Computer Fraud and Abuse Act

The Computer Fraud and Abuse Act of 1986 (CFAA) is a United States cybersecurity bill that was enacted in 1986 as an amendment to existing computer fraud law (), which had been included in the Comprehensive Crime Control Act of 1984. Prior to computer-specific criminal laws, computer crimes were prosecuted as mail and wire fraud, but the applying law was often insufficient.

The original 1984 bill was enacted in response to concern that computer-related crimes might go unpunished. The House Committee Report to the original computer crime bill included a statement by a representative of GTE-owned Telenet that characterized the 1983 techno-thriller film WarGames—in which a young teenager (played by Matthew Broderick) from Seattle breaks into a U.S. military supercomputer programmed to predict possible outcomes of nuclear war and unwittingly almost starts World War III—as "a realistic representation of the automatic dialing and access capabilities of the personal computer." Transcribed in: Reproduced in:

The CFAA was written to extend existing tort law to intangible property, while, in theory, limiting federal jurisdiction to cases "with a compelling federal interest—i.e., where computers of the federal government or certain financial institutions are involved or where the crime itself is interstate in nature", but its broad definitions have spilled over into contract law (see "Protected Computer", below). In addition to amending a number of the provisions in the original section 1030, the CFAA also criminalized additional computer-related acts. Provisions addressed the distribution of malicious code and denial-of-service attacks. Congress also included in the CFAA a provision criminalizing trafficking in passwords and similar items.

Since then, the Act has been amended a number of times—in 1989, 1994, 1996, in 2001 by the USA PATRIOT Act, 2002, and in 2008 by the Identity Theft Enforcement and Restitution Act. With each amendment of the law, the types of conduct that fell within its reach were extended. In 2015, President Barack Obama proposed expanding the CFAA and the RICO Act. DEF CON organizer and Cloudflare researcher Marc Rogers, Senator Ron Wyden, and Representative Zoe Lofgren stated opposition to this on the grounds it would make many regular internet activities illegal. In 2021, the Supreme Court ruled in Van Buren v. United States to provide a narrow interpretation of the meaning of "exceeds authorized access".

Protected computers The only computers, in theory, covered by the CFAA are defined as "protected computers". They are defined under section to mean a computer: exclusively for the use of a financial institution or the United States Government, or any computer, when the conduct constituting the offense affects the computer's use by or for the financial institution or the government; or which is used in or affecting interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States ...

In practice, any ordinary computer has come under the jurisdiction of the law, including cellphones, due to the interstate nature of most Internet communication.

Criminal offenses under the Act (a) Whoever— (1) having knowingly accessed a computer without authorization or exceeding authorized access, and by means of such conduct having obtained information that has been determined by the United States Government pursuant to an Executive order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations, or any restricted data, as defined in paragraph y. of section 11 of the Atomic Energy Act of 1954, with reason to believe that such information so obtained could be used to the injury of the United States, or to the advantage of any foreign nation willfully communicates, delivers, transmits, or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains— (A) information contained in a financial record of a financial institution, or of a card issuer as defined in section 1602 (n) of title 15, or contained in a file of a consumer reporting agency on a consumer, as such terms are defined in the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.); (B) information from any department or agency of the United States; or (C) information from any protected computer; (3) intentionally, without authorization to access any nonpublic computer of a department or agency of the United States, accesses such a computer of that department or agency that is exclusively for the use of the Government of the United States or, in the case of a computer not exclusively for such use, is used by or for the Government of the United States and such conduct affects that use by or for the Government of the United States; (4) knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period; (5) (A) knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer; (B) intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or (C) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss. (6) knowingly and with intent to defraud traffics (as defined in section 1029) in any password or similar information through which a computer may be accessed without authorization, if— (A) such trafficking affects interstate or foreign commerce; or (B) such computer is used by or for the Government of the United States; (7) with intent to extort from any person any money or other thing of value, transmits in interstate or foreign commerce any communication containing any— (A) threat to cause damage to a protected computer; (B) threat to obtain information from a protected computer without authorization or in excess of authorization or to impair the confidentiality of information obtained from a protected computer without authorization or by exceeding authorized access; or (C) demand or request for money or other thing of value in relation to damage to a protected computer, where such damage was caused to facilitate the extortion

