Cybercrime and the Law: Computer Fraud and Abuse Act (CFAA) and the 116th Congress

Cybercrime and the Law: Computer Fraud and Abuse Act (CFAA) and the 116th Congress

Cybercrime and the Law: Computer Fraud and
September 21, 2020
Abuse Act (CFAA) and the 116th Congress
Peter G. Berris
The Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, is a civil and criminal
Legislative Attorney
cybercrime law prohibiting a variety of computer-related conduct. Although sometimes described

as an anti-hacking law, the CFAA is much broader in scope. Indeed, it prohibits seven categories
of conduct including, with certain exceptions and conditions:

1. Obtaining national security information through unauthorized computer access and sharing or retaining it;
2. Obtaining certain types of information through unauthorized computer access;
3. Trespassing in a government computer;
4. Engaging in computer-based frauds through unauthorized computer access;
5. Knowingly causing damage to certain computers by transmission of a program, information, code, or command;
6. Trafficking in passwords or other means of unauthorized access to a computer;
7. Making extortionate threats to harm a computer or based on information obtained through unauthorized access to a
computer.
Since the original enactment of the CFAA in 1984, technology and the human relationship to it have continued to evolve.
Although Congress has amended the CFAA on numerous occasions to respond to new conditions, the rapid pace of
technological advancement continues to present novel legal issues under the statute. For example, with increasing
computerization has come a corresponding proliferation of Terms of Service (ToS) agreements—contractual restrictions on
computer use. But federal courts disagree on whether the CFAA imposes criminal liability for ToS violations, and the United
States Supreme Court is currently considering a case on this issue. Another technological development that has created
tension under the CFAA is the rise of botnets, which are networks of compromised computers often used by cybercriminals.
Although the CFAA prohibits creating botnets and using them to commit certain crimes, it is unclear if selling or renting a
botnet violates the statute—a potential concern given that botnet access is often rented from botnet brokers. On a more basic
level, another change that has prompted some reexamination of the CFAA is the seemingly-growing frequency of computer
crime. Some contend that the prevalence and perniciousness of hacking requires private actors to defend themselves by
hacking back—that is, initiating some level of intrusion into the computer of the initial attacker. The same provisions of the
CFAA that prohibit hacking ostensibly also make it a crime to hack back, which some legislation has sought to change.

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Contents
Introduction ................................................................................................................... 1
History of the CFAA........................................................................................................ 2
Overview of the CFAA .................................................................................................... 4
Key CFAA Terms ...................................................................................................... 4
Computer ............................................................................................................ 4
Without Authorization and Exceeds Authorized Access .............................................. 6
Prohibited Conduct Under the CFAA ............................................................................ 8
Cyber Espionage, 18 U.S.C. § 1030(a)(1)................................................................. 8
Obtaining Information by Unauthorized Computer Access, 18 U.S.C.
§ 1030(a)(2)...................................................................................................... 9
Government Computer Trespassing, 18 U.S.C. § 1030(a)(3) ..................................... 10
Computer Fraud: 18 U.S.C. § 1030(a)(4) ............................................................... 12
Damaging a Computer, 1030(a)(5) ........................................................................ 14
Password Trafficking, 18 U.S.C. § 1030(a)(6) ......................................................... 17
Threats and Extortion, 18 U.S.C. § 1030(a)(7) ........................................................ 18
Remedies and Penalties.................................................................................................. 20
Selected CFAA Issues in the 116th Congress ..................................................................... 23
The CFAA and ToS Violations ................................................................................... 24
Botnet Trafficking ................................................................................................... 26
Hacking Back ......................................................................................................... 29

Tables
Table 1. Overview of CFAA Maximum Penalties ............................................................... 21
Table 2. Overview of Maximum Penalties Under 18 U.S.C. § 1030(a)(2) ............................... 22
Table 3. Overview of Maximum Penalties Under 18 U.S.C. § 1030(a)(5)(A) .......................... 22
Table 4. Overview of Maximum Penalties Under 18 U.S.C. § 1030(a)(5)(B) .......................... 23

Contacts
Author Information ....................................................................................................... 31

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Introduction
Today, with computers more prevalent than ever before,1 il icit computer-based activities such as
hacking—intrusions or trespasses “into computer systems or data”2—are commonplace.3 For
example, on July 15, 2020, a malicious actor temporarily coopted the social media profiles of
prominent politicians as part of an apparent scam to obtain cryptocurrency.4 That same week,
domestic and foreign intel igence agencies warned that hackers with an al eged connection to
Russia are believed to be spying on coronavirus vaccine research in the United States and
elsewhere.5 Earlier in 2020, the Federal Bureau of Investigation (FBI) reported a spike in
COVID-19-related phishing emails—messages designed to trick recipients into divulging
personal information so the sender may access, for example, the recipient’s email or bank
accounts.6
Congress was prescient about the ubiquity of cybercrime nearly 40 years ago when it enacted the
Computer Fraud and Abuse Act (CFAA)—a civil7 and criminal law that prohibits a range of
computer-based behaviors.8 While a number of federal statutes may be relevant to combatting

1 According to the United States Census Bureau (Census Bureau), by one measure only 8% of households had a
computer in 1984. CAMILLE RYAN & JAMIE M. LEWIS, COMPUTER AND INTERNET USE IN THE UNITED STATES: 2015, U.S.
CENSUS BUREAU 2 (Sept. 2017), https://www.census.gov/content/dam/Census/library/publications/2017/acs/acs-37.pdf.
T hat same report indicated that the percentage increased to 87% of households in 2015, up from 84% in 2013. Id. For
its part, the Federal T rade Commission has estimated that 50 billion devices will be connected to the Internet of T hings
(IoT ) in 2020, a figure that includes internet -enabled devices such as smart appliances and fitness trackers. FEDERAL
T RADE COMMISSION, INTERNET OF THINGS: PRIVACY & SECURITY IN A CONNECTED WORLD i (Jan. 2015),
https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-staff-report-november-2013-workshop-
entitled-internet-things-privacy/150127iotrpt.pdf. For a review of Computer Fraud and Abuse Act (CFAA) issues
unique to the IoT , see generally Sara Sun Beale & Peter Berris, Hacking the Internet of Things: Vulnerabilities,
Dangers, and Legal Responses, 16 DUKE L. & T ECH. REV. 161, 162 (Feb. 14, 2018). As discussed below, these devices
are computers in the context of the CFAA. See infra § “ Computer.”
2 United States v. Valle, 807 F.3d 508, 525 (2d Cir. 2015).
3 In 2019, the Federal Bureau of Investigation’s (FBI) Internet Crime Center (IC3) received 467,361 complaints
regarding internet -enabled crimes—“ an average of nearly 1,300 every day.” FBI, 2019 Internet Crim e Report Released
(Feb. 11, 2020), https://www.fbi.gov/news/stories/2019-internet -crime-report-released-021120. T he actual number of
computer and internet crimes is almost certainly higher, as many may escape detection entirely. See Beale, supra note
1, at 167–68 (“ Additionally, in many cases consumers have little or no way to know when their . . . devices have been
compromised . . . [as] [m]any objects connected to the internet continue to serve the function for which consumers
purchased them long aft er their software becomes insecure.”); see also Michel Cukier, Study: Hackers Attack Every 39
Seconds, A. JAMES CLARK SCH. OF ENG’G (Feb. 9, 2007), https://eng.umd.edu/news/story/study-hackers-attack-every-
39-seconds#:~:text=A%20Clark%20School%20study%20is,attackers%20more%20chance%20of%20success
(concluding that computers connected to the internet are attacked “ every 39 seconds on average” by hackers).
4 Philip Ewing, Twitter Attack Underscores Broad Cyber Risks Still Facing U.S. Elections, NPR (July 17, 2020),
https://www.npr.org/2020/07/17/892044086/twitter-attack-underscores-broad-cyber-risks-still-facing-u-s-elections.
5 Chris Fox & Leo Kelion, Coronavirus: Russian Spies Target Covid-19 Vaccine Research, BBC (July 16, 2020),
https://www.bbc.com/news/technology-53429506.
6 CRS Legal Sidebar LSB10446, An Overview of Federal Criminal Laws Implicated by the COVID-19 Pandemic, by
Peter G. Berris.
7 T his Report cites to civil CFAA opinions as “most of the published cases interpreting § 1030 arise in the civil context
rather than the criminal context” and “[c]ourts generally use civil and criminal interpretations of federal statutes
interchangeably absent an indication that Congress intended a contrary approach.” ORIN S. KERR, COMPUTER CRIME
LAW 31, 75 (3d ed. 2013).
8 H.R. REP. NO. 98-894, at 10 (1984) (“[B]y combining the ubiquity of the telephone with the capability of the personal
computer, a whole new dimension of criminal activity becomes possible.”).
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nefarious computer activities such as those discussed above,9 the CFAA is perhaps the most
relevant, as it has been described as “the most important piece of U.S. legislation used to combat
computer crime.”10Among other things, the CFAA prohibits a person from trespassing into,
damaging, or acquiring information from certain categories of computers, assuming the user lacks
authorization for that conduct.11 Indeed, prosecutors invoke the CFAA to combat a variety of
computer-based activities.12 Nevertheless, some have suggested that the rapid pace of
technological change has rendered some provisions of the CFAA outmoded and difficult to apply
to new technologies and emerging cybercrime threats.13
This report provides a brief overview of the CFAA and legal issues under the statute brought
about by technological change—with primary emphasis on the CFAA’s role as a criminal statute.
The report begins with a history of the CFAA, before detailing the seven categories of conduct
that the statute prohibits. After summarizing the remedies and penalties available for CFAA
violations, the report provides a sketch of three select legal issues of possible interest for the
116th Congress. The first is whether the CFAA imposes criminal liability for violations of Terms
of Service Agreements—contracts placing restrictions on computer use.14 The Second involves
the problem of individuals sel ing access to botnets, which are networks of infected computers
often used by cybercriminals—transactions that may not be il egal under the CFAA.15 Third, the
Report describes the legal status of, and debate surrounding, hacking back—where the victim of a
computer intrusion responds by hacking back against the original malicious actor.16
History of the CFAA
By many accounts, the history of the CFAA begins with a movie—the 1983 thril er WarGames17
starring Matthew Broderick.18 In WarGames, Broderick’s character, a rebel ious high school

