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Computer crime: Congress considers changes to CFAA

In New Jersey and across the country, there are many concerns about particular provisions of CFAA. One of the biggest issues is how to define the crime of computer hacking properly.

There are strong, competing considerations, however, regarding how to do this. The law on computer crime must not be stretched too far to penalize essentially innocent conduct, such as violation of a terms-of-service agreement by advocates for open-source Internet usage. But no one would deny that concerted computer hacking, often from abroad, is a serious threat

Accordingly, there are several bills kicking around in Congress to amend CFAA. This is a time for Congress to seriously consider how to modernize the law. And to revisit the question of whether it really makes sense to impose felony charges for such actions as violating a term of service (TOS) agreement with an Internet provider.

After all, it is unlikely that most people know that such offenses are even on the books. And yet the U.S. Justice Department has consistently taken the position that violating a TOS agreement is a federal crime.

A federal appeals court judge, Alexander Kosinski, has questioned the logic of such broad interpretations of the CFAA. The judge points out that most work computers are typically covered by terms of use.

Employees arguably violate those terms when using these computers for personal e-mails, browsing the Internet or online shopping. But that doesn’t mean a federal crime was committed, and CFAA could be amended to clarify that.

In other words, a good place to start in considering changes to CFAA would be common sense.

Source: “Should Lying About Your Age Be a Federal Crime?” Corporate Counsel, Peter J. Toren, 5-2-13

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