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

24 Pages Posted: 18 May 2016 Last revised: 13 Mar 2018

See all articles by Orin S. Kerr

Orin S. Kerr

University of California, Berkeley School of Law

Date Written: May 17, 2016

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

Suggested Citation

Kerr, Orin S., Trespass, Not Fraud: The Need for New Sentencing Guidelines in CFAA Cases (May 17, 2016). 84 George Washington Law Review 1544 (2016). . Available at SSRN: https://ssrn.com/abstract=2781111

Orin S. Kerr (Contact Author)

University of California, Berkeley School of Law ( email )

Boalt Hall
Berkeley, CA 94720-7200
United States

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