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The Evolving Computer Fraud and Abuse Act

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The slides from Shawn Tuma's presentation to the Computer Law Section of the Dallas Bar Association entitled The Evolving Computer Fraud and Abuse Act. Dated April 23, 2012.

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The Evolving Computer Fraud and Abuse Act

  1. 1. THE EVOLVING COMPUTER FRAUD AND ABUSE ACT An Overview and Update of Recent Activity Dallas Bar Association Computer Law Section April 23, 2012
  2. 2.  Civil Litigation Lawyers  Criminal Lawyers  Employment Lawyers  Family Lawyers  In-house Counsel  Business & Transactional Lawyers  Technology & Privacy Lawyerswww.brittontuma.com 2
  3. 3.  History and Original Purpose of CFAA  Why?  What Does the CFAA Prohibit?  Examples of Most Common CFAA Violations  Most Controversial Issues Under CFAA  Recent CFAA Developmentswww.brittontuma.com 3
  4. 4. BRIEF HISTORY OF THE CFAA 4
  5. 5. www.brittontuma.com 5
  6. 6. www.brittontuma.com 6
  7. 7. Comprehensive Crime Control Act of 1984  Criminal statute  Wire & mail fraud  Response to movie War Gameswww.brittontuma.com 7
  8. 8. Computer Fraud and Abuse Act of 1986  Hacking of “Government interest” computers  Criminal only  3 major amendments (9 total)  Added private cause of action in ’94  2008 most recentwww.brittontuma.com 8
  9. 9. Why is the Computer Fraud and Abuse Act important?  Primary Law for Misuse of Computers  Computers …www.brittontuma.com 9
  10. 10. “Everything has a computer in it nowadays.” -Steve Jobswww.brittontuma.com 10
  11. 11. WHAT IS A COMPUTER? 11
  12. 12. The CFAA says has a processor or stores data “the term ‘computer’ means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but …” “such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device;”www.brittontuma.com 12
  13. 13. The Fourth Circuit says “If a device is ‘an electronic … or other high speed data processing device performing logical, arithmetic, or storage functions,’ it is a computer. This definition captures any device that makes use of an electronic data processor, examples of which are legion.” -United States v. Kramerwww.brittontuma.com 13
  14. 14. What aboutwww.brittontuma.com 14
  15. 15. The Fourth Circuit says “’Just think of the common household items that include microchips and electronic storage devices, and thus will satisfy the statutory definition of “computer.”’ “’That category can include coffeemakers, microwave ovens, watches, telephones, children’s toys, MP3 players, refrigerators, heating and air-conditioning units, radios, alarm clocks, televisions, and DVD players, . . . .” -United States v. Kramerwww.brittontuma.com 15
  16. 16. The CFAA applies only to “protected” computers This may limit the problem of applying it to alarm clocks, toasters, and coffee makers Protected = connected to the Internet Any situations where these devices are connected?www.brittontuma.com 16
  17. 17. • TI-99 • Leap Frog Leapster • iPhone 4 • 3.3 MHz Processor • 96 MHz Processor • 800 MHz Processer • 16 KB of RAM • 128 MB of RAM • 512 MB of RAMwww.brittontuma.com 17
  18. 18. 66 MHz = fastest desktop in 80s 96 MHz = child’s toy today 250 MHz = fastest super computer in 80s 800 MHz = standard telephone todaywww.brittontuma.com 18
  19. 19. WHAT DOES THE CFAA PROHIBIT? 19
  20. 20. CFAA prohibits the access of a protected computer that is  Without authorization, or  Exceeds authorized accesswww.brittontuma.com 20
  21. 21. Where the person accessing  Obtains information  Commits a fraud  Obtains something of value  Transmits damaging information  Causes damage  Traffics in passwords  Commits extortionwww.brittontuma.com 21
  22. 22. “I am the wisest man alive, for I know one thing, and that is that I know nothing.” -Socrates  Overly simplistic list  Very complex statute  Superficially it appears deceptively straightforward  Many pitfallswww.brittontuma.com 22
  23. 23. Two Most Problematic Issues  “Loss” Requirement • Confuses lawyers and judges alike  Unauthorized / Exceeding Authorized Access • Evolving jurisprudence • Interpreted by many Circuits • New conflict on April 10, 2012www.brittontuma.com 23
