Computer Fraud and Abuse Act (CFAA)

The Computer Fraud and Abuse Act of 1986 (CFAA) is a United States cybersecurity bill enacted in 1986.

The Computer Fraud and Abuse Act of 1986 (CFAA) is a United States cybersecurity bill enacted in 1986 to amend existing computer fraud law (18 U.S.C. § 1030), which had been included in the Comprehensive Crime Control Act of 1984. The law prohibits accessing a computer without authorization or above authorization. Before computer-specific criminal laws, computer crimes were prosecuted as mail and wire fraud, but the applicable law was often insufficient.

The original 1984 bill was enacted in response to the concern that computer-related crimes might go unpunished. The House Committee Report to the original computer crime bill characterized the 1983 techno-thriller film WarGames—in which a young teenager (played by Matthew Broderick) from Seattle breaks into a U.S. military supercomputer programmed to predict possible outcomes of nuclear war and unwittingly almost starts World War III—as “a realistic representation of the automatic dialing and access capabilities of the personal computer.”

The CFAA was written to extend existing tort law to intangible property While, in theory, limiting federal jurisdiction to cases “with a compelling federal interest—i.e., where computers of the federal government or certain financial institutions are involved or where the crime itself is interstate in nature.”, but its broad definitions have spilled over into contract law. (see “Protected Computer” below). In addition to amending a number of the provisions in the original section 1030, the CFAA also criminalized other computer-related acts. Provisions addressed the distribution of malicious code and denial-of-service attacks. Congress also included in the CFAA a provision criminalizing trafficking in passwords and similar items.

Since then, the Act has been amended several times—in 1989, 1994, 1996, and 2001 by the USA PATRIOT Act, 2002, and 2008 by the Identity Theft Enforcement and Restitution Act. With each law amendment, the types of conduct that fell within its reach were extended.

In January 2015, then-President Barack Obama proposed expanding the CFAA and the RICO Act in his Modernizing Law Enforcement Authorities to Combat Cyber Crime proposal. DEF CON organizer and Cloudflare researcher Marc Rogers, Senator Ron Wyden, and Representative Zoe Lofgren have stated opposition to this on the grounds it will make many regular Internet activities illegal and moves further away from what they were trying to accomplish with Aaron’s Law.

Protected computers

The only computers, in theory, covered by the CFAA are defined as “protected computers.” They are defined under section 18 U.S.C. § 1030(e)(2) to mean a computer:

• Exclusively for the use of a financial institution or the United States Government, or any computer, when the conduct constituting the offense affects the computer’s use by or for the financial institution or the government; or
• Which is used in or affecting interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States …

In practice, any ordinary computer has come under the jurisdiction of the law, including cell phones, due to the interstate nature of most Internet communication.

Criminal offenses under the Act

Whoever—

• (1) having knowingly accessed a computer without authorization or exceeding authorized access, and utilizing such conduct having obtained information that has been determined by the United States Government pursuant to an Executive order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations, or any restricted data, as defined in paragraph y. of section 11 of the Atomic Energy Act of 1954, with reason to believe that such information so obtained could be used to the injury of the United States, or the advantage of any foreign nation willfully communicates, delivers, transmits, or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to give it to the officer or employee of the United States entitled to receive it;

• (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—
  • (A) information contained in a financial record of a financial institution or of a card issuer as defined in section 1602 (n) [1] of title 15, or contained in a file of a consumer reporting agency on a consumer, as such terms are defined in the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.);
  • (B) information from any department or agency of the United States; or
  • (C) information from any protected computer;

• (3) intentionally, without authorization to access any nonpublic computer of a department or agency of the United States, access such a computer of that department or agency that is exclusively for the use of the Government of the United States or, in the case of an interface not exclusively for such use, is used by or for the Government of the United States and such conduct affects that use by or for the Government of the United States;

• (4) knowingly and with intent to defraud, accesses a protected computer without authorization or exceeds authorized access, and utilizing such conduct furthers the intended fraud and obtains anything of value unless the object of the fraud and the thing obtained consists only of the use of the computer and the importance of such use is not more than $5,000 in any one year;

• (5)
  • (A) knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer;
  • (B) intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or
  • (C) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss.

• (6) knowingly and with intent to defraud traffics (as defined in section 1029) in any password or similar information through which a computer may be accessed without authorization if—
  • (A) such trafficking affects interstate or foreign commerce; or
  • (B) such computer is used by or for the Government of the United States;

• (7) with intent to extort from any person any money or other thing of value transmitted in interstate or foreign commerce any communication containing any—
  • (A) threat to cause damage to a protected computer;
  • (B) threat to obtain information from a protected computer without authorization or in excess of authorization or to impair the confidentiality of information obtained from a protected computer without authorization or by exceeding authorized access; or
  • (C) demand or request for money or another perceived value concerning damage to a protected computer, where such damage was caused to facilitate the extortion.

