Let me start by saying upfront that I do not do a ton (by which I mean ANY) federal criminal law.* Including this sentence automatically makes me in a better position to discuss things than Lester Munson, ESPN’s legal analyst who, as far as I can tell, doesn’t know a damn thing.
He discussed the Cardinal situation in a fun little Q&A format and proceeds to make everyone involved stupider/more criminal. He uses breathtakingly ridiculous analogies and seems to have no understanding about how the feds operate, or the seriousness of stealing trade secrets. He is in bold and an idiot. I am not.
*Seriously, nothing I say here should be construed as legal advice and I may get things wrong, but I will be more correct than he is.
Federal agents and prosecutors are investigating whether St. Louis Cardinals officials hacked into a Houston Astros database that included secret information about trades, player statistics and prospect evaluations. The investigation raises questions about the possibility of criminal charges.
Q: Is it actually a crime to hack into the data and the files of a Major League Baseball team?
We should first mention that this is a stupid question. Some say there are no stupid questions, but here we are.
The reason this is a stupid question is that the law does not specifically say anything about major league baseball teams or “hacking into the data”. Laws are general, and cover everyone. But let’s not jump to conclusions, let’s see what Lester says…
A: It’s certainly ethically questionable, but whether it is a crime is far less certain.
No. Nooooope. Nuh uh. It is absolutely 100% a crime. It’s probably a bunch of crimes. But the one I’d be concerned about if I were the Cardinals is the one that comes up first if you google “theft of trade secrets”, specifically 18 U.S. Code § 1832
“(a) Whoever, with intent to convert a trade secret, that is related to a product or service used in or intended for use in interstate or foreign commerce, to the economic benefit of anyone other than the owner thereof, and intending or knowing that the offense will, injure any owner of that trade secret, knowingly—
(1) steals, or without authorization appropriates, takes, carries away, or conceals, or by fraud, artifice, or deception obtains such information;
(2) without authorization copies, duplicates, sketches, draws, photographs, downloads, uploads, alters, destroys, photocopies, replicates, transmits, delivers, sends, mails, communicates, or conveys such information;
(3) receives, buys, or possesses such information, knowing the same to have been stolen or appropriated, obtained, or converted without authorization;
(4) attempts to commit any offense described in paragraphs (1) through (3); or
(5) conspires with one or more other persons to commit any offense described in paragraphs (1) through (3), and one or more of such persons do any act to effect the object of the conspiracy,
shall, except as provided in subsection (b), be fined under this title or imprisoned not more than 10 years, or both.
(b) Any organization that commits any offense described in subsection (a) shall be fined not more than $5,000,000.”
The Cardinals (allegedly) improperly gained access to a proprietary database containing all of the stored secret knowledge of the Astros and copied them for their own use in order to gain a competitive advantage. So, in short, the answer to the question of “Is it actually a crime to hack into the data and the files of a Major League Baseball team?” is “Who the fuck cares, you moron.” And by the way, yes, that is also illegal.
Very, very illegal, based on at the very least 18 U.S.C. 1030(a)(2), which is a misdemeanor, but still very much a crime.
If you decide later today to hack into the database of a Major League Baseball team, you can expect the feds to show up on your doorstep.
It appears that Cardinals’ front office officials succeeded in obtaining information on Astros prospects and trade strategies. But for a federal prosecutor to charge Cardinals executives with “unauthorized access” to computer information or theft of proprietary, non-public information, the prosecutor must be able to show that the information was the work product of significant efforts by Astros officials and, more importantly, was not available elsewhere.
Here Munson fails as both a lawyer and baseball analyst. He’s a double non-threat. Nothing in this paragraph is true, legally speaking. Orink Kerr is a professor of law at George Washington University who contributes to the Washington Post legal blog “The Volokh Conspiracy”. He writes:
“There is no requirement that the information be “proprietary, non-public” information, or that it is “the work product of significant efforts by Astros officials . . . not available elsewhere.” The statute is clear: The information just needs to be, well, “information.” Any information of any kind will do. Yes, the information has to be from a “protected computer.” But pretty much everything with a microchip is a “protected computer,” and obviously a computer connected to the Internet counts as one.”
You should read the whole thing as Professor Kerr actually knows what he is talking about.
But even if this was true (which again, it 100% is not), the proprietary nature of the information is not in doubt. The Astros analytics have been covered in depth and the database that was captured would clearly fit Munson’s nonsensical factors.
In addition to showing that the stolen information was not otherwise available, the prosecutor must be able to show that Cardinals executives knew they were committing a crime.
God no. That such a sentence came out of the mouth (we assume) of a famous legal analyst and not Barry Zuckerkorn or Lionel Hutz is incredible. No one has to show anything of the kind, and if you tell the FBI agents that you didn’t know you were committing a crime as they’re hauling you away, they’ll laugh as hard at you as I do at Barry Zuckerkorn or Lionel Hutz. This advice isn’t just wrong, it’s dangerous. Some idiot might read this and decide he can commit some kind of crime if he just remains unaware. If you told this to a client it would be malpractice 100% of the time.
If the Cardinals’ activity was just a dirty trick or an attempt at getting even with a former colleague, the hacking might not qualify as a crime.
