In addition to punishing one who accesses a computer without authorization (e.g., , a non-employee who "hacks" into a corporate network), the Computer Fraud & Abuse Act ("CFAA") also punishes one who "exceeds authorized access" to a computer by "access[ing] a computer with authorization and [using] such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter." 18 U.S.C. 1030(a)(4), 1030(e)(6) (emphasis added). In United States v. Nosal, the Ninth Circuit recently limited the reach of the latter portion of the statute. When David Nosal left an executive search firm, he convinced his former colleagues to help him start a competing business by providing him with proprietary information -- including source lists and contact information -- from his former firm's confidential database. Nosal's colleagues were authorized to access the database, but were not authorized to share it outside the company. Nosal was charged with aiding and abetting violations of the CFAA. In Nosal, a divided en banc Ninth Circuit upheld the District Court's dismissal of the counts. The government argued that the statute's "exceeds authorized access" prong should be interpreted to cover not only users authorized to view certain files, but who access other, unauthorized files, but also users with unrestricted access who make unauthorized use of the information. Writing for the majority, Judge Alex Kozinski held that to interpret the statute in that way would make it a "sweeping Internet-policing mandate." He noted that such an interpretation would criminalize violations of corporate computer use policies (for example, using a work computer to send personal email) or website terms of service (such as lying on dating sites). In dissent, Judge Barry Silverman accused the majority of "knocking down straw men," pointing out that the CFAA's requirement of intent to defraud would prevent the majority's "parade of horribles" from occurring. Judge Kozinski, however, wrote that whether or not Congress could criminalize unauthorized use of computer information, the CFAA must be limited to unauthorized access.

Julian Heicklen, an 80-year old retired chemistry professor from New Jersey, spent the fall of 2009 and spring of 2010 standing outside the federal courthouse in Manhattan with a sign reading "Jury Info." Mr. Heicklen handed passersby -- including, he hoped, jurors -- brochures advocating jury nullification. The doctrine of jury nulification holds that jurors who disagree with a law may vote, on that basis, to acquit a defendant who violated it. For example, in the mid-19th century, sympathetic United States juries refused to convict abolitionists under the Fugitive Slave Act . Mr. Heicklen had his own opportunity to argue for jury nullification when he was indicted for jury tampering. Last month, however, Judge Kimba Wood dismissed the case. Mr. Heicklen -- who in his 60s openly smoked marijuana on the Penn State campus to protest its prohibition -- had argued that the First Amendment protected him, but prosecutors countered that his conduct was "criminal and without constitutional protection." Judge Wood, however, did not reach the constitutional issue. Rather, she held that the jury tampering statute applies only where the defendant attempts to influence a juror in relation to "a specific case pending before that juror."

On Tuesday May 8, 2012, the Subcommittee on Fisheries, Wildlife, Oceans, and Insular Affairs of the House Committee on Natural Resources will hold a hearing on proposed legislation to de-criminalize the Lacey Act, a 1900 statute prohibiting the interstate transportation of wildlife or plants obtained in violation of federal, state or foreign laws. The statute received attention recently when Gibson Guitars was raided by federal agents for allegedly importing ebony and rosewood in violation of the laws of India and Madagascar. Senator Rand Paul and Representative Paul C. Broun have introduced companion bills in the Senate and House, which would replace the Lacey Act's criminal penalties with a civil penalty system, and strike from the Act all references to "foreign law." The new legislation would also make the Lacey Act enforceable only through civil process.

John Edwards certainly seems to be, as one major newspaper called him, a "cheating lowlife." With his wife of 30 years dying of cancer, he carried on an affair with a woman hired to film campaign documentaries, even, allegedly, having sex with her in his wife's bed. When his mistress became pregnant, Edwards convinced his closest aide (the married father of three) to claim paternity Then, he spent a million dollars given him by wealthy donors flying his aide and mistress on private jets to luxury resorts while he campaigned as a populist. At one point, the would-be leader of the free world cowered in a hotel bathroom when it appeared reporters would find him visiting his paramour and love child.

A cad, yes, but a criminal? Edwards is now on trial for violations of campaign finance laws, despite the fact that two former commissioners of the Federal Election Commission have been named as expert witnesses for the defense (to date, the government has succeeded in preventing their testimony). The government's theory, in a nutshell, is that because disclosure of the affair would "undermine Edwards' presentation of himself as a family man," the contributions used to hide his mistress advanced his candidacy. Thus, the government argues, they were "campaign contributions" that exceeded individual limits on such contributions. (One of the contributors, 99-year old "Bunny" Mellon, gave Edwards $900,000, far in excess of the $2300 individual limit). Under this theory, a supporter who had already donated the maximum and then gave a candidate a ride to a campaign event would break the law by contributing gas. As one campaign finance attorney put it, "Suppose that your wife gives you a nice shirt for Christmas. Is that a campaign contribution by the candidate's wife that counts towards her $2,500 per election limit? No."

