No Free Lunch (or Wi-Fi): Michigan’s Unconstitutional Computer Crime Statute


Stacy Nowicki, Ph.D.

This article examines Michigan’s computer crime statute in the context of unsecured wireless internet networks and argues that the statute is unconstitutionally void for vagueness. The statute violates the Due Process Clause of the Constitution because it uses terminology that does not afford citizens fair notice of illegal acts. The statute also fails to characterize prohibited conduct because it does not adequately define terms. This violates Due Process because it enables arbitrary and discriminatory enforcement by police officers and prosecutors. Part II gives a background of wireless internet technology, a legislative history of sections 752.791-752.797 of Michigan’s statute, and an overview of the void for vagueness doctrine in constitutional law. Part III focuses on an analysis of sections 752.795 and 752.797(6) in relation to the void for vagueness doctrine. This Part demonstrates how these sections of the statute are unconstitutional because the phrase “valid authorization” does not provide fair notice to the public, and the lack of a definition of “authorization” encourages arbitrary and discriminatory implementation of the statute by law enforcement. Part IV offers solutions for these vagueness problems that would resolve the constitutionality issues, such as defining key terms and excising portions of the statute. Given that many contemporary computing platforms and devices such as Microsoft Windows XP and iPhones automatically detect and connect to unsecured wireless internet connections, Michigan’s law criminalizes what has become a social norm. Michigan should make the use of unsecured Wi-Fi presumptively legal and take the best of other states’ statutory definitions to create clear meanings for terms in its statute.

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January 1, 2009 PDF Articles, Volume 13

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