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.
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
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
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?)