Hacking Antitrust: Competition Policy and the Computer Fraud and Abuse Act

Abstract

The Computer Fraud and Abuse Act, a federal computer trespass statute that prohibits accessing a computer “without authorization or exceeding authorized access,” has often been criticized for clashing with online norms, overcriminalizing common behavior, and infringing freedom of expression interests. These controversies over the CFAA have raised difficult questions about how the statute is to be interpreted, with courts of appeals split on the proper construction and the Supreme Court set to consider the law this Term.

This article considers the CFAA in a new light, namely its effects on competition. Rather than merely preventing injurious trespass upon computers, the CFAA has become a favorite legal tool for dominant firms in the computer services industry to suppress competition, expand their market control, and impose transaction costs that limit consumer choice. To explore how the CFAA implicates competition, two novel approaches are used. First, this article compares prior uses of the CFAA to competition issues identified in the computer industry and other fields. This comparison reveals that the CFAA has the ability to insulate from legal scrutiny activity that at a minimum raises serious questions about negative effects on competition. Second, the article draws upon the theory and law of intellectual property, in particular trade secrets and copyright. Because it protects information but lacks the competition-protective features of copyrights and trade secrets, the CFAA essentially creates an ad hoc intellectual property regime that enables the improper suppression of competition.

Insofar as Congress presumably did not intend the CFAA to be an anticompetitive legal tool, the question is how to avoid this result. This article posits that the anticompetitive consequences of the CFAA can be avoided if the law is narrowly construed such that access “without authorization” does not include violations of restrictions on how accessed data is subsequently used. At least from a competition policy perspective, then, a narrow construction is favorable over the broad one.

Keywords: computers, CFAA, antitrust, competition, intellectual property

JEL Classification: K14, K21, O34