US Supreme Court Restricts Scope of Computer Fraud and Abuse Act [pdf]
supremecourt.gov
supremecourt.gov
When I saw it was a 6-3 decision my first instinct was "oh another conservative-liberal divide" but no it isn't. I'm actually surprised to find Thomas dissenting since he's just. a stickler for the literal text.
To me the ruling seems correct: the offender may have exceeded department rules and such access by that measure was "unauthorized" but he was not an unauthorized user to the system.
It's refreshing to see limits to the overreach on what constitutes "hacking". This isn't hacking.
Were this ruling in effect when Aaron Swartz was charged, I very much suspect it would've invalidated the hacking charges under the CFAA (since he used a guest account he had access to).
This is a policy violation, and maybe that should be illegal in some way or have consequences. I'd be ok with that, but it's just not "exceed authorized access". The person in this case was authorized.
The idea that you could be authorized, but suddenly not because of a policy doesn't make sense to me and that's kinda weird because that seems right up Thomas's literal interpretation alley (come on Thomas, use it right for once).
Imagine Comcast changes a policy, and suddenly you're in violation of Computer Fraud and Abuse Act (CFAA).
>The idea that you could be authorized, but suddenly not
They were never authorized to use this system in this way, so there was not a "authorized but then suddenly not". The officer's authorization was static: not authorized.
Authorization is more than just the technical controls in a system, and lack of a technical control to prevent an officer using a system in certain ways does not mean said officer is authorized to use the system in any way they please.
The officer's actions were unauthorized on a system he was provided access to. He didn't gain unauthorized access to a system, he failed to follow the rules on a system he already had access to.
- Logging onto the system: officer has technical access to log on and is authorized to log on, no problem
- Accessing normal data the officer needs for legitimate reason: officer has technical access to this data and is authorized to access it, no problem
- Accessing data for the purpose of a bribe: officer has technical access to this data, but is not authorized to access it, thus they are exceeding their authorized access
Put another way, he didn't work around any computer controls to get at the information.
That's irrelevant. You can do unauthorized things without having to "work around" controls.
>He clearly did not hack into the computer system to get the data, and that's what the CFAA was meant to prosecute.
The CFAA was meant to prevent computer-related crimes including but not limited to unauthorized access, fraud, abuse, etc, which this clearly was.
SCOTUS disagrees with you, and so do I.
> The CFAA was meant to prevent computer-related crimes including but not limited to unauthorized access, fraud, abuse, etc, which this clearly was.
He didn't do any of those with respect to the computer system. He accessed a resource that he had authorization to access as part of his job. He misused it, but didn't break into the system or gain access by fraud. His reasons for accessing the data were wrong, but his access was authorized.
This, by definition, makes his access unauthorized. That's the point. "Authorization" is more than just technical controls. He was not authorized to access the data for this reason.
SCOTUS just literally said the opposite.
You are applying too broad a definition to "authorization." In this context it refers specifically to the configured authorization behavior of the computer system. They gave him the equivalent of a key to a lock implemented in the computer system, and the law is meant to address the equivalent of someone who pick locks, not someone who misuses the access provided by keys they were given.
If the officer was explicitly told 'you can use the computer system, and it can do plate lookups, but you're not allowed to perform plate lookups ever', then he went ahead and made a plate lookup anyway, I'm not entirely clear that the ruling would exclude that from being a CFAA charge, even without there being any password or permission model to lock him out of that functionality. I could be wrong there - there may be other caselaw on that - but I didn't read much in the ruling that suggested they were interested in the extent to which the system technically restricted access to this functionality.
But in this case he had legitimate technical access, he was authorized to use it to look up plate data, and the SCOTUS verdict, sensibly, concludes that using that access for an illegitimate purpose does not merit a CFAA charge.
The term "unauthorized" is overloaded. There is one sense in which he was unauthorized by policy. There is another sense by which he was authorized by technical access. These are separate scenarios and separate violations. It makes no sense for unauthorized-by-policy to be a violation of a computer hacking statute.
At the "seems pretty clearly like unauthorized access" end of the spectrum, we can imagine someone brute-forcing a password to gain access to a system. They're "authorized by technical access" once they have the username/password, but that's surely a focal case of the kind of crime that the statute was intended to address.
Alternatively, say there was a guest account activated with a default password.
Would we argue that someone with no relationship to the owner who discovered the account was active and then used it was "authorized by technical access"?
Presumably the answer is that authorization in that case depends on whether it was the intent to allow strangers to use the system as a guest or whether it was some kind of technical oversight.
What about if you were hired as a data entry operator, but your account was accidentally set up as a superuser? The owner of the system intended to give you one level of access but accidentally gave you another. Are you a hacker if you use the unintended access grant to snoop around? Again, you're "authorized by technical access".
What about if your boss puts his username/password on a post-it note on his monitor and you use his account without his knowledge? What about if you use it with his knowledge and agreement?
> That's irrelevant. You can do unauthorized things without having to "work around" controls.
You are conflating bypassing security measures (which in the digital world would be equivalent of lock picking) and abuse of trust (throwing a party and trashing the home of someone who trusted you with the keys to only feed the cat).
Say I give a neighborhood kid a key to come water my plants while I'm out of town. If they use that key to gain access and throw a party they're trespassing. I don't see why it should be different for a CPU
For purposes of this law, it is. The Government agreed “that Van Buren ‘access[ed] a computer with authorization HK’ when he used his patrol-car computer and valid credentials to log into the law enforcement database” [1].
“The dispute is whether Van Buren was ‘entitled so to obtain’ the record.” The Court found that Van Buren was entitled so to obtain the record, in that entitlement is the operative word. If the file is electronically accessible to the user, they have entitlement to so, *i.e. electronically, obtain it. They aren’t properly authorised or permitted or something else to it. But those weren’t the words used. "Authorized," unadorned, and "entitled so to."
[1] https://www.supreme court.gov/opinions/20pdf/19-783_k53l.pdf
Did he steal your key? Or did you give it to him? If he stole your key, he wasn't entitled to your house. But if you gave him the key, he had entitlement to it.
If this were a friend, not a kid, you might be able to sue her for throwing a party in your house without permission. You would not be able to get her charged with breaking and entering because she overstepped the conditions that came with your key.
Presume they had intent to water and steal at a felony level when they entered.
If they had to break open the door, entering would be burglary.
Using a key they were supposed to have, to enter a building they were supposed to be able to enter? I would say it should be treated like the former case, not the latter case.
US law may not always agree with me, and apparently there are states where shoplifting can count as burglary. But I say stretching the definition that far is ridiculous.
Er, no, that's specifically not the case. The officer's actions on the system in fact were authorized; he was authorized to look up licence plate information. The officer's actions later - specifically sharing private information with a third party - were criminal[0], and would be criminal regardless of whether a computer was even involved.
0: Give or take legislative and judicial corruption a al misrepresenting theft as 'civil forfeiture', but that's not really the point.
I don't think GP is in disagreement with you that it's potentially illegal, just that the CFAA shouldn't apply here.
I am confused about how(/whether?) confused you are about what I said.
> > > The officer's actions were unauthorized on a system he was provided access to.
The CFAA does not apply here, because the officer's actions on the system were authorized. He did not "failed to follow the rules on a system he already had access to", he followed those rules, then separately did something illegal[see previous footnote] with the information he obtained in accordance with those rules.
If his actions (on the system) were unauthorized, that would be a CFAA violation, even he was authorized to access the system in some other way.
Sure, and usually policy violations that matter do involve civil consequences (e.g. litigation to recover damages) but not handing out felonies or putting someone in prison for a decade+.
It's just the law in this case doesn't fit what happened.
In my country any information related to a on-going investigation is automatically classified. Police are not allowed under the law to divulge to the press any such information.