9 For example, relevant provisions might include, among others, federal laws criminalizing wire fraud under 18 U.S.C.
§ 1343, cyberstalking under 18 U.S.C. § 2261A, the interception of electronic communications under 18 U.S.C. § 2511,
or the unlawful access of stored communications under 18 U.S.C. § 2701. For an examination of how these and other
statutes apply to cybercrime, see generally U.S. DEP ’T OF JUSTICE, COMPUTER CRIME & INTELLECTUAL PROPERTY
SECTION, CRIMINAL DIVISION, PROSECUTING COMPUTER CRIMES (2015), https://www.justice.gov/sites/default/files/
criminal-ccips/legacy/2015/01/14/ccmanual.pdf.
10 DANIEL ETCOVICH & THYLA VAN DER MERWE, COMING IN FROM THE COLD: A SAFE HARBOR FROM THE CFAA AND THE
DMCA § 1201 FOR SECURITY RESEARCHERS, BERKMAN KLEIN CTR. RSCH. PUBL’N NO. 2018-4, HARVARD UNIV. 7
(2018), https://dash.harvard.edu/bitstream/handle/1/37135306/ComingOutoftheCold_FINAL.pdf#page=11 .
11 18 U.S.C. § 1030.
12 See U.S. DEP’T OF JUSTICE, supra note 9, at 35 (providing examples of the types of conduct that may be prosecuted
under just one of the CFAA’s subsections).
13 See, e.g., Andrea M. Matwyshyn & Stephanie K. Pell, Broken, 32 HARV. J.L. & T ECH. 479, 481 (2019) (“[O]ur
definitive computer intrusion statute, the [CFAA], belies its last -century crafting, as it strains under the new threat
vectors leveraged by this century’s formidable attackers.”); Amanda B. Gottlieb, Reevaluating the Com puter Fraud
and Abuse Act: Am ending the Statute to Explicitly Address the Cloud, 86 FORDHAM L. REV. 767, 770 (2017)
(expressing opinion that “ in practice [the CFAA] has not been able to keep up with new innovations” and examining
whether the law adequately protects computers connected to the cloud); Marcelo T riana, Is Selling Malware A Federal
Crim e?, 93 N.Y.U. L. REV. 1311, 1315 (2018) (examining whether the CFAA prohibits the sale of malware).
14 See generally CRS Legal Sidebar LSB10423, From Clickwrap to RAP Sheet: Criminal Liability under the Computer
Fraud and Abuse Act for Term s of Service Violations, by Peter G. Berris (examining judicial disagreement on the
breadth of the CFAA with respect to T erms of Service Agreements violations).
15 See infra § “Botnet T rafficking.”
16 See infra § “Hacking Back.”
17 WARGAMES (Metro-Goldwyn-Mayer Studios 1983).
18 See Fred Kaplan, ‘WarGames’ and Cybersecurity’s Debt to a Hollywood Hack, N.Y. T IMES (Feb. 19, 2016),
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student, nearly starts World War III when he accesses the computer system controlling the United
States nuclear arsenal, mistaking the system for an interactive video game.19 The movie’s
depiction of the dangers of the computer age—where even nuclear annihilation could be a few
keystrokes away—was not lost on policy makers.20 According to one report, after viewing
WarGames at Camp David, President Ronald Reagan asked advisers and the chair of the Joint
Chiefs of Staff whether the plot of the movie was possible.21 The CFAA is sometimes “said to be
the [eventual] result of their deliberations,”22 although congressional interest in computer crimes
may be traced back at least as far as the 1970s.23
The first major federal computer-crime enactment came in the form of the Counterfeit Access
Device and Computer Fraud and Abuse Act of 1984 (the 1984 Act).24 With exceptions, the law
prohibited three subsets of computer-based conduct: (1) obtaining national security information
through unauthorized computer access; (2) obtaining financial information through unauthorized
computer access, and (3) trespassing into a government computer and “knowingly us[ing],
modif[ying], destroy[ing], or disclos[ing] information” on that computer.25 The 1984 Act faced a
number of criticisms over its relatively narrow scope,26 and the Department of Justice (DOJ)
expressed concern that the 1984 Act made computer crime prosecutions difficult.27 In 1986,
Congress substantial y amended the 1984 Act, and the modern CFAA has many of its roots in that
1986 amendment.28 Among other things, the 1986 amendment modified intent requirements and
prohibited new categories of conduct including password trafficking, damaging computers, and
accessing computers with intent to defraud.29 Since 1986, Congress has amended the CFAA on

https://www.nytimes.com/2016/02/21/movies/wargames-and-cybersecuritys-debt-to-a-hollywood-hack.html
(describing the birth of federal cybersecurity laws following President Ronald Reagan’s concern over the movie
“WarGames”); Ivan Evtimov et al., Is Tricking A Robot Hacking?, 34 BERKELEY TECH. L.J. 891, 904 (2019)
(“According to popular lore, President Reagan saw the movie War Games and met with his national security advisers
the next day to discuss America’s cyber vulnerabilities. T he CFAA is said to be the result of their deliberations.”); Jay
P. Kesan & Carol M. Hayes, Mitigative Counterstriking: Self-Defense and Deterrence in Cyberspace, 25 HARV. J.L. &
T ECH. 429, 492 (2012) (“ There is some evidence that when the CFAA was originally enacted in 1984, it was partially
in response to the situations depicted in the action film WarGames.”).
19 See Roger Ebert, WarGames, ROGEREBERT.COM (June 3, 1983), https://www.rogerebert.com/reviews/wargames-
1983 (reviewing and summarizing plot of WarGam es).
20 H.R. REP. NO. 98-894, at 10 (1984) (referencing WarGames in discussion of necessity of computer fraud legislation).
21 Kaplan, supra note 18.
22 Evtimov, supra note 18, at 904.
23 See CRS Report 97-1025, Cybercrime: An Overview of the Federal Computer Fraud and Abuse Statute and Related
Federal Crim inal Laws, by Charles Doyle, at n.2 (chronicling legislative history of CFAA).
24 Greg Pollaro, Note, Disloyal Computer Use and the Computer Fraud and Abuse Act: Narrowing the Scope, 2010
DUKE L. & T ECH. REV. 12, 4 (Aug. 26, 2010).
25 Pub. L. No. 98-473, § 2102, 98 Stat. 1837 (1984) (codified at 18 U.S.C. § 1030).
26 See, e.g., Jo-Ann M. Adams, Controlling Cyberspace: Applying the Computer Fraud and Abuse Act to the Internet,
12 SANTA CLARA COMPUTER & HIGH TECH. L.J. 403, 422 (1996) (“[The 1984 Act] protected a very narrow class of
financial and credit information.”).
27 See generally S. REP. NO. 99-432, at 6–9 (1986) (summarizing concerns expressed by DOJ).
28 Adams, supra note 26, at 422.
29 Id. at 423.
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numerous occasions,30 broadening both the conduct prohibited by the statute and the types of
computers protected.31 Today, the CFAA is the main federal32 computer fraud statute.33
Overview of the CFAA
Key CFAA Terms
Although the CFAA is the primary federal anti-hacking statute,34 the word “hacking” does not
appear in any of its various provisions.35 Instead, the statute criminalizes several categories of
conduct that include many types of computer hacking as wel as a variety of other computer-
based activities.36 Each category of conduct that the CFAA criminalizes tends to be defined by
several overarching key terms that appear throughout the CFAA. General y, the CFAA prohibits
conduct that (1) is carried out by an individual “without authorization” or who “exceeds
authorized access,” and that (2) involves a computer.37 Thus, the meanings of “computer,”
“without authorization,” and “exceeds authorized access” are al crucial to understanding the
scope of the CFAA.
Computer
The CFAA broadly38 defines “computer” as any “electronic, magnetic, optical, electrochemical,
or other high speed data processing device performing logical, arithmetic, or storage functions,”
including “any data storage facility or communications facility directly related to or operating in
conjunction with such device . . . .”39 The CFAA excludes only automated typewriters,
typesetters, portable hand held calculators, and similar devices from its definition of computer.40
These limited exceptions to the CFAA’s definition of “computer” “show just how general” the
statute’s definition of computer is.41 As one court explained, the definition includes any device
with an electronic data processor, of which there are numerous examples.42 Thus, under the
CFAA, computers include not only laptops and desktops, but also a wide array of computerized

