Two academics wished to test whether employment websites discriminate based on race or gender. They intended to submit false information (e.g., fictitious profiles) to these websites, but worried that these submissions violated the sites’ terms-of-services and could subject them to prosecution under the federal Computer Fraud and Abuse Act. So they sued for clarity.
The District Court ruled that:
a user should be deemed to have “accesse[d] a computer without authorization,” 18 U.S.C. § 1030(a)(2), only when the user bypasses an authenticating permission requirement, or an “authentication gate,” such as a password restriction that requires a user to demonstrate “that the user is the person who has access rights to the information accessed,” . . . .Sandvig v. Barr (Civil Action No. 16-1386, March 27, 2020) at 22.
In other words, terms-of-service violations are not violations of the Computer Fraud and Abuse Act, and cannot be criminalized by virtue of that act.
Three main points appeared to guide the Court’s reasoning:
- The statutory text and legislative history contemplate a “two-realm internet” of public and private machines. Private machines require authorization, but public machines (e.g., websites) do not.
- Website terms-of-service contracts provide inadequate notice for criminal violations. No one reads them! It would be crazy to criminalize ToS non-adherence.
- Enabling private website owners to define the scope of criminal liability under the CFAA simply by editing their terms-of-service contract also seems crazy!
It’s worth noting that the government here argued that the researchers did not have standing to bring this suit and cited a lack of “credible threat of prosecution” because Attorney General guidance “expressly cautions against prosecutions based on [terms-of-service] violations.”
But the absence of a specific disavowal of prosecution by the Department undermines much of the government’s argument. . . . Furthermore, as noted above the government has brought similar Access Provision prosecutions in the past and thus created a credible threat of prosecution.Sandvig v. Barr at 10.
Discovery has not helped the government’s position. John T. Lynch, Jr., the Chief of the Computer Crime and Intellectual Property Section of the Criminal Division of the Department of Justice, testified at his deposition that it was not “impossible for the Department to bring a CFAA prosecution based on [similar] facts and de minimis harm.” Dep. of John T. Lynch, Jr. [ECF No. 48-4] at 154:3–7. Although Lynch has also stated that he does not “expect” the Department to do so, Aff. of John T. Lynch, Jr. [ECF No. 21-1] ¶ 9, “[t]he Constitution ‘does not leave us at the mercy of noblesse oblige[.]”
Meanwhile, the US Supreme Court today agreed to decided whether abusing authorized access to a computer is a federal crime. In Van Buren v. United States:
a former Georgia police officer was convicted of breaching the CFAA by looking up what he thought was an exotic dancer’s license plate number in the state’s database in exchange for $6,000. The ex-officer, Nathan Van Buren, was the target of an FBI sting operation at the time.
. . . .
Van Buren’s attorneys argued that the Eleventh Circuit’s October 2019 decision to uphold the CFAA conviction defined the law in overly broad terms that could criminalize seemingly innocuous behavior, like an employee violating company policy by using work computers to set up an NCAA basketball “March Madness” bracket or a law student using a legal database meant for “educational use” to access local housing laws in a dispute with their landlord.
. . . .
The First, Fifth and Seventh Circuits have all agreed with the Eleventh Circuit’s expansive view of the CFAA, while the Second, Fourth and Ninth Circuits have defined accessing a computer “in excess of authorization” more narrowly, the petition says.High Court To Examine Scope Of Federal Anti-Hacking Law