I would imagine information about informants or people with hidden identities would be considered privileged information in whatever state/local law enforcement jurisdiction created it, but penalties for leaking or distributing it would be a local matter, and many localities might not have specific laws on their books to deal with it.
Regarding on-going investigations, police aren't supposed to publicly discuss information about investigations, but they may if they deem that there is a public interest in doing so, or that doing so will help them with their case. I may very well be wrong here, but my gut suggests that in most places in the US there are likely not specific laws against public disclosure of details of ongoing investigations.
That's to say: it'd be up to each state to create its own criminal laws regarding what they consider confidential information (if any) and make sure those laws are constitutional by explicitly writing them into the police officers' contracts. Much of the time, changing internal policy is all that states can realistically do because some federal statute or constitutional clause has supremacy - even something that's normally a fireable offense at a private business might run afoul of constitutional protections when done by a state government or agency.
> In addition, I have been advised that any unauthorized disclosure of classified information by me may constitute a violation, or violations, of United States criminal laws, including the provisions of sections 641, 793, 794, 798, 952 and 1924, title 18, United States Code; the provisions of section 783(b}, title 50, United States Code; and the provisions of the Intelligence Identities Protection Act of 1982. I recognize that nothing in this Agreement constitutes a waiver by the United States of the right to prosecute me for any statutory violation
(again, IANAL and this is definitely not legal advice)
[1] https://www.gsa.gov/cdnstatic/SF312-13.pdf?forceDownload=1
Companies have gotten into trouble for doing research that might be used to build an atomic bomb, even though the research had other applications.
This is fundamentally different than e.g. the British approach, where the official secrets act applies to everyone whether or not they have signed it.
It's also the case that while the doctrine of born secret has not been tested in court, it is generally regarded as unconstitutional and likely to be struck down by the courts of they are given the opportunity.
Most of what I’ve read emphasized how controversial this is. As you said, there are severe first amendment implications.
Yet the law ignores these implications.
It is probably unconstitutional, but the SCOTUS has never ruled on it.
I hate to be the guy saying “cite your sources,” but I have quite a few sources that say “born secret” applies to everyone. Can you show me some evidence it doesn’t?
This source is about a related, but distinct, topic. It contains numerous example of the US government attempting to obligate non-cleared people to keep official secrets:
https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?articl...
This source is a Wikipedia page, but it describes the government attempting to use “born secret” to censor a newspaper:
https://en.m.wikipedia.org/wiki/United_States_v._Progressive....
PS: From the first source:
In 1978, journalist James Bamford sent a Freedom of Information Act (FOIA) request to the Justice Department. He wanted documents related to the Department’s investigation of illegal wiretapping performed by the NSA. Among the surveillance programs the Justice Department investigated was Operation MINARET, which spied on Martin Luther King, Jr., Jane Fonda, and other opponents of the Vietnam War. The chief of the Justice Department’s special litigation unit, the unit that led the investigation into the NSA, took ten months to review the request. In the end, the Justice Department declassified and released 250 pages of documents to Bamford. When the NSA found out about the disclosure, however, it argued that the documents should never have been released and demanded that the Justice Department label them as classified. The Justice Department refused.
Two years later, with a new administration in the White House and new leaders atop the two agencies, the NSA tried again. This time, the Attorney General agreed. Bamford recalled a meeting with NSA and Justice Department officials. “They threatened to use the espionage statute against me,” Bamford recounted, “if I continued to refuse to return the documents.” A letter from the Justice Department soon followed: “You are currently in possession of classified information that requires protection against unauthorized disclosure,” it said, adding that Bamford should be aware of his “continuing obligation not to publish or communicate the information.”Keeping quiet was not enough for the Justice Department, however. “It is . . . your duty and obligation as a United States citizen to return this information to the Department of Justice,” the letter insisted.
Is that surprising? There's no physical law forcing legislators to write Constitutional laws or the executive branch to enforce them. They're just empty words until people actually implement them and then it's up to the Judiciary to review those implementations and resolve the ambiguities and inconsistencies between the laws and the real world. Unfortunately, there's nothing stopping bad laws from destroying lives on their way through courts, which often takes decades.
The Supreme Court hasn't decided the constitutionality of the born secret doctrine because the real world hasn't presented an opportunity. A core constitutional restriction of the courts is that they can't legislate, only rule on the cases that go before them. The doctrine has been abandoned by the government when push came to shove, likely because it knew the doctrine is indefensible before SCOTUS and only useful for the threat of litigation and criminal charges against civilians.
No, you don't. The government can ask you to do a great many things. They can use big, scary words that are designed to coerce you to do it. But that's not the same thing as being legally compelled to do it.
No charges were filed, there was no prosecution, and he's not in jail. Strongly worded letters are worth approximately the paper they're written on.
I wonder if obstruction of justice can impact someone who has not made any agreement beforehand. A random pedestrian who tries to stop the police, in a public space where they otherwise would have a right to be, could still end up in jail if I understand the laws right. If they can do that with their physical body I suspect the same punishment can occur if they do that with their own first amendment voice given special circumstances and results of that speech.
It is however difficult for a random pedestrian to commit obstruction of justice out of accident, but a lot of actions done by a police officer would obstruct justice by the nature of their own work. Similar if a person were employed at a court, if they misbehaved erroneously, I would guess that it would carry a bit more legal risk just given the environment.
Nothing of this has anything to do with internal policy. Obstruction of justice is mostly about the intention and results.
If you have insider information on an ongoing investigation and you tell it to your buddy at the bar who doesn't care one bit about it and immediately forgets, that's not obstruction of justice because the speech itself isn't the criminal act. If you tell that same information to the suspects though, then that's obstruction of justice.
With classified (natsec) information, on the other hand, telling it to anyone who you're not absolutely certain has clearance to see it is a violation and could land you in jail for years if you get a bloodthirsty DA. (again, IANAL)
It is a bit of a special situation since the interfering was over a fake case, through the legal frame work of sting operations has always been a bit grey. It seems to me however that it flights clearly above that of first amendment rights. It seems simply that the prosecutor chose to go after CFAA because the case is about a sting case rather than a real one. Had the police officer interfered in a real case, where a criminal had been given information that obstructed police officers in their job, the case had been about that.
If that is true then the case has very little to do about internal policy decisions, exceeded permissions, unauthorized vs authorized users, employee contracts and so on. It is actually about sting operations and a prosecutor who attempts to bypass that discussion by using a law designed for a different purpose.
It also adds a lot more pressure on the person charged to take a plea deal.
The Opinion says he “was charged with and convicted of honest-services wire fraud,” though that it was vacated in a separate holding [1].
[1] https://www.supremecourt.gov/opinions/20pdf/19-783_k53l.pdf
That is only an argument, not a fact. They would have to persuade a court you are violation of the CFAA. That requires evidence. In almost all the previous cases with similar facts, the plaintiff provided notification and an instruction to cease and desist. Apparently, the plaintiff's lawyers or prosecutors thought they needed that as evidence. If you received such notfication, and you wished to avoid a CFAA claim, then you would follow the instruction and stop doing whatever Comcast is complaining about. And that would be the end of it.
The thing about the Swartz case is that he broke into a network closet and connected his laptop with ethernet cable directly to an MIT computer (networking equipment) in the closet. Even with this latest USSC decision, how could that ever be "authorised [physical] access".
Basically, I would say that unauthorized access should require some material deception to gain access. So if you socially engineer your way in, it's unauthorized--you lied to someone. If you use a computer virus, it's unauthorized--you lied to the computer to get it to execute that code, probably misrepresenting it as some other type of data. If they set the permissions wrong or it's just an AUP thing, it's not unauthorized access. Though, as here, it might be against the law for some other reason (violation of privacy or whatever).
