Quoted: on programmer’s overturned conviction for downloading code

“We decline to stretch or update statutory words of plain and ordinary meaning in order to better accommodate the digital age.”

Chief Judge Dennis Jacobs of the United States Court of Appeals for the Second Circuit, in an opinion released Wednesday that explains why the 2010 conviction of a programmer accused of downloading code from Goldman Sachs — shortly before he left for another job — was overturned in February. The court said Sergey Aleynikov was wrongly convicted of theft because code is not physical property, and that the Economic Espionage Act did not apply because the code was not used in interstate commerce. The ruling could have far-reaching effects. “Prosecutors brought this case to send a message about economic espionage in the information age. This is a major setback,” Joel Reidenberg, a professor at Fordham University School of Law, told Reuters. In a concurring opinion, Circuit Judge Guido Calabresi wrote that he hoped Congress would revisit the Economic Espionage Act and update its language: “[I]t is hard for me to conclude that Congress, in this law, actually meant to exempt the kind of behavior in which Aleynikov engaged.”


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  • The problem here is the nature of the news story – in simplifying it to fit the format, certain critical elements are missing, unless people take the time they don’t have to go read it in full. So is the meaning of what he did to protect himself – by having a copy of what he worked on, for reference purposes only? Or is there evidence he intended to use the code his employer owns for other purposes, which presumably are illegal?

  • RedRat

    What does the judge mean that code does not have a physical property? It most certainly does reside in physical form in the memory of a computer. Gates in the memory chips are either open or closed, their properties are read by a computer. The code has a physical presence in the storage unit of the computer or server.

    If they had no physical property then they would be “spiritual” and not readable by any machine. Once downloaded and stored on some magnetic media, they have magnetic properties. I wonder if this Judge really understands computer and computer technology. I suspect that this ruling could be overturned.

  • robino

    The code is not a tangible, physical thing. It’s a concept, an idea.
    The gates in the memory chip that were open prior to being read were still open after they were read.

    Nothing was changed by reading the status of some gates in a chip.

    If you read a book in a library – everything that was there prior to being read remains after it’s been read.

    If there is theft then it must be intellectual, not physical.

  • From Wikipedia

    On April 11, 2012, Hon. Dennis Jacobs, Chief Judge of the United States Court of Appeals published a unanimous decision in a written opinion [8] stating:
    “… On appeal, Aleynikov argues, inter alia, that his conduct did not constitute an offense under either statute. He argues that: [1] the source code was not a “stolen” “good” within the meaning of the NSPA, and [2] the source code was not “related to or included in a product that is produced for or placed in interstate or foreign commerce” within the meaning of the EEA. We agree, and reverse the judgment of the district court.”

  • If you’re not a programmer or developer, maybe you wouldn’t understand some of the finer points of code possession. There are valid reasons for the expat to possess code that he worked on, but if it can be proven that he accessed data that he had no prior access to, that could be a problem. Or if it can be proven that he’s using data that he’s in possession of where the rights belong to his ex-employer, in a manner that violates his ex-employer’s rights (selling the code, using it in projects for another employer etc.), then that could also be a problem. Code or data, makes no difference.

  • Ira R.

    If he downloaded the source code for reference purposes, it looks very consistent with the ruling – there’s no crime. If you google this case, there doesn’t seem to be any information about evidence showing that he actually shared any code with his new employer. The documents say that he had some source code on his laptop when he went to a meeting with his new employer, but no allegations that that information was discussed or shared. Merely having source code on a laptop without sharing it could be something inadvertent, otherwise, it would be more than just an allegation. It seems that either his old boss got very much pissed about his top programmer leaving his team or wanted to scare the others in terms of setting a strong example. But why blow such a high-profile horn wrongfully involving government resources over something that Goldman could have easily handled internally? Were they short of money and couldn’t afford legal counsel?