefines the law on computer abuse. Kozinski said that extending the notion of what entails abuse in the Computer Fraud and Abuse Act – which was aimed at criminalising hacking – was dangerous as it could then be extended to faffing around on the internet while in the office:

The government’s construction of the statute would expand its scope far beyond computer hacking to criminalize any unauthorized use of information obtained from a computer. This would make criminals of large groups of people who would have little reason to suspect they are committing a federal crime.

At its most extreme, a ruling in favour of the government would mean that anyone using a work facility (such as a computer) for an non-work purpose (such as Facebook) could be committing a federal crime. The ruling said:

Minds have wandered since the beginning of time and the computer gives employees new ways to procrastinate, by gchatting with friends, playing games, shopping or watching sports highlights. Such activities are routinely prohibited by many computer-use policies, although employees are seldom disciplined for occasional use of work computers for personal purposes. Nevertheless, under the broad interpretation of the CFAA, such minor dalliances would become federal crimes. While it’s unlikely that you’ll be prosecuted for watching Reason.TV on your work computer, you could be.

Kozinski's judgment wades into wide-ranging questions of whether downloading an app on a work phone or giving misleading information on a dating site could be construed as computer abuse. He concludes that criminalising a broad range of day-to-day activities would be undesirable and could lead to discriminatory enforcement. ®

Bootnote

*Judge Kozinski has appeared on The Register's radar before, and consulting our archives, we see that he, of all the federal judges, might be expected to understand the nature of play on the computer. Alex Kozinski was caught hosting and sharing a substantial quantity of porn on his personal website back in 2008. He recused himself from the case he had been hearing and was cleared of any judicial wrongdoing by the Judicial Council of the Third Circuit (PDF). ®

Judge Kozinski's Opinion on Nosal v US Gov

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