  24. 24. Limited civil remedy  Procedurally complex with many cross- references  “damage” ≠ “damages”  Must have $5,000 “loss”  Loss requirement is jurisdictional thresholdwww.brittontuma.com 24
  25. 25. What is a “loss”? “any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.” Loss = cost (unless interruption of service)www.brittontuma.com 25
  26. 26. What can qualify as a “loss”?  Investigation and response costs • Forensics analysis and investigation • Diagnostic measures • Restoration of system • Bartered services for investigation / restoration  Value of employees’ time  Attorneys’ fees if leading investigationwww.brittontuma.com 26
  27. 27. What is not a “loss”?  Lost revenue (unless interruption of service)  Value of trade secrets  Lost profits  Lost customers  Lost business opportunities  Privacy and Personally Identifiable Informationwww.brittontuma.com 27
  28. 28. Privacy and Personally Identifiable Information  iTracking  Hacking / data breach  Browser cookies REMEMBER: Loss is only required for civil remedy – not criminal violationwww.brittontuma.com 28
  29. 29. What would you advise?  Wrongful access of your client’s computer  Considering a CFAA claim  Your advice would be to ________?www.brittontuma.com 29
  30. 30. Remedies  Available • Economic damages • Loss damage • Injunctive relief  Not Available • Exemplary damages • Attorneys’ feeswww.brittontuma.com 30
  31. 31. Elements of broadest CFAA Claim 1. Intentionally access computer; 2. Without authorization or exceeding authorized access; 3. Obtained information from any protected computer; and 4. Victim incurred a loss to one or more persons during any 1-year period of at least $5,000.www.brittontuma.com 31
  32. 32. Procedural Points  2 year limitations  Concurrent jurisdiction  No preemption  No Rule 9 heightened pleadingwww.brittontuma.com 32
  33. 33. WRONGFUL ACCESS 33
  34. 34. General Access Principles  Access by informational / data use  ≠ technician  Must be knowing or intentional access  ≠ accidental accesswww.brittontuma.com 34
  35. 35. Two Types of Wrongful Access “without authorization” “exceeds authorized”  Outsiders  Insiders  No rights  Some rights  Not defined  CFAA defines: access in  Only requires intent to a way not entitled access, not harm  Necessarily requires  Hacker! limits of authorization  Employees, web users, etc.www.brittontuma.com 35
  36. 36. First step should be “which is it”? Instead, confusion of the two  Lawyers plead both  Courts don’t usually indicate which – or care – go straight to the outcome  Case outcomes do not reflect Congressional frameworkwww.brittontuma.com 36
  37. 37. “without authorization”  Clear when hacker  Question is whether “exceeds” morphs into “without”  Insider authorized for some computers  Insider authorized for some locations  Insider authorized for intended use  United States v. Morris  Unauthorized system and intended usewww.brittontuma.com 37
  38. 38. When does authorization terminate? As of April 10, 2012, there are (once again) three general lines of cases: Trilogy of Access Theories • Agency Theory • Intended-Use Analysis • Access Means Accesswww.brittontuma.com 38
  39. 39. Agency Theory Employee’s breach of duty of loyalty to his employer terminated his right to access the computer based on common law agency principles.  International Airport Centers, LLC v. Citrin (7th Cir. 2006) • Seventh Circuit • Earlier casewww.brittontuma.com 39
  40. 40. Intended-Use Analysis Authorization continues until terminated by the grantor but exceeding prior contractual access and use limitations exceeds authorized access.  United States v. Teague (8th Cir. 2011); United States v. Tolliver (3rd Cir. 2011); United States v. Rodriguez (11th Cir. 2010); United States v. John (5th Cir. 2010), EF Cultural Travel BV v. Explorica, Inc. (1st Cir. 2001), United States v. Morris (2nd Cir. 1991) • Majority view (overly simplified) • Prior notice of limits is vital • Emphasizes need for contractual limitswww.brittontuma.com 40
