Computer Fraud and Abuse Act

Computer Fraud and Abuse Act

The Computer Fraud and Abuse Act is a law passed by the United States Congress in 1984 intended to reduce cracking of computer systems and to address federal computer-related offenses. The Computer Fraud and Abuse Act (codified as USC 18 1030 governs cases with a compelling federal interest, where computers of the federal government or certain financial institutions are involved, where the crime itself is interstate in nature, or computers used in interstate and foreign commerce. It was amended in 1986, 1994, 1996, in 2001 by the USA PATRIOT Act, and in 2008 by the Identity Theft Enforcement and Restitution Act. Subsection (b) of the act punishes anyone who not just commits or attempts to commit an offense under the Computer Fraud and Abuse Act but also those who conspire to do so.

The CFAA has specifically defined “protected computers” under USC 18 1030(e)(2) to mean a computer:

• exclusively for the use of a financial institution or the United States Government, or, in the case of a computer not exclusively for such use, used by or for a financial institution or the United States Government and the conduct constituting the offense affects that 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;

Evolution of the act

PATRIOT Act

The USA PATRIOT Act increased the scope and penalties of this act by:

• Raising the maximum penalty for violations to 10 years (from 5) for a first offense and 20 years (from 10) for a second offense;
• Ensuring that violators only need to intend to cause damage generally, not intend to cause damage or other specified harm over the $5,000 statutory damage threshold;
• Allowing aggregation of damages to different computers over a year to reach the $5,000 threshold;
• Enhancing punishment for violations involving any (not just $5,000) damage to a government computer involved in criminal justice or the military;
• Including damage to foreign computers involved in US interstate commerce;
• Including state law offenses as priors for sentencing; and
• Expanding the definition of loss to expressly include time spent investigating and responding (this is why it is important for damage assessment and for restoration)
• Selling a computer that has had a virus or currently has a virus is committing a federal offense that will be carried out with a sentence of up to 5 years in a federal state penitentiary, and,or a fine of up to $7,000

Identity Theft Enforcement and Restitution Act

The Identity Theft Enforcement and Restitution Act enhanced the jurisdiction of the Computer Fraud and Abuse Act by:

• Eliminating the requirement in USC 18 1030(a)(5) that the defendant’s action must result in a loss exceeding $5,000;
• Adding a provision to USC 18 1030(c)(4) that makes it a felony to cause damage to ten or more computers;
• Expanding jurisdiction for cases involving theft of information from computers by eliminating the requirement that information must have been stolen through an interstate or foreign communication;
• Enhancing prosecution for extortion related to computers by expanding USC 18 1030(a)(7) to criminalize not only explicit threats to cause damage to a computer, but also threats (1) to steal data on a victim’s computer, (2) to publicly disclose stolen data, or (3) to not repair damage the offender already caused to the computer;
• Amending USC 18 3663(b) to make clear that restitution orders for identity theft cases may include an amount equal to the value of the victim’s time spent in remediation of the actual or intended harm of the identity theft or aggravated identity theft offense;
• Creating a criminal offense for conspiring to commit a computer hacking offense under USC 18 1030;
• Broadening the definition of "protected computer" in USC 18 1030(e)(2)(b) to the full extent of Congress' commerce power by including those computers used in or affecting interstate or foreign commerce or communication;
• Providing a mechanism for forfeiture of property used in or derived from violations of USC 18 1030.

Criminal Offenses Under The Computer Fraud and Abuse Act

1. Knowingly accessing a computer without authorization in order to obtain national security data
2. Intentionally accessing a computer without authorization to obtain:
   • Information contained in a financial record of a financial institution, or contained in a file of a consumer reporting agency on a consumer.
   • Information from any department or agency of the United States
   • Information from any protected computer if the conduct involves an interstate or foreign communication
3. Intentionally accessing without authorization a government computer and affecting the use of the government's operation of the computer.
4. Knowingly accessing a protected computer with the intent to defraud and there by obtaining anything of value.
5. Knowingly causing the transmission of a program, information, code, or command that causes damage or intentionally accessing a computer without authorization, and as a result of such conduct, causes damage that results in:
   • Loss to one or more persons during any one-year period aggregating at least $5,000 in value.
   • The modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of one or more individuals.
   • Physical injury to any person.
   • A threat to public health or safety.
   • Damage affecting a government computer system
6. Knowingly and with the intent to defraud, trafficking in a password or similar information through which a computer may be accessed without authorization.

Specific sections

• 18 USC 1030(a)(1): Computer Espionage
• 18 USC 1030(a)(2): Computer trespassing, and taking government, financial, or commerce info
• 18 USC 1030(a)(3): Computer trespassing in a government computer
• 18 USC 1030(a)(4): Committing fraud with a protected computer
• 18 USC 1030(a)(5): Damaging a protected computer (including viruses, worms)
• 18 USC 1030(a)(6): Trafficking in passwords of a government or commerce computer
• 18 USC 1030(a)(7): Threatening to damage a protected computer
• 18 USC 1030(b): Conspiracy to violate (a)
• 18 USC 1030(c): Penalties
• 18 USC 1030(d) thru (h): Miscellaneous

Notable Cases and decisions referring to the Act

• Hotel licensee's spoofing of licensor's computers, in and of itself, constituted the unlawful, intentional transmission of a program, code or command that caused damage within meaning of Computer Fraud and Abuse Act (CFAA). 18 U.S.C.A. § 1030(a)(5)(B)(i). Four Seasons Hotels and Resorts B.V. v. Consorcio Barr, S.A., 267 F. Supp. 2d 1268 (S.D. Fla. 2003); West's Key Number Digest, Telecommunications 461.15.