30 See Doyle, supra note 23, at n.2 (listing CFAA amendments).
31 See U.S. DEP’T OF JUSTICE, supra note 9, at 1–2 (summarizing amendments to CFAA).
32 T he CFAA exists against the backdrop of numerous state computer crime laws that are beyond the scope of this
Report. E.g., VT. STAT. ANN. tit. 13, §§ 4101–07. Computer misuse statutes have been enacted in “ all fifty states . . . .”
KERR, supra note 7, at 29; accord Com puter Crim e Statutes, NAT’L CONF. OF STATE LEGISLATURES (Feb. 24, 2020),
https://www.ncsl.org/research/telecommunications-and-information-technology/computer-hacking-and-unauthorized-
access-laws.aspx (conducting survey of the computer crime laws of all 50 states).
33 See Evtimov, supra note 18, at 904 (“Since its implementation, the CFAA has been the nation’s predominant anti-
hacking law.”).
34 See id.
35 See 18 U.S.C. § 1030 (proscribing various conduct without use of the word “hacking”).
36 Id.
37 See, e.g., id. § 1030(a)(2) (prohibiting “intentionally access[ing] a computer without authorization” or in excess of
authorization, and obtaining certain types of information).
38 See United States v. Mitra, 405 F.3d 492, 495 (7th Cir. 2005) (discussing breadth of CFAA with respect to the types
of computers it governs).
39 18 U.S.C. § 1030(e)(1).
40 Id.
41 Mitra, 405 F.3d at 495 (emphasis omitted).
42 United States v. Kramer, 631 F.3d 900, 902 (8th Cir. 2011).
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devices ranging from cellphones to objects embedded with microchips, such as certain
microwave ovens, watches, and televisions.43
Protected Computers
Several provisions within the CFAA specifically concern “protected computers.”44 Among other
things, the CFAA defines protected computers as those that are either “exclusively for the use of
a financial institution or the United States Government” or that are “used in or affecting interstate
or foreign commerce or communication . . . .”45 Courts have construed the latter phrase as
including any computer connected to the internet.46 Thus, most modern computing devices are
subject to the CFAA’s protections, including Internet of Things devices such as smart appliances
and fitness trackers.47 Another important type of computer that fits within the definition of
protected computer is a server—a computer that manage website data and other information.48
For example, courts have concluded that the web servers storing and sharing the member data of
a large social media website qualified as protected computers.49

43 Id. at 902–03; accord United States v. Nosal, 844 F.3d 1024, 1050 (9th Cir. 2016) (“This means that nearly all
desktops, laptops, servers, smart -phones, as well as any ‘iPad, Kindle, Nook, X–box, Blu–Ray player or any other
Internet -enabled device,’ including even some thermost ats qualify as [protected computers].” (quoting United States v.
Nosal, 676 F.3d 854, 861 (9th Cir. 2012)); Berris, supra note Error! Bookmark not de fined., at 2 (describing CFAA
as “an anti-hacking law covering most computers, including laptops, desktops, websites, and computerized devices”).
44 18 U.S.C. § 1030.
45 Id. § 1030(e)(2).
46 See, e.g., hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d 985, 999 (9th Cir. 2019) (“The term ‘protected computer’ refers
to any computer ‘used in or affecting interstate or foreign commerce or communication,’ . . .
effectively any computer connected to the Internet . . . including servers, computers that manage network resources and
provide data to other computers.” (quoting 18 U.S.C. § 1030(e)(2)(B)) (internal citations omitted)).
47 Although federal cases specifically examining the CFAA’s applicability in the context of the Internet of T hings are
scarce, the general consensus among observers is that internet-enabled objects qualify as protected computers. E.g.,
Beale, supra note 1, at 170; accord Matthew Ashton, Note, Debugging the Real World: Robust Crim inal Prosecution
in the Internet of Things, 59 ARIZ. L. REV. 805, 813 (2017) (“ Phones, tablets, Fitbits, and even public transit cards with
embedded computer chips are all included in the definition of a protected com puter.”); T J Wong, Is My Toaster a
Computer? The Computer Fraud and Abuse Act’s Definition of “Protected Computer” in the Age of the Internet of
Things, COLUMB. J.L. & SOC. PROBS. (Mar. 30, 2019), http://jlsp.law.columbia.edu/2019/03/30/is-my-toaster-a-
computer-the-computer-fraud-and-abuse-acts-definition-of-protected-computer-in-the-age-of-the-internet-of-things/
(explaining that the definition of computer includes “ all IOT devices feeding us data online, such as fitness watches and
voice assistants,” which means that in “the age of IOT , the CFAA’s definition of ‘protected computers’ expands to
cover items beyond the plain meaning of the term” including toasters and refrigerators).
One interesting example from case law is that of United States v. Peterson. 776 F. App’x 533 (9th Cir. 2019). In
Peterson, the Federal Court of Appeals for the Ninth Circuit considered a vagueness challenge to a condition of
supervised release imposed on a defendant convicted of possessing child pornography. Id. at 533. The condition at
issue restricted the defendant from accessing a computer as defined by the CFAA. Id. at 534. In agreeing with the
defendant that the condition was potentially overbroad, the court observed that a wide range of objects fall within the
definition of computer under the CFAA, including “ refrigerators with Internet connectivity, Fitbit™ watches” and
certain automobiles. Id. at n.3. Although the court did not discuss these devices in relation to the phrase “ protected
computer,” it described them in a manner that would satisfy the definition of protected computer under the CFAA; as
the court noted, Internet of T hings devices are (1) computers (2) connected to the internet. Id.
48 hiQ Labs, Inc., 938 F.3d at 999.
49 Id.
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Without Authorization and Exceeds Authorized Access
Numerous provisions in the CFAA only apply if the defendant acts “without authorization” or if
he “exceeds authorized access” when committing the relevant conduct.50 For example, Section
1030(a)(2) prohibits intentional y accessing a computer without authorization or in excess of
authorization and obtaining information from a financial institution, the federal government, or a
protected computer.51 Other provisions contain nearly identical requirements.52
While the CFAA repeatedly uses the phrases “exceeds authorized access” and “without
authorization,” the statute does not fully define either phrase.53 In fact, the statute offers no
definition for “without authorization.”54 And, although the CFAA does explain that “exceeds
authorized access” means “access[ing] a computer with authorization and to use such access to
obtain or alter information in the computer that the accesser is not entitled so to obtain or alter,”
that definition hinges on the meaning of the undefined phrase “with authorization.”55
On a more fundamental level, the meaning of authority—the common concept in “exceeds
authorized access” and “without authorization”—is also undefined by the CFAA.56 In practice, it
appears that authority to use a computer may be positively granted in a number of ways—for
example through an employer who lets an employee use a work computer for business purposes57
or a website that al ows users to access its servers for some function.58 But the scope of
authority—and therefore its meaning under the CFAA—largely depends on the negative limits
placed on that authority in the specific context in which the statute is applied.59 As a result, it is
difficult if not impossible to separate authority from the phrases “exceeds authorized access” and
“without authorization,” as those phrases represent the outer boundaries of authorized computer
use.60 And those boundaries are hazy under the CFAA; courts, for example, disagree on the
extent to which authority may be curtailed by contractual restrictions,61 as opposed to
technological restrictions such as password requirements.62

50 18 U.S.C. § 1030.
51 Id. § 1030(a)(2).
52 Id. § 1030.
53 Id.
54 Id. § 1030(e).
55 Id. (emphasis added).
56 Id. § 1030.
57 See, e.g., United States v. Rodriguez, 628 F.3d 1258, 1263 (11th Cir. 2010) (explaining that employee was
authorized by employer to use database).
58 hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d 985, 1002 (9th Cir. 2019) (examining authority to access information on
website servers as byproduct of that information being generally available to the public).
59 See, e.g., Rodriguez, 628 F.3d at 1263 (describing scope of employee’s authority to use databases by its outer limit,
specifically that “use of databases to obtain personal information is authorized only when done for business reasons”);
Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058 , 1067 (9th Cir. 2016) (describing how authorization was
removed by a written cease and desist letter).
60 See, e.g., hiQ Labs, Inc., 938 F.3d at 1003 (exploring limits of authority based on whether use of a computer fell into
the “without authorization” category as a result of a cease and desist letter).
61 Indeed, there is an unresolved split in the federal courts of appeals over whether “without authorization” and
“exceeds authorized access” permit criminal liability for violations of contracts restricting the permissible uses of a
given computer, such as employer computer use policies or T oS agreements—contracts that govern the use of a product
such as a website. See infra § “ T he CFAA and T oS Violations.”
62 See infra § “T he CFAA and T oS Violations.” One scholar has suggested three types of restrictions that may limit
authorized computer use, including: (1) code based restrictions such as passwords or other means of programming
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Even if the meanings of “exceeds authorized access” and “without authorization” are unclear,
there is some indication in legislative history that the two phrases were intended to correspond to
different categories of unauthorized computer use.63 At least in theory, the intent was for “without
authorization” to apply to outsiders such as hackers,64 who are “wholly lacking in authority to
access or use [the relevant] computer.”65 In contrast, it appears that “exceeds authorized access”
may have been meant to apply to insiders66 such as employees who have some authorization to
use a computer, but who surpass that authority.67 For example, the Senate Report accompanying
the 1986 amendment to the CFAA reflects a concern that § 1030(a)(3)—which prohibits
trespassing in government computers—would be interpreted “so broad[ly] as to create a risk that
government employees and others who are authorized to use a Federal Government computer
would face prosecution” when they went beyond their authorization.68 According to that report, to
prevent the application of the law to such insiders, the “Committee [on the Judiciary] declined to
criminalize acts in which the offending employee merely ‘exceeds authorized access . . . .’”69
Whatever the legislative intent, judicial interpretations of “without authorization” and “exceeds
authorized access” have not been entirely consistent, and as one court opined, the difference
between the terms is “paper thin.”70 Some courts have maintained the distinction between insiders
and outsiders with respect to “exceeds authorized access” and “without authorization:”
concluding that insiders may act without authorization only after their authorization has been
terminated by an affirmative act such as a cease and desist letter.71 Similarly, some courts have
concluded that “without authorization” applies only to individuals who have no right to access a
computer whatsoever, such as those who bypass password requirements72 or who otherwise
“circumvent[] technological access restrictions.”73 But broader interpretations of “without
authorization” have been applied in other jurisdictions, including by some courts that have held
that insiders may act without authorization if they breach a duty of loyalty to an employer.74

