[Politech] Orin Kerr on legality of war driving, DMCA circuit split [priv][ip]

From: Declan McCullagh (declan@private)
Date: Fri Sep 10 2004 - 03:23:29 PDT

-------- Original Message --------
Subject: Legality of War Driving, DMCA Circuit Split
Date: Thu, 09 Sep 2004 15:22:17 -0400
From: Orin S. Kerr <okerr@private>
To: declan@private


I have brief comments on two recent politech posts: first, on the
legality of wardriving; and second, on whether the recent Federal
Circuit DMCA case creates a circuit split.

First, Patrick Ryan's claim that wardiving is legal is quite
misleading.  His law review article does not present a legal argument
about wardialing; his argument primarily concerns hacker ethics, not
law.  More importantly, the legality of wardriving is unclear.  There
are substantial arguments under the federal Computer Fraud and Abuse
Act, the Wiretap Act, and relevant state laws that wardriving is a
crime, at least in some circumstances.   It is true that Stefan
Puffer was acquitted, but that acquittal has no precedential effect.
Alas, "I read it was legal on Politech" is not a defense to a
criminal charge in the United States; I would therefore urge Politech
readers to be careful.

Second, I disagree with Troy Klyber about whether the recent Federal
Circuit garage door DMCA case creates a circuit split.  (For
nonlawyers out there, the existence of a circuit split is a major
factor in the likelihood of Supreme Court review.)  Tension between
two cases in two different circuits does not signify that a split
exists.  In general, a circuit split refers to direct disagreement
about the governing rule applicable over a set of cases. We don't
have that here; as Klyber notes, the Federal Circuit saw its approach
as consistent with Reimerdes.  As a result, I don't think it's right
to say that a split exists.


Orin S. Kerr
Associate Professor
George Washington University Law School
(202) 994-4775

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