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Why You Should Root for the Cop Who Said He Wanted to Eat His Wife

Important rights sometimes come from disturbing cases.
Image: Gilberto Valle/Facebook

The interpretation of one of America's most important laws governing computer use hinges, in part, on a cop who allegedly wanted to kidnap and eat his wife and his high school classmate. Paradoxically, digital rights lawyers say we should probably all be rooting he gets off the hook.

Morally, it might seem a little weird to hope that Gilberto Valle, the infamous "Cannibal Cop" who was caught making plans to kidnap and eat specific women in New York City back in 2013, is acquitted of improperly accessing a computer to look up the address of one of his would-be victims. But that's the position many people find themselves in.

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Valle, a former NYPD officer, was originally convicted in March 2013 of conspiring to kidnap, rape, kill, and eat 100 women, based on chat logs and other digital evidence that showed he at least fantasized about committing those acts. He was also convicted, however, of a misdemeanor count of illegally accessing a law enforcement database to look up information about his would-be victims.

"There's a tendency to want to pile on to say, look how creepy he was, look at the stuff he did, to throw charges on there"

The major crimes were overturned in a July 2014 decision by an appeals court, which ruled that his actions amounted to little more than a thought crime. But the misdemeanor computer hacking charge stuck, and that's what could have major implications for anyone who uses a computer.

Valle was charged under the Computer Fraud and Abuse Act, a 1986 law that was passed in order to criminalize hacking into federal systems, but has since been interpreted very broadly to prosecute a whole host of people who do things on computers that employers or the government don't really like.

In this case, Valle used police databases, which he used as part of his job, to look up information about a high school classmate who, the government says, he wanted to kidnap and eat.

"The question presented is whether Valle's CFAA conviction should be reversed because the statute does not apply to an employee who violates his employer's computer-use policy by accessing information for personal purposes, when he is authorized to access that same information for professional purposes," his lawyers wrote in a legal brief filed this week.

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"If he stays convicted, maybe it's good in the court of public opinion, but then it's used against us, and it screwed over everybody else too"

And that's a very, very important question. Valle abused his privileges as a police officer and his access to the database for what could have helped him carry out very dangerous and illegal acts. But, if his conviction sticks, it could apply to all of us. That means, if you use your work computer for something innocuous but unauthorized by your employer, you could be fired, sure as you'd expect for violating an employer's conduct policy. But you could also go to jail.

"Lets be clear about the problem. The problem is not that he got punished for misusing his access to the database. The problem is that the statute used to charge him is not the right statute," Hanni Fakhoury, a staff lawyer for the Electronic Frontier Foundation, told me. "The NYPD could have fired or disciplined him, maybe used another criminal statute, but he's not guilty of violating the CFAA. That's the issue."

"The CFAA does not cover every unethical, blameworthy, or morally offensive use of a computer"

The CFAA is the same statute that was used to prosecute Aaron Swartz, the internet activist who downloaded many thousands of academic journal articles from the MIT computer network—a network that he legally had access to. Swartz, facing 35 years in prison, committed suicide. His death led to calls for reform of the CFAA, but those calls didn't really go anywhere. Valle's court case, to an extent, mirrors Swartz's. Like Swartz, Valle had permission to access the database he looked at, but he didn't use it for its intended purpose.

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"The CFAA does not cover every unethical, blameworthy, or morally offensive use of a computer," Valle's lawyer argued. "Rather, it narrowly focuses on people who have no authority to access a computer (or no authority to access specific files or databases on a computer) for any purpose."

Fakhoury agreed with that interpretation of the law. He said it's important to defend people in these cases, because once decisions are on the books, it's hard to get judges to go against precedent.

This case is being tried in the US Court of Appeals for the Second Circuit, so it won't have immediate nationwide ramifications, but the decision here could impact similar cases in other jurisdictions. In fact, there are several other CFAA cases with much less horrific facts but similar questions being considered around the country. One, for instance, considers whether or not it is illegal to share passwords with a friend or family member.

"The facts in this case are pretty egregious and extreme, so there's a tendency to want to pile on to say, look how creepy he was, look at the stuff he did, to throw charges on there," Fakhoury said.

"The initial tendency is to basically say 'Oh my God, this guy is crazy, lock him up,'" he added. "But then, the decision made in the extreme case is used on everyone else. If he stays convicted, maybe it's a good thing in this particular case in the court of public opinion, but then it's used against us, and it screwed over everybody else too."

Fakhoury notes that the Miranda Rights, the right to remain silent after being arrested, were bestowed upon us in a case in which a guy admitted to kidnapping and raping a 17-year-old woman. He said that the Riley v. California Supreme Court case decision last year, which held that warrantless seizure of cell phone data is illegal, involved a guy, David Riley, who was tied to a murder thanks to that cell phone data.

"Many of our most important legal rights come from criminal cases. I don't have a problem with that," Fakhoury said. "No one asks who Miranda is. Miranda raped a kid, and no one asks what happened. But our Miranda rights, that's an important right."