Old laws can cause confusion and unduly harsh consequences, particularly when courts confront situations Congress did not anticipate. This is particularly true for the Computer Fraud and Abuse Act, 18 U.S.C. § 1030—the federal “anti-hacking” statute prompted in part by fear generated by the 1983 techno-thriller “WarGames.” The CFAA was enacted in 1986, and the government’s current prosecution of journalist Matthew Keys—who faces sentencing on Jan. 20 for three counts of violating the CFAA—illustrates the 30-year-old statute’s many problems.

The CFAA makes it illegal to intentionally access a “protected computer”—which includes any computer connected to the Internet—”without authorization” or in excess of authorization. But the CFAA does not define “without authorization.” This has given overzealous prosecutors broad discretion to bring criminal charges against individuals for behavior that simply doesn’t rise to the culpability Congress had in mind when it passed this serious criminal law, such as doing something on a computer network that the owner doesn’t like. (There is currently a circuit split on whether violations of employer-imposed use restrictions can give rise to CFAA liability, with the U.S. Courts of Appeal for the Second, Fourth and Ninth Circuits finding that they cannot, and the First, Fifth, Seventh and Eleventh finding that they can.)

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