The Latest Developments in Computer Crime Law
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The Latest Developments in Computer Crime Law

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SOURCE Seattle 2011 - Marcia Hofmann

SOURCE Seattle 2011 - Marcia Hofmann

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The Latest Developments in Computer Crime Law The Latest Developments in Computer Crime Law Presentation Transcript

  • The Latest Developments in Computer Crime Law SOURCE Seattle June 15, 2011 Marcia Hofmann, EFF
  • what we’ll talk about today✪ The federal hacking law and why it’s problematic.✪ A couple trends that have emerged from recentcases in which courts have interpreted the scope ofthis law.✪ What these trends suggest about the future.
  • BackgroundThe Computer Fraud and Abuse Act 18 U.S.C. § 1030
  • seven basic prohibitions1) espionage2) improperly accessing financial records, government information, or information on a “protected computer”3) trespass to government computers4) improperly accessing someone else’s computer with intent to defraud5) causing damage to someone else’s computer6) password trafficking with intent to defraud7) extortion
  • improper accessThe CFAA prohibits, among other things,“intentionally access[ing] a computer without authorization or in excess of authorization, and thereby obtain[ing] . . . information from any protected computer.”18 U.S.C. § 1030(a)(2)(C).
  • improper access Courts have interpreted “obtaining information” broadly.Basically any computer connected to the internet is a “protected computer.” So the major limiting principle is “authorized.”
  • development 1expansive theories of unauthorized access/exceeding authorized access
  • Some people have argued that authorization ends when an employee violates a duty of loyalty to an employer... International Airport Centers v. Citrin LVRC Holdings v. Brekka
  • Others have gone so far as to argue thatauthorization ends when a person violates a web site’s terms of use. United States v. Drew Facebook v. Power Ventures United States v. Lowson
  • The case law in this area recently took a turn for the worse when an appeals court found that violating an employer’s computer use policies “exceeds authorized access.” United States v. Nosal
  • The future?Lee v. PMSI, Inc. Sony v. Hotz
  • development 2attempts to double-count penalties for unauthorized access
  • A first-time violation of the “unauthorized access” provision is generally a misdemeanor.However, it can be elevated to a felony in certain circumstances, like when the offense is committed in furtherance of another crime or tortious act.
  • United States v. DrewGovernment: felony unauthorized access to a computer in furtherance of intentionally inflicting emotional distress.Jury: no, misdemeanor unauthorized access. Judge: no, violating terms of service is not unauthorized access.
  • United States v. KernellGovernment: felony unauthorized access to a computer in furtherance of unauthorized accessto email and unauthorized access to a computer.
  • United States v. KernellGovernment: felony unauthorized access to a computer in furtherance of unauthorized accessto email and unauthorized access to a computer. Do over!
  • United States v. KernellGovernment: felony unauthorized access to acomputer in furtherance of invasion of privacy and aiding and abetting other unauthorized accesses to a computer.Jury: no, misdemeanor unauthorized access.
  • United States v. CioniGovernment: felony unauthorized access to acomputer in furtherance of unauthorized access to email. Jury: yup, two felonies. (This is a problem.)
  • The CFAA prohibits unauthorized access to and obtaining information from a computer. (Here, email.) The Stored Communications Act prohibitsunauthorized access to an electronic communication service and obtaining stored communications. (Here, email.) It’s the same thing.
  • United States v. CioniGovernment: felony unauthorized access to acomputer in furtherance of unauthorized access to email. Jury: yup, two felonies.Appeals court: no, these are misdemeanors.
  • The future?legislative changes(enhanced penalties?)
  • questions? Marcia HofmannSenior Staff Attorney, EFF marcia@eff.org