hardware or software to restrict access; (2) contractual restrictions such as T erms of Service agreements; and (3) social
norms of computer use. KERR, supra note 7, at 40–41.
63 See U.S. DEP’T OF JUSTICE, supra note 9, at 5–6 (recounting legislative history regarding intended meanings of
“exceeds authorized access” and “without authorization”).
64 S. REP. No. 104-357, at 9 (1996) (describing outsiders as those “who gain access to a computer without
authorization.”).
65 S. REP. No. 99-432, at 8 (1986).
66 See S. REP. No. 104-357, at 6 (1996) (“The amendment specifically covers the conduct of . . . an insider who exceeds
authorized access . . . .”).
67 S. REP. No. 99-432, at 8 (1986) (describing “ purely ‘insider’ cases” as those of individuals “who, while authorized to
use some computers in their department, use others for which they lack the proper authorization.”).
68 Id. at 7.
69 Id.
70 Int’l Airport Ctrs., LLC v. Citrin, 440 F.3d 418, 420 (7th Cir. 2006). According to Professor Orin S. Kerr,
“technological changes have blurred the line between” the phrases “without authorization” and “exceeds authorized
access.” Brief of Professor Orin S. Kerr as Amicus Curiae in Support of Petitioner, Van Buren v. United States, No. 19 -
783, 2020 WL 4003433, at *16 (U.S. July 8, 2020).
71 See, e.g., LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1135 (9th Cir. 2009) (“Rather, we hold that a person uses
a computer ‘without authorization’ under §§ 1030(a)(2) and (4) when the person has not received permission to use the
computer for any purpose (such as when a hacker accesses someone’s computer without any permission), or when the
employer has rescinded permission to access the comput er and the defendant uses the computer anyway.”).
72 See, e.g., Pulte Homes, Inc. v. Laborers’ Int’l Union of N. Am., 648 F.3d 295, 304 (6th Cir. 2011) (holding that party
did not act without authorization by accessing an “unprotected public communications system[]”).
73 Brief of Professor Orin S. Kerr as Amicus Curiae in Support of Petitioner, supra note 70, at *16.
74 See Int’l Airport Ctrs., LLC, 440 F.3d at 420 (holding that employee’s authorization to use employer’s computer
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Prohibited Conduct Under the CFAA
The CFAA prohibits seven categories of conduct, ranging from certain acts of computer trespass
to unauthorized computer access with an intent to defraud.75
Cyber Espionage, 18 U.S.C. § 1030(a)(1)
Section 1030(a)(1)76 is a cyber-espionage provision that in certain instances prohibits obtaining
and sharing national security information77—such as “information that has been determined by
the United States Government pursuant to an Executive order or statute to require protection
against unauthorized disclosure for reasons of national defense or foreign relations . . . .”78
According to the DOJ, examples of national security information under § 1030(a)(1) could
include “classified information obtained from a Department of Defense computer or restricted
data obtained from a Department of Energy computer.”79 Nevertheless, in practice, the provision
has been rarely invoked, if at al ,80 perhaps because prosecutors charge offenses involving
national security information under federal espionage statutes that overlap with § 1030(a)(1).81
Prosecutions under § 1030(a)(1) require the government to establish several elements beyond a
reasonable doubt. First, the government would need to prove that the defendant obtained the
national security information by knowingly82 accessing a computer without authorization or in

terminated where he breached duty of loyalty and improperly erased em ployer’s data).
75 T he content of this section draws heavily from Doyle, supra note 23.
76 18 U.S.C. § 1030(a)(1) imposes criminal penalties on:
(a) Whoever--
(1) having knowingly accessed a computer without authorization or exceeding authorized
access, and by means of such conduct having obtained information that has been determined by
the United States Government pursuant to an Executive order or statute to require protection
against unauthorized disclosure for reasons of national defense or foreign relations, or any
restricted data, as defined in paragraph y. of section 11 of the Atomic Energy Act of 1954, with
reason to believe that such information so obtained could be used to the injury of the United
States, or to the advantage of any foreign nation willfully communicates, delivers, transmits, or
causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver,
transmit or cause to be communicated, delivered, or transmitted the same to any person not
entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee
of the United States entitled to receive it.
77 Doyle, supra note 23, at 71–72 (noting that § 1030(a)(1) “essentially tracks existing federal espio nage laws” and
prohibits the willful disclosure, attempted disclosure, or failure to return “ classified information concerning national
defense, foreign relations, or atomic energy” when certain conditions are met).
78 18 U.S.C. § 1030(a)(1).
79 U.S. DEP’T OF JUSTICE, supra note 9, at 13.
80 See KERR, supra note 7, at 30 (“Although it is the first in the list of § 1030(a) crimes, [§ 1030(a)(1)] appears never to
have been used.”).
81 See, e.g., Press Release, U.S. Dep’t of Justice, Defense Department Linguist Charged with Espionage (Mar. 4, 2020),
https://www.justice.gov/opa/pr/defense-department -linguist-charged-espionage (announcing charges against defendant
under espionage statutes rather than § 1030(a)(1) for alleged conduct including improperly accessing United States
Department of Defense “classified systems” which defendant “had no need to access” and transmitting that information
to “a foreign terrorist organization”); accord U.S. DEP’T OF JUSTICE, supra note 9, at 15 (“In situations where both [§
1030(a)(1) and a federal espionage statute] . . . are applicable, prosecutors may tend towards using [the espionage
statutes], for which guidance and precedent are more prevalent.”).
82 Although the CFAA does not define “knowingly,” and despite a dearth of case law on § 1030(a)(1), a Senate Report
accompanying the 1986 amendment to the CFAA noted that a knowing act is one where the person is aware “that the
result is practically certain to follow from his conduct, whatever his desire may be as to that result.” S. REP . NO. 99-432,
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excess of authorization.83 Notably, § 1030(a)(1) broadly covers al computers, as opposed to just
protected computers.84 Second, a § 1030(a)(1) violation requires the government to establish that
the defendant had reason to believe that the information could cause “injury to the United States”
or benefit “any foreign nation.”85 There is little case law expounding on this element, but the DOJ
has indicated that it can likely be satisfied where “the national security information is classified or
restricted” and the defendant was aware of that fact.86 Final y, the government must prove that the
defendant “wil fully communicate[d], deliver[ed], transmit[ted] or . . . retain[ed]” the national
security information, or attempted to do so, or caused the communication, delivery, or
transmission of national security information.87 This element is broad, and by its own terms
includes a range of activities including the failure to return national security information or the
disclosure of that information. 88 However, such behavior must be intentional.89
Obtaining Information by Unauthorized Computer Access, 18 U.S.C.
§ 1030(a)(2)
Section 1030(a)(2)90 general y prohibits accessing a computer without authorization or in excess
of authorization and obtaining information in certain circumstances. Although at first glance it
could appear that to “obtain information” might refer specifical y to misappropriation or theft of
information, the concept is much broader.91 Indeed, as interpreted by courts, “obtaining
information” includes “mere observation of the data” such as looking at or reading information on
a screen.92 Perhaps unsurprisingly then, the government has invoked § 1030(a)(2) in a variety of

at 6 (1986) (quoting United States v. U.S. Gypsum Co., 438 U.S. 422, 445 (1978)). T hat description tracks judicial
interpretations of the word knowing under other subsections of the CFAA, where courts have concluded that the term
excludes accidental behavior. See QVC, Inc. v. Resultly, LLC, 99 F. Supp. 3d 525, 536 (E.D. Pa. 2015) (concluding
that § 1030(a)(5)(A) requires showing that “ defendant intended to cause harm” and that “[d]amage caused by mere
recklessness or negligence is insufficient”).
83 18 U.S.C. § 1030(a)(1).
84 Id.
85 Id.
86 U.S. DEP’T OF JUSTICE, supra note 9, at 14.
87 18 U.S.C. § 1030(a)(1).
88 Id.
89 Id.
90 Section 1030(a)(2) imposes criminal liability on:
(a) Whoever--
(2) intentionally accesses a computer without authorization or exceeds authorized access, and
thereby obtains--
(A) information contained in a financial record of a financial institution, or of a card issuer
as defined in section 1602(n) of title 15, or contained in a file of a consumer reporting
agency on a consumer, as such terms are defined in the Fair Credit Reporting Act (15
U.S.C. 1681 et seq.);
(B) information from any department or agency of the United States; or
(C) information from any protected computer.
91 See United States v. Drew, 259 F.R.D. 449, 457 (C.D. Cal. 2009) (“‘Obtain[ing] information from a computer’ has
been described as ‘includ[ing] mere observation of the data. Actual aspiration . . . need not be proved in order to
establish a violation . . . .’” (alterations in original) (quoting S. REP. NO. 99-432, at 6–7 (1986))); Am. Online, Inc. v.
Nat’l Health Care Disc., Inc., 121 F. Supp. 2d 1255, 1276 (N.D. Iowa 2000) (looking to legislative history for the
preposition that § 1030(a)(2) covers not just theft but also the observation of data).
92 See Drew, 259 F.R.D. at 457 n.13 (“[T]he term ‘obtaining information’ includes merely reading it.” (alteration in
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prosecutions,93 including that of a former police sergeant for using a restricted law enforcement
database for non-law enforcement purposes94 and an Italian citizen for “hack[ing] into thousands
of computers without permission [and] . . . gaining access to al of the information stored on those
computers.”95
Although they do not significantly limit the provision’s scope, there are three additional statutory
requirements that the government must satisfy to prove a § 1030(a)(2) violation.96 First, §
1030(a)(2) requires intentional access to a computer by the defendant, “rather than mistaken,
inadvertent, or careless” access.97 However, the intent requirement is a low bar to prosecution
because intent to obtain information is not required; instead al that is required is intent to access
a computer without authorization or in excess of authorization.98 Second, the defendant’s access
must be without authorization or in excess of authorization—elements that are discussed above.
Final y, for § 1030(a)(2) to apply, the information must be obtained from either a financial
institution,99 the federal government, or “any protected computer.”100 As discussed, any computer
connected to the internet suffices. Thus, as one court explained, barring a narrow interpretation of
“without authorization” or “exceeds authorized access,” it is possible that § 1030(a)(2) could
criminalize any conscious violation of ToS or other contractual restrictions on computer use.101 As
discussed below, however, prosecutorial discretion and DOJ charging policies may in practice
restrict the application of provisions such as § 1030(a)(2) to some degree.
Government Computer Trespassing, 18 U.S.C. § 1030(a)(3)
Section 1030(a)(3)102 general y prohibits intentional y accessing a government computer without
authorization. It is “a simple trespass offense,”103 which at common law often refers to an
unsanctioned entry on to the land of another, regardless of whether that entry caused any harm.104

