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A Trespass Framework for the Crime of Hacking

24 Pages Posted: 4 Aug 2017 Last revised: 31 Oct 2017

Josh Goldfoot

U.S. Department of Justice - Computer Crime & Intellectual Property Section, Criminal Division

Aditya Bamzai

University of Virginia - School of Law

Date Written: August 1, 2017

Abstract

Computer crime statutes prohibit accessing a computer without “authorization.” In recent years, this element has attracted considerable controversy, with some courts expressing concern that “authorization” is so indeterminate that the Computer Fraud and Abuse Act (“CFAA”) is void for vagueness. This Article argues that “authorization” under the CFAA has the same meaning as authorization under criminal physical trespass laws. This approach is more straightforward than the alternatives currently offer, and it aligns with Congress’s announced intention to bring physical trespass law to computer networks. Although interpreting “authorization” under the CFAA can be difficult, near-identical difficulties also arise in the context of physical trespass. As a result, questions under the CFAA can be resolved by looking to the resolution of similar questions in the context of physical trespass. In addition, because both physical trespass and the CFAA require proof that the defendant knew his access was unauthorized, the merits of a void-for-vagueness challenge to computer trespass rise and fall with the merits of a similar challenge to physical trespass. Given the pedigree of the latter, a constitutional challenge to the former seems questionable.

Keywords: Computer Fraud and Abuse Act, Computer Crime, Void for vagueness, trespass, property

Suggested Citation

Goldfoot, Josh and Bamzai, Aditya, A Trespass Framework for the Crime of Hacking (August 1, 2017). 84 George Washington Law Review 1477 (2016); Virginia Public Law and Legal Theory Research Paper No. 2017-37. Available at SSRN: https://ssrn.com/abstract=3012217

Josh Goldfoot

U.S. Department of Justice - Computer Crime & Intellectual Property Section, Criminal Division ( email )

950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
United States

Aditya Bamzai (Contact Author)

University of Virginia - School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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