Computer Fraud And Abuse Act Reform
eff.orgMay 14th 2013
After the tragic death of programmer and Internet activist Aaron Swartz, EFF calls to reform the infamously problematic Computer Fraud and Abuse Act (CFAA). You can help right now by emailing your Senator and Representative.
The CFAA is the federal anti-hacking law. Among other things, this law makes it illegal to intentionally access a computer without authorization or in excess of authorization; however, the law does not explain what “without authorization” actually means. The statute does attempt to define “exceeds authorized access,” but the meaning of that phrase has been subject to considerable dispute. While the CFAA is primarily a criminal law intended to reduce the instances of malicious hacking, a 1994 amendment to the bill allows for civil actions to be brought under the staute.
Creative prosecutors have taken advantage of this confusion to bring criminal charges that aren’t really about hacking a computer, but instead target other behavior prosecutors dislike. For example, in cases like United States v. Drew and United States v. Nosal the government claimed that violating a private agreement or corporate policy amounts to a CFAA violation. This shouldn’t be the case. Compounding this problem is the CFAA’s disproportionately harsh penalty scheme. Even first-time offenses for accessing a protected computer without sufficient “authorization” can be punishable by up to five years in prison each (ten years for repeat offenses), plus fines. Violations of other parts of the CFAA are punishable by up to ten years, 20 years, and even life in prison. The excessive penalties were a key factor in the government’s case against Aaron Swartz, where eleven out of thirteen alleged crimes were CFAA offenses, some of which were “unauthorized” access claims.
EFF is championing reforms to the CFAA. These suggestions expand on Zoe Lofgren’s terrific draft bill known as Aaron’s Law. We will expand on this and address other flaws of the CFAA, as well.
Specific Reasons to Improve the CFAA
Initial Suggestions for improving Aaron’s Law
Additional Suggestions for improving the Penalty Scheme