original) (quoting S. REP . NO. 104–357, at 7 (1996))).
93 Section 1030(a)(2) is “the most commonly charged section of the [CFAA].” KERR, supra note 7, at 76.
94 United States v. Van Buren, 940 F.3d 1192, 1198 (11th Cir. 2019), cert. granted, No. 19-783, 2020 WL 1906566
(U.S. Apr. 20, 2020).
95 United States v. Gasperini, 894 F.3d 482, 487 (2d Cir. 2018).
96 See generally KERR, supra note 7, at 78–79 (explaining breadth of § 1030(a)(2) and why requirements in that
provision pose “relatively low thresholds”).
97 S. REP. NO. 99-432, at 5 (1986).
98 Drew, 259 F.R.D. at 467 (“T he only scienter element in section 1030(a)(2)(C) is the requirement that the person must
‘intentionally’ access a computer without authorization or ‘intentionally’ exceed authorized access.”).
99 T he provision also includes information obtained from card issuers and consumer reporting agencies. 18 U.S.C.
§ 1030(a)(2).
100 18 U.S.C. § 1030(a)(2).
101 Drew, 259 F.R.D. at 457.
102 18 U.S.C. § 1030(a)(3) imposes criminal liability on:
(a) Whoever--
(3) intentionally, without authorization to access any nonpublic computer of a department or
agency of the United States, accesses such a computer of that department or agency that is
exclusively for the use of the Government of the United States or, in the case of a computer not
exclusively for such use, is used by or for the Government of the United States and such conduct
affects that use by or for the Government of the United States.
103 S. REP. NO. 99-432, at 7 (1986) (clarifying that § 1030(a)(3) “applies to acts of simple trespass against computers
belonging to, or being used by or for, the Federal Government”).
104 E.g., Restatement (Second) of T orts § 158 (1965). Criminal liability for trespass—under various statutes—often
involves additional requirements such as notice to a person that he is trespassing, followed by that person’s knowing
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Thus, unlike the previous two CFAA prohibitions, the crux of a § 1030(a)(3) violation is
unauthorized entry into government computers, and the provision does not require that the
defendant do anything with, or obtain anything from, the covered computer once he has accessed
it.105 The provision is seldom invoked by prosecutors, likely because it overlaps significantly with
§ 1030(a)(2), which imposes stricter penalties.106
There are two ways the government can establish a § 1030(a)(3) violation.107 First, the
government may demonstrate that the defendant accessed a “nonpublic computer of a department
or agency of the United States” used exclusively by the federal government.108 A nonpublic
computer includes one for internal use, such as the data servers of a federal agency.109 The term
nonpublic computer excludes, however, public-facing government computers, internet servers,
and websites, such as those offering public services or information.110 Second, the government
may establish a § 1030(a)(3) violation where the defendant accesses a “nonpublic computer of a
department or agency of the United States,” if that computer is used in part by the federal
government and the defendant’s “conduct affects that use.”111 A computer used in part by the
federal government might include, for example, a private company’s computer on which the
federal government has an account.112 In practice, “[a]lmost any network intrusion wil affect the
government’s use of its computers because any intrusion potential y affects the confidentiality
and integrity of the government’s network and often requires substantial measures to assure the
integrity of data and the security of the network.”113
Regardless of the nature of the § 1030(a)(3) violation, the government must prove that the
defendant’s access was intentional and without authorization.114 The intent requirement is
identical to the one in § 1030(a)(2). Although the meaning of “without authorization” is also
discussed above,115 it is notable that the statute excludes liability where the defendant’s conduct
merely exceeds authorized access.116 Based on legislative history, it appears that such language
was omitted to foreclose criminal liability against those who have some authorization, like federal
employees approved to use a government computer, but who do so in an unapproved manner.117

refusal to vacate the area in which he is trespassing. E.g., CONN. GEN. STAT. § 53a-107.
105 Doyle, supra note 23, at 3 (explaining that “nothing more than unauthorized entry is required” to violate §
1030(a)(3).
106 See U.S. DEP’T OF JUSTICE, supra note 9, at 23, 25 (explaining why § 1030(a)(2) may be the “preferred charge” in
instances where both § 1030(a)(2) and § 1030(a)(3) could apply).
107 18 U.S.C. § 1030(a)(3).
108 Id.
109 See U.S. DEP’T OF JUSTICE, supra note 9, at 24 (“‘Nonpublic’ includes most government computers, but not Internet
servers that, by design, offer services to members of the general public.”).
110 Id.
111 18 U.S.C. § 1030(a)(3).
112 U.S. DEP’T OF JUSTICE, supra note 9, at 24.
113 Id.; accord Sawyer v. Dep’t of Air Force, 31 M.S.P.R. 193, 196 (1986) (“The elements for establishing a criminal
violation of 18 U.S.C. § 1030(a)(3) . . . do not include the requirement that the prohibited access to the computer
system be for the specific purpose of defrauding the government. Rather, that statutory provision defines as a criminal
violation the knowing unauthorized access or use of the system for any un authorized purpose.”).
114 18 U.S.C. § 1030(a)(3).
115 See supra § “Without Authorization and Exceeds Authorized Access.”
116 Id.
117 As noted in S. REP. NO. 99-432, at 7 (1986):
T he Committee wishes to be very precise about who may be prosecuted under the new subsection
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Computer Fraud: 18 U.S.C. § 1030(a)(4)
Section 1030(a)(4)118 is an anti-fraud provision, which makes it a crime to “knowingly and with
intent to defraud, access[] a protected computer without authorization, or exceed[] authorized
access” and obtain anything of value, or use of the computer itself if that use is worth at least
$5,000 a year.119 Prosecutors have used § 1030(a)(4) to charge a variety of fraudulent activity
involving computers, including the use of a lottery terminal to falsely generate winning tickets,120
a phishing scheme that netted “hundreds of thousands of dollars,”121 and a plot to use
misappropriated computer credentials to inflate grades at two universities.122
To prove a violation of § 1030(a)(4), the government must first establish that the defendant
“knowingly and with intent to defraud, access[ed] a protected computer without authorization, or
exceed[ed] authorized access.” The statute does not define what it means to act knowingly and
with intent to defraud in the context of § 1030(a)(4).123 However, in the context of a civil
§ 1030(a)(4) claim, at least one federal court has explained that “intent to defraud” means to act
“wil fully and with specific intent to deceive or cheat, usual y for the purpose of getting financial
gain for one’s self or causing financial loss to another.”124 Further guidance on the meaning of
“knowingly and with intent to defraud” may be found in the legislative history of § 1030(a)(4),
which notes that the identical standard is also employed in 18 U.S.C. § 1029, which governs
credit card fraud.125 In the context of § 1029, “knowingly and with intent to defraud” means “that
the offender is conscious of the natural consequences of his action (i.e., that it is likely that

