New York City police officer Gilberto Valle was criminally charged in New York federal court in connection with his participation in chat rooms concerning fantasy role-playing fetish websites involving cannibalism. Valle was indicted for conspiring to kidnap and with violating the Computer Fraud and Abuse Act ("CFAA") for using his access to a NYPD police database for a non-law enforcement purpose, in violation of NYPD policy. A jury convicted Valle on all counts, but the trial court reversed the conspiracy conviction, believing that Valle never intended to kidnap anyone in the real world. It upheld the CFAA count, however, finding that Valle had exceeded his authorized access to the police database when he logged in to the database for a non-law enforcement purpose. The government appealed the dismissal of the conspiracy count to the Second Circuit Court of Appeals and Valle appealed his CFAA conviction to the same court.
EFF filed two amicus briefs in support of Valle.
Along with the Center for Democracy & Technology, the National Association of Criminal Defense Lawyers and a number of Internet scholars, we filed an amicus brief in the Second Circuit in support of Valle's appeal challenging his CFAA conviction. The amicus brief explains that the CFAA was intended to criminalize "hacking," the circumvention of a technological barrier to access, and that Valle's act of merely violating a policy restricting the purposes for which he could use his access to the database was not an access restriction.
EFF also filed an amicus brief in Valle's criminal conspiracy case, urging the Second Circuit to independently examine the context of Valle's speech in determining whether it was criminal rather than simply deferring to the jury's finding of guilt, in order to ensure that cases involving controversial facts and emotion-driven juries don’t create bad law that will have wide-reaching effects. The Center for Democracy & Technology, Marion B. Brechner First Amendment Project, National Coalition Against Censorship, Pennsylvania Center for the First Amendment and a number of First Amendment and Internet law scholars also signed onto the amicus brief, which was written by Professor Eugene Volokh of UCLA Law School's Scott & Cyan Banister First Amendment Clinic. The Second Circuit heard oral argument in the case on May 12, 2015 in New York City.
The Second Circuit issued an opinion on December 3, 2015—rejecting the government’s attempt to hold Valle criminally liable under the federal hacking statute and reversing the CFAA conviction. The court agreed with us that adopting the government's overbroad construction of the CFAA "would criminalize the conduct of millions of ordinary computer users" and stated that "[w]hile the Government might promise that it would not prosecute an individual for checking Facebook at work, we are not at liberty to take prosecutors at their word in such matters. A court should not uphold a highly problematic interpretation of a statute merely because the Government promises to use it responsibly.”
The Second Circuit also upheld the trial court’s decision to throw out the conspiracy conviction, holding that “[t]he mere indulgence of fantasy . . . is not, without more, criminal.”