Aaron projects/CFAA

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Work in progress; please link to other work here
Goal
Let's prepare for a full repeal of the CFAA and replacement with sane law.
Questions
How would we construct good law in these areas, from scratch?
How do different areas of law, policy, and internet governance view the law and its impact?
What would it take to generate support for a [repeal + replace] action, in each area?
What are the professional and philosophical circles for each of these areas, where these issues are discussed?

Contents

Overview

The CFAA was developed over time as a merger of ~7 different areas of law. It has developed in an aggregate way, and few groups are happy with the current law. It is so broad that prosecutors like it because they can use it to force plea bargains, since it applies to almost everything in its sphere of action (relying on prosecutorial judgement).

Different parts of the story: National defense, cyber war, data sec, corporate law, contracts online. Authorization based on code, contract, social norms. Legal frameworks used to push political means. Career standards for prosecutors defined in political ways.

Background

Aaron's Law
Govtrack updates
  • H.R. 2454 (Lofgren bill; referred to House Judiciary subcommittee on Crime, Terrorism, Homeland Security, and Investigations)
  • S. 1196 (Wyden bill; referred to Senate Judiciary)
  • H.R. 2077 (Perlmutter bill; referred to House Judiciary subcommittee on Crime, Terrorism, Homeland Security, and Investigations)
  • S. 1426 (Blumenthal bill; referred to Senate Health, Education, Labor, and Pensions Committee)

Details

Aspects of the search
  • "Advanced technical crime" -- The deployment of the SS was a bit peculiar; but they were the only fed. agents trained in what they were looking for.
Civil rights concerns
  • Part of the prosecution that was particularly troubling: at one point in the invest., it felt that they were keeping the prosecution going b/c they'd spent so much time bringing it along. There was no will from victims to keep it going, and not necc. any other desire, but the prosecutors for their own reason wanted conclusion.
    Suggestion: employ economists to remind people of sunk costs
Three levels of problem
  • Occlusion of different agendas and sets of laws
    Compare pre-computer to post-computer laws for identical crimes.
  • Problems with prosecution as it happens today
    Motivations for initiating/closing cases
  • The nature of CFAA as it's been employed
    Failure of proportionality

Legal elements

There are 7 planks to 10.30 title 18:

  1. Security, foreign relations, atomic info
  2. Access to computer, obtaining info
  3. Accessing a US [gov owned or controlled] computer
  4. Wire fraud
    Overlap with WFA, rather irrelevant in current environs
  5. Computer damage
    Separates intent: recklessness; intent to damage; causing both damage + loss [~$5k threshhold] regardless of intent
  6. Password Trafficking
  7. Extortion
    intent to damage; to obtain access; to get $ compensation - done over a computer

Proposed solutions

Aaron's Law

  • Lower some of the penalties for crimes that produce little or no harm,
  • Delete a provision that is repeated elsewhere in the statute
  • Clarify once and for all that violating terms of service agreements is not a crime.
    NB - Chin in US v. Drew - precedent that an individual, violating a TOS without a script, is pretty clearly not a crime. But it is still always used as a threat to amplify perceived risk.
current status
  • referred to the Committee on Crime, Terr, Homeland Security subcomm of Judiciary Committee (chair: Sensenbrenner)

Open questions

Does 'authorization' make sense as the basis for such a law?
As opposed to other corollaries re: trespass and access?

Social issues

Confusion/overlap between different parts of the government 
in terms of means and ways
  • b/t different parts of the government
  • b/t different phil and pol goals
  • b/t social-good and infosec goals

Active proposals

Patching existing law

EFF proposals and ideas
  • Limit scope of "exceeding authorized access"
Say: contractual violation can't be the basis for this
  • Amend the Wire Fraud Act
Say: contractual violation can't be the basis for this
  • lower penalties for crimes that produce little or no harm
  • cleanup: delete repeated provision, delete provision repeated in WFA
  • clarify once and for all that violating TOS is not a crime (nb: it can still be prosecuted civilly)
Fork the Law page, listing legal history and proposed changes


Creating something new

Manifesto
Drafting example legislation?
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