I specifically require material deception as an overt act that establishes some level of mens rea for that very reason, but my construction is meant to frame discussion of their motives around overt acts, rather than attempts at mind reading, which are far more susceptible to personal biases of every kind. Having elements of the crime that demonstrate criminal intent is not, in fact, a construction unknown to law in general. The elements of a crime like shoplifting might require elements like both concealing the merchandise and attempting to exit the store. You can see that the act of concealment gives information about their motives in a way subject to fact-based inquiry, rather than having to attempt to read someone's mind. And people can come to a fact-based conclusion about this, as the jurors have to say this person didn't actually conceal and remove the merchandise, rather than saying this kid looks like a good guy, or that kid looks like a thief and deciding a motive from that.
So I think you'll find that the better-constructed laws require overt acts that inform us about motive in many (but not all) cases, rather than mere inferences about motive. Though I certainly agree that there are reasonable facts which one can use to infer mens rea from. Good intent can also be inferred--that's why I specified a safe harbor for people who were trying to simply do the right thing and report a bug they'd found. Someone who reports a problem to the site owners in good faith is simply not someone I think we should be hitting with criminal penalties in general, though this might be weighed against other things like attempts to ransom the bug or sending DROP DATABASE injections and whatnot which could wipe out any inference of good intent.
That said, I've always said this was my view of how the law ought to work. Implicit in that is that the law does not, in fact, work that way, so I honestly can't disagree with you here--the law certainly doesn't work my way, and this is all my own thinking on how it ought to work in my own view. So inasmuch as you're saying the law doesn't work this way, I completely agree.
Scraping sites for email addresses isn't illegal or we'd arrest Google. It's the spam that's actionable. So intent to scrape email addresses to give to spammers doesn't constitute mens rea.
There has to be 1) believable intent to 2) commit an actual crime.
Your reasoning is circular without that - "he had bad intent so whatever he was doing was illegal which is how we can say his intent was bad rather than simply unsavory, etc."
There's no valid precedent for simply requesting a document being illegal, nor ultimately a security benefit from it being so.
I think you have that backwards. Trespassing is your actus reus. What's at issue is intent, or mens rea. You're looking for firmer indications of mens rea than, apparently, you've seen in CFAA cases to date.
I'm saying that "trespassing" is too broad an actus reus to establish mens rea because we interact with websites in a very different way from real property. I've proposed an alternate set of rules (material deception + a safe harbor) that I feel better capture actual criminal intent.
