-------- Original Message -------- Subject: Legality of War Driving, DMCA Circuit Split Date: Thu, 09 Sep 2004 15:22:17 -0400 From: Orin S. Kerr <[EMAIL PROTECTED]> To: [EMAIL PROTECTED]
Declan,
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
Orin S. Kerr Associate Professor George Washington University Law School [EMAIL PROTECTED] (202) 994-4775
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