From Hackers to Slackers

How a federal law can be used to prosecute almost anyone who uses a computer

If you are reading this column online at work, you may be committing a federal crime. Or so says the Justice Department, which reads the Computer Fraud and Abuse Act (CFAA) broadly enough to encompass personal use of company computers as well as violations of fine-print website rules that people routinely ignore.

Last week the U.S. Court of Appeals for the 9th Circuit rightly rejected this view of the CFAA, which Chief Judge Alex Kozinski noted could make a criminal out of "everyone who uses a computer in violation of computer use restrictions—which may well include everyone who uses a computer." Unfortunately, other appeals courts have been more receptive to the Justice Department's interpretation, which gives U.S. attorneys the power to prosecute just about anyone who offends or annoys them.

Congress passed the original version of the CFAA in 1984, when the Internet was in its infancy and the World Wide Web did not exist, to protect government computer systems and financial databases from hackers. As a result of amendments and technological developments, George Washington University law professor Orin Kerr explains in a 2010 Minnesota Law Review article, "the law that began as narrow and specific has become breathtakingly broad," potentially regulating "every use of every computer in the United States."

The 9th Circuit case involved David Nosal, who left the executive search firm Korn/Ferry International in 2004 and allegedly enlisted two former colleagues to feed him proprietary client information with an eye toward starting a competing business. In addition to conspiracy, mail fraud, and trade secret theft, Nosal was charged with violating the CFAA, which criminalizes unauthorized computer access in various circumstances.

Although Nosal's confederates were authorized to use Korn/Ferry's database, federal prosecutors argued that improperly sharing information with him retroactively rendered their access unauthorized. As Judge Kozinski noted, "the government’s construction of the statute would expand its scope far beyond computer hacking to criminalize any unauthorized use of information obtained from a computer."

The felony Nosal was accused of committing involves unauthorized access "with intent to defraud." But the CFAA also makes someone guilty of a misdemeanor, punishable by up to a year in jail, if he "intentionally accesses a computer without authorization or exceeds authorized access" and "thereby obtains…information."

Based on the government's definition of unauthorized access, Kozinski observed, that provision would apply to "large groups of people who would have little reason to suspect they are committing a federal crime," such as employees who violate company policy by using workplace computers to play games, answer personal email, read blogs, watch YouTube videos, or check sports scores. Even people using their own computers on their own time could be prosecuted for violating "terms of service" they have never read by fibbing about their age or weight on dating sites, posting photos of other people without their permission, or sharing content that Facebook deems offensive.

Kerr notes that terms of service "are written extremely broadly to give providers a right to cancel accounts and not face any liability." Hence "violating the TOS is the norm," and criminalizing such violations "would give the government the ability to arrest anyone who regularly uses the Internet." 

That danger is not merely theoretical. Remember Lori Drew, the Missouri woman who was widely vilified in 2007 after she played a MySpace prank on a 13-year-old girl who later committed suicide? Although Missouri prosecutors concluded that Drew had broken no laws, Thomas O'Brien, then the U.S. attorney in Los Angeles, took it upon himself to prosecute her for violating the CFAA by disregarding MySpace's terms of service. 

In 2009 U.S. District Judge George Wu threw out Drew's conviction, ruling that O'Brien's reading of the CFAA would make the law unconstitutionally vague, giving grandstanding prosecutors like him unbridled discretion while leaving their potential targets—pretty much everyone—uncertain about how to comply with the law. As Kozinski put it, "we shouldn't have to live at the mercy of our local prosecutor." 

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist. Follow him on Twitter.

© Copyright 2012 by Creators Syndicate Inc.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Pound. Head. On. Desk.||

    which gives U.S. attorneys the power to prosecute just about anyone who offends or annoys them.

    From what I've seen they can do this anyway.

  • ||

    "we shouldn't have to live at the mercy of our local prosecutor."

    And yet, we do.

  • VG Zaytsev||

    "we shouldn't have to live at the mercy of our local prosecutor."

    Only a terrorist loving t-bagger would make such an outrageous statement.

  • NotSure||

    Utterly ridiculous, you can probably count the number of people who never use the computer for personal use on one hand. This practically makes everyone a criminal.

  • Fist of Etiquette||

    Sunset provisions for all laws involving evolving technologies.

  • robc||

    Sunset provisions for all laws involving evolving technologies.

    FTFY

  • Suki||

    All technology evolves. Iron clad, never sunsetting restrictions on government are what the world needs now.

  • sticks||

    Any decent tech will out evolve lame laws.

  • Suki||

    Really awesome tech can be confused with magic, leading to this.

  • ||

    By making violations of TOS a federal crime, they are empowering unelected, unaccountable private companies to write federal laws.

