Peter A. Crusco Gates Down! Barrett Forecloses Expansion of Federal Criminal Liability Under the CFAA
In this edition of his Cyber Crime column, Peter A. Crusco explores a recent Supreme Court decision in 'Van Buren' authored by Justice Barrett, which resoundingly rejected the "contract theory" of prosecution under the CFAA, and an expansion of federal criminal law that would have led to potentially a myriad of arbitrary interpretations of computer access agreements as the basis for federal prosecutions.
June 21, 2021 at 12:45 PM
10 minute read
In last December's column, this writer made a forecast that the U.S. Supreme Court, in a case pending before it at the time, Van Buren v. United States, 593 U.S. ___ (2021), 2021 U.S. LEXIS 2843 (decided June 3, 2021), would probably place a "speed bump" in the way of certain future prosecutions under the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. §1030(a)(2) et seq., the federal criminal computer trespass statute. Although my prediction was in the target area, and would have been award winning, if I were a weatherman, it fell short of the mark, and was actually an underestimation given the High Court's decision this month. Instead of placing a speed bump, the Supreme Court, in a 6 to 3 decision authored by Associate Justice Amy Coney Barrett, resolved to shut the road completely down by interpreting the CFAA narrowly.
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