(a)(3). T he Committee was concerned that a Federal computer crime statute not be so broad as to
create a risk that government employees and others who are authorized to use a Federal Government
computer would face prosecution for acts of computer access and use that, while technically wrong,
should not rise to the level of criminal conduct. At the same time, the Committee was required to
balance its concern for Federal employees and other authorized users against the legitimate need to
protect Government computers against abuse by “outsiders.”
118 18 U.S.C. § 1030(a)(4) imposes criminal liability on whoever:
[K]nowingly and with intent to defraud, accesses a protected computer without authorization, or
exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains
anything of value, unless the object of the fraud and the thing obtained consists only of the use of the
computer and the value of such use is not more than $5,000 in any 1 -year period.
119 Id.
120 United States v. Bae, 250 F.3d 774, 775 (D.C. Cir. 2001).
121 United States v. Iyamu, 356 F. Supp. 3d 810, 814 (D. Minn. 2018).
122 United States v. Barrington, 648 F.3d 1178, 1184 (11th Cir. 2011).
123 U.S. DEP’T OF JUSTICE, supra note 9, at 27 (“The phrase ‘knowingly and with intent to defraud’ is not defined by
section 1030. Very little case law under section 1030 exists as to its meaning, leaving open the question of how broadly
a court will interpret the phrase.”).
124 Fidlar T echs. v. LPS Real Estate Data Sols., Inc., 82 F. Supp. 3d 844, 851 (C.D. Ill. 2015) (quoting United States v.
Henningsen, 387 F.3d 585, 590–91 (7th Cir. 2004)), aff’d, 810 F.3d 1075 (7th Cir. 2016); see also United States v.
Nosal, 676 F.3d 854, 864 (9th Cir. 2012) (Silverman J., dissenting) (concluding that § 1030(a)(4) requires specific
intent to defraud). More generally, other federal courts that have concluded that to “ defraud” under § 1030(a)(4) refers
broadly to wrongdoing rather than to the specific elements of common law fraud—see, e.g., Hanger Prosthetics &
Orthotics, Inc. v. Capstone Orthopedic, Inc., 556 F. Supp. 2d 1122, 1131 (E.D. Cal. 2008) (“ The term ‘defraud’ for
purposes of § 1030(a)(4) simply means wrongdoing and does not require proof of common law fraud.”) —namely “(1) a
representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5)
an intent that it be acted on by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of its
falsity; (7) reliance on its truth; (8) the right to rely thereon; and (9) consequent and proximate injury.” Wilcox v. First
Interstate Bank of Or., NA, 815 F.2d 522, 531 n.7 (9th Cir. 1987) (citing Rice v. McAlister, 519 P.2d 1263, 1265 (Or.
1974)).
125 S. REP. NO. 99-432, at 10 (1986).
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someone will be defrauded) and intends that those consequences should occur (i.e., he intends
that someone should be defrauded).”126
There are two additional requirements to violate § 1030(a)(4). First, the government must prove
that in accessing the protected computer, the defendant furthered the fraud.127 In other words, the
access must be “directly linked to the intended fraud.”128 Thus, § 1030(a)(4) does not govern
frauds where computer use is incidental—for example where an individual simply uses the
computer for record keeping or to “add up his potential ‘take’ from the [fraud].”129 Second, the
government must prove that the defendant obtained “anything of value.”130 That element is
“easily met if the defendant obtained money, cash, or a good or service with measurable value.”131
However, merely obtaining information may not alone suffice.132 In addition, at least one court
has concluded that whatever is taken must be valuable not merely in the abstract, but specifical y
to the defendant “in light of a fraudulent scheme.”133 Computer use, in and of itself, may be a
thing of value for the purposes of § 1030(a)(4), but only if that use is worth at least $5,000 a
year.134 Although the concept of computer use as a thing of value is underdeveloped in case law, a
Senate Report accompanying the 1986 Amendment to the CFAA provides some indication that
computer use may be a thing of value where it reduces computer availability that would otherwise
generate revenue for the computer owner through usage fees paid by valid users.135 Although
some observers have suggested that this idea is outmoded given the modern prevalence of
computers and the corresponding decrease in the value of computer use,136 the DOJ has suggested
that it may still be possible for computer use to meet the $5,000 threshold in the case of recurring
or continuing use of an expensive computer.137 In any event, the $5,000 threshold for fraud solely
resulting in computer use is intended to “minimize[] the possibility that mere computer
trespassing will be prosecuted as fraud.”138 As the same 1986 Senate Report observed, if every
trespass were thought of as “an attempt to defraud a service provider of computer time,” it would
obliterate the distinction between § 1030(a)(4) and the CFAA provisions that prohibit trespass. 139
In practice, it is difficult to invoke § 1030(a)(4) against a computer trespasser in the absence of
other conduct, because courts may be reluctant to infer adequate proof of an intent to defraud
from mere unauthorized computer access or even observation of data 140

126 See Doyle, supra note 23, at 50.
127 18 U.S.C. § 1030(a)(4).
128 S. REP. NO. 99-432, at 9 (1986).
129 Id.
130 18 U.S.C. § 1030(a)(4).
131 U.S. DEP’T OF JUSTICE, supra note 9, at 32.
132 United States v. Czubinski, 106 F.3d 1069, 1078–79 (1st Cir. 1997) (reversing defendant’s § 1030(a)(4) conviction
for obtaining information because the “ [t]he value of information is relative to one’s needs and objectives” and “ the
government had to show that the information was valuable to [the defendant] in light of a f raudulent scheme”).
133 Id. at 1078.
134 18 U.S.C. § 1030(a)(4).
135 S. REP. NO. 99-432, at 10 (1986) (“The Committee agrees that the mere use of a computer or computer service has a
value all its own. Mere trespasses onto someone else’s computer system can cost the system provider a ‘port’ or access
channel that he might otherwise be making available for a fee to an authorized user.”).
136 KERR, supra note 7, at 99.
137 U.S. DEP’T OF JUSTICE, supra note 9, at 32.
138 See Doyle, supra note 23, at 51.
139 S. REP. NO. 99-432, at 10 (1986).
140 Czubinski, 106. F3d at 1075 (concluding that government did not adequately p rove “intent to deprive . . . and, a
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Damaging a Computer, 1030(a)(5)
Broadly speaking, § 1030(a)(5)141 prohibits a variety of acts that result in damage to a computer.
Subsection 1030(a)(5) may be used to prosecute many of the activities that are commonly
associated with hacking, such as the transmission of viruses or worms and unauthorized access by
intruders who delete files or shut off computers.142 The provision may also be used to prosecute
the perpetrators of Distributed Denial of Service (DDoS) attacks,143 which occur, for example,
when an attacker overwhelms a server’s ability to process legitimate requests by overloading the
server with a flood of il egitimate traffic.144 Indeed, the government has invoked § 1030(a)(5) in a
variety of prosecutions, such as those of a Russian national for deploying malware that “resulted
in tens of mil ions of dollars of losses to victims worldwide”;145 an Il inois resident for developing
websites used to launch “mil ions of DDoS attacks that disrupted the internet connections of
targeted victim computers”;146 and the former IT employee of a major railroad who damaged his
employer’s computer network by “strategical y delet[ing] files, remov[ing] administrative-level
accounts, and chang[ing] passwords.”147
The first act that § 1030(a)(5)—specifical y under subsection (A)—criminalizes is to “knowingly
cause[] the transmission of a program, information, code, or command” and thereby
“intentional y cause[] damage without authorization, to a protected computer.”148 Transmission
“encompasses a range of hacking activities, such as ‘[t]he transfer of operation or confidential
information,’ ‘malicious software updates,’ ‘code injection attacks,’ DDoS, and the ‘embedding
of malicious code’ or malware.”149 Transmission may occur through use of the internet or

fortiori, a scheme to defraud” where defendant accessed computer and looked at confidential information, but there was
no evidence that defendant intended to use that information for anything other than browsing).
141 18 U.S.C. § 1030(a)(5) imposes criminal liability on:
(a) Whoever--
(5)(A) knowingly causes the transmission of a program, information, code, or command, and as
a result of such conduct, intentionally causes damage without authorization, to a protected
computer;
(B) intentionally accesses a protected computer without authorization, and as a result of such
conduct, recklessly causes damage; or
(C) intentionally accesses a protected computer without authorization, and as a result of such
conduct, causes damage and loss.
142 U.S. DEP’T OF JUSTICE, supra note 9, at 35.
143 Id.
144 Cybersec. & Infrastructure Sec. Agency, Security Tip (ST04-015): Understanding Denial-of-Service Attacks (last
revised Nov. 20, 2019), https://us-cert.cisa.gov/ncas/tips/ST 04-015.
145 Press Release, U.S. Dep’t of Justice, Russian National Charged with Decade-Long Series of Hacking and Bank
Fraud Offenses Resulting in T ens of Millions in Losses and Second Russian National Charged with Involvement in
Deployment of “Bugat” Malware (Dec. 5, 2019), https://www.justice.gov/opa/pr/russian-national-charged-decade-long-
series-hacking-and-bank-fraud-offenses-resulting-tens (quoting statement of Assistant Attorney General Brian A.
Benczkowski).
146 Press Release, U.S. Dep’t of Justice, Former Operator of Illegal Booter Services Sentenced for Conspiracy to
Commit Computer Damage and Abuse (Nov. 15, 2019), https://www.justice.gov/opa/pr/former-operator-illegal-booter-
services-sentenced-conspiracy-commit-computer-damage-and-abuse.
147 Press Release, U.S. Dep’t of Justice, Former IT Employee of T ranscontinental Railroad Sentenced to Prison for
Damaging Ex-Employer’s Computer Network (Feb. 13, 2018), https://www.justice.gov/opa/pr/former-it-employee-
transcontinental-railroad-sentenced-prison-damaging-ex-employer-s-computer.
148 18 U.S.C. § 1030(a)(5)(A).
149 Beale, supra note 1, at 170 (quoting Ioana Vasiu & Lucian Vasiu, Break on Through: An Analysis of Computer
Dam age Cases, 14 U. PITT. J. T ECH. L. POL’Y 158, 167–69 (2014)).
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physical mediums like compact discs.150 Indeed, some courts have gone so far as to conclude that
the exact means of transmission is actual y irrelevant, focusing instead on whether the program,
information, code, or command caused damage.151 The phrase “program, information, code, or
command” meanwhile, broadly includes “al transmissions that are capable of having an effect on
a computer’s operation,” such as worms, “software commands (such as an instruction to delete
information),” and “network packets designed to flood a network connection or exploit system
vulnerabilities.”152
To prove a § 1030(a)(5)(A) violation, the government must establish dual intents on the part of
the defendant. First, the government must prove that the defendant’s transmission was
knowing.153 That requirement excludes accidental transmission—for example, in the case of an
unsuspecting user who recklessly or negligently forwards an email with malware attached in a file
or link.154 Second, the government must prove that the defendant intentional y caused damage to
a protected computer without authorization.155 The meanings of protected computer and without
authorization are discussed in detail above, but the meaning of intent to cause damage requires
further discussion. According to at least one court, intent in the context of § 1030(a)(5)(A) means
that the defendant had the “conscious purpose of causing damage . . . to [the relevant]
computer.”156 The CFAA defines damage to mean “impairment to the integrity or availability of
data, a program, a system, or information,”157 which occurs, for example, where a hacker causes a
computer to behave in a manner contrary to the intentions of its owner.158 Thus, an act that causes
damage under the CFAA may include “clearly destructive behavior such as using a virus or worm
or deleting data . . . [b]ut it may also include less obviously invasive conduct, such as flooding an
email account.”159 For example, one federal court concluded that damage occurred as a result of