The press uncovered John Edwards' boorish behavior, and his political career was destroyed. That may not be all he deserved, but it is what our political system can give him. Not all bad behavior, even by politicians, is criminal.

In the fall of 2008, James Cromitie - a 45 year old Wal-Mart employee who had converted to Islam in prison on drug charges - met "Maqsood" at a Newburgh, New York mosque. Cromitie told his new friend that he felt sure he was "gonna run into something real big." Maqsood was just the person to help in this regard. As the Washington Post recently reported, and unbeknownst to Cromitie, "Maqsood" was actually Shahed Hussain, a native of Pakistan who had fled to the U.S. when he was arrested for murder in 1994. Hussain got a job as a translator for the DMV, and became an informant when he was arrested on fraud charges for helping applicants cheat on tests. By the fall of 2008, he was working for the FBI, hunting supposed "lone wolf" terrorists in the suburbs of New York. He visited the Newburgh mosque 12 times before he met Cromitie. Hussain told Cromitie that he was part of a Pakistani terrorist group, and when Cromitie told Hussain he'd "like to get a synagogue," Hussain was happy to help, even suggesting, when it appeared that Cromitie had lost interest, that Cromitie could make $250,000. Ultimately, Hussain put together a plot that resulted in the arrests of Cromitie and 3 others for planting fake bombs outside 2 synagogues.

At trial, U.S. District Judge Colleen McMahon expressed concern with the FBI's tactics. "I believe beyond a shadow of a doubt," she said, "that there would have been no crime here except the government instigated it, planned it and brought it to fruition." However, she said, "[t]hat does not mean that there was no crime." She sentenced the 4 men to 25 years in prison.

If you've followed the news for the past decade, Cromitie's case may seem familiar -- "sting" operations involving FBI informants have resulted in arrests in supposed plots to bomb the U.S. Capitol, the Washington, D.C. metro, the Sears Tower and the Portland, Oregon Christmas tree, among others. These cases are part of the government's so-called "pre-emption" strategy against terrorism, in which government agents attempt to identify individuals who might commit an act of terrorism had they the means and opportunity, and to provide those means an opportunity, in order to "neutralize such threats before they come to fruition." This strategy has become so prevalent that the FBI's stable of informants has reportedly grown by a factor of 10 since 1975. In its 2008 budget, the FBI requested more than $12 million for software to track and manage all of its informants.

Government authorities often make deals with participants in crime in order to get information necessary to prove criminal cases. But when it recruits criminals and manufactures crimes, the government enters a whole new Orwellian landscape. There may be room for on honest debate over whether it is necessary to jail individuals for their thought and beliefs in order to combat terrorism. But the tactics that landed James Cromitie -- and dozens of others -- in prison have that result, without the debate.

Every first year law student knows the concept of mens rea, which requires proof of a "guilty mind" before a defendant may be convicted of a crime. Many criminal statutes require that a defendant "know" a particular fact before he may be convicted of a crime. For example, the federal counterfeiting statute requires that the defendant "knowingly" attempt to pass off a counterfeit bill -- i.e., that the defendant know not only that he is using a bill, but also that the bill he is using is bogus.

But what does it mean to "know" a fact? In Global-Tech Appliances, Inc. v. SEB, S.A., the Supreme Court held for the first time that "willful blindness" may satisfy a statute's knowledge requirement (most Circuit Courts had already accepted the doctrine). Under the "willful blindness" doctrine, a defendant may be convicted of violating a statute that requires knowledge of a fact, even if the defendant did not have actual knowledge of that fact, where the defendant's ignorance is deliberately contrived. The Gloal-Tech court went on to hold that recklessness is insufficient to prove "willful blindness;" it requires proof that an individual "subjectively believe[d]" that a "high probability" existed with regard to the fact in question, and took "deliberate actions to avoid learning of the fact."

