Computer Fraud and Abuse Act


Cyber Crimes

The federal crime defined under title 18 of the United States code at section 1030 is called the Computer Fraud Abuse Act. Even though it calls itself an act it’s one statue and it has both criminal and civil remedies in it and im going to address myself to the criminal penalties that are involved, but first I want to talk a little about this law. I refer to this law as a horse and buggy law in a jet plane society and its because it went into effect in 1986 which was 5 years before HTTP protocol. What is HTTP protocol? That’s the browser you use today. When you fire up your browser and type in what it is you want. What it is you need to see? It takes you there. Back in 1986 that didn’t happen. Some people may remember the movie War Games and it was this hacker kid and he had the old school modem where he took the hook of the phone and put it down and it made very loud beeping sounds and connected with specific computers and he connected with a computer that had geothermal thermal nuclear war or something like that and it ended up taking over our nuclear weapons and just before there was global detonation they were able to save the world. In 1984 this was a very big movie and someone took it to Camp David and screened it for Ronald Reagan who it terrified and the next week he had a meeting with his secretary defense or national security advisor and ask “ Can this happen?” and they said “Yes” and from that piece of fiction we have the same law today in 2019 that came out of 1984 movie. It sounds like something completely Kafkaesque but it isn’t. This is our reality. We’re using a law that is 33 years out of date. It was out of date when it was made. It isn’t tailored or focused to any particular activity that is precise and it allows for so many actions to be criminalized as to make the law almost meaningless.

The department of justice circulated a memo a couple of years back that said they wouldn’t prosecute someone for a simple terms of service violation. There’s nothing that prevents them from doing so. Now, what is a terms of service violation? If you share your Netflix password with someone. You’re not supposed to do that. That’s a terms of service violation. Could get you 5 years, 10 years depending upon what section they want to go over or go under or whether they want to use conspiracy or not. If you use your work computer unauthorized for your march madness pool, that’s going to a violation of the terms of service of your business for whom you work. Think about checking basketball scores, college basketball scores being a federal crime for which you can get 10 years in prison. That’s how scary the computer fraud and abuse act is. I’ve had the privilege of working on a number of these cases. There are not that many that are brought throughout the country each year and I’ve gotten to work on a lot of these and I’ve developed an expertise in this such that I was called the “Activist Advocate” by the Atlantic Magazine and the “Last line of defense between hackers in prison” by Buzzfeed. I like this crime as a defense attorney because we can win. We can work with it. We can knock it down. We can change the law and we can litigate policy and that’s what I really like about this is that through people’s cases we can change how these cases are handled and ultimately congress is going to have to act on changing this really old, really bad law. It’s been called the worst law in technology.

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