Vagueness Challenges to the Computer Fraud and Abuse Act
Orin S. Kerr
The George Washington University Law School
December 22, 2009
94 Minnesota Law Review 1561 (2010)
GWU Legal Studies Research Paper No. 482
GWU Law School Public Law Research Paper No. 482
This Article argues that the void for vagueness doctrine requires courts to adopt narrow interpretations of the Computer Fraud and Abuse Act. On its face, the CFAA has become extraordinarily broad. Recent amendments indicate that Congress has largely abandoned the job of identifying what conduct involving computers should or should not be a federal crime. Congress has broadened the statute so far that the courts must now narrowly construe the statute to save its constitutionality.
This Article demonstrates how courts should narrowly construe the statute under the void for vagueness doctrine by focusing on two recent criminal prosecutions: United States v. Drew, which considered whether Terms of Service violations trigger CFAA liability, and United States v. Nosal, which asked whether it violates the CFAA for employees to access their employers’ computers in ways contrary to their employers’ interests. These two prosecutions show the critical role of vagueness doctrine in interpreting the CFAA, pointing to a future of judicial narrowing of the statute.
Number of Pages in PDF File: 27
Keywords: computer hacking, CFAA, Computer Fraud and Abuse Act
JEL Classification: k14
Date posted: December 23, 2009 ; Last revised: February 27, 2015