Justices Clarify Anti-Hacking Law’s Scope

Justices Clarify Anti-Hacking Law’s Scope

The Court explained that the CFAA is “ill-fitted to remediating ‘misuse’ of sensitive information that employees permissibly access using their computers.” Instead, the CFAA applies when a person commits the “act of entering a part of the system to which a computer user lacks access privileges.” (emphasis added). In endorsing this “gates-up-or-down” approach, the Court made clear that the primary question under CFAA is whether the defendant “can or cannot access a computer system” or “can or cannot access certain areas within the system.” The Court provided an example to illustrate its holding: “if a person has access to information stored in a computer—e.g., in ‘Folder Y,’ from which the person could permissibly pull information—then he does not violate the CFAA by obtaining that information, regardless of whether he pulled the information for a prohibited purpose. But if the information is instead located in prohibited ‘Folder X,’ to which the person lacks access, he violates the CFAA by obtaining that information.”

The CFAA—popularly known as the “anti-hacking” law—makes it a crime for any person to knowingly access a computer without authorization or exceed the person’s authorized access to obtain information from a protected computer. 18 U.S.C. § 1030(a)(2). The key issue in Van Buren was whether using an accessible computer system for an “improper purpose” is within the scope of the CFAA’s ban on exceeding authorized access. In exchange for money, a police officer ran a license-plate search in a law enforcement database to which he had access. The Court recognized that the conduct clearly violated the police department’s policy (which permitted access to the database only for law enforcement purposes), but held that the conduct did not violate the CFAA.

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