    Do I have that right?

  • NotSure||

    Instead of just firing your lazy workers, you can now throw them into jail as well !

  • Suki||

    And contract the same prisoners for call center duty.

  • ||

    At a fraction of the price. This is like when Merv Griffin was getting Goodwill to do his dry cleaning. He'd have his stuff donated and then buy it back.

    Except that wasn't a crime.

  • Heroic Mulatto||

    Why not? They've empowered unelected, unaccountable private banks to formulate federal monetary policy.

  • Formerly Almanian||

    That's different!

    /The Bernank

  • ||

    Yeah! What he said!

    /Timmeh!

  • Jake W||

    Quite necessary and acceptable!

    /Rockefeller Dynasty

  • Bee Tagger||

    they are empowering unelected, unaccountable private companies to write federal laws

    Hold your horses, there'll be an Obamacare thread soon enough.

  • Formerly Almanian||

    This.

    SLD's apply, but I could at least see the logic of pursuing these TOS "criminals" (i.e. "everyone") if the service PROVIDER complained about the violation. "Mr/Ms Prosecutor Asshole - please prosecute Almanian cause he's violating TOS."

    But absent that - can I get a prosecutor to enforce my Union contracts for me? Cause these assholes would be in jail tomorrow and then I wouldn't have to deal with them.

    Cool!

  • ||

    It also occurs to me that I could build my own website by my lonesome, create any TOS I want and they technically have the force of law. Wow, so anyone can write federal laws any way they want at will. All you have to do is have a website.

    This could be a real moneymaker. I propose we build a website selling widgets and make one of the TOS that by going to the website you will buy X number of widgets. Why not?

  • VG Zaytsev||

    Could we use this to prosecute the prosecutors?

  • R C Dean||

    Judging by the porn traffic on the SEC's computers, we could close down whole agencies.

  • Suki||

    The Ninth Circus gets one right by accident.

  • Ex Nihilo||

    Should make performance reviews fun.

    Boss - Let's see, not only did you violate company policy by checking home emails from a company computer; that's also a federal crime. Are you sure you still want a raise?

    You - No thanks, we're good.

  • Bee Tagger||

    Being a network admin or friends with a network admin will really start to pay off when you can blackmail your boss into that raise with logs of his internet activity.

  • Formerly Almanian||

    "So, I didn't know victoriassecret.com needed industrial materials. You must be Sales Manager of the year, boss...."

  • Ex Nihilo||

    So this law is empowering to the workers as well as prosecutors. Good times.

  • ||

    Annnnnd, a timely inclusion of Ye Olde Iron Law:

    Me Today. You Tomorrow.

  • Soc Indv Sparky||

    giving grandstanding prosecutors like him unbridled discretion while leaving potential targets-pretty much everyone-uncertain about how to comply with the law.

    A feature, not a bug.

  • Soc Indv Sparky||

    You know reason folks, this really is a load of bullshit if I can't copy and paste a line from the article into my comment. I had to type that whole goddamn thing in myself because it kept getting marked as invalid. Don't you think this lockdown is just a little bit much?

  • Ex Nihilo||

    Soc Indv Sparky

    blockquote seems to work for copy/pasta

  • Soc Indv Sparky||

    By the way, this is just the kind of soft oppression that I would expect from a so-called Libertarian website.

  • ||

    I have yet to have that problem. Maybe Reason just hates you, Sparky. :-)

  • Soc Indv Sparky||

    Maybe this is just how they treat dirty criminals that are using work equipment to visit their site. At least I'm pretty sure I can count on them to not call the police on me...I hope.

  • ||

    Well, even more incentive to not gambol and, as Sevo would say, "Extoll the virtue of eating lichen."

    I'm typing from my office now. Have also posted via smertphune and lappy.

    I guess Reason thinks I'm the bees knees. Or something.

    Maybe this is just how they treat dirty criminals that are using work equipment to visit their site.

    I see you are naive to the Whore Pens...no lube.

  • robc||

    copy pasta test:

    blockquote seems to work for copy/pasta

  • robc||

    Works for me.

    I didnt use blockquote either.

    Just "highlight/middle button click" (the linux equivalent of Ctrl-v, Ctrl-c, only way fucking easier).

  • robc||

    Or, you know, Ctrl-C, Ctrl-V. I dont use windows so I cant always remember that shit.

  • Suki||

    You know reason folks, this really is a load of bullshit if I can't copy and paste a line from the article into my comment. I had to type that whole goddamn thing in myself because it kept getting marked as invalid. Don't you think this lockdown is just a little bit much?

    (copied and pasted)
    Needs more gambol.