Yes, the feds are famous for their love of humorous hi-jinks. They’re happy to let an investigation go if it happens to be boys being boys. That’s why Federal prisons are empty and we have almost no one in prison who doesn’t belong there for seemingly minor offenses.
The prosecutors will face a difficult decision when they decide whether to file charges or, instead, decline to prosecute. It is easy to envision a federal prosecutor deciding that there are more important cases to prosecute.
This is Munson’s first and last coherent point. It is entirely possible that they will show some prosecutorial discretion and not waste time on this, but it by no means certain, and deciding not to prosecute does not mean the underlying acts were legal.
Q: Doesn’t the FBI have responsibilities that are more important than policing the actions of rival baseball teams?
This isn’t a legal question or a baseball question, it’s a pointless JSComment-level question that adds nothing to the discussion. Maybe they do, but the FBI works in mysterious ways,and they are not immune from pursuing the occasional high-profile target simply because of the profile.
A: Yes. It is difficult to imagine that FBI agents charged with the duty to investigate terrorists, syndicate hoodlums and corporate pirates would invest significant time in analyzing the activities of MLB executives and their evaluations of draft picks, prospects and opposing players.
The FBI will not be pouring over the Astros’ scouting reports and critically assessing them. They will simply be collecting evidence about a data breach, and the types of information that were compromised. Baseball is a billion-dollar business and the government is very concerned with corporate espionage among billion-dollar businesses.
It has long been a part of baseball that general managers try to outmaneuver each other in the draft, in trades and in the signing of free agents.
This is just boring nonsense that doesn’t pertain to anything, which ironically makes it one of the best parts of the piece, but the next sentence…I mean, you might want to sit down if you’re at one of those standing desks or if you’re reading this on your phone.
Hacking into the Astros’ files is only the latest technique in the battles that help make the MLB fascinating.
First off, this sentence is just a mess. I would argue, as a fan of baseball, that baseball games are the battles that help make “the major league baseball” fascinating. Second, does Munson walk around the ESPN offices saying things like “I think Mike Trout is the best player in the MLB”? Because that should be one of those humorous ESPN commercials if he does.
And finally, hacking into an opponent’s database is just the latest technique to MAKE BASEBALL INTERESTING. League’s LOVE fighting about scandal. It wasn’t the home-run chase that drove baseball ratings to their peak, it was the PED fallout afterward that got fans so excited. This is a TECHNIQUE. The latest modern technique to drive fans back to the game! Come for the Cracker Jack, stay for the cyber-espionage!
During the steroids investigations and prosecutions, it became apparent that the federal courts were not interested in what many in MLB thought was serious cheating.
Because cheating at baseball isn’t actually against the law, unlike corporate espionage, but maybe you’re going somewhere with this.
After he was convicted for lying about his use of performance-enhancing drugs, Barry Bonds was sentenced to 30 days of home confinement in his Los Angeles mansion. It was a clear signal from a federal judge that cheating in baseball was not as important as many thought it to be.
“Attorneys, members of the press, and all gathered here today…I sentence the accused to 30 days of home confinement because really, is cheating in baseball that important? There are gangs and stuff out there. For too long we have sentenced those convicted of boring perjury too harshly. That ends now. I mean, sure, there are excellent legal reasons for this ruling, but what I really want to emphasize in my role as a member of the Federal Judiciary is that lawsuits over sports are not important, you guys.”
The conviction was later reversed, yet another indication that the courts did not want to be involved in these situations.
“These situations.” As if lying to the feds about an ultimately legal act is on par with illegally entering another company’s private database and stealing their trade secrets. They’re exactly alike because BASEBALL! WOOOO!
If steroids were not important enough to capture the attention of the court system, then hacking into personnel files might not qualify for federal prosecution.
Does Lester know the Chewbacca Defense isn’t a real thing?
Q: What will happen to the Cardinals’ executives who hacked into the Astros’ database?
A: If the feds pass on a case, then the only discipline they will face will come either from Cardinals ownership or from MLB commissioner Rob Manfred. The conduct of the executives would certainly be unseemly, if it is proven. It might be a good idea for Cardinals ownership to suspend anyone involved for a month to show that they are embarrassed about what appears to border on unethical behavior.
Federal crimes now “border on unethical behavior.” Lester Munson could not in writing commit to the idea that federal crimes are unethical.
Manfred might want to issue some discipline to avoid any copycat efforts by other teams. Overall, the circumstances are unique: The Cardinals might have used a list of passwords former Cardinals executive Jeff Luhnow brought with him to the Astros. It is a situation that is not likely to be repeated.
It’s not like data breaches are big news right now. Everyone probably just forgets about this.
Look, idiots like Skip Bayless and Colin Cowherd get ratings by being idiots. They basically know what they’re doing and they’re wrong about trivial things that ultimately don’t matter much. Your chief legal expert is called upon to explain complicated legalese to ESPN viewers, and to do so correctly and quickly. Lester Munson is not paid to have hot takes.
Munson has never been good at this. He doesn’t serve his most basic function, and it’s a mystery as to why he still gets to be on TV.
My work here is done.