Authority and Authors and Codes
29 Pages Posted: 14 Dec 2016
Date Written: December 13, 2016
Contests over the meaning and application of the federal Computer Fraud and Abuse Act (“CFAA”) expose long-standing, complex questions about the sources and impacts of the concept of authority in law and culture. Accessing a computer network “without authorization” and by “exceeding authorized access” is forbidden by the CFAA. Courts are divided in their interpretation of this language in the statute. This Article first proposes to address the issue with an insight from social science research. Neither criminal nor civil liability under the CFAA should attach unless the alleged violator has transgressed some border or boundary that is rendered visible or “imageable” in the language of the research on which the argument draws. That claim leads to a second, broader point — emphasizing the potential “imageability” of computer networks, including the Internet, has implications that go beyond one statute because of what that emphasis may teach those who create and implement those networks and who shape the authority that relevant computer code exercises. “Authority” and “authorization” are social practices, continuing negotiations between those who produce them and those who acknowledge and recognize them. “Imageability” is a way of translating that observation into a normative claim in a specific statutory context. Recognizing the social dimensions of “authority” implicates both what kind of Internet society wants and what kind of Internet society will get.
Keywords: CFAA, Computer Fraud and Abuse Act, hacking, computer intrusions, authors, authorship, copyright, code, signals, signaling, imageability
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