  • Soc Indv Sparky||

    Thanks, I'll give that a try. I tried copying the text and just putting it in quote with no tags and it wouldn't let me do that either. Maybe reason has an issue with Firefox, or maybe NoScript.

  • robc||

    "putting it in quote with no tags"

    test #2.

  • robc||

    Dont know your problem.

  • Soc Indv Sparky||

    Needs more gambol.

    Well this seems to work.

  • Suki||

    Finally, a practical use for the gambol. It is like discovering petrol.

  • Suki||

    It is like discovering a use for petrol.

  • Tim||

    I TAKE THE FIFTH!

  • Ex Nihilo||

    Although Missouri prosecutors concluded that Drew had broken no laws, Thomas O'Brien, then the U.S. attorney in Los Angeles

    Nice to see that feds in CA are looking out for people in MO. Must not be enough crime in CA to keep hime busy.

  • Ex Nihilo||

    *hime = him*

  • Rich||

    he person who bought a Mega Millions lottery ticket now worth $218 million in Red Bud, Illinois, will be revealed W

    Testing for invalidity.

  • Ice Nine||

    Last week the U.S. Court of Appeals for the 9th Circuit rightly rejected this view of the CFAA, which Chief Judge Alex Kozinski noted could make a criminal out of "everyone who uses a computer in violation of computer use restrictions

    I can just hear Rather's huge sigh of relief over the multiple life sentences she just ducked.

  • ||

    Surely she didn't hold down a job

  • ||

    Griefing and gamboling is apparently some sort of vocation.

  • Rich||

    This "Your comment is invalid" bullshit is bullshit.

    Reason staff: Kindly disable the algorithm.

  • Soc Indv Sparky||

    Rich, what browser are you using? It looks like some people aren't having any problems but I'm having the same trouble that you are.

  • Rich||

    It's a problem with Firefox & IE. The blockquote trick doesn't work in either.

  • ||

    There's something funny happening in Chrome too. Various comments on this thread are blank eg the one after my comment above appears as line - black - line

  • Soc Indv Sparky||

    If you are reading this column online at work, you may be committing a federal crime.

    QFT

  • Rich||

    Moreover, that information you used without authorization *could have been* obtained from a computer.

  • Soc Indv Sparky||

    AH HA! I got you now you little bitch. IMPORTANT NOTE FOR NOSCRIPT USERS: If you allow Googletagservices.com it should clear up the problem with copy/pasta and using tags.

  • Soc Indv Sparky||

    The felony Nosal was accused of committing involves unauthorized access "with intent to defraud." But the CFAA also makes someone guilty of a misdemeanor, punishable by up to a year in jail, if he "intentionally accesses a computer without authorization or exceeds authorized access" and "thereby obtains…information."

    This is a test.

  • ||

    Editor's Note: We invite comments and request that they be civil and on-topic.

    Would this not be a TOS disclaimer?

    So, which one of us is going to jail first? How merciful is The Jacket and Welch feeling? Is this what happened to all our beloved anon-bots?

  • Ex Nihilo||

    So, which one of us is going to jail first? All of us.

    You should hear a knock any minute from reason TOS SWAT team.

  • anon||

    Should I get a dog so they shoot it instead of me?

  • Dan||

    That law doesn't grant broad powers to prosecute anyone for anything having to do with a computer.

    It's corrupt prosecutors trying to score points by going after popular targets. Since there often wasn't an actual crime committed, they often have to pretend to interpret whatever laws they can find in very creative ways in order to create the illusion that something criminal actually happened.

    Sure the law is probably too vague. And preventing the abusive perversion of laws by overzealous prosecutors is the very reason our legal system requires that laws NOT be vague. But it's not the laws in most cases, it's the people that decide they have a criminal on their hands and then proceed to comb through every law on the books searching for some vague law that can be creatively interpreted to fool stupid people into convicting someone of a crime that doesn't exist.

  • Matrix||

    The problem is that people waste a lot of precious time and money defending themselves against prosecutors who use this type of BS interpretations of laws that are too broad and vague.

    If the criminal justice system started paying the legal fees and wages lost during criminal trials, it would make these jerks put more effort into actually getting facts.

    But who cares if he wastes tax payer money? A prosecutor can do whatever he wants, and idiot voters keep putting them in power.

  • anon||

    Wait, a law passed by congress gains broad power that was never intended for it?

    That's never happened before, ever. /sic

  • fresno dan||

    "If you are reading this column online at work, you may be committing a federal crime"
    HEY, I was NOT this article. I was gazing at it. Reading it implies some level of comprehension...and I was intending to go to a porn site....uh, called....er, uh....Reasontits. Uh, its german or something....

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