  41. 41. Access Means Access Once authorization to access is granted, the authorization continues until expressly terminated by the grantor, regardless of how it is used.  United States v. Nosal (9th Cir. 2012); LVRC Holdings LLC v. Brekka (9th Cir. 2009) • Ninth Circuit + trending with district courts • April 28, 2011  moved away in Nosal I • April 10, 2012  moved back in Nosal IIwww.brittontuma.com 41
  42. 42. Ways to establish limits for Intended-Use  Contractual • Policies: computer use, employment & manuals • Website Terms of Service  Technological • Login and access restrictions • System warnings  Training and other evidence of notification  Notices of intent to use CFAAwww.brittontuma.com 42
  43. 43. Contractual limits should  Clearly notify of limits  Limit authorization to access information  Limit use of information accessed  Terminate access rights upon violation  Indicate intent to enforce by CFAA Goal: limit or terminate authorizationwww.brittontuma.com 43
  44. 44. The following examples are situations that may constitute a wrongful access under the CFAA  I say “may” because … • We’re talking about law! • Evolving jurisprudence • Access limits are huge factor • Facts can vary greatlywww.brittontuma.com 44
  45. 45. Employment Situations Most common scenario is employment • Employee access and take customer account information • Employee accesses and takes or emails confidential information to competitor • Employee improperly deletes data and email • Employee deletes browser history  • Employee accessing their Facebook, Gmail, Chase accounts at work www.brittontuma.com 45
  46. 46. Family Law Situations Have you ever logged into your significant other’s email or Facebook to see what they’re saying to others? DON’T ANSWER THAT! • Estranged spouse in Arkansas did after separation • NTTA account? • Bank account? • Cancelling services via online accounts?www.brittontuma.com 46
  47. 47. Sharing Website Logins Have you ever borrowed or shared website login credentials and passwords? DON’T ANSWER THAT! • Recent case held that permitting others to use login credentials for paid website was viable CFAA claim • The key factor here was the conduct was prohibited by the website’s agreed to Terms of Servicewww.brittontuma.com 47
  48. 48. Misuse of Websites Ever created a fake profile or used a website for something other than its intended purpose? DON’T ANSWER THAT! • Myspace Mom case • Fake login to disrupt legitimate website sales • Accessing website to gain competitive information when prohibited by TOS • Creating fake Facebook to research opposing partieswww.brittontuma.com 48
  49. 49. Hacking & Private Information Hacking was original purpose for CFAA • Hacking and obtaining private information • Tracking individuals through geo-tagging • Website collection of private information • All fit within the prohibitions of the CFAA • Loss is the problem, from a civil standpointwww.brittontuma.com 49
  50. 50. Employee Social Media Passwords How about asking an employee or prospective employee for the login and password to their Facebook account? • Is this unauthorized access? • Coerced? • Facebook’s terms of service prohibit sharing of password with anyone else, or anything else that may jeopardize the security of the account • The CFAA prohibits aiding and abetting! • In the 5th, 1st, 2nd, 3rd, 8th, and 11th Circuits this could be a problemwww.brittontuma.com 50
  51. 51. What about … • Hacking a car? • Hacking a person? • What else?www.brittontuma.com 51
  52. 52. “ACCESS” &THE NEW (OLD)CIRCUIT SPLIT 52
  53. 53. Three Main Cases • United States v. John (5th Cir. 2010) • United States v. Rodriguez (11th Cir. 2010) • United States v. Nosal (9th Cir. 2012) And Two Minor Ones • United States v. Tolliver (3rd Cir. 2011) • United States v. Teague (8th Cir. 2011)www.brittontuma.com 53
