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Swartz suicide shines light on federal anti-hacking law

Jaikumar Vijayan | Jan. 16, 2013
The suicide of Internet activist and pioneer Aaron Swartz has focused attention on what some activists say is the overzealous use of the federal Computer Fraud and Abuse Act anti-hacking statute.

"Aaron's tragedy also shines a spotlight on a couple profound flaws of the Computer Fraud and Abuse Act in particular, and gives us an opportunity to think about how to address them," the rights group noted.

Hanni Fakhoury, staff attorney at the EFF said that a big problems with the law is its loose definitions of key terms, including those related to unauthorized access to data. Over the years, creative prosecutors have taken advantage of the law and applied it to situations that it was never meant to tackle, Fakhoury said.

For example, Fakhoury cited the case of Lori Drew, who was indicted on charges related to her creation of a Myspace page using a fake name to tease a teenage girl. The girl later committed suicide.

Federal prosecutors indicted Drew on charges that she accessed Myspace's computers without authorization and that she had exceeded her authorized access to the system when she registered the profile using a fake name.

A federal judge eventually overturned a jury verdict that she violated the CFAA statute.

The case illustrates how the language of the law can be used to criminalize violations of a website's terms of service agreements, Fakhoury said. "Creative and aggressive prosecutors have taken advantage of the ambiguity of some of the terms of the law to cover violations of terms of policy," he said.

In recent years, several employers have turned to the CFAA in data theft cases involving past or current employees. Federal courts have been somewhat split on how to deal with such cases,

In 2012, the U.S. Court of Appeals for the Ninth Circuit held that an employee with valid access to corporate data could not be held liable under CFAA if he or she later misused that access to steal or sabotage the data.

The judges in that case noted that CFAA applied specifically to external hackers and violations of computer access controls.

Last September, the U.S. Court of Appeals for the Fourth Circuit came to the same conclusion in a case involving an individual who used his valid access right to misappropriate data from his employer.

The Fourth Circuit judges characterized CFAA as a statute that could not be used to target individuals who access computers or information in bad faith, or who disregard a use policy.

Other appellate courts, including the Eleventh, Fifth and Seventh Circuit courts however have arrived at the opposite conclusion, ruling that CFAA can be used to prosecute individuals in such cases.

The vastly different interpretations of the statute by various courts shows why CFAA needs to be reviewed, Fakhoury noted.

"What has happened over the years is that the CFAA has been amended and extended by Congress so much it has become a very complicated patchwork of laws that has gone well beyond any of its original [intent]," said Eric Goldman, a professor at the Santa Clara University School of Law in California.


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