This would avoid catching people out because someone set permissions to give too much access or wrote overbroad AUPs that shouldn't be turned into federal felonies, while providing a nice bright line because you can actually test whether, if not for the deception, they'd have been granted access to the system, especially the computer side of that. So the people who used anonymous FTP with a fake email won't become felons because it's easy to prove the system lets in everyone no matter what their email is set to, whereas the person using someone else's credentials lied to the system about who they are and should get punished, etc.
I think that my test would be consistent with this holding, but remember that this is merely my view of how the law should be. It's not a description of how the law is, it's something I would advocate that I believe provides a reasonable boundary between authorized an unauthorized access that's both clear and testable.
edit: I certainly don't agree that the distinction between access to a file in a file cabinet and a record on a computer should be significant. I think it's a dumb law. But the unauthorized access test is straightforward. If I work at a company that disallows internet browsing other than for work purposes and I visit my facebook page, I think that's a clear case of hacking under the "authorized access" test, and my only real defense would be that I needed to check facebook for work.
Don't get me wrong, I understand how that can be straightforwardly interpreted as "unauthorized access." I'm advocating for what the law should be, in my view. The idea is to make a bright line that gives a test for mens rea to avoid over-criminalization while not being too unreasonable. I'm sure there could be scenarios I haven't thought of that would turn out poorly.
Yes. And SCOTUS's problem is that they think the punishment for visiting facebook at work shouldn't be the same as the punishment for stealing company records - and that's fine, and of course something I agree with. But SCOTUS should actually address that directly, rather than going down this weird path of trying to warp the definition of "authorized".
I don't think they are. I think SCOTUS is looking at this, as is their wont, from a legal perspective.
We have two legal systems: civil and criminal. Both of them have the concept of "authorized." What SCOTUS has said here is that whether or not something is unauthorized may be a civil tort claim--you broke a contract--versus a criminal offense--you broke the law.
That seems to be the knot everyone is trying to untie here. It's not illegal for me to break a contract with someone. It is illegal for me to break the law.
Now, if your employer put software on your machine or on their network that prevents you from viewing Facebook, and you work around that restriction, it could be argued that you have now "hacked" their network and gained access you were not authorized to have.
The distinction is pretty clear in the ruling - if you have access, you can do X without it being considered a violation of the CFAA (doesn't mean you can't be fired, or prosecuted for other crimes leading from the actions, or other repercussions). If you don't have access, and you figure out a way to gain access, it is now a violation of the CFAA.
Interesting test. What if you set your user agent to chrome instead of firefox and that grants you access to a website?
The website is at fault. This is no different than lying about your religion to bypass a discriminatory shop owner.
A naive generalization might say that "lying" by setting a header = illegal. But clearly there is a difference between setting the Authorization header and setting the User-Agent header.
But what about headers that are not so well-defined? What about custom headers?
I'm not disagreeing with you, but these are the first questions that come to mind.
It seems that a judge would have to carefully consider the design of the system, and whether the vector that granted access was something that was clearly negligent on the part of the site owner, or was truly an attack vector and deemed illegal. But it seems difficult to formulate a universal test for this.
No. If you falsify information indicating that you have authorization to access the site, it doesn't matter what header it's in. Conversely, if you falsify information that has no bearing on whether you have authorization to access the site, it also doesn't matter what header it's in.
You are either authorized to access the site (or URL, or whatever) or you are not. What tools you use to do so are only relevant if they cause you to generate accesses (eg network requests) that you are not authorized to make. By construction, configuring one tool to generate accesses as they would have been generated by another tool does not produce unauthorized accesses unless that other tool's normal accesses would be themselves be unauthorized.
Ahh, but here's where things get tricky. Who decides that the information has no bearing on whether you have authorization to access the site?
Imagine a situation where a very poorly designed site allows "My-Obscure-User-Agent", but denies all other User Agents. This is obviously a horrible design, but if the intent of the developer was to authorize access to a specific set of internal clients, identified by a unique/non-standard user-agent, how would you classify the act of changing one's browser settings to send the accepted agent?
User Agent is a great example of something that has a pretty well-defined purpose (and that purpose has nothing to do with authorization), but has also been misused by naive or lazy developers to control access to sites.
> configuring one tool to generate accesses as they would have been generated by another tool does not produce unauthorized accesses unless that other tool's normal accesses would be themselves be unauthorized.
Therefore: When you generate a request that spoofs the obscure user agent string, it is authorized only if you were also authorized to use the obscure agent. The string is a secret like any other, even if it's a secret shared by the entire group of people who were provided with the obscure agent.
On the other hand, is it really a secret if the agent tells it to every server that the agent connects to? At some point it's not a secret if little care is taken to protect it (and the name of the header has some bearing on what care is taken, for example whether it ends up stored in clear text in access logs...).
"it is authorized if and only if you were also authorized", but otherwise yes, exactly.
| A | B |A-only-if-B|A-if-and-only-if-B|
|false|false| true | true |
|false|true | TRUE | FALSE |
|true |false| false | false |
|true |true | true | true |
However, if the columns of your matrix were modified to compare "if" versus "[if and] only if" (where square brackets represent an optional component that does absolutely nothing), I'd agree with the logic, being analogous to the difference between OR and XOR (for the boolean sense of OR, not the English sense which is akin to XOR).
And now I'm not sure I'm not the one who isn't reading things properly. (And that sentence probably doesn't help matters.)
I'll point to (the "only if" part of) https://en.wikipedia.org/wiki/If_and_only_if#Distinction_fro..., which I think agrees with me and disagrees with you, assuming I'm not misreading one or both.
> to authorize access to a specific set of internal clients,
Are you, the person, authorized to access the site? If yes, setting a User Agent header to "My-Obscure-User-Agent" is truthful (insofar as it bears on whether you (the person) are authorized), regardless of whether you are using the prescribed internal client. If you are not authorized, the use of said internal client doesn't change that.
Edit: as a analogy, suppose you took a job and your employer provided you with a uncomfortable uniform jacket which your employment contract stipulated you must wear when on the job. If you acquired a more comfortable jacket and dyed it to resemble the uniform, your employer would (arguably) be within their rights to refuse you access (blocking by user-agent), but if they let you in, that does not mean you have entered (the employee-only portions of) your workplace without authorization. Same applies to cars, phones, power tools, etc; you may have done something wrong by bringing them to work, but that something is not unauthorized entry.
Fwiw, from my readings of similar cases, this seems similar to how the courts read the law. Any access you can achieve without material deception is valid. There was a case on here a while back where a couple of reporters filed a FOIA request and the city accidentally put records not meant for release in the Dropbox folder. Reporters downloaded the accidentally-added files, city sued. The city ended up settling because it looked like the court was going to rule against them.
The court's logic was basically that by allowing access to the information, you have de facto authorized the user to access it. It would be impossible to tell whether you can legally access any information if the counterparty can give you access and then decide you shouldn't have seen it when you do access it.
This seems like a poor definition, IMO.
For example, what if I tell you I'm going to club you over the head and get access to the computer you're on. And I do so. There was no material deception. I did exactly what I said.
Another example is what if I just walk around the counter while you're not there. There is no one around to deceive.
That's either a true threat, or assault and battery. It only becomes computer fraud if you fraudulently use my credentials to access the computer.
> Another example is what if I just walk around the counter while you're not there. There is no one around to deceive.
That's trespass, not computer fraud.
There's more than one crime on the books. Saying that something isn't computer fraud isn't claiming that all those things should be legal.
Like in this case, I think it should be bribery more than computer fraud.
