Is Changing Your Teacher's Desktop Wallpaper Really a Felony?

Last week, CBS News in Sarasota, Florida, reported the story of a 14-year-old named Domanik Green who got charged with a felony after changing his teacher's desktop wallpaper to a photo of two men kissing. Town Sheriff Chris Nocco called it an offense against a computer system, and unauthorized access, since the crime involved logging into an administrator account without permission.

But while the Sheriff's description calls to mind a hacker hunched over a terminal—penetrating the mainframe, or whatever—the eighth grader's own account of his future-crime sounds rather less diabolical. Green claims the administrator password was the teacher's last name—apparently the case with other administrator accounts at Paul R. Smith Middle School—and that the teacher had typed it in full view of the class. Green and other students had previously used accounts on various school computers to screen-share with each other.

Under Florida law, hacking government systems in a way that "interrupts or impairs a governmental operation or public communication, transportation, or supply of water, gas, or other public service," is a felony. But while a public school is a "governmental operation," forcing a teacher to look at men kissing doesn't seem like that big of a deal.

Misdemeanor offenders, meanwhile, are those who modify "equipment or supplies used or intended to be used in a computer, computer system, computer network, or electronic device," which sounds a lot like the extent of Green's criminal activity.

Of course, I'm not a technology lawyer, so I contacted Hanni Fakhoury, senior staff attorney at the Electronic Frontier Foundation.

"This is crazy," he said, before adding, "My jaw is on the floor."

When I asked Fakhoury to interpret the law for me, he said that the federal statute looks basically the same as my interpretation of Florida's. "The most basic violation is defined as accessing a protected computer without authorization and looking at data," he told me. "That's a misdemeanor."

It's only once you start "tacking on other things," he said, that hacking becomes a felony and can fetch a perpetrator a five-year maximum penalty. Example of things that might get tacked on, according to Fakhoury, are fraudulent stock trades, causing bodily injury, or stealing from the government.

But an even more important question is whether there was any actual hacking.

"I think you could make an argument there isn't [in this case]," Fakhoury told me. Green makes it sound as though student use of administrator credentials was something that was normally tolerated. In that case it wouldn't matter that the student had mischievous intent. "Purpose is irrelevant for determining whether a person has authorization to access a database. Hacking has to mean you hack into something you don't have access to, rather than having access for one person and using it for a different purpose."

Still, there may have been a violation of the law. If Green stole his teacher's password to gain access, that would be hacking, which is a legit crime. Then again, many minor crimes don't get prosecuted, even as cybercrimes attract special attention from prosecutors.

As David Segal pointed out in an op-ed he wrote for Motherboard, the criminal justice system bends over backward to make examples of hackers. He was referring to whistleblowers like Chelsea Manning and Edward Snowden and activists like Barrett Brown, Jeremy Hammond, and Cecily McMillan, and it's unlikely he would want to put this kid in the same illustrious category. But he clearly didn't make the same sorts of decisions those figures did, and shouldn't fact the same kinds of consequences. As Fakhoury pointed out, "We shouldn't be using the justice system to solve something that should be solved by having them write an apology letter to the teacher."

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