Social Media and Federal Prosecution: A Circuit Split on Cybercrime and the Interpretation of the Computer Fraud and Abuse Act
Melissa Anne Springer · bepress Legal Repository · 2018
BACKGROUND ON THE COMPUTER FRAUD AND ABUSE ACT"Everything has a computer in it nowadays."4 Although a single computer originally filled an entire room, 5 computers today are so innovative that we can wear them on our wrists.6 We use computers to research case law, to check the daily news, to make phone or video calls, to help monitor our health, to store credit card numbers and make payments, and more.In essence, "[c]omputers now dominate nearly every aspect of our lives."7 Because of their prevalence and dominance in our lives, more than half of the world's population has been the victims of cybercrime 8 and about 65% of businesses "reported some form of unauthorized use of their computer system." 9 Through a congressional act to prevent future damage to computers, individuals, or businesses, these cybercrimes are classified as both federal crimes 10 and fraudulent acts subject to civil remedies.11 Although originally enacted by Congress in 1984 12 to prosecute hackers, 13 the CFAA now provides a private right of action for various 4. Shawn E. Tuma, What Does CFAA Mean and Why Should I Care? -A Primer on the Computer Fraud and Abuse Act for Civil Litigation, 63 S.C. L. REV.141, 144 (2011) [hereinafter Tuma, Why Should I Care?] (quoting United States v. Kramer, 631 F.3d 900, 901 (8th Cir.2011) (quoting Mark Milian, Apple's Steve Wozniak: "We've Lost A Lot of Control," CNN, (Dec.8, 2010, 12:16 PM), http://www.cnn.com/2010/TECH/innovation/12/08/steve.wozniak.computers)).5. See John Kopplin, An Illustrated History of Computers Part 4 (2002), http://www.computersciencelab.com/ComputerHistory/HistoryPt4.htm(last visited Jan. 24, 2017).6.Such computers and innovative technology has led to "smartwatches," a compact computer device.See e.g.Scott Stein, Apple Watch Review -Apple Watch One Year In: My (Kinda Sorta) Everyday Companion, CNET, (May 3, 2016), https://www.cnet.com/products/apple-watch. 7. Tuma, Why Should I Care?, supra note 4, at 144. 8. Id. at 146. 9. Id. 10.Id. (citing Amber L. Leaders, Note, Gimme a Brekka!: Deciphering "Authorization" Under the CFAA and How Employers Can Protect Their Data, 6 WASH.J. L., TECH.& ARTS 285, 288 (2011) (quoting 18 U.S.C. § 1030(a)(2) (2006) ("The CFAA states in relevant part that whoever 'intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . .information contained in a financial record of a financial institution, or of a card issuer . . .or contained in a file of a consumer reporting agency on a consumer' commits a federal crime")).11.Id. at 146-147 (citing Hanger Prosthetics & Orthotics v. Capstone Orthopedic, Inc., 556 F. Supp.2d 1122, 1131 (E.D. Cal 2008) (explaining that, as used in 18 U.S.C. § 1030(a)(4), the term "'defraud' . . .simply means wrongdoing")).12. See WEC Carolina Energy Solutions LLC v. Miller, 687 F.3d 199, 201 (4th Cir.2012) (explaining how Congress first passed the Counterfeit Access Devise and Computer Fraud and Abuse Act in 1984 and then revised and expanded the CFAA in 1986, naming it the Computer Fraud and Abuse Act of 1986).13. Congress enacted the CFAA to "enhance the government's ability to prosecute computer crimes" and originally "target[ed] hackers who accessed computer to steal information or to disrupt or destroy computer functionality, as well as criminals who possessed the capacity to 'access and control high technology processes vital to our everyday lives . . ..'"