Why is that trespassing? There's no sign that says I can't go behind the counter? In fact, in many cases you can go behind the counter, just you aren't expected to jump on their computer. The problem isn't that I'm behind the counter. The problem is that I'm using a computer I'm not authorized to use -- it's just whoever set up the computer didn't set up an authorization gateway.
But really access to the computer really isn't fraud. It's what you do once your at the computer that matters much more. Its authorization for the action that matter, not access authorization.
Let’s take computers out of the picture again. Suppose I know that an organization O throws out folders with sensitive data D into the trash can in their publicly-accessible lobby every Friday at 3 pm. People that want to know D pay me to come there at 2:55, root through the can and write down the pieces that they need.
Should what I am doing be illegal? Whatever your answer, is it in any way different from walking around that same lobby sniffing O’s open Wi-Fi network except for “computers were involved”?
Can I walk into a bank and take all the money from the vault if they leave it open? But yet somehow with a computer that isn't yours you seem to be stating that if you don't properly protect it then access to it by anyone who happens upon it is completely legal.
You wrote it as if it's somewhere you're not authorized to be, e.g. an Employee's Only section which would tend to be trespass. If you are authorized to be there and they leave records out that they shouldn't, I think that failure is on them and they need to improve security.
If someone leaves a database of everyone's personal details on an open webserver, that doesn't become hacking or computer fraud if someone visits the site. I mean, I don't think it should be true that I could say "you, specifically, aren't authorized to read this post" and have that morph into a federal felony.
In my view, there has to be at least some kind of notice that someone is crossing a criminal boundary. I think lying makes a decent, if imperfect, boundary. It's possible that someone can think of something better, too.
Then there’s no hacking and you should be charged with assault or whatever else is appropriate.
> Another example is what if I just walk around the counter while you’re not there.
Then it doesn’t matter if there was an unlocked computer or an unlocked cabinet behind that counter.
There doesn’t need to be, for every illegal act X, an extra special law or punishment for “X but a computer was involved”.
People want a criminal penalty for hacking and maybe they’re right, but you shouldn’t try to cover every undesirable act that involves a computer with a single law any more than every undesirable act that involves a piece of paper is covered with one. You also shouldn’t claim that breaking down a door is the same as walking through an open one, even when both constitute (among other things) trespassing.
I mean, sure the usual "plain ol' bullying laws" might need an update to keep up with the times but a whole separate set of laws just to capture "but it used a computer" is silly.
Mind you, I also have a thing about professional sports breaking out into punchfests. They should get prosecuted for assault or whatever just the same as anyone on the street.
I think Congress' intent with CCFA was to criminalize hacking. There are already laws against fraud, so we don't need a deceitfulness test to catch, say, social engineering. The problem I think is that CCFA was written in 1986 and not enough people understood what hacking was well enough to write it down clearly in the law, so instead the "excess of authorized access" language is in the law, and has been used to criminalize lots of things that aren't really hacking and Congress didn't intend to criminalize with the CCFA.
I haven’t read the decision closely enough yet to see how well developed that idea is.
If this were not a ruling in favor of a police officer, I feel that you would see a much more positive response. The past few years of political craziness have warped peoples' minds where they can't recognize a good thing anymore.
I have mixed feelings on the ruling. It sounds to me like a crime did occur. But the CFAA is also overly vague... Without reading the details of the case and the statue, it's hard for me to be sure what to think here.
I guess looking forward, this will force police departments and others to be more explicit in their access policies, which it sounds like here there just wasn't any?
I guess that's a win?
It sounds pretty harsh but to me it's boils down to this: while textualism can lead to excesses & dubious interpretations by judges...The alternative can lead to any interpretation since it surrenders the entire judicial process to the judges while hoping they won't go too far because they just wouldn't dare?
I am sympathetic to the criticisms of the "living document" ideology. It's populism masquerading as jurisprudence. Or, as Scalia put it, it's no philosophy at all.
HOWEVER, textualism is not as clean as it's advocates will argue. Case in point: The post-Civil War era Supreme Court (the so-called "Redeemer" court) went out of it's way to essentially dismantle legislation aimed to protecting minorities in the name of textualism.
This was the origin of hate crime legislation, which came about because of jury nullification, essentially.
Consider the aftermath of the Colifax massacre [1]:
> This decision, in United States v. Cruikshank, the legal historian Lawrence Goldstone argues, provided a guide for the campaign of racist terrorism that would suppress the black vote and enshrine a white man’s government for generations. “The Colfax defendants would have had to announce their plan to violate their victims’ rights on account of the color of their skin in order to be culpable,” Goldstone wrote. “Justice Bradley had thus communicated to any Redeemer with violent intent that to avoid federal prosecution one need simply to keep one’s mouth shut before committing murder.”
[1]: https://www.theatlantic.com/ideas/archive/2018/09/redemption...
Instead of law makers fixing the problem, the supreme court is effectively reading between the lines. Luckily IMHO they are doing the right thing here and will put this particular employer based scenario to rest.
Now to clarify on the countless other holes in the CFAA...
My initial reaction to the headline I read was anger that an officer got away with abusing his power. But upon learning the details, it's clear that a CFAA violation is an inappropriate charge here.
This is very, very good news.
https://www.eff.org/deeplinks/2020/01/eff-asks-supreme-court...
https://www.eff.org/deeplinks/2021/06/supreme-court-overturn...
And the way to make that happen is by limiting the scope of the law as much as possible, in order to force law makers to rewrite it. Which is what has happened here. If law makers did intend the rejected interpretation, then they should rewrite it to clarify such.
I doubt that will actually happen, though. Our system basically assumes that laws will be written to be vague and ambiguous, and that courts will clarify the interpretation over time. I don't think this is a very good way to run things, but it seems to be the way we've settled on.
- two state charges of breaking and entering with intent to commit a felony
- wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer
- breaking and entering with intent, grand larceny, and unauthorized access to a computer network
- federal prosecutors filed a superseding indictment adding nine more felony counts, which increased Swartz's maximum criminal exposure to 50 years of imprisonment and $1 million in fines
While I agree with your assessment, it was not just "unauthorized", it was straight up corruption. Making an agreement to accept a $5000 cash payment from some sketchy dude to look up a third party's accessible-to-law-enforcement only details. The guy should have been prosecuted under various existing corruption statutes and not the CFAA.
> The Government’s interpretation of the “exceeds authorized access” clause would attach criminal penalties to a breathtaking amount of commonplace computer activity. For instance, employers commonly state that computers and electronic devices can be used only for business purposes. On the Government’s reading, an employee who sends a personal e-mail or reads the news using a work computer has violated the CFAA. The Government speculates that other provisions might limit its prosecutorial power, but its charging practice and policy indicate otherwise.
Van Buren violated department policy, and perhaps other laws in his conduct. But he did not gain unauthorized access to a system. He already had authorized access - he just used it improperly.
Similarly, if I were granted access to my company's production database to perform some kind of operation that required me to read/write data, and I used that privilege to access financial records of customers, I would certainly be violating my company's policy and likely some privacy and financial laws. But it would not be gaining unauthorized access, as I was explicitly granted access to that system - just for a different purpose.
"We must decide whether Van Buren also violated the Computer Fraud and Abuse Act of 1986 (CFAA), which makes it illegal “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” He did not. This provision covers those who obtain information from particular areas in the computer—such as files, folders, or databases—to which their computer access does not extend. It does not cover those who, like Van Buren, have improper motives for obtaining information that is otherwise available to them"
Thomas, Alito and Roberts dissented, and I hate to say it, but I agree with them.
"The question here is straightforward: Would an ordinary reader of the English language understand Van Buren to have “exceed[ed] authorized access” to the database when he used it under circumstances that were expressly forbidden? In my view, the answer is yes. The necessary precondition that permitted him to obtain that data was absent."
