IANAL too and I support Aaron 1000% but the outrage just misses the basics of Anglo-British law.
I am sure that court would hold that [throwing your bubble gum on the side walk] would constitute "Access Without Authorization" if it believed that this act was done with that intent. Because our legal system is ultimately about intent, not action. If [throwing your bubble gum on the side walk] is done with the intent to murder, it would constitute attempted murder, etc...
Edit: All that said, the bigger questions would come down to "the legality of the shrink-wrap-license" (now featured as the "click-through-but-unread-license") question.
Correct me if I'm wrong, but I believe you need to have actus reus (guilty act) and mens rea (guilty mind) to prosecute. Therefore, in addition to intent, the prosecution would have to show that throwing bubble gum on the sidewalk was an act that could lead to murder / lead to accessing a computer system without authorization. In that case, all this talk about what is/isn't authorized access still complies with the basics of common law because it defines what is an actus reus.
Unless it's a strict liability crime. In the bubblegum example, I believe you could be convicted of something like manslaughter without mens rea. The CFAA is not a strict liability offense, however, as far as I'm aware.
You do have to have an act, to avoid punishing thought crimes, but intent is where the real action tends to be. Intent can make the same act (killing a person) anything from murder to no crime at all.
IANAL either, but I don't see how incompetently trying to kill someone using a method that couldn't actually kill the intended victim would get anyone off the hook.
Guilt for most crimes requires two parts:
- Intent, willfulness, recklessness or perhaps even negligence. This is the "mens rea" or "guilty mind"
- An action which is a product of that guilty mind, the "actus reus" or "guilty act"
Part of the latter is that the act has to actually reasonably be able to result in the harm of the crime.
I am not a lawyer, but the author of The Illustrated Guide to the Law is:
http://lawcomic.net/guide/?p=266
You should read all of it.
I am sure that court would hold that [throwing your bubble gum on the side walk] would constitute "Access Without Authorization" if it believed that this act was done with that intent. Because our legal system is ultimately about intent, not action. If [throwing your bubble gum on the side walk] is done with the intent to murder, it would constitute attempted murder, etc...
Edit: All that said, the bigger questions would come down to "the legality of the shrink-wrap-license" (now featured as the "click-through-but-unread-license") question.