• Computer Fraud and Abuse Act: Any "loss" actionable under Computer Fraud and Abuse Act (CFAA) is subject to Act's damages minimum, even though "loss" is mentioned separately from "damages" in CFAA provision creating right of action on part of anyone "who suffers damage or loss by reason of" violation; separate use of "loss" was intended to target remedial expenses as opposed to direct damage caused by computer "hacker." 18 U.S.C.A. § 1030(e)(8)(A), (g). In re DoubleClick Inc. Privacy Litigation, 154 F. Supp. 2d 497 (S.D. N.Y. 2001); West's Key Number Digest, Telecommunications 461.15.

• United States v. Riggs, the famous case against people associated with Phrack magazine for taking the E911 document, as described in Bruce Sterling's "Hacker Crackdown of 1990". The government dropped the case after it was revealed that the document was for sale from AT&T for $13. The E911 document was related to the founding of the Electronic Frontier Foundation.

• United States v. Morris, 928 F.2d 504, decided March 7, 1991. After the release of the Morris Worm, an early internet virus, its creator was convicted under the Act for causing damage and gaining unauthorized access to federal interest computers. This case in part led to the 1996 amendment of the act, which clarified the language that was argued during the case.

• Theofel v. Farey Jones, 2003 U.S. App. Lexis 17963, decided August 28, 2003 (U.S. Court of Appeals for the Ninth Circuit). Using a civil subpoena which is "patently unlawful", "bad faith" and "at least gross negligence" to gain access to stored email is a breach of this act and the Stored Communications Act.

• International Airports v Jacob Citrin, 2006. Citrin deleted files off his company computer before he quit, in order to hide his alleged bad behavior while an employee.

• United States v. Brekka, 1030(a)(2), 1030(a)(4), LVRC sued Brekka for allegedly taking information about clients and using it to start his own competing business.

• Robbins v. Lower Merion School District (U.S. Eastern District of Pennsylvania), where plaintiffs charged two suburban Philadelphia high schools secretly spied on students by surreptitiously and remotely activating webcams embedded in school-issued laptops the students were using at home, violating the Act. The schools admitted to secretly snapping over 66,000 webshots and screenshots, including webcam shots of students in their bedrooms.

• United States v. Lori Drew, 2008. The 'cyber-bullying' case involving the suicide of a girl harassed on Myspace.com. Charges were under 18 USC 1030(a)(2)(c) and (b)(2)(c). Judge Wu decided that using 18 USC 1030(a)(2)(c) against someone violating a 'terms of service' agreement would make the law overly broad. 259 F.R.D. 449

• People v. SCEA, 2010. Class action lawsuit against SCEA for removing OtherOS, the ability to install and run Linux (or other operating systems) on the PlayStation 3. Consumers were given the option to either keep OtherOS support or not. SCEA was allegedly in violation of this Act because if the consumer updated or not, they would still lose system functionality.

• Sony Computer Entertainment America v. George Hotz and Hotz v. SCEA, 2011. SCEA sued 'Geohot' & others for jailbreaking the PlayStation 3 system. The lawsuit alleged, among other things, that Hotz violated 18 USC 1030(a)(2)(c) (by taking info from any protected computer). Hotz denied liability and contested the Court's exercise of personal jurisdiction over him. The parties settled out of court.

• United States v. Nosal, 2011. Nosal & 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).

• United States v. Drake, 2010. Drake was part of a whistle-blowing effort inside the NSA to expose waste, fraud, and abuse with the Trailblazer Project. He talked to a reporter about the project. He was originally charged with 5 Espionage Act counts for doing this. These charges were dropped just before his trial was to begin, and instead he plead guilty to one misdemeanor count of violating the CFAA, (a)(2), unauthorized access. One of his advisers, Jesselyn Radack of the Government Accountability Project, called his work an "act of civil disobedience".

• United States v. Bradley Manning, 2010-. Bradley Manning was a soldier who allegedly disclosed tens of thousands of documents to those 'not entitled to receive' them. Among the 34 counts against him, there are several under (a)(1) and (a)(2) of the CFAA, some specifically linked to files like the Reykjavic 13 State Department cable and a video of the July 12, 2007 Baghdad airstrike.

• Grand Jury investigation in Cambridge, 2011. Unknown persons in Cambridge, Massachusetts, were ordered to attend Grand Jury hearings regarding charges under the CFAA, as well as the Espionage Act. Journalist Glenn Greenwald has written these were likely related to Wikileaks.

• United States v. Aaron Swartz Aaron Swartz allegedly entered an MIT wiring closet and set up a laptop to mass-download articles from JSTOR, which he later used in an academic study. He allegedly avoided various attempts by JSTOR and MIT to stop this, such as MAC address spoofing. The CFAA statutes against him were (a)(2), (a)(4), (c)(2)(B)(iii), (a)(5)(B), and (c)(4)(A)(i)(I),(VI).

• United States v. Peter Alfred-Adekeye 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.

• United States v. Laborer's International Union of North America et al. Pelte company fired a LIUNA employee resulting in a labor dispute with LIUNA. LIUNA told it's members to email and phone the company and tell it how they felt. This resulted in a CFAA charge because the company's email system got overloaded.

See also

• Information technology audit
• Computer security audit
• Computer fraud case studies
• Electronic Communications Privacy Act
• The Hacker Crackdown (discussing the application of this law in the infamous hacker crackdown of the late 1980s and early 1990s)
• Defense Secrets Act of 1911 / Espionage Act of 1917 / McCarran Internal Security Act 1950
• California Comprehensive Computer Data Access and Fraud Act
• Electronic Communications Privacy Act

External links

• Cybercrime: A Sketch of 18 U.S.C. 1030 and Related Federal Criminal Laws, by Charles Doyle, CRS, 12 27 2010, (FAS.org)