That's Thomas dissenting.
I think this would have acquitted Aaron Swartz (though he likely would have been acquitted anyway since they didn't even allege improper motive iirc).
In his case he accessed journals that were available to him via MIT's open network. There is the second issue of his trespassing in a closet to leave a laptop on the network, but that would have been minor when compared to the string of felonies they charged him with which was tied to the CFAA.
This seems like a good restriction to me at first glance.
I just see so much focus on needing to identify a catalyst (which doesn't affect most people) instead of the pre-existing mental health issue of the person. I think this hampers the necessary conversations to be had on suicide.
even if the family sued the state civilly there would be nothing for the state to defend against
planning and following through with the action incompatible with maintaining a consciousness on this plane of existence.
This is itself presumptive and I think largely wrong. Like most things it's a combination of factors. No doubt Aaron was struggling with depression, but facing federal prison with a trial defense costing $1.5M (even if acquitted in the end) is enough pressure to break even an otherwise healthy person.
I don't understand the need for people to frame this as you are.
I suspect Aaron would be alive today if the prosecution had shown some discretion. In this specific case, it would also have been the right/just thing as well as the legally correct thing.
Then perhaps the bigger issue, to me, is that this level of analysis is not given to other people, where it should be as well.
Judge Barret said exactly this in her opinion.
Hopefully this particular case also runs afoul of other laws. Like something about granting access to unauthorized individuals, which is what the defendant was doing (selling government data). That can, and perhaps should be, separately illegal from accessing data for improper purposes.
We must not confuse legal authorization (felony for violation) with private or contractual agreements.
Any law that allows private entities to define what actions constitute a felony is bad, and hopefully unconstitutional.
Technical access measures are somewhat like physical locks. Terms of use are more similar to contracts. IANAL so my analogies my be crap.
There is a crime of breaking and entering - and thats well defined.
Then there are permissions of: "you can be in my house as long as you dont use the bathrolm and only wear pink socks" - if a person were to wear green socks, you can icik them out, but it does not suddenly become a home invasion
> For instance, employers commonly state that computers and electronic devices can be used only for business purposes. On the Government’s reading, an employee who sends a personal e-mail or reads the news using a work computer has violated the CFAA.
Accessing data for a forbidden reason should be a fireable offense, but not criminal. So if Thomas is right, it's a very bad law.
I'm not sure I agree with him though. I think if you asked an average person, they might say something like "yes I am authorized to access that database, because I have credentials, but I'm not supposed to without a good reason". I don't think there is a single plain English reading of this phrase that any large group of people would agree on.
I think the other judges have the better reading of the specific language of the text. Thomas, Alito, and Roberts don't even take their dissent on the interpretation offered by the Government, but have to craft their own—extremely broad—interpretation of "entitled".
Since I think the opinion (at least, the little bit of it that I've skimmed) makes a fairly compelling case around the majority's interpretation of the words "so" and "entitled" I won't rehash that here. But, if we back up to the purpose and intent of the legislation, I think this outcome also better aligns with that.
The CFAA was designed to curtain the unauthorized use of computers. To make it illegal for people to deliberately circumventing the security measures built into computers to obtain information or cause other harm. If I hand you a computer, tell you the password, and ask you to login to my computer and respond to an email for me, but then ask you not to look in the `Taxes` folder on the desktop should it be a felony for you to open the `Taxes` folder? That conceptually feels wrong to me. I have violated your trust, sure, but I haven't committed fraud, and I haven't abused any access control mechanisms on the computer.
Or another scenario: your work gives you a work computer, and has a paragraph in the employee handbook that says you are never allowed to visit news.ycombinator.com on the work computer. At some point while working at the company, you visit news.ycombinator.com on the work computer. Have you just committed a felony? You've "exceeded the authorized access", if you interpret "entitled" and "authorized" as broadly as Thomas, Alito, and Roberts seem to. Should that really be a felony?
That interpretation leads to such a massive broadening of felony criminal liability. It doesn't gut-check for me. That, combined with what I perceive as the better textual reading of the phrases "so" and "entitled", I have to disagree with you. I think the other 6 justices had the better argument at multiple levels.
I agree with you, it totally fails the gut check, but it is because the law is poorly written. The Supreme Court bailed out the lawmakers by winging it here. The minority opinion is the worse, but more accurate plain reading of the law.
I think the majority opinion is also the more accurate plain reading of the law. So, from my perspective, no bailing out is necessary. The gut check and the plain reading both seem to align.
Did he exceed authorized access? He did, and therefore he broke the plain reading of the law. The law should be better, and separate violating access controls from violation of access policy, but it doesn't.
He did not. He was given a level of authorization that he did not exceed.
The problem, again, is in the ambiguity of the word “authorized” that allows multiple plain readings.
To me, it’s absolutely plain that “authorized access” refers to system authorization (that is, what the computer tells the user their permissions are), and “exceeds authorized access” refers to bypassing the system authorization limits. That’s absolutely the plain reading to me.
To you, you read “authorization” as “policy authorization” (that is, where another human tells you what your permission levels are).
The fact is, there are multiple kinds of “authorization” involved in this case, which means different people can have different plain readings of the statute. While your reading seems obvious to you, it seems strained to me. My reading might be strained to you, but it’s obvious to me.
No, that’s not quite right.
*To you* the plain reading is what you say. To *other* people the plain reading is different.
I, for example, don’t think the plain reading of something typically involves taking the union of definitions for each word in the sentence. To me, most plain readings involve selecting the single most appropriate definition for a word based on the surrounding context.
My point is that there isn’t an objectively correct “plain reading”. You are not the arbiter of what a plain reading is, nor am I.
Would you agree that different people can read the same sentence and in good faith have a different understanding of what “the plain reading” is?
I won't claim that test is perfect, but it's a lot clearer than the current standards and when I go through past cases, I don't see it coming to any indefensible conclusions.
Yes, that would agree with the majority holding in this case. It's important to note that even if they didn't violate the CFAA, they likely broke plenty of other laws and can be punished for that.
So this conduct absolutely deserves to be punished, just not under the CFAA.
You accessed privileged information that you were explicitly not allowed. To me, asking you not to look at certain information is effectively the same as putting a password on it, then having you break it. In both cases, the intent of the owner is clear: do not access these files. And in both cases, the actions of the perpetrator very clearly disregard the owners intent.
Your example about accessing a website is not the same. It's pretty clear that the person going to new.ycombinator.com is not stealing or accessing privileged information. There have been separate rulings dealing with whether or not employees can use corporate equipment for personal reasons.
A more analogous example to the case at hand would be an employee at Google/Humana/Tinder selling your private details to a third party. This ruling means that such activity is perfectly legal, even if the terms of their employment state the opposite.
Unless, of course, the only reason the court ruled in favor of this person was that they are a police officer. But I guess we have to wait until the FBI attempts to press charges against someone at Google selling personal details to third parties to find out.
No, this isn't what this means at all. This ruling just means you haven't committed a crime under the Computer Fraud and Abuse Act by accessing that data if you didn't "hack" to get access to it. Depending on the information you sold, you could've violated other laws and you definitely violated the Non-Disclosure agreement you signed with those companies.
For reference, the cop in this case had other convictions under wire fraud laws that weren't changed by this.
Such rulings are about different laws. The government's interpretation would criminalize violating a protected computer's terms-of-service regardless of whether it is part of a corporate intranet or an ordinary website on the Internet. And yes, the government has pursued criminals charges for violating a website's ToS; see United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009).
>A more analogous example to the case at hand would be an employee at Google/Humana/Tinder selling your private details to a third party. This ruling means that such activity is perfectly legal, even if the terms of their employment state the opposite.
As to Humana, it would likely be a criminal HIPAA violation.
