Should Checking Personal Email at Work Be a Crime?

Remember the “cannibal cop?” The one who allegedly plotted the imaginary crime of killing and eating multiple women online? I know, I know – this post is supposed to be about whether or not checking your personal email at work is actually a crime or not – but bear with me. The cannibal cop’s conspiracy charges were dismissed by the judge because the government essentially charged him with fantasizing about a crime, not committing one. But his conviction of violating the Computer Fraud and Abuse Act stuck, which meant he was convicted for using a computer for a non-approved purpose – looking up people in a police database without a valid law enforcement purpose.

Yesterday the Second Circuit Court of Appeals overturned that conviction and held that the Computer Fraud and Abuse Act was too vague to convict someone for simply doing something that their employer doesn’t want them to do online. The CFAA is so vague that if an employer has a policy that employees aren’t supposed to check their personal email, check football scores, etc., on their work computers, the U.S. Attorney could prosecute someone for doing it.

Here’s the money quote from the Court’s opinion:

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.

But before you log into Draft Kings Dot Com from your work computer with the promo code “Cannibal Cop,” keep in mind that there’s still a split between federal appellate courts, and the 11th Circuit (which covers Florida) has sided with the interpretation that this would be a crime. Oh, and don’t forget that playing fantasy sports on those sites could also be a crime anyway. This means that the issue of whether or not checking your personal email at work is a crime will probably ultimately be decided by the U.S. Supreme Court. So stop messing around on your work computer. For now.