The Latest Developments in Computer Crime Law

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

The Latest Developments in Computer Crime Law

by SOURCE Conference on Jun 19, 2011

Accessibility

Categories

Upload Details

Usage Rights

Statistics

The Latest Developments in Computer Crime Law — Presentation Transcript