To me, they are not effectively the same at all. I see there being two different types of "authorization" at play. One is a mechanical authorization built into the computer systems (a password, for example). The other is a policy authorization, built into how I convey to you what is "allowed" on the system. They seem fundamentally different to me.
To 6 justices on the Supreme Court, they are not effectively the same thing either. To 3 justices, they are. The ambiguity of English is definitely annoying when we get into the nitty-gritty of laws!
> A more analogous example to the case at hand would be an employee at Google/Humana/Tinder selling your private details to a third party. This ruling means that such activity is perfectly legal, even if the terms of their employment state the opposite.
That's simply not what this ruling holds. That would be an accurate summary of this ruling if and only if the CFAA were the only law that exists in the United States Code!
"Legal" is also an ambiguous word in this context. Such an activity may break other laws, or it may not. I'm not familiar with what other criminal liability may attach to such behavior. But that activity almost certainly would be a civil violation. I would potentially be able to sue Google/Humana/Tinder (though there's a chance their privacy policy already gives them the option to sell my information). And Google/Humana/Tinder could certainly sue the rogue employee for damages caused by such a sale.
If Google/Humana/Tinder wanted to go further to protect themselves from bad-acting employees, they could use actual access controls (instead of mere policy) to restrict the ability for employees to access such data and only give access to employees who need such access. While it's certainly not the thing a Supreme Court ruling should hinge on, it's a nice added bonus that this gives a further incentive for companies to implement actual least access control rather than just making it a policy.
I'm pretty sure the exact fact that Amazon did not appropriate restrict access in this way is one of the points being considered in the antitrust case. Specifically, that people who shouldn't have been able to, and who shouldn't have by policy, still could access seller data.
That's not a realistic example because something like that would be covered by an NDA or alternatively, if in EU or California, by data policies.
One of them is misusing a car that you gave them access to, the other one is stealing it.
ref. https://codes.findlaw.com/ny/penal-law/pen-sect-165-05.html
In other jurisdictions (like, say, New Hampshire), that same case falls into the definition of theft.
Here's a quote from the ruling making the point that applying the law to something like access policy is far too broad to be viable
> The Government’s interpretation of the “exceeds authorized access” clause would attach criminal penalties to a breathtaking amount of commonplace computer activity. For instance, employers commonly state that computers and electronic devices can be used only for business purposes. On the Government’s reading, an employee who sends a personal e-mail or reads the news using a work computer has violated the CFAA. The Government speculates that other provisions might limit its prosecutorial power, but its charging practice and policy indicate otherwise. The Government’s approach would also inject arbitrariness into the assessment of criminal liability, because whether conduct like Van Buren’s violated the CFAA would depend on how an employer phrased the policy violated
In any case, it shouldn't matter that he used a computer to commit a crime. If he had gotten the relevant information by reading them from a paper file or by asking a coworker the crime should be the same, in my opinion.
The supreme court says that this law has a purpose: to catch people who gain unauthorized access to computers. If laws are interpreted too broadly, they can be used to overcharge people. The example given by the supreme court is that if this law covers unauthorized use of a computer you are authorized to have access to, then sending a personal email on a work computer can be a felony.
If you add up all the crimes that may have been committed here it seems like the punishment gets pretty severe. Even 18 months in prison for this already seems severe to me. I would think justice is more like getting fired, fined, and community service rather than prison.
This line is the crux, and the problem is that "authorized" means subtle, yet critically important, different things to different people.
The officer was surely "authorized" in the sense that he had technical authorization to log into the system and accomplish the task.
But in the sense that "authorization" is defined by more than just technical controls, and also has to do with many dynamic situations that technical controls can't often restrict (or just aren't in place), it doesn't sound like was "authorized".
Think of walking into a restaurant and they have a sign that says "Employees Only Behind Counter". Even if there was no technical/physical control preventing you from going behind the counter (eg there was no locked door or anything like that), I think it would still be understood that you as a customer do not have "authorization" to go back there.
In my experience as a security consultant, my technically-minded clients typically think of "authorization" as the first way, defined by technical controls and thinking that lack of technical controls in a system means they have carte blanche to do whatever they want with that system. But my experience with anyone outside of tech is that they don't think of it that way at all, and that just because you have the physical/technical ability to do something does not make it okay to do that.
"Authorization" is an overloaded term and the CFAA suffer for it, but personally I do not think an average person would think the officer was "authorized" to do what he did, even if he did have the technical access to do it.
The points about "average employees technically violating the CFAA by doing stuff like reading the news on their work laptop" are valid concerns and I think they need to be resolved, but I think that is a completely different concern than someone like this officer abusing their access for legitimately bad acts.
I posted up thread too, but my own personal view is that unauthorized access should hinge on whether the person used deception to obtain access. That provides a clear separation between lawful and unlawful conduct without giving private parties the power to define new felonies.
With computers, I don't think that the proverbial "employees only" sign on a load of private data means anything and the incentive should be on the business to provide a proper access control there. Meanwhile, if they add a guard who asks "are you an employee?" and you lie to them to get access, I would say you're unauthorized.
That gives us some semblance of mens rea while not going to far in any direction, I believe.
If there were a filing cabinet that he had keys to, he wouldn't be charged with breaking into the cabinet if he grabbed the wrong files. What's the penalty for using the wrong physical file he has direct access to? That's what we should be talking about.
But if a customer was invited back there because they said they wanted to thank the chef? They're told not to touch anything, they touch something. Do we view that touching something as breaking the same rule as someone who just walks back there uninvited or is it another rule they are breaking?
I can definitely see arguments for both views. Especially compelling to me based on the analogy is once you've taken the first unauthorized by policy action no other actions other than leaving would be authorized though this interpretation would lead to its own absurdities.
ok, but devil's advocate for a second - much hacking is actually just lying to people to get access to things you shouldn't have access to - so pretty much closer to policy violations than the stuff most people associate with 'hacking'
Think Breaking and Entering requires breakin. If someone gave you keys under false pretences, thats a different crime.
> Subsection (a)(2) specifies two distinct ways of obtaining information unlawfully—first, when an individual “accesses a computer without authorization,” §1030(a)(2), and second, when an individual “exceeds authorized access” by accessing a computer “with authorization” and then obtaining information he is “not entitled so to obtain,” §§1030(a)(2), (e)(6).
I fraudulently obtain and use credentials to a system which authorize another person to access it. I am still "accessing a computer without authorization", because those credentials never authorized me.
This starts to get really fuzzy if I fraudulently have credentials explicitly granted to me...
However, they also explicitly write that they're not addressing that distinction (footnote 8 on page 13, to my best ability to parse it). There's some semantic gap between "policy violations" and "improper motives".
"For present purposes, we need not address whether this inquiry turns only on technological (or “code-based”) limitations on access, or instead also looks to limits contained in contracts or policies. Cf. Brief for Orin Kerr as Amicus Curiae 7 (urging adoption of code-based approach)."
I discovered this nuance from Orin Kerr's twitter (the same one cited in this footnote); he says he's not confident he understands this footnote.
It seems to be all downside (exploiting bugs will typically be OK because the code said this was OK, even if the people who wrote it never intended that) with no upside (the things rendered illegal already don't work, because code forbade them).
Courts ought to be familiar with the fact that they're present mostly to make decisions about fuzzy things like "Did the accused intend to cause harm to the victim?" and not simple mechanics like "Does being injected with cyanide kill people?".
I've thought about this for some years now and looked at various different cases tried under the CFAA or otherwise claimed to be unauthorized access.
I personally believe it should turn on whether or not you used deception as the means to gain access. That is, but for your deception, would you have gained access?
