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 recent
cases in which courts have interpreted the scope of
this law.
✪ What these trends suggest about the future.

Background
The Computer Fraud and Abuse Act
18 U.S.C. § 1030

seven basic prohibitions
1) espionage
2) improperly accessing financial records, government
information, or information on a “protected computer”
3) trespass to government computers
4) improperly accessing someone else’s computer with intent
to defraud
5) causing damage to someone else’s computer
6) password trafficking with intent to defraud
7) extortion

improper access
The 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 1
expansive 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 that
authorization 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 2
attempts 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. Drew
Government: 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. Kernell
Government: felony unauthorized access to a
computer in furtherance of unauthorized access
to email and unauthorized access to a computer.

United States v. Kernell
Government: felony unauthorized access to a
computer in furtherance of unauthorized access
to email and unauthorized access to a computer.
Do over!

United States v. Kernell
Government: felony unauthorized access to a
computer in furtherance of invasion of privacy
and aiding and abetting other unauthorized
accesses to a computer.
Jury: no, misdemeanor unauthorized access.

United States v. Cioni
Government: felony unauthorized access to a
computer 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 prohibits
unauthorized access to an electronic communication
service and obtaining stored communications.
(Here, email.)
It’s the same thing.

United States v. Cioni
Government: felony unauthorized access to a
computer 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 Hofmann
Senior Staff Attorney, EFF
marcia@eff.org