2nd Circuit Reverses ex-NYPD Cop's Conviction on CFAA Violation in Online Sex Fetish Case

-- to get information about people in connection to a fantasy role-playing sex fetish community. The court's Thursday opinion also upheld his July 2014 acquittal on a kidnapping conspiracy count. Valle was convicted in March 2013 on the conspiracy count and CFAA violation count. He engaged in email communications and Web chats with members of the Dark Fetish Network, the Internet sex community, said the opinion. "These 'chats' consisted of gruesome and graphic descriptions of kidnapping, torturing, cooking, raping, murdering, and cannibalizing various women." Valle was sentenced to 12 months in custody (essentially a sentence of time served since he already spent 20 months in pretrial detention), one year supervised release and a $25 special assessment, the opinion said. Valle appealed both counts and was acquitted of the conspiracy conviction last year. The government appealed the acquittal and Valle separately appealed the CFAA count. The 2nd Circuit reviewed the question of whether Valle "exceeded authorized access" of the Omnixx Force Mobile computer program, which allows officers to search restricted databases containing sensitive information such as people's home addresses and dates of birth. While Valle admitted he accessed the database for personal use, he said he didn't violate the CFAA since "he never 'used his access to obtain any information he was not entitled to obtain.'” Adopting the prosecution's construction of CFAA "would criminalize the conduct of millions of ordinary computer users," the 2nd Circuit ruled. "While 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." Circuit Judges Barrington Parker and Susan Carney ruled in favor of Valle, while Judge Chester Straub dissented. Straub said the majority "discovers ambiguity" in CFAA language "where there is none. Under the plain language of the statute, Valle exceeded his authorized access to a federal database in violation of the CFAA." Straub also said when the jury convicted Valle on the conspiracy count it was "beyond a reasonable doubt, that Valle actually and genuinely conspired to kidnap someone." Straub said "the majority’s eloquent prose on the importance of protecting thoughts from criminal punishment" is more editorial than judicial opinion and "is thus irrelevant, because the jury did not convict Valle for fantasizing." The Electronic Frontier Foundation, which had a rundown of the case on its website, filed an amicus brief supporting Valle, along with Center for Democracy & Technology, the National Association of Criminal Defense Lawyers and others.