  54. 54. United States v. John (5th Cir. 2010) • Intended-Use Analysis / “exceeding authorized access” case • Citigroup had policies that clearly prohibited the unlawful use of information obtained from computer system • Employee used her access to customer accounts to obtain information to give to others to commit fraud • Rule: access to a computer may be exceeded if the purposes for which access have been given are exceeded and the employee is actually aware of those limitations on purpose through policies or contractual agreements. • Rodriguez: similar but obtained info to be a creeper to womenwww.brittontuma.com 54
  55. 55. Recent Intended-Use Cases United States v. Tolliver (3rd Cir. 2011) • Exceeded authorized access case • Bank employee looking up customer account information to aid and abet a fraud scheme – the bank’s policies prohibited looking up info without a business purpose United States v. Teague (8th Cir. 2011) • Exceeding authorized access case • Employee of contractor for Dept. of Education with privileged access to National Student Loan Data System used that access to look up Barak Obama’s recordswww.brittontuma.com 55
  56. 56. United States v. Nosal (9th Cir. 2012) • Access Means Access / “exceeding authorized access” case • Company had a policy that restricted use and disclosure of information to legitimate company business • Former employee encouraged others still there to steal trade secret info for them to use in starting competing business (charged with aiding and abetting) • Rule: “‘exceeds authorized access’ in the CFAA is limited to violations of restrictions on access to information, and not restrictions on its use.”www.brittontuma.com 56
  57. 57. United States v. Nosal (9th Cir. 2012) • Why? Nosal had clear unequivocal notice that what he was doing was wrong and prohibited by the policies and he was not entitled to obtain that information for that purpose • Court found the language “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter” to be ambiguous • Reverted to Rule of Lenity • Looked to all the fears of hypothetical potential crimeswww.brittontuma.com 57
  58. 58. John v. Nosal Split – What Can We Do? • John will prohibit misuse of information accessed or obtained • Nosal will only prohibit an unauthorized access • Conditional Authorization? • In addition to having “John Policies” that prohibit misuse of the information obtained, • Provision that makes authorization to access the computer conditional on that access being for proper purposes and not for improper purposes, and retroactively revoking that authorization if for an improper purpose • Supreme Court?www.brittontuma.com 58
  59. 59. Pulte Homes, Inc. v. Laborers’ International Union of North America (6th Cir. 2011) • An “intentional transmission” case – not unauthorized access • After Pulte fired a union employee the union orchestrated a barrage of emails, telephone calls, and faxes that were so voluminous that it shut down Pulte’s computer system and telephones, interfering with its business • Violated § 1030(a)(5)(A): “knowingly cause the transmission of a program, information, code, or command, and as a result of such conduct, intentionally cause damage without authorization, to a protected computer.” • Think about the implications: emails, calls, faxes?www.brittontuma.com 59
  60. 60. PROPOSED AMENDMENTS 60
  61. 61. Hacking, Data Breach & Privacy • Hacking = biggest news event of 2011 • 46 States  Breach Notification Laws • Administration & Congress want to act • Employers asking for social media logins • Vehicle of choice is to amend the CFAA – but has lost a lot of steam since 2011www.brittontuma.com 61
  62. 62. Unauthorized Access Amendment • Proposed Amendment in Senate last Fall • Resolve disagreements about Unauthorized Access • Felony-level unauthorized access can’t be solely premised on violation of a contractual obligation or agreement • This proposal would narrow the CFAAwww.brittontuma.com 62
  63. 63.  Why? Remember what Jobs said  CFAA is very broad and covers all kinds of computer misuse (sometimes)  CFAA is complex with lots of pitfalls  Proposed Amendments to broaden and tighten the CFAA  Courts’ interpretation of the CFAA is changing all the time – you must stay updated!www.brittontuma.com 63
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