Perhaps I'm influenced by those cases that the news media has chosen to publicize. Clearly Mathew Martoma would still be "guilty" under the newly-clarified rules. I really wonder about e.g. Raj Rajaratnam, Anil Kumar, or Rajat Gupta, however.
Didn't Gupta sit on the board of public corporations and slip Rajaratnam earnings information right after a board meeting? That seems about as clear-cut as it gets. Gupta had a clear duty of confidentiality serving as a high-level executive and the information was obviously material to the share price. You don't get much more material than quarterly earnings.