This, in my mind, proves they were up to no good (mens rea) and acts to make it clearer whether or not you were authorized. It also connects to the idea that the law is mean to counteract a type of fraud in general. I mean, how can anyone say they had authorized access if they had to lie to gain access?
(6) the term “exceeds authorized access” means to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter;
The language here is relatively narrow. Nathan did "access a computer with authorization", and he didn't obtain information that he was "not entitled so to obtain or alter".
He may have obtained it for a purpose that was expressly forbidden by the department policy, but he was permitted to obtain the information in and of itself. To qualify as being "under circumstances that were expressly forbidden", I think it would have to be a situation wherein he wasn't allowed to obtain the information in general, e.g. if he were only allowed to access it within certain hours or with a superior present.
It's like the difference between giving someone your phone (which, for the sake of argument, qualifies as a "protected computer" in this scenario) and telling them that they can go through your photos so long as they don't take out their own phone and photograph any of them, and telling them that they can only open your photos while you're watching.
It would be extremely rude in either case to secretly take your phone and exfiltrate your photos — and may even still be a crime in and of itself (and/or lead to follow-on crimes) — but I wouldn't consider the former to violate this particular law.
His actions maybe should be criminal in some way (time to write a law maybe), but his access was authorized.
Interpreting the law in such a way as to make private policy makers the arbiters of felony charges is not compatible with our society. This would be the equivalent of a restaurant letting you in, asking you to take a seat, and then charging you with a felony for choosing the wrong seat as listed on a tiny sign in the back of the restaurant.
Triggering the CFAA on policy violations creates a general tool to convert civil matters into not just a crime, but a relatively serious one! It essentially lets system operators write private law with criminal enforcement without the oversight of the public.
To give a silly example: Your landlord prohibits you from painting your walls. Their payments website has some terms of US that makes it a CFAA violation to use their site with painted walls. Suddenly what otherwise might be a lawsuit over the $500 cost to repaint is a state funded attack where you face ten years in prison.
It's clearly wrong to use the CFAA that way in the silly example, but it's no less wrong in less silly cases. Saying the CFAA can't be used to create private criminal law doesn't mean that policy violations can't be prosecuted-- but it means they should be prosecuted under other laws (with intentionally matched terms and penalties) or as civil matters.
Cracking, gnireenigne copy-protection, copying a publicly-/privately-available archive of information, etc. should be "speeding tickets" not 50 years in pound-me-in-the-ass federal pen.
Hacking should be seen as an amoral means to commit another act, not a specific criminal, malicious activity in-and-of-itself.
To me this is the definition of overreach.
It seems like it would to me, and I don't like that interpretation.
If you want me to keep out, then keep me out. Don't make something available to me and then accuse me of a felony when I see it.
GA 332: Abuse of official power GA 333: Exceeding official powers GA 338: Bribe-taking
and, Federally, 18USC 201, which prohibits public officials from taking bribes.
Er, CFAA is not relevant to the criminal case againt Van Buren, I mean.
"The relevant question, however, is not whether Van Buren exceeded his authorized access but whether he exceeded his authorized access as the CFAA defines that phrase."
The CFAA is a federal statute that governs unauthorized access to computer systems. When granting authorized access to computer systems, other organizations (whether states or police departments or private companies) are free to set their own policies, and they can enforce those policies with the mechanisms they have available to them, like terminating the offending officer or revoking his computer access (at which point further access would be a CFAA violation). But can they then use the language of the CFAA to criminalize violations of their own authorization policies? This holding says no - the CFAA covers the initial access to the computer system, and then violation of more granular access policy is a civil matter between the individual parties.
This is consistent with several other recent court positions. There was a recent case to criminalize ToU violations [1]; the court ruled that this is an overbroad reading of the CFAA and ToU violations were civil matters between parties. When Anthony Levandowski used Google's network to download self-driving car plans and sell them to Uber [2], he was prosecuted under "theft of trade secret" laws, not under the CFAA. It's also analogous to perpetual free speech battles, where the court has repeatedly ruled that private parties are free to restrict speech on their own property, and that the 1st amendment applies only to the government. In general liberal democracies seek to apply restrictions as narrowly as possible and have private parties work out contracts and consequences amongst themselves, only stepping in when there is no way to enforce such agreements without an outside power.
[1] https://arstechnica.com/tech-policy/2020/03/court-violating-...
[2] https://www.justice.gov/usao-ndca/pr/former-uber-executive-s...
Entering the prohibited room isn't an offense under this act. But circumventing a lock on a third door for which you don't have a key would be.
i.e. The judges interpreted it as intending to capture hacking, not policy violations.
Or, car analogies! You are given a car for work and told it can only be used for business purposes, but you use it to drive to the grocery.
Or, something closer to technical which may be familiar to people. You’ve given a laptop for work only but you browse HackerNews on it.
All are against the policies of those that granted you access to the device, but would they constitute unauthorized access?
> The FBI set up a sting operation and instructed Albo to offer Van Buren US$6,000, but in exchange, to request Van Buren look up a license plate on the Georgia Crime Information Center (GCIC) he had authorized access to, as to see if its registered owner, a stripper, was an undercover officer
What ever happened to entrapment being… you know… against the law?
Like I'm aware these sorts of stings happen all the time. What I don't understand is why it's generally found to be OK.
In any event, this is not entrapment, because it was not coercive. It's not entrapment to offer someone a reasonable amount of money to commit a crime, that's standard police work. It's only entrapment if the person refuses the offer, and law enforcement harasses them, repeatedly suggesting someone commit a crime until they are eventually convinced to do it.
Wearing someone down for years with harassment? Threats? Lies like “you have to do this or someone would die?” Entrapment.
Like there's literally no victim here other than the accused.
If they had to beg and cajole and plead and coerce, it would’ve been entrapment.
Same reason prostitution stings aren’t entrapment.
I do agree the line is incredibly vague. In theory, you could argue that, oh yes, the criminal would commit a crime if you constantly called them up and threatened their family. That's a bit of a stretch, I think.
I don't agree with this interpretation and think entrapment should be more broadly defined, and stings should be very limited... but I also think a lot less things should be illegal and we should reform the criminal justice system, so clearly I'm not the type of person they listen to when writing laws.
Hollywood has really made this seem like a not-that-bad or not-that-unusual activity. Good that they're cracking down on it, but my expectations and reality are way out of whack on this.
The context here is that the police officer was already trying to shake this guy down for money; perhaps he figured that he's getting what he wanted in the first place, and can do a little favor to smooth things out.
In the wild, these always trend towards overly permissive. Almost every company, tech or not, mature or not, deals with this.
This ruling shifts a fair amount of responsibility to IAM teams to get it right now, as CFAA won’t back them up as much anymore.
HR teams ultimately don’t have a ton of teeth or willpower unless there are laws involved, and now there is not legal coverage.
In my experience: failure to abide by company policy is first-and-foremost a compliance issue; the company policy framework definitely goes above and beyond the scope of "what is criminal".
HR is primarily there to provide to manage records of employee conduct (e.g. in case of a pervasive pattern of misconduct across a number of different controls) and a sanctioning mechanism (hard conversation; formal reprimand; separation).
I agree it’s a compliance issue, this is def GRC, and agree with your def of HR.
What I notice is HR likes to really move on employees when it has legal protection to do so. What a “pervasive pattern of misconduct” is often has a law behind it in some form, as otherwise you risk a wrongful termination lawsuit.
So, if you have a situation where an employee’s pattern of misconduct sources back to only, or at the root, IAM allowing it (say an extreme scenario like consistently nuking prod), there is now some gray area for those wrongful termination suits.
From a defense in depth standpoint, the CFAA served as sort of a final stopgap, in that it gives HR legal precedent to fire someone who did something moronic with their IAM.
