The Government is always trying to find a way to insert itself into the private lives individuals so it can better monitor and regulate our lives. Big Brother is no longer an Orwellian nightmare. It is an ever-increasing, insidious reality.


This reality was illustrated in the strange but true case of Gilberto Valle. In October 2012, Valle was living in Forest Hills, Queens. He was a six-year veteran of the New York Police Department.


Dark Internet Sex Fetish


Married and the father of an infant child, Valle was also an active member of an Internet sex fetish community called the Dark Fetish Network (“DFN”). He created a document on his computer titled “Abducting and Cooking.”


“I was thinking of tying her body onto some kind of apparatus,” Valle told one of his online chat friends. “Cook her over a low heat, keep her alive as long as possible.”


Valle shared his cannibalistic and violent fantasies with a number of chat-pals with screen names like “Moody Blues” or “Aly Kahn.”


You Shut Off the Computer and That’s It!


In a recent documentary about his case, Valle had this to say about his online fantasy world:


“When you’re behind a computer screen late at night, no one knows who you are, where you are. I became part of this cyber-community, where people are exploring deviant thoughts and exploring their fetishes. The anonymity makes you try and outdo the other person: Who can be the sicker one? Who can be the more depraved one? The baby was sleeping. The mom was sleeping. There was just nothing to do. And then you shut the computer off and that is it. I go back to being the regular me. But some might say the anonymous nature could also being out who you really are. In my worst nightmare, I could never guess that this would happen.”


Wife Installed Spyware


What happened was this: In September 2012, Valle’s wife, Mangan, became concerned about her husband’s “Internet activities” after she discovered some images of dead women on the laptop they shared. Like parents often do with their children, Mangan installed a spyware on her husband’s laptop that recorded every website visited and captured screen shots every five minutes.


Mangan became much more than concerned at what she discovered. She not only found the chilling websites her husband visited but also violent emails he exchanged with his online friends. Through those graphic emails and detailed Internet chats, she learned that her husband had talked about butchering her, and raping and torturing other women the couple knew.


That was enough.


Computer Fraud Abuse Act


With baby in hand, Mangan moved out of the couple’s Forest Hills residence. She then contacted federal authorities who, after a brief investigation, arrested Valle and charged him with a single conspiracy to kidnap several women he had discussed in his online chats. He was also charged with one count under the Computer Fraud and Abuse Act.


The case went to trial. The Government’s case was weak. With respect to the conspiracy charge, the Government identified only three co-conspirators, despite Valle having chatted with numerous other individuals on DFN.


Graphic Depictions of Kidnapping, Torturing, Cooking…Cannibalizing


In a December 3, 2015 decision, the Second Circuit Court of Appeals said “these ‘chats’ consisted of gruesome and graphic descriptions of kidnapping, torturing, cooking, raping, murdering, and cannibalizing various women.”


The Government presented Mangan and several of the women who were subjects of the chats between Valle and others. Their testimony was supported by evidence seized from Valle’s computer concerning his online chats and email exchanges about his fantasies.


With respect to the Computer Fraud and Abuse Act (CFAA), the Government presented evidence that Valle accessed a NYPD computer to which he had authority to access and accessed personal information about a woman he had known since high school and had discussed with Aly Kahn.


Judgment of Acquittal Granted on Conspiracy


A jury convicted Valle on both counts.


In a 118-page written opinion, the trial judge granted a defense motion for judgment of acquittal on the conspiracy charge. The essence of the judge’s ruling was that the Government failed to prove that there was a real conspiracy; that the fantasy to kidnap had become a reality.


Guilty on CFAA


The judge, however, upheld the jury’s guilty verdict on the CFAA count.


The Government appealed the trial court’s ruling on the motion for judgment of acquittal and Valle’s attorneys appealed the CFAA conviction.


In a comprehensive 72 page split decision, the Second Circuit rejected the Government’s appeal and overturned Valle’s CFAA conviction.


CFAA Not Enacted to Criminalize Every Access


The basis for the court’s latter decision is that the CFAA was not enacted to criminalize every access to a private computer that “exceeds authorized access” as the Government argued. The appeals court’s reasoned that if it adopted the Government position, then any employee who checked a Facebook posting on a work computer in violation of employee policy could be charged with a federal criminal offense. The court rejected this sweeping, broad interpretation of the CFAA.


This is another one of those cases where the Government overreached, trying to make a crime from events that were obviously not criminal from the outset. The Second Circuit discussed the basis for this overreach in its opening paragraphs of its opinion, saying:


“This is a case about the line between fantasy and criminal intent. Although it is increasingly challenging to identify that line in the Internet age, it still exists and it must be rationally discernible in order to assure that ‘a person’s inclinations and fantasies are his own and beyond the reach of the government’ … We are loathe to give the government the power to punish us for our thoughts and not our actions. That includes the power to criminalize an individual’s expression of sexual fantasies, no matter how perverse or disturbing. Fantasizing about committing a crime, even a crime of violence against a real person whom you know, is not a crime.


“This does not mean that fantasies are harmless. To the contrary, fantasies of violence against women are both a symptom of and a contributor to a culture of exploitation, a massive social harm that demeans women. Yet we must not forget that in a free and functioning society, not every harm is meant to be addressed with the federal criminal law. Because ‘the link between fantasy and intent is too tenuous for fantasy [alone] to be probative,’ and because the remaining evidence is insufficient to prove the existence of an illegal agreement or Valle’s specific intent to kidnap anyone, we affirm the district court’s judgment of acquittal on the single count of conspiracy to kidnap.


“In an issue of first impression that has sharply divided our sister circuits, we must also decide the meaning of ‘exceeds authorized access’ in section 1030(a) of the Computer Fraud and Abuse Act, which imposes both criminal and civil liability … Specifically, we must determine whether an individual ‘exceeds authorized access’ to a computer when, with an improper purpose, to access a computer to obtain or alter information that he is otherwise authorized to access, or if he ‘exceeds authorized access’ only when he obtains or alters information that he does not have authorization to access for any purpose which is located on a computer that he is otherwise authorized to access. Because we conclude that the text, statutory history, and purpose of the CFAA permit both interpretations, we are required to apply the rule of lenity and adopt the latter construction. We therefore reverse the judgment of conviction as to the CFAA count.”


In this case, the Government knew what the DFN was; that Valle and his so-called co-conspirators were doing nothing more than engaging in fantasy foreplay; that they were not about to seriously kidnap, rape, cook, and then eat any of the women they chatted about.


The Government also knew that Valle was authorized to access the NYPD computer and access any information contained in it. While he may have violated an NYPD employee policy deserving reprimand, suspension, or even termination, he did not violate the specific federal law by simply viewing information about a woman he knew, especially without any intent to harm the woman.


We applaud the Second Circuit’s moral and legal courage check government prosecutors from invading and criminalizing our thoughts, regardless of how repulsive they may be.