To the extent it imposes these requirements on the "willful blindness" instruction, Global-Tech can be read as heightening the prosecution's burden. But it is worth taking a step back, and, rather than focusing on the requirements of the doctrine, questioning the validity of the doctrine at all. Justice Kennedy did just that in his dissent in Global-Tech. The majority in that case wrote that an individual who deliberately avoids learning a fact "can almost be said to have actually known" that fact (emphasis added), but as Justice Kennedy pointed out, the willful blindness doctrine is used "to bring those who lack knowledge within the ambit of a statute that requires knowledge" (emphasis added). The majority also wrote that willfully blind defendants "are just as culpable as those who have actual knowledge," but Justice Kennedy found this to be a "question of morality and of policy" that is "best left to the political branches."

The willful blindness doctrine has been created not by legislatures, but by, in Justice Kennedy's words, "judges . . . broadening a legislative proscription by analogy." Moreover, as Justice Kennedy also noted, Global-Tech involved the interpretation of a civil statute concerning patent infringement, and the Court's decision was made without briefing or argument from the criminal defense bar." In short, in Global-Tech, the Supreme Court put its imprimatur on a doctrine that substantially eases the burden of prosecutors in proving knowledge, and that may allow convictions for very serious crimes based on far less evidence of complicity than was contemplated by the legislature that created the crime requiring "knowledge." It did so in a case in which there was no briefing or argument concerning the effect of the decision on criminal proceedings. There can be little doubt that the decision will result in more findings of guilt, either by juries not required to find actual knowledge, or through plea agreements driven by defendants' fear that, even if they did not know a crime was being committed, a jury might find that they should have.

In the last 30 years, Congress has been feverishly adding new crimes to the federal criminal code. Now, it is criminalizing acts that are already criminal. State laws make it a crime to threaten, intimidate or kill witnesses in state criminal proceedings. However, the State Witness Protection Act, introduced by Pennsylvania Senator Robert Casey, would make these acts separate, federal crimes in cases where the defendant crosses state lines, or uses interstate commerce facilities (such as mail or phone) in furtherance of the crime. Why the need to make federal crimes of acts that are already state crimes? For one thing, the new bill would give federal prosecutors the authority, effectively, to intervene in state prosecutions. And the new bill would ratchet up the penalties - it imposes a minimum penalty of 20 years, and 30 years in cases of attempted murder. And while it is politically difficult to take issue with efforts to be "tough on crime," this law would impose significant costs, further blurring the line between state and federal responsibility, and by further taxing a prison system that already jails more people than any other country in the world. Absent a compelling federal interest in supervising state prosecutions in this way, Congress would be wiser to let the states protect their own witnesses.

"Xavier Alvarez lied." So begins Mr. Alvarez's own brief -- which also notes that he has been called a "phony," an "idiot," a "jerk" and the "ultimate slime" -- in a case being argued today before the United States Supreme Court. Fortunately for Mr. Alvarez, the question before the Court is not whether he lied, but the extent to which the federal government can criminalize lies. In 2007, Alvarez falsely introduced himself at a public meeting as a former Marine and recipient of the Medal of Honor. Alvarez's lies were quickly exposed, but federal prosecutors indicted him under the Stolen Valor Act of 2005, which provides criminal penalties for false claims of receipt of military medals, with an enhanced penalty (up to a year in prison) for falsely claiming to have received the Medal of Honor.

Alvarez was convicted, but the Ninth Circuit reversed, holding that the Act violates the First Amendment. The government claims that the Act serves an "important" interest: preserving the integrity and credibility of the military medals program. Critics of the Act, however, note its startling breadth -- it requires no showing that anyone was deceived or otherwise harmed by the misrepresentation, and makes no exception for satire, parody or other misrepresentations made in works of art. The Supreme Court has held that "there is no constitutional value in false statements of facts," but it did so in establishing the limits of civil tort liability for defamation. By contrast, criminalizing false statements like Alvarez's threatens to establish a federal "truth police" with the power to punish "idiots" and "jerks," simply for being so. The military's medal program has survived for more than 200 years without the protection of the Stolen Valor Act, and the Court should find the Act unconstitutional.

The Lacey Act, enacted in 1900, prohibits the interstate transportation of wildlife or plants obtained in violation of federal, state or foreign laws. The statute received attention recently when Gibson Guitars was raided by federal agents for allegedly importing ebony and rosewood in violation of the laws of India and Madagascar. In 2001, several Alabama fishermen were sentenced to eight years in prison for importing lobster in violation of Honduran regulations, even though the Honduran Attorney General stated that the regulations were invalid. Last week, Kentucky Senator Rand Paul introduced S. 2062, the Freedom from Over-Criminalization and Unjust Seizures ("FOCUS") Act of 2012, to address the Lacey Act's "broad overcriminalization." The FOCUS Act would replace the Lacey Act's criminal penalties with a civil penalty system. It would also strike from the Act all references to "foreign law."