The Law of the Zebra
73 Pages Posted: 22 Jul 2017
Date Written: August 1, 2013
At the dawn of internet law, scholars and judges debated whether a “law of the horse” — a set of specific laws addressing technology problems — was ever needed. Time has demonstrated that in some cases, the answer is yes. However, some courts are confused about the appropriate trajectory of contract law in technology contexts. Today, a technologycentric analysis threatens to subvert traditional contract law and the future of entrepreneurship, and circuit splits have emerged in what might be called an undesirable “law of the zebra.” Do contracts that involve technology always require exceptional contract rules? In particular, does the use of a computer to breach a contract make the breach inherently worse in law? Using the Computer Fraud and Abuse Act (“CFAA”) as a case study, this Article introduces a paradigm of “restrained technology exceptionalism” in contract law, a paradigm predicated on a return to traditional contract law principles and contractual supremacy over technology exceptionalist legal approaches. Applying the restrained technology exceptionalism paradigm to a circuit split concerning the CFAA, this Article then introduces a “privity” model bridging contract law with CFAA analysis, which inverts the traditional legal framing of the CFAA and contract relationship. It argues that where contract formation has occurred, the contract controls the relationship and only contract remedies are appropriate; both criminal and civil CFAA analysis becomes inapposite and should not be considered. Thus, the operative legal question is not whether contract breach revokes authorization in CFAA context. Rather, it is whether contract analysis is possible, thereby rendering the CFAA unnecessary and redundant in contractual contexts.
Keywords: CFAA, Security, Hackers, Cyber, Contract, Breach, Innovation
JEL Classification: Z18
Suggested Citation: Suggested Citation