But here is reality...the prosecutors have reportedly given the party who opened the account and actively participated in some of the mischief complete immunity. My instincts tell me that this will impact the Judge's perception of the legal issues, and given the high burden of proving a criminal offense, this could lead to the conclusion that a jury could not find "beyond a reasonable doubt" a lack of authorization. Case Dismissed! If the Judge really considers the issues, I think the case will go forward, he will allow the defense to put on their case, and let it go to the jury. If the Jury convicts, then the Judge is going to have to make a really hard call on this.
One thing is for sure. We are a long, long way from defining the law of "computer trespass", no matter how this case comes out.
FINAL COMMENT: It remains clear, though, that this prosecution has never been, as Public Citizen, Electronic Frontier Foundation, and the ACLU types would have you believe, outrageous and unjustified prosecutorial abuse. Trust me that this case is really just standard fare for attorneys who actually deal with these issues on a regular basis. And whatever the decision, First Amendment extremists can rest assured that the Internet will not be disrupted, the foundation of E-Commerce will not collapse, and the sky will not fall. But it doesn't really help a Judge to be offering up "Chicken Little" legal briefs. Try something new-cut him some slack and don't attack him personally in the press and online if he does not agree with your view of the law or the world.
UPDATE (Monday 11/24/08): Prescient? (No, but a good guess!) The motion to dismiss was taken under advisement by the Judge. Judge Wu indicated Monday he might not rule on the dismissal motion until after a jury verdict.