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Tue Feb 5, 2013, 09:28 AM

Rebooting Computer Crime Law Part 1: No Prison Time For Violating Terms of Service

Rebooting Computer Crime Law Part 1: No Prison Time For Violating Terms of Service

In the wake of social justice activist Aaron Swartz’s tragic death, Internet users around the country are taking a hard look at the Computer Fraud and Abuse Act (CFAA), the federal anti-hacking law. As we’ve noted, the CFAA has lots of problems. In this three-part series, we'll explain these problems in detail and why they need to be fixed.

Here is the CFAA's greatest flaw: the law makes it illegal to access a computer without authorization or in a way that exceeds authorization, but doesn’t clearly explain what that means. This murkiness gives the government tons of leeway to be creative in bringing charges.

For example, overzealous prosecutors have gone so far as to argue that the CFAA criminalizes violations of private agreements like an employer’s computer use policy or a web site’s terms of service. Thankfully, some federal courts have recognized the absurdity of this argument, but Congress needs to fix the law to make it crystal clear. Vague laws are dangerous precisely because they give prosecutors and courts too much discretion to arbitrarily penalize normal, everyday behavior.

So, under the government’s theory, what innocuous activities could the CFAA criminalize? Here are a few things that could violate the CFAA under the government’s misguided interpretation of the law:

Lying about your age on Facebook. Facebook’s Rights and Responsibilities make users promise not to “provide any false personal information on Facebook.” So don’t even think about RSVP’ing to an event you can’t attend, or posting a misleading status update, or telling people you’re married when you’re not. These are all activities that could violate Facebook’s terms, and have you facing a years-long prosecution if the government decides to make an example of you.


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