Thursday, September 23 2021

The Supreme Court released a 6-3 ruling that limits the scope of the Computer Fraud and Abuse Act (CFAA) by curtailing the definition of “exceed authorized access” to hacking. Passed in the 1980s, the CFAA was created to provide liability in criminal and civil cases where a party “accesses a computer without authorization or exceeds authorized access.”

However, the United States Circuit Courts of Appeal were divided on how to define “exceeds authorized access” as it could be parties that violated policies that limited the use of specific data or computers to certain purposes or it could be parties that used their computer to access information they typically would not have access to.

Writing for the majority, Justice Amy Coney Barrett argued that the second meaning of the phrase is the correct one because otherwise the CFAA would mark “millions of otherwise law-abiding citizens as criminals” for activities such as “embellishing an online-dating profile to using a pseudonym on Facebook.”

Greenberg Traurig attorneys Kurt Kappes and Todd Pickles noted that the clarification to limit the scope of CFAA “may have a broad impact” on criminal and civil cases in which digital information was improperly accessed. The act “will no longer provide a mechanism to law enforcement of civil litigants seeking to address employees’ misuse of their access to their employers,” the attorneys wrote in the National Law Review. Other methods exist to punish computer misuse, such as common-law claims for a breach of contract or trade secret misappropriation laws for spilling trade secrets.

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