Specific sections : Computer espionage. This section takes much of its language from the Espionage Act of 1917, with the notable addition being that it also covers information related to "Foreign Relations", not simply "National Defense" like the Espionage Act. : Computer trespassing, and taking government, financial, or commerce info : Computer trespassing in a government computer : Committing fraud with computer : Damaging a protected computer (including viruses, worms) : Trafficking in passwords of a government or commerce computer : Threatening to damage a protected computer : Conspiracy to violate (a) : Penalties : Investigative, protective, and intelligence activities

Notable cases and decisions referring to the Act

The Computer Fraud and Abuse Act is both a criminal law and a statute that creates a private right of action, allowing compensation and injunctive or other equitable relief to anyone harmed by a violation of this law. These provisions have allowed private companies to sue disloyal employees for damages for the misappropriation of confidential information (trade secrets).

Criminal cases United States v. Morris (1991), 928 F.2d 504 (2d Cir. 1991), decided March 7, 1991. After the release of the Morris worm, an early computer worm, its creator was convicted under the Act for causing damage and gaining unauthorized access to "federal interest" computers. The Act was amended in 1996, in part, to clarify language whose meaning was disputed in the case. United States v. Lori Drew, 259 F.R.D. 449 (C.D. Cal. 2009). The cyberbullying case involving the suicide of a girl harassed on MySpace. Charges were under 18 USC 1030(a)(2)(c) and (b)(2)(c). Judge Wu decided that using against someone violating a terms of service agreement would make the law overly broad.U.S. v. Lori Drew, scribdUS v Lori Drew, psu.edu Kyle Joseph Sassman, United States v. Rodriguez, 2010. The Eleventh Circuit Court of Appeals ruled that a Social Security Administration employee had violated the CFAA when he used an SSA database to look up information about people he knew personally. United States v. Collins et al, 2011. A group of men and women connected to the collective Anonymous signed a plea deal to charges of conspiring to disrupt access to the payment website PayPal in response to the payment shutdown to WikiLeaks over the Wau Holland Foundation which was part of a wider Anonymous campaign, Operation Payback. They later became known under the name PayPal 14. United States v. Aaron Swartz, 2011. Aaron Swartz allegedly entered an MIT wiring closet and set up a laptop to mass-download articles from JSTOR. He allegedly avoided various attempts by JSTOR and MIT to stop this, such as MAC address spoofing. He was indicted for violating CFAA provisions (a)(2), (a)(4), (c)(2)(B)(iii), (a)(5)(B), and (c)(4)(A)(i)(I),(VI).See Internet Activist Charged in M.I.T. Data Theft, By NICK BILTON New York Times, July 19, 2011, 12:54 PM, as well as the Indictment The case was dismissed after Swartz committed suicide in January 2013.Dave Smith, Aaron Swartz Case: U.S. DOJ Drops All Pending Charges Against The JSTOR Liberator, Days After His Suicide, International Business Times, January 15, 2013. United States v. Nosal, 2011. Nosal and others allegedly accessed a protected computer to take a database of contacts from his previous employer for use in his own business, violating 1030(a)(4).U.S. v. Nosal, uscourts.gov, 2011Appeals Court: No Hacking Required to Be Prosecuted as a Hacker, By David Kravets, Wired, April 29, 2011 This was a complex case with multiple trips to the Ninth Circuit, which ruled that violating a website's terms of use is not a violation of the CFAA. He was convicted in 2013. In 2016, the Ninth Circuit ruled that he had acted "without authorization" when he used the username and password of a current employee with their consent and affirmed his conviction. The Supreme Court declined to hear the case. United States v. Peter Alfred-Adekeye 2011. Adekeye allegedly violated (a)(2), when he allegedly downloaded CISCO IOS, allegedly something that the CISCO employee who gave him an access password did not permit. Adekeye was CEO of Multiven and had accused CISCO of anti-competitive practices.US v Adekeye Indictment. see also Federal Grand Jury indicts former Cisco Engineer By Howard Mintz, 08/05/2011, Mercury News United States v Sergey Aleynikov, 2011. Aleynikov was a programmer at Goldman Sachs accused of copying code, like high-frequency trading code, allegedly in violation of 1030(a)(2)(c) and 1030(c)(2)(B)i–iii and 2. This charge was later dropped, and he was instead charged with theft of trade secrets and transporting stolen property.US v Sergey Aleynikov, Case 1:10-cr-00096-DLC Document 69 Filed 10/25/10Ex-Goldman Programmer Described Code Downloads to FBI (Update1), David Glovin and David Scheer. July 10, 2009, Bloomberg