The Volokh Conspiracy

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Supreme Court Agrees to Decide, What is Hacking?

A cert grant in Van Buren.


I blogged last week about the Supreme Court's pending cert petition in Van Buren v. United States, on the meaning of unauthorized access to a computer, and why I expected the Supreme Court to take the case.  I'm pleased to that that the Supreme Court has agreed to hear the case.

The fundamental question in the case is what Congress did when it criminalized unauthorized access to a computer.  In particular, what makes an access to a computer unauthorized?   Do the terms of service control?   Does there need to be some sort of technical restriction on access that is breached?

To put the question in colloquial terms, the question is, what is the crime of hacking?**

Given the Supreme Court's recent trend toward favoring the narrow interpretation of vague criminal statutes, I would guess that the Court likely will rule in the defendant's favor.  But every case is different, so we'll have to wait and see.  As always, stay tuned.


** I realize that there are many in the technical community who insist that the correct word for unlawful unauthorized access to a computer is "cracking," not "hacking," and that most people use the term "hacking" incorrectly.  But most people follow colloquial usage, pretty much by definition, so I think it's fair to put the question that way.