150 Beale, supra note 1, at 170 (citing Deborah F. Buckman, Annotation, Validity, Construction, and Application of
Com puter Fraud and Abuse Act (18 U.S.C.A. § 1030), 174 A.L.R. FED. 101 (2001)); accord United States v. Sullivan,
40 F. App’x 740, 743–44 (4th Cir. 2002) (per curiam) (concluding that a transmission under 18 U.S.C. § 1030(a)(5)(A)
occurred through insertion of code into a computer system that eventually found its way into hand-held computers); N.
T ex. Preventive Imaging LLC v. Eisenberg, No. SA CV 96-71AHS(EEX), 1996 WL 1359212, at *6 (C.D. Cal. Aug.
19, 1996) (“T he transmission of a disabling code by floppy computer disk may fall within . . . [§ 1030(a)(5)(A)], if
accompanied by the intent to cause harm.”).
151 See, e.g., Patrick Patterson Custom Homes, Inc. v. Bach, 586 F. Supp. 2d 1026, 1035 (N.D. Ill. 2008) (“While
Plaintiffs acknowledge that the precise method of installation of the erasure program is unknown, the Seventh Circuit
recognizes that the precise mode of transmission is irrelevant.”).
152 U.S. DEP’T OF JUSTICE, supra note 9, at 37.
153 18 U.S.C. § 1030(a)(5)(A).
154 See QVC, Inc. v. Resultly, LLC, 99 F. Supp. 3d 525, 536 (E.D. Pa. 2015) (concluding that § 1030(a)(5)(A) requires
showing that “ defendant intended to cause harm” and that “[d]amage caused by mere recklessness or negligence is
insufficient”).
155 18 U.S.C. § 1030(a)(5)(A).
156 Pulte Homes, Inc. v. Laborers’ Int’l Union of N. Am., 648 F.3d 295, 303 (6th Cir. 2011); accord United States v.
Carlson, 209 F. App’x 181, 184 (3d Cir. 2006) (discussing § 1030(a)(5) prosecution and noting that although CFAA
does not define “intentionally,” “this Court has defined it in the criminal context as performing an act deliberately and
not by accident”).
157 18 U.S.C. § 1030(e)(8).
158 See Berris, supra note Error! Bookmark not defined., at 2 (explaining that damage “ occurs, for example, where a
hacker causes a comput er to behave in a manner contrary to the intentions of its owner.”); accord United States v.
Yücel, 97 F. Supp. 3d 413, 420 (S.D.N.Y. 2015) (construing damage under § 1030(a)(5) to include instances where a
computer is caused to “no longer operate[] only in response to the commands of the owner”). For a more detailed
examination of different examples of damage, see, e.g., KERR, supra note 7, at 107–08.
159 United States v. Hutchins, 361 F. Supp. 3d 779, 794 (E.D. Wis. 2019) (alterations in original) (quoting Fidlar T ech.
v. LPS Real Estate Data Sols., Inc., 810 F.3d 1075, 1084–85 (7th Cir. 2016)).
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an orchestrated effort to bombard a company’s “sales offices and three of its executives with
thousands of phone calls and e-mails,” which diminished the ability of that company to use their
systems.160
Other violations of § 1030(a)(5) may occur where a defendant intentional y accesses a protected
computer without authorization and causes damage, even if he does not intend to cause such
damage.161 However, for such unintended damage to amount to a § 1030(a)(5) violation, it must
either be reckless or result in loss.162 Although the CFAA does not define what it means to
recklessly cause damage, in general the “normal meaning of reckless in the criminal law (unlike
the civil law) is that the defendant disregarded ‘a risk of harm of which he is aware.’”163 Although
case law provides few il ustrations, an individual may recklessly cause damage to a computer if
he is aware of the risk that his unauthorized computer access may cause damage, but proceeds
anyway and does indeed damage the computer.164 The CFAA defines loss as “any reasonable cost
to any victim, including the cost of responding to an offense, conducting a damage assessment,
and restoring the data, program, system, or information to its condition prior to the offense, and
any revenue lost, cost incurred, or other consequential damages incurred because of interruption
of service.”165 Federal courts disagree on whether proving interruption of service—such as
computer systems or files being rendered unavailable—is a prerequisite to demonstrating loss.166
In other words, some courts construe loss to include reasonable costs caused by offenses
regardless of whether those offenses involve service interruption, but other courts more narrowly
interpret loss under the CFAA as requiring service interruption.167

160 Pulte Homes, Inc., 648 F.3d at 299, 301.
161 18 U.S.C. § 1030(a)(5).
162 Id.
163 United States v. McCord, Inc., 143 F.3d 1095, 1098 (8th Cir. 1998) (quoting Farmer v. Brennan, 511 U.S. 825, 837
(1994)).
164 For example, one federal court found that a plaintiff sufficiently alleged a civil § 1030(a)(5) violation with
allegations that the defendant recklessly caused damage by unauthorized computer access where he deleted data from
the plaintiff’s website, accounts, and server. MSC Safety Sols., LLC v. T rivent Safety Consulting, LLC, No. 19 -CV-
00938-MEH, 2019 WL 5189004, at *4 (D. Colo. Oct. 15, 2019).
165 18 U.S.C. § 1030 (e)(11). For a detailed examination of “loss,” see, e.g., KERR, supra note 7, at 120–25.
166 See, e.g., Brown Jordan Int’l, Inc. v. Carmicle, 846 F.3d 1167, 1173–74 (11th Cir. 2017) (comparing jurisdictions
that construe loss broadly to include any costs of responding to an offense regardless of whether there was an
interruption of service with those that narrowly construe loss as resulting only from an interruption of service).
167 Compare id. (adopting broad view of loss that includes reasonable costs of responding to an offense even where
there was no interruption of service) and Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, 774 F.3d 1065,
1073 (6th Cir. 2014) (holding that loss under the CFAA includes both con sequential damages caused by service
interruption and reasonable costs of responding to an offense such as damage assessments) with Gen. Sci. Corp. v.
SheerVision, Inc., No. 10-CV-13582, 2011 WL 3880489, at *4 (E.D. Mich. Sept. 2, 2011) (“ The CFAA only covers
lost revenue if the loss occurred as a result of interrupted service.”) and CoStar Realty Info., Inc. v. Field, 737 F. Supp.
2d 496, 515 (D. Md. 2010) (“[A] violation of the CFAA must cause an interruption of service in order for lost revenue
to constitute as a qualifying ‘loss’ under the statute.”).
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Password Trafficking, 18 U.S.C. § 1030(a)(6)
Section 1030(a)(6)168 is an “infrequently” used169 section of the CFAA designed to protect
computer passwords. The provision is “aimed at penalizing conduct associated with ‘pirate
bulletin boards,’ where passwords are displayed that permit unauthorized access to others’
computers.”170 Specifical y, the law, assuming an appropriate jurisdictional nexus discussed
below, makes it a crime to traffic “knowingly and with intent to defraud” in “any password or
similar information through which a computer may be accessed without authorization.”171 For the
purposes of § 1030(a)(6), “traffic” means to “transfer, or otherwise dispose of, to another, or
obtain control of with intent to transfer or dispose of.”172 A defendant need not intend to profit to
engage in trafficking for § 1030(a)(6) purposes, but he must intend to transfer or dispose of the
passwords or similar information.173 “Knowingly with intent to defraud” has the identical
meaning as in § 1030(a)(4), discussed above, and generally refers to acts undertaken with the
knowledge that defrauding another is a likely consequence, and the intent that such fraud should
actually occur.174 “Password[s] or similar information”175 is a broad category intended to include
not “only a single word that enables one to access a computer,” but also “longer more detailed
explanations on how to access others’ computers.”176
For § 1030(a)(6) to apply, the defendant’s actions must satisfy one of two jurisdictional hooks.
First, § 1030(a)(6) could apply where the “trafficking affects interstate or foreign commerce.”177
Although undefined by the CFAA and underdeveloped in case law, at least some courts
examining civil § 1030(a)(6) claims appear to have construed the interstate or foreign commerce
requirement broadly.178 For example, for at least one court, trafficking involving the internet
could satisfy the requirement.179 Second, § 1030(a)(6) may also apply where the defendant
traffics in passwords or similar information that would al ow unauthorized entry into a “computer
. . . used by or for the Government of the United States.”180 Again there is no statutory definition

