Trespass, Not Fraud: The Need for New Sentencing Guidelines in CFAA Cases

Abstract

This Article argues that the existing regime for sentencing violations of the Computer Fraud and Abuse Act (“CFAA”) is based on a conceptual error that consistently leads to improper sentencing recommendations. The Federal Sentencing Guidelines treat CFAA violations as economic crimes. Most CFAA crimes are rooted in trespass, however, instead of economic wrongs such as fraud. The difference is significant. The economic crimes framework leads guidelines calculations to focus too much on economic loss and not enough on the circumstances of the crime. The Article concludes by sketching out a better way to calculate sentencing recommendations in CFAA cases.

Keywords: CFAA, Hacking, Sentencing Guidelines

JEL Classification: K14