In our last couple posts, we’ve been looking at the Computer Fraud and Abuse Act, particularly its role in the case against former New York police officer Gilberto Valle and the different ways the law has been applied to “outsider” and “insider” defendants. One of the important issues right now with the law is how to apply the sections dealing with exceeding authorized use of a protected computer.
Under the law, exceeding authorized access is defined as “to access a computer with authorization and to use access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” In order to prove that a defendant exceed authorized use, prosecutors must demonstrate the limited nature of the individual’s authority to obtain or alter information on the computer, as well as the specific ways in which the defendant’s actions exceeded that scope of authority.
Prosecutors have an easier time proving these elements when the defendant’s restricted ability to access or alter a computer or network is set forth in writing. Prosecutors can get into trouble, though, in cases where the defendant exceeded authorized access by using a protected computer for an improper purpose. In these cases, the limitation in authorization is either communicated orally or is somehow implied–usually by the fact that the activity in question goes against the authorizing party’s interests.
Such cases, particularly the latter type, are harder for prosecutors to win, particularly when a strong defense case is provided. Some civil cases applying the law have even said that individuals with authorized access to a protected computer cannot exceed their authority to access the computer simply because they are motivated by an improper purpose.
Given the uncertain state of the law’s interpretation on this issue, the DOJ has proposed making changes that would clarify these points and, at the same time, expand the potential application of the law. We’ll look at this issue in our next post.
Wxow.com, “Justice Department looks to sharpen computer crime law,” Eric Tucker, September 2015.
Electronic Frontier Foundation, “United States v. Gilberto Valle, Accessed Sept. 16, 2015.
New York Times, “Gilberto Valle, Ex-New York Police Officer, Talks About His Cannibalism Fantasies in Film,” Benjamin Weiser, April 16, 2015.