In April, 2012, the erudite Judge Kozinski wrote for the entire Ninth Circuit in an en banc decision addressing the very concerns raised in this piece (see decision here: http://www.ca9.uscourts.gov/datastore/opinions/2012/04/10/10...).

The opinion is not only compelling, it is a brilliant example of law at its best, for it shows how a wonderful legal mind wrestles with a knotty problem that can be summed up with the question, "Should courts apply a badly drafted piece of legislation to lead to the absurd result of criminalizing a whole host of minor misdeeds committed by individuals every day in using the web and their computers?" Judge Kozinski answered this question with a resounding "no."

He did so by applying the "rule of lenity," which requires "penal laws . . . to be construed strictly." (at p. 3872) "The rule of lenity not only ensures that citizens will have fair notice of the criminal laws, but also that Congress will have fair notice of what conduct its laws criminalize. We construe criminal statutes narrowly so that Congress will not unintentionally turn ordinary citizens into criminals." Applying this rule, he held as follows: "Therefore, we hold that 'exceeds authorized access' in the CFAA is limited to violations of restrictions on access to information, and not restrictions on its use." (emphasis in original)

In other words, though the CFAA is so badly worded that one might potentially give it an absurd and unconstitutional interpretation so as to criminalize things one would think shocking for Congress to have criminalized, the courts have the power to apply well-established rules of statutory construction so as to avoid such an absurdity. Here, the Ninth Circuit did so by construing the CFAA to criminalize violations of access restrictions (i.e., hacking) and not violations of use restrictions (terms of use on website and the like).

Now, there is a split in the federal circuits on this issue and it will either be resolved by an amendment to the statute or it will eventually find its way to the Supreme Court for resolution. But, even granting the split, the most extreme cases in which the CFAA has been applied criminally have involved things such as employees misappropriating trade secrets and other items that go far beyond innocuous things such as violating an employer's computer use policies by surfing the internet on company time.

In other words, no court has gone so far as to adopt anything close to the absurd outcomes suggested in this piece. Even the government in its arguments to Judge Kozinski strongly stated that it would never consider prosecuting such items as crimes. ("The government assures us that, whatever the scope of the CFAA, it won't prosecute minor violations. But we shouldn't have to live at the mercy of the local prosecutor." at p. 3870)

Thus, it is fit and proper to call out the alarmist tone of this piece as being wildly outside the mainstream of where the courts have gone with the CFAA and of where they are likely to go. Is it badly drafted legislation? Yes, it is a mess (if you want to lose your mind, try reading through the text of the statute here: http://www.law.cornell.edu/uscode/text/18/1030). Can it be interpreted to criminalize things that Congress might not have intended to criminalize? Yes, including acts by employees that, though wrongful, may not have been within the contemplation of Congress when it passed the statute. But, that said, is there a risk that the CFAA can be applied to criminalize our daily interaction with computers and the web? No, not unless normal, sound principles of law are wholly disregarded by the courts, which they won't be.

The amount of privilege built into this "painful failure" is disquieting. Here's a person whose biggest problem in life appears to be that he's in debt and, for the moment, unemployed. But: he was the CEO of a company funded to the tune of 8xFTE, and can thus almost certainly walk into hundreds of VP/Product Management or Business Development roles immediately, all of which will pay him more than any of his technical employees. Employees who are also, let's please face it, immensely privileged.

I wouldn't care, except that towards the end someone texts him and he angrily pouts that nobody can know his pain. Well, it's not for me to judge, right. But as someone who does in fact believe that people have an immortal soul, I would say that that whatever the universal spirit or cosmic order or divine intent that unites our existance is, it should probably not be taunted with statements like "you cannot know the pain of someone who was the CEO of a tech company shutting down his office for the last time before hunting for a job in the hottest sector of the entire economy", because that universal whatever might take the time to show you what it's like to be the 48-year-old employee of a midwest factory being shut down.

I had a neighbor who's kid --- a great kid, from what I can tell --- brought a pocketknife to school to show other kids. He was zero-tolerance expelled. My neighbor was doing OK for himself, but not OK to the extent of "could swing private school". From what I understand, that event killed it for them: they had to move, the mom and kids to one state (where the extended family lived and the school district would admit the boy) and the dad to a neighboring state to work and commute back on weekends. Do you know a lot of tech people that have had to do that? Then I'd like to suggest those people have standing to at least commiserate with the founder of a failed startup. And this is just something I saw personally; my inclination is, shit like this happens. Shit that is too boring to be the topic of a news story at the top of HN. Shit that happens to people who aren't lucky enough to be in the middle of the startup economy, and that happens approximately all the time.

Grand projects fail all the time. Open source projects die. Web communities die. Clubs wind down. Sporting teams disband. I write this so you can angrily tell me that I'm wrong: tell me what's so bad about a tech startup failing in 2012? (Let me preempt one obvious angry barb by saying that was a cofounder and investor in a VC-funded startup that failed in 2001, the "nuclear winter").

Please: I'm not saying that startup people are so lucky that they're not allowed to be unhappy when their companies fail. I am saying something else that is more subtle than that.

Richard stallman has always been eccentric and unwavering in his stand on politics around software.

Somehow, people find this odd, wrong, and or bad, and I dont understand it. On basically all political issues, unwavering is a good attribute. Even being an eccentric is better than not caring for the issue. eccentricness is often a key aspect before a change reach a critical mass.

Take a random politician opinion about abortion or nuclear power or any other common political subject. Say his/her opinion is "well, some should be able to do it, but then again there are problems so maybe not, and the issue is not one that need to be address today, and the system today do continue to work, and well, legal greyness is not that big of an issue, only for those in the courts...".

Clear, direct, and consistent opinion is a good thing. Diplomacy and "meeting half-way" has it places, but in politics, there is also times when it should be clearly avoided. In software politics, there are plenty of people working the diplomatic route. There is no shortage of diplomats, and a few eccentric and unwavering voices is then much more useful to maintain the goals of where we want to actually go without moving the goal in favor of diplomacy.