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Today’s Award for the Silliest Theory of the Computer Fraud and Abuse Act

Posted on January 14, 2011 by Dissent

Orin Kerr, a law professor and former attorney in the DOJ who worked in the computer crimes division, has a commentary on a lawsuit involving CFAA claims that’s interesting in terms of defining the scope of what the Computer Fraud and Abuse covers – and shouldn’t cover:

Today’s Award for the Silliest Theory of the Computer Fraud and Abuse Act

…goes to the arguments made by Sony’s lawyers in a complaint and motion for a TRO in a recently-filed civil case: Sony Sues PS3 Hackers. The argument: You’re guilty of felony computer hacking crimes if you access your own computer in a way that violates a contractual restriction found in the fine print of the licensing restriction of the product imposed by the manufacturer.

I realize the complaint characterizes the defendants as hackers, and the CFAA is supposed to be about hacking. But think for a moment about the nature of this claim. You bought the computer. You own it. You can sell it. You can light it on fire. You can bring it to the ocean, put it on a life raft, and push it out to sea. But if you dare do anything that violates the fine print of the license that the manufacturer is trying to impose, then you’re guilty of trespassing onto your own property. And it’s not just a civil wrong, it’s a crime.

Read more on The Volokh Conspiracy.

Category: Commentaries and AnalysesFederalLegislation

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