Specific sections

• 18 U.S.C. § 1030(a)(1): Computer espionage. This section takes much of its language from the Espionage Act of 1917. The notable addition is that it covers information related to “Foreign Relations”, not simply “National Defense,” like the Espionage Act.
• 18 U.S.C. § 1030(a)(2): Computer trespassing and taking government, financial, or commerce info
• 18 U.S.C. § 1030(a)(3): Computer trespassing in a government computer
• 18 U.S.C. § 1030(a)(4): Committing fraud with computer
• 18 U.S.C. § 1030(a)(5): Damaging a protected computer (including viruses, worms)
• 18 U.S.C. § 1030(a)(6): Trafficking in passwords of a government or commerce computer
• 18 U.S.C. § 1030(a)(7): Threatening to damage a protected computer
• 18 U.S.C. § 1030(b): Conspiracy to violate
• 18 U.S.C. § 1030(c): Penalties

Criticism

There have been criminal convictions for CFAA violations in the context of civil law, for breach of contract or terms of service violations. Many ordinary and insignificant online acts, such as password-sharing and copyright infringement, can transform a CFAA misdemeanor into a felony. The punishments are severe, similar to sentences for selling or importing drugs, and may be disproportionate. Prosecutors have used the CFAA to protect private business interests and to intimidate free-culture activists, deterring undesirable, yet legal, conduct.

One such example regarding the harshness of the law was shown in United States vs. Tyler King, where King refused initial offers by the government for involvement in a conspiracy to “gain unauthorized access” to a computer system for a small company that an ex-girlfriend of King worked for. Even while not directly involved, his role resulted in 6.5 years of imprisonment. No financial motivation was established. A non-profit started advocating against further harshness against others targeted under the general law.

Tim Wu called the CFAA “the worst law in technology.”

Professor of Law Ric Simmons notes that many provisions of the CFAA merely combine identical language to pre-existing federal laws with “the element of “access[ing] a protected computer without authorization, or [by] exceed[ing] authorized access,” meaning that “the CFAA merely provides an additional charge for prosecutors to bring if the defendant used a computer while committing the crime.” Professor Joseph Olivenbaum has similarly criticized the CFAA’s “computer-specific approach,” noting both the risk of redundancy and resultant definitional problems.

The CFAA increasingly presents substantial obstacles to journalists reporting stories important to the public’s interest. As data journalism increasingly becomes “a good way of getting to the truth of things . . . in this post-truth era,” as one data journalist told Google, the need for further clarity around the CFAA increases.

Aaron Swartz

The government was able to bring such disproportionate charges against Aaron because of the broad scope of the Computer Fraud and Abuse Act (CFAA) and the wire fraud statute. It looks like the government used the vague wording of those laws to claim that violating an online service’s user agreement or terms of service is a violation of the CFAA and the wire fraud statute.

Using the law in this way could criminalize many everyday activities and allow for outlandishly severe penalties.

When our laws need to be modified, Congress has a responsibility to act. A simple way to correct this dangerous legal interpretation is to change the CFAA and the wire fraud statutes to exclude terms of service violations. I will introduce a bill that does exactly that.

—Rep. Zoe Lofgren, Jan 15, 2013

Rep Zoe Lofgren Introduces Bipartisan Aaron’s Law

In the wake of the prosecution and subsequent suicide of Aaron Swartz (who used a script to download scholarly research articles exceeding what JSTOR terms of service allowed), lawmakers proposed amending the Computer Fraud and Abuse Act. Representative Zoe Lofgren drafted a bill to help “prevent what happened to Aaron from happening to other Internet users.” Aaron’s Law (H.R. 2454, S. 1196) would exclude terms of service violations from the 1984 Computer Fraud and Abuse Act and the wire fraud statute.

In addition to Lofgren’s efforts, Representatives Darrell Issa and Jared Polis (also on the House Judiciary Committee) raised questions in the immediate aftermath of Swartz’s death regarding the government’s handling of the case. Polis called the charges “ridiculous and trumped up,” referring to Swartz as a “martyr.” Issa, chair of the House Oversight Committee, announced an investigation of the Justice Department’s prosecution.

By May 2014, Aaron’s Law had stalled in committee. Filmmaker Brian Knappenberger alleges this occurred due to Oracle Corporation‘s financial interest in maintaining the status quo.

Aaron’s Law was reintroduced in May 2015 (H.R. 2454, S. 1030) and again stalled. There has been no further introduction of related bills at this time.