IAM mistakes easily touch prod, laptop games don’t.
You can get fired for HR reasons through a pattern of misbehavior. That misbehavior needs to be safely within legal territory such that a wrongful termination suit can't occur (to really generalize).
Prod example:
A not inconceivable pattern of misbehavior could be repeatedly causing prod events simply because the IAM allows the user to touch prod, because the user has an overly permissive IAM policy. Policies like that are very, very common in the wild, and almost equally at small or large companies (but for different reasons).
This could be hedged by an AUP or prod access policies, but then what wins out... the company might have an internal prod-access policy in place, but the laws, per this change, clearly state that if the IAM allows them to do it, it's not illegal to do so solely based on that reason. So, HR loses legal precedent to support their firing, which isn't an area HR loves being in I think.
You can generalize prod events to over-permissive IAM causing any number of moronic environment problems by a single user, but if they're only doing it because the IAM allows it and the user doesn't know any better, this legal change means it's not illegal (at least under the CFAA).
Yes, I have been working in regulated industries for a while in devops and security roles.
> So, HR loses legal precedent to support their firing, which isn't an area HR loves being in I think.
I think this is the crux of it, frankly. People can be fired for arbitrary reasons, including violation of company policy, even if that policy is not backed by force of law. If you perform unauthorized access of customer info willfully and that is in violation of policy, why does HR need the force of law? If you were a key holder and repeatedly left the door unlocked at close despite previous warning, while not violating the law you should likely be let go.
However, he was also charged with wire fraud. The gov't was throwing the book at him. If it wasn't one law, it would've been another, and if it didn't apply, they'd still convict (and he'd have to spend years appealing the decision).
Sadly, I don't think it would have saved Aaron Schwartz.
One could always say "Congress can remedy this with legislation" but that body has become fully dysfunctional so we all know that won't happen.
But it should not be a violation of the CFAA.
In your Geek Squadder case, you gave him access to the computer. He may have used that access improperly, but he did not increase his access through any illicit means. It is likely a crime, but not one that should be covered by the CFAA.
Your plumber case is a much different scenario. Also definitely a crime, but you did not grant him access to the machine. So it's possible that the CFAA should cover that, but I don't have the knowledge required to answer that with any amount of certainty.
If someone is using that information inappropriately, maybe that should be a against the law, but not the Computer Fraud and Abuse Act.
Suppose someone was granted access to evidence room, but had a look at the evidence that is not of his case, or a case file that he have access to for reasons not work-related. And those generally falls in the area of internal regulation, in which case the agency takes the legal blame for the agent, and should it take actions against the agent, it might be supported.
Plain simply, even if those records are physical the referred agent could have done the same thing. Logically, it's not a matter of abusive conduct through computer, it's a matter of abusing public power.
1) User agent. He changed the user agent to that of an iPad.
2) The ID themselves. He only had to increment them to get to a new one, but they argued these were like a password.
3) Going to a URL that wasn't linked from somewhere. I'm not kidding.
https://www.techdirt.com/articles/20130929/15371724695/dojs-...
So I think in weev's case, they argued he never had authorization at all.
Whereas, in Van Buren's case, "The parties agree that Van Buren “access[ed] a computer with authorization”. So the problem was whether or not he exceeded authorization, not if he had it in the first place.
I'd rather them devote resources to anti-corruption like this than "drugs".
* Should there be a distinction between violating a written policy; and bypassing a technical barrier?
* Should there be a distinction between doing something that you are ordinarily permitted to do, but for an unpermitted purpose; and doing something that you are just never permitted to do?
It seems that the Court didn't answer the first question, which is more interesting to me.
The second situation they've just ruled is not a crime under CFAA. That second clause "you are just never permitted to do" would depend on whether it was implemented as an employment policy or as a technical implementation that you "hack".
It's a lengthy document with quite complex language.
The impression I got from reading the introduction is it was pretty clear which way the ruling went, but some of the comments here seem to be based on the opposite so there seems to be some confusion.
So please can someone please sum it up in 1 or 2 lines?
I was aiming for 160 chars (2 lines of 80 chars). Not so easy.
if (not authorized && access system) {
// unauthorized access = crime
}
else (if authorized && access system && access data &&
(authorized to access data && only under certain circumstances)) {
// FBI/prosecution said = crime
// SCOTUS said if authorized to access, but not in circumstances,
// then ! crime under CFAA but may be crime under other laws
}
The prosecution tried to say that this was a crime under CFAA, SCOTUS said that if the user is allowed to access the data, then it's not a breach of CFAA to do so.
does it mean just knowing the right user name and password? what if the login page also had a check box "I agree to use this system only to perform my job". if the cop lies and checks this box, does it mean he's not authorized?
if lying about the check box is OK, what if he had used a colleague's user name and password for the criminal activity? he's still authorized just he didn't use his own password to commit the crime. would that still not make it CFAA?
This is a clear case of bribery. It is criminal. Not sure why was not the case prosecuted accordingly.
18 U.S. Code § 1030 (f) explicitly excepts lawfully authorized investigative activity of a law enforcement agency. The Secret Service is such a law enforcement agency, the raid was an investigatory activity, and since they obtained a search warrant prior to the raid it was a "lawfully authorized" search.
As such, even if there might be liability based on their actions under the other portions of the section (I have no idea on this aspect, I'm not too familiar with the details of what they did as part of the search and seizure), the waiver in (f) is extremely broad and would apply to the Secret Service in that particular case.
> (f) This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States.
The CFAA is a law about how access is attained not what is accessed. There may or may not be other laws that have penalties for what is accessed given the nature of what is accessed, but that is a separate issue from the CFAA.
For example, I am sure that there is some statue I would be in violation of for walking out of a CIA office with a binder of classified information. This should be illegal regardless of how it's accomplished.
By contrast I think it should probably be a crime to gain access to a system through either technical exploits or social engineering, even if all you do is access cat memes that were public anyway.
Layered on these issues is whether you think judges should stick to literal textual interpretations or rule based on the projected impacts of their decisions.
Personally, as many have laid out, a strict textual approach opens the door to let private companies write felony law for literally anything they want, which seems an unworkable way to run a society.
I think it's much more prudent to restrict this law to methods of access and allow other laws dictate what can and can't be accessed or used (copyright law, state secrets etc).
A final question is how to test for whether methods are authorized or not. Someone here suggested the test should be the inclusion of "material deception". This I think falls short because a lot of behavior that we would not want to criminalize would satisfy the test. Should it be illegal to use a VPN? Because I can see that being construed as material deception. Sacha Baron Cohen dressed up as Borat is unquestionable material deception but I don't think it should be illegal for him to use a computer when doing so.
Ultimately I don't know that there is a bright line definition, but that's okay because we use a "reasonable person" standard a lot in law, (and we should seek to seat judges that are the most reasonable of us).
- No reasonable person would impersonate another to customer service to steal their phone and thus password. - A reasonable person might want to use a VPN to avoid being tracked by private corporations. - No reasonable person would exploit a zero day bug on a major corporation. - A reasonable person might change their user agent to see how a site looks on a phone. - A reasonable person might look up and save articles from a database they have access to.
What this guy did is one of the very few things that someone should actually get hit with the CFAA for. He abused access to police databases as a cop but he's off the hook because even though he was explicitly not allowed to do so, he was able to (as in, the system did not intend to prevent it). I guess if that's what it takes to narrow this bad law, fine!
So SCOTUS just ruled that this is not "one of the very few things that someone should actually get hit with the CFAA for".
He was bribed to do something he is explicitly not allowed to do, so he accepted a bribe (crime).
He provided information to someone not authorized to receive it that he is explicitly not allowed to do (crime).
He did it over the phone, so wire fraud (crime).
etc.