168 18 U.S.C. § 1030(a)(6) imposes criminal liability on:
(a) Whoever--
(6) knowingly and with intent to defraud traffics (as defined in section 1029) in any password
or similar information through which a computer may be accessed without authorization, if--
(A) such trafficking affects interstate or foreign commerce; or
(B) such computer is used by or for the Government of the United States.
169 See Doyle, supra note 23, at 69.
170 S. REP. NO. 99-432, at 13 (1986).
171 18 U.S.C. § 1030(a)(6).
172 Id. § 1029(e)(5); see id. § 1030.
173 U.S. DEP’T OF JUSTICE, supra note 9, at 50.
174 See supra § “Computer Fraud: 18 U.S.C. § 1030(a)(4).”
175 18 U.S.C. § 1030(a)(6).
176 S. REP. NO. 99-432, at 13 (1986); accord U.S. DEP’T OF JUSTICE, supra note 9, at 50 (“ Therefore, prosecutors should
apply the term ‘password’ using a broad meaning to include any instructions that safeguard a computer.”).
177 18 U.S.C. § 1030(a)(6)(A).
178 See T racfone Wireless, Inc. v. Simply Wireless, Inc., 229 F. Supp. 3d 1284, 1297 (S.D. Fla. 2017) (concluding that
plaintiff stated claim under § 1030(a)(6) where trafficking implicated the internet and a telecommunications network).
179 Id. Courts have reached similar conclusions when interpreting 18 U.S.C. § 1029, a credit card fraud statute that
prohibits trafficking that “affects interstate or foreign commerce.” See, e.g., United States v. Rushdan, 870 F.2d 1509,
1513–14 (9th Cir. 1989) (concluding that federal jurisdiction under § 1029 included “ possession of the numbers of out
of state credit card accounts”).
180 18 U.S.C. § 1030(a)(6)(B).
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and little interpretive case law, but according to the DOJ the “plain meaning [of the phrase]
should encompass any computer used for official business by a federal government employee or
on behalf of the federal government.”181 However, it is at least possible that the provision only
applies to passwords for executive branch agencies.182 That is because unlike other CFAA
provisions, § 1030(a)(6) does not specify that a government computer is one used by any
“department or agency of the United States” a phrase that the CFAA specifical y defines as
including legislative, executive, and judicial branch computers.183 Thus, it has been theorized that
the use in § 1030(a)(6) of the phrase “computer . . . . used by or for the Government of the United
States” might carry a meaning narrower than the phrase “computer[s] of a department or agency
of the United States” used elsewhere in the CFAA.184
Threats and Extortion, 18 U.S.C. § 1030(a)(7)
Section 1030(a)(7)185 prohibits certain extortionate threats concerning a protected computer, such
as threats to cause damage to, or disclose confidential information from, a protected computer
unless paid.186 The provision has been described as “a high-tech variation on old fashioned
extortion.”187 Although a number of other federal criminal statutes also prohibit extortionate
threats, the CFAA’s legislative history suggest that Congress’s concern in enacting this provision
was that other “extortion statutes, which protect against physical injury to person or property,
[might not] cover intangible computerized information.”188 In particular, the Senate Report
accompanying the 1996 Amendment to the CFAA noted concern with threats against computer
systems such as “situations in which hackers penetrate a system, encrypt a database and then
demand money for the decoding key.”189 Prosecutors have invoked § 1030(a)(7) to charge a
variety of threats against computer systems themselves, such as ransomware plots that use
software to encrypt the victim’s computer files (rendering them unavailable) until payment is
received to unlock those systems.190 The government has also relied on § 1030(a)(7) to prosecute

181 U.S. DEP’T OF JUSTICE, supra note 9, at 51.
182 See Doyle, supra note 23, at 69–70 (“[I]t is unclear whether the protection of paragraph 1030(a)(6) cloaks legislative
and judicial branch computers or is limited to those of the executive branch.”).
183 18 U.S.C. § 1030(e)(7) (“[T]he term ‘department of the United States’ means the legislative or judicial branch of the
Government or one of the executive departments . . . .”).
184 Doyle, supra note 23 (quoting (18 U.S.C. § 1030)).
185 18 U.S.C. § 1030(a)(7) imposes criminal liability on:
(a) Whoever--
(7) with intent to extort from any person any money or other thing of value, transmits in
interstate or foreign commerce any communication containing any --
(A) threat to cause damage to a protected computer;
(B) threat to obtain information from a protected computer without authorization or in
excess of authorization or to impair the confidentiality of infor mation obtained from a
protected computer without authorization or by exceeding authorized access; or
(C) demand or request for money or other thing of value in relation to damage to a protected
computer, where such damage was caused to facilitate the exto rtion.
186 Id.
187 See S. REP. NO. 104-357, at 12 (1996).
188 Id. (quoting statement of Attorney General to Sen. Leahy).
189 Id.
190 See, e.g., Indictment, United States v. Savandi, No. 3:18-cr-00704-BRM, 2018 WL 6798078 (D.N.J. Nov. 27,
2018); Press Release, U.S. Dep’t of Justice, T wo Iranian Men Indicted for Deploying Ransomwar e to Extort Hospitals,
Municipalities, and Public Institutions, Causing Over $30 Million in Losses (Nov. 28, 2018),
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instances where computers are not the subject of the threat, but rather the means of extortion. For
instance, prosecutors have brought charges under § 1030(a)(7) against a hacker who obtained
“sensitive records and information” from victim computers, which he threatened to release unless
paid a ransom.191 As another il ustration, federal prosecutors invoked § 1030(a)(7) in charging a
former government employee who used stolen passwords to obtain “sexual y explicit photographs
. . . from victims’ email and social media accounts,” which he “threatened to share . . . unless the
victims ceded to certain demands.”192
Section 1030(a)(7) specifical y prohibits three categories of extortionate threats. First, it
criminalizes “threat[s] to cause damage to a protected computer.”193 Threats to cause damage
might include threats to “interfer[e] in any way with the normal operation of the computer or
system in question, such as [by] denying access to authorized users, erasing or corrupting data or
programs, slowing down the operation of the computer or system, or encrypting data and then
demanding money for the key.”194 Second, § 1030(a)(7) proscribes “threat[s] to obtain
information from a protected computer without authorization or in excess of authorization or to
impair the confidentiality of information obtained from a protected computer without
authorization or by exceeding authorized access.”195 In other words, this second category includes
extortionate threats to obtain information through unauthorized access to a protected computer, or
to disclose information already obtained through unauthorized access into a protected
computer.196 For example, an individual may fall within this second category when he hacks into
a protected computer, obtains sensitive information, and then threatens to disclose it unless his
demands are met.197 Third, it is a crime under § 1030(a)(7) to “demand or request for money or
other thing of value in relation to damage to a protected computer, where such damage was
caused to facilitate the extortion.”198 An example of this type of threat is the use of ransomware to
extort payment in exchange for providing the decryption key for the victim’s files.199 The latter
two categories of threats are intended to “‘cover the situation in which a criminal has already
stolen the information and threatens to disclose it unless paid off’ and in which ‘other criminals

https://www.justice.gov/opa/pr/two-iranian-men-indicted-deploying-ransomware-extort-hospitals-municipalities-and-
public. T he installation of such ransomware may also violate § 1030(a)(5). See Indictment, Savandi, No. 3:18-cr-
00704-BRM, 2018 WL 6798078, supra note 190 (charging defendants under both 18 U.S.C. § 1030(a)(7)(C) and §
1030(a)(5)(A)).
191 Press Release, U.S. Dep’t of Justice, Member of “T he Dark Overlord” Hacking Group Extradited From United
Kingdom to Face Charges in St. Louis (Dec. 18, 2019), https://www.justice.gov/opa/pr/member-dark-overlord-hacking-
group-extradited-united-kingdom-face-charges-st-louis. See also Indictment, United States v. Wyatt , No. 4:17-cr-
00522-RLW-SPM, 2017 WL 11530077 (E.D. Mo. Nov. 8, 2017).
192 Press Release, U.S. Dep’t of Justice, Former U.S. Government Employee Charged in Computer Hacking and Cyber
Stalking Scheme (Aug. 19, 2015), https://www.justice.gov/opa/pr/former-us-government -employee-charged-computer-
hacking-and-cyber-stalking-scheme; see also Indictment, United States v. Ford, No. 1 15-CR-319, 2015 WL 4980336
(N.D. Ga. Aug. 18, 2015).
193 18 U.S.C. § 1030(a)(7)(A).
194 See S. REP. NO. 104-357, at 12 (1996).
195 18 U.S.C. § 1030(a)(7)(B) (emphasis added).
196 Id.
197 Indictment, Ford, No. 1 15-CR-319, 2015 WL 4980336, supra note 192.
198 18 U.S.C. § 1030(a)(7)(C).
199 U.S. DEP’T OF JUSTICE, supra note 9, at 54; accord S. REP. NO. 104-357, at 12 (1996) (discussing § 1030(a)(7) and
noting that “ [o]ne can imagine situations in which hackers penetrate a system, encrypt a database and then demand
money for the decoding key”).
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cause damage first—such as by accessing a corporate computer without authority and encrypting
critical data—and then threaten that they wil not correct the problem unless the victim pays.’”200
There are two important limitations to § 1030(a)(7) as it pertains to al three categories of threats,
however. First, for § 1030(a)(7) to apply, the defendant must have acted “with intent to extort
from any person any money or other thing of value.”201 In general, extortion refers to “obtaining
something or compel ing some action by il egal means, as by force or coercion.”202 In the context
of § 1030(a)(7), courts have found the requisite intent to extort where, for example, defendants
wrongfully obtained confidential information or credentials and demanded money for their
return.203 However, it may not be necessary to establish “that the defendant actual y succeeded in
obtaining the money or thing of value, or that the defendant actual y intended to carry out the
threat made.”204 Second, the defendant must have transmitted the threat “in interstate or foreign
commerce,”205 for example by transmitting the threat through the internet or between computers
in two different states.206
Remedies and Penalties
The CFAA provides a number of remedies when its various prohibitions are violated. Most
obviously, violations of the CFAA provisions discussed above are subject to various criminal
penalties of fines and imprisonment.207 The nature of those penalties varies based on the specific
subsection at issue (see Table 1).208 For example, the maximum prison term for first-time CFAA
offenders is one year under § 1030(a)(3),which governs certain act of trespassing in government
computers,209 but five years under § 1030(a)(4), which is the main anti-fraud provision in the
CFAA and which ordinarily involves conduct of a more serious nature.210 The distinction between
first time and repeat offenses is also relevant in the CFAA (see Table 1). For instance, under §

200 See Doyle, supra note 23, at 63 & n. 353 (quoting H.R. 4175, the Privacy and Cybercrime Enforcement Act of 2007:
Hearings Before the Subcom m . on Crim e, Terrorism , and Hom eland Security of the House Com m . on the Judici ary,
110th Cong., 1st Sess. (2007) (statement of Acting Principal Deputy