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Obama’s proposed changes to the computer hacking statute: A deep dive

Posted on January 14, 2015 by Dissent

Orin Kerr writes:

As part of the State of the Union rollout, President Obama has announced several new legislative proposals involving cybersecurity. One of the proposals is a set of amendments to the controversial Computer Fraud and Abuse Act (“CFAA”), the federal computer hacking statute. This post takes a close look at the main CFAA proposal. It starts with a summary of existing law; it then considers how the Administration’s proposal would change the law; and it concludes with my views on whether Congress should enact the changes.

My bottom line: My views are somewhat mixed, but on the whole I’m skeptical of the Administration’s proposal.

Read his analysis and comments on WaPo The Volokh Conspiracy. Not surprisingly, Orin refers to Weev’s case and uses that to illustrate some of the potential problems with the language in the proposed amendments. There is no mention of Aaron Swartz’s case, although Orin does raise concerns about crimes “in furtherance of” language.

I’d like to see even more discussion of the application of the proposed amendments to those who are security researchers and/or journalists. If we access a database to verify a breach or vulnerability or if we download data to prove a problem, are we committing a felony under the proposed language? If so, does there need to be more exemptions in the proposed language?  And what about whistleblower protections under the proposal?

And what I don’t see (so far, at least, but more coffee may help) is sufficient clarification of what happens when there is supposed to be a code-based barrier but isn’t one. If Company A meant to protect a database from public access but erred and the database is available on the Internet without having to “hack” or acquire login credentials, is there then no crime under CFAA? If so, that might be a good incentive for companies to check their security if they know they’ll have no recourse if they failed to adequately secure their assets, but I’m not sure that this is what Congress would want to happen, and this situation might be covered under “norms-based liability.”  As Orin notes:

More broadly, the expansion of “exceeding authorized access” would seem to allow lots of prosecutions under a “you knew the computer owner wouldn’t like that” theory. And that strikes me as a dangerous idea, as it focuses on the subjective wishes of the computer owner instead of the individual’s actual conduct. Granted, it would still be limited by the three conditions imposed on liability for breaching a written restriction. So it would need to be a government computer, or an effort to gather information worth more than $5,000, or an act in furtherance of another crime (with the double-counting problem or not). Still, it strikes me as troublesome.

It strikes this blogger as problematic, too.

We all need to read the proposed language carefully and then review Orin’s comments. I expect EFF, CDT, and other organizations will also offer their own comments on the proposal, and I will add links to this post as updates.

Category: Commentaries and AnalysesFederalHackInsiderOf Note

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