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Americans for Prosperity Foundation files Supreme Court amicus brief arguing computer hacking statute does not criminalize sharing Netflix passwords, checking sports at work

Jul 8, 2020 by AFP

Today, Americans for Prosperity’s sister organization, Americans for Prosperity Foundation, filed a friend-of-the-court brief in the U.S. Supreme Court in Van Buren v. United States.

The brief asks the Court to interpret a federal anti-computer-hacking statute, the Computer Fraud and Abuse Act (CFAA), in a commonsense way that avoids criminalizing the day-to-day actions of millions of unsuspecting Americans.

In plain English, the CFAA does not, and was not intended to:

  • Criminalize fudging details about one’s age or employment history on social networking sites in violation of the fine print in website terms of service
  • Checking a sports score or a personal email on a work computer in violation of an applicable computer-use policy
  • Or other garden-variety breaches of contract involving a computer or smart phone that happens to be connected to the Internet.

Americans for Prosperity Foundation also urged the Court to construe the CFAA consistent with the U.S. Constitution. Criminalizing violations of the fine-print legalese in website terms of service, company computer-use policies —documents most people are only dimly aware of and likely have never read — without any requirement of a culpable intent would violate the Fifth Amendment’s Due Process Clause.

In addition, allowing private parties to create new federal crimes in the fine print of contracts drafted by their lawyers would violate the separation of powers because only Congress may do so through legislation.  The Constitution bars private parties from writing federal criminal law.

As Americans for Prosperity Foundation’s friend-of-the-court brief argues:

[T]he real-world stakes here are high and radiate far beyond the specific facts of this case. If allowed to stand, the Eleventh Circuit’s erroneous interpretation of the [CFAA’s] proscription against exceeding authorized computer access … would wrongly criminalize a wide swath of innocent, innocuous conduct turning millions of honest, hardworking Americans into federal criminals.”  The brief adds: “To avoid these serious and far reaching constitutional and practical problems, this Court should construe the CFAA narrowly, consistent with its text, structure, and history, and the U.S. Constitution.

Read the full brief here