CFAA Reform to Criminalize Teenagers for Reading News Online?

It’s an evolution of habits. Instead of opening a newspaper, many are turning to the Internet to find out what is happening in this world today. Unfortunately, it seems that part of the CFAA (Computer Fraud and Abuse Act) reform could inadvertently make it a criminal offense for teenagers to view many well-read news sites.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

Picture this scenario: you wake up a little earlier than normal one morning. Rather than head to school early, you decide to check out a few news sites to find out what’s the latest from North Korea. After reading an article or two, you check your watch, brush your teeth and head for classes.

If you’re 19 years old, this act is perfectly normal and no one is going to frown upon you for doing so. If you are two years younger, you could technically be thrown in jail for violating the CFAA if it is reformed the way some are hoping to have it reformed. That’s roughly what the Electronic Frontier Foundation (EFF) is saying about some of the reform ideas about the law. Here’s a snippet from the EFF:

As we’ve explained previously, in multiple cases the DOJ has taken the position that a violation of a website’s Terms of Service or an employer’s Terms of Use policy can be treated as a criminal act. And the House Judiciary Committee has floated a proposal that largely adopts the DOJ’s position, making it possible to prosecute a user for accessing website for a purpose other than intended by the publisher. For a number of reasons, including the requirements of the Children’s Online Privacy Protection Act, many news sites have terms of service that prohibit minors from using their interactive services and sometimes even visiting their websites.

The EFF goes on to explain that many news sites such as the Houston Chronicle, the San Francisco Chronicle, and Popular Mechanics all contains terms and conditions that demand that users be 18 years or older to view the content of their website. Often, such terms and conditions are meant as a measure to protect the website from liability. It’s unlikely that most websites ever put those provisions in their terms and conditions for the purpose of some day throwing people under the age of 18 in jail for viewing their content. The EFF continues:

We’d like to say that we’re being facetious, but, unfortunately, the Justice Department has already demonstrated its willingness to pursue CFAA to absurd extremes. Luckily, the Ninth Circuit rejected the government’s arguments, concluding that, under such an ruling, millions of unsuspecting citizens would suddenly find themselves on the wrong side of the law. As Judge Alex Kozinski so aptly wrote: “Under the government’s proposed interpretation of the CFAA…describing yourself as ‘tall, dark and handsome,’ when you’re actually short and homely, will earn you a handsome orange jumpsuit.”

And it’s no excuse to say that the vast majority of these cases will never be prosecuted. As the Ninth Circuit explained, “Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.” Instead of pursuing only suspects of actual crimes, it opens the door for prosecutors to go after people because the government doesn’t like them.

Unfortunately, there’s no sign the Justice Department has given up on this interpretation outside the Ninth and Fourth Circuits, which is why the Professor Tim Wu in the New Yorker recently called the CFAA “the most outrageous criminal law you’ve never heard of.”

The potential criminalization of terms of service is a prime reason that Congress needs to overhaul CFAA and it’s certainly why the House Judiciary Committee should abandon the seemingly DOJ-drafted bill it floated recently and instead sit down with Rep. Zoe Lofgren, Rep. Darrell Issa, and others to negotiate real reform.

Whether or not the Department of Justice (DOJ) would actually throw someone in jail for simply reading news online remains to be seen. Still, these comments do highlight some of the more severe flaws in the CFAA reform proposals.

Drew Wilson on Twitter: @icecube85 and Google+.

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