A commonly invoked anti-hacking law is so overbroad that it criminalizes conduct as innocuous as using a fake user name on Facebook or fibbing about your weight in a Match.com profile, one of the nation's most respected legal authorities has said.
George Washington University Law School Professor Orin S. Kerr said he hopes the critique will spur changes to the Computer Fraud and Abuse Act, a law that's frequently invoked against people who exceed authorized access of websites and computers. He released written testimony (PDF) on Monday, one day before he's scheduled to appear before a US House of Representatives subcommittee on Crime, Terrorism, and Homeland Security.
"The current version of the Computer Fraud and Abuse Act (CFAA) poses a threat to the civil liberties of the millions of Americans who use computers and the internet," said Kerr, who is a former prosecutor who handled hacking cases. "As interpreted by the Justice Department, many if not most computer users violate the CFAA on a regular basis. Any of them could face arrest and criminal prosecution."
The CFAA punishes people who intentionally exceed authorized access to obtain information from a protected computer. Kerr said exceeding authorization is as simple as violating a single term of service, such as one imposed by Match.com that forbids users from providing "inaccurate, misleading or false information" to any other member. A user who fibs about her weight or his height and gets access to another member's profile could well run afoul of the provision, Kerr said.
"The statute does not require that the information be valuable or private," he wrote. "Any information of any kind is enough. Routine and entirely innocent conduct such as visiting a website, clicking on a hyperlink, or opening an email generally will suffice."
The critique comes three years after federal prosecutors charged a Missouri mother for using a fraudulent MySpace profile to taunt a teenage girl who later committed suicide. Lori Drew was eventually found guilty, but the conviction was later overturned after the judge criticized the CFAA for criminalizing what would otherwise be a simple breach-of-contract claim in a civil case.
Kerr recommended that the CFAA be amended to clarify that exceeding authorized access doesn't include terms of service. An alternative statutory fix includes narrowing the law to cover only information that, when obtained in excess of authorization, is "associated with significant harms." ®