What about accessory charges? You don't get to have clean hands just because some else does the dirty work for you.
Really though, what is your point in asking?
Because you keep making these assertions about how awful the CFAA but handwaving away critiques of your argument and any charges you don't like. So, you say that conspiracy and trade secrets charges are plenty, but from the point of view of interest of the public, why should we abstain from charging the guy with everything we can pin on him? Because he's a white-collar criminal as opposed to some kid with a bunch of drugs or a gun? Or because the deterrent 'yield' on marginal charges diminishes?
I get that you hate the CFAA, but you always spluttera bout how unfair it is and how much it's used for leverage against defendants. You need to show that prosecutors could not bring as many charges for an equivalent crime of stealing something from a safe or locked filing cabinet, and you need to show why the breach of trust involved in compromising a private computer system doesn't or shouldn't matter. As it is, all your arguments seem to revolve around 'it's just a computer, it's not that bad.'
I had the same problem with the Aaron Swatz case with people saying it was no big deal that he plugged his laptop into the wiring closet. Just because an act is trivially easy to commit doesn't mean that you have a right to do it. My neighbor tends to leave his window open, but I don't think it entitles me to enter his apartment even though I could do so very easily.
"What about accessory charges? You don't get to have clean hands just because some else does the dirty work for you."
What about them? My issue is not with whether or not the guy is a criminal, but with whether or not it makes sense for "involves a computer" to mean "doubles the penalty."
"why should we abstain from charging the guy with everything we can pin on him?"
What if we had a law that criminalized crime itself, so that nobody could ever claim to have broken only one law? How would you feel about prosecutors using such a law to double the number of charges against every defendant?
I do not want to live in a society where anyone who is accused of a crime faces decades in prison, especially not when we already have the largest prison population on the planet. Computers are already ubiquitous, and will be even more ubiquitous in the future. If any crime that involves a computer is really two, three, or more crimes, then as time goes on the penalties for crimes will become increasingly severe regardless of whether or not the harm to society increases.
"you always splutter about how unfair it is and how much it's used for leverage against defendants"
Most defendants never have a jury trial, because they are pressured into taking a plea bargain. That is a problem, especially when defendants already have to wait years before they get a trial. Anything that gives prosecutors more power over defendants exacerbates this situation and clears the way for even more people to be imprisoned.
"You need to show that prosecutors could not bring as many charges for an equivalent crime of stealing something from a safe or locked filing cabinet"
That is not equivalent. The equivalent crime would be having a friend in the office hold a door open so that you can enter and make a copy of some documents. There are two crimes there: conspiracy, and theft of trade secrets.
"you need to show why the breach of trust involved in compromising a private computer system doesn't or shouldn't matter"
It does matter, but what matters is that there was a breach of trust. The fact that a computer is involved is irrelevant.
What if we had a law that criminalized crime itself
This is an empty argument. You haven't shown that merely doing things with a computer makes it worse.
"You need to show that prosecutors could not bring as many charges for an equivalent crime of stealing something from a safe or locked filing cabinet"
That is not equivalent. The equivalent crime would be having a friend in the office hold a door open so that you can enter and make a copy of some documents. There are two crimes there: conspiracy, and theft of trade secrets.
You're committing criminal trespass in that example, why don't you include that? And why do you equate accessing the system to simply holding a door open, as if there were no login security? I mentioned the example of documents being held in a safe as a proxy for the fact that you need to log into a system before copying documents from it, it's not like you just SSH in and get automatic access to the shell prompt for the asking. The reason that we have a crime of unauthorized access to a computer system is precisely because it's easier to get into a computer without damaging it than it is to get through a window without breaking it.
You're rewriting the facts to make your argument stand up. that's what's wrong with it. You do not get to just walk into someone else' place of business and start using the copier, and then only be charged for the copies you made, for the same reason that if you break into my house at night and take some money you're guilty of burglary as well as theft. Just because the unauthorized access/ criminal trespass/ burglary is a necessary prerequisite to the theft of trade secrets/ cash does not mean it's incorporaated into it.
"why do you equate accessing the system to simply holding a door open, as if there were no login security?"
They were using a valid login; one of the coconspirators had given his credentials to them.
"the example of documents being held in a safe as a proxy for the fact that you need to log into"
No, that is what the door in my example is. The door was held open by a coconspirator.
To put it another way, nothing had to be broken; they accessed the computer in the normal fashion and downloaded the files in the normal fashion. They did not sneak in, they were allowed in by someone with legitimate, authorized access.
If you've conspired with someone to let you in, then your claim of authorized access is a sham. The question is whether the employer would have authorized such access, not whether you could successfully suborn a member of the employer's staff.
I don't know why, but there is this persistent misconception that just because you can do something easily it shouldn't be illegal.
It matters with what intent deeds are performed. If you come into my office at my invitation for a social chat, and while I'm visiting the restroom you notice a trade secret lying on my desk and copy it, you've stolen the trade secret but you were entitled to be there. But if you know I have a trade secret and you go into my office without permission, or trick me into admitting you under false pretenses, then you're guilty of criminal trespass as well.
The defendant knew that Korn/Ferry wouldn't want him copying client lists. Just because he used someone else as his man on the inside does not sanitize the unauthorized access. You're essentially applying the principles of money laundering to information and saying it's cool. This is total bullshit. I think you know better and that you would howl like a lonely coyote if anyone pulled the same trick on you.
Really though, what is your point in asking?
Because you keep making these assertions about how awful the CFAA but handwaving away critiques of your argument and any charges you don't like. So, you say that conspiracy and trade secrets charges are plenty, but from the point of view of interest of the public, why should we abstain from charging the guy with everything we can pin on him? Because he's a white-collar criminal as opposed to some kid with a bunch of drugs or a gun? Or because the deterrent 'yield' on marginal charges diminishes?
I get that you hate the CFAA, but you always spluttera bout how unfair it is and how much it's used for leverage against defendants. You need to show that prosecutors could not bring as many charges for an equivalent crime of stealing something from a safe or locked filing cabinet, and you need to show why the breach of trust involved in compromising a private computer system doesn't or shouldn't matter. As it is, all your arguments seem to revolve around 'it's just a computer, it's not that bad.'
I had the same problem with the Aaron Swatz case with people saying it was no big deal that he plugged his laptop into the wiring closet. Just because an act is trivially easy to commit doesn't mean that you have a right to do it. My neighbor tends to leave his window open, but I don't think it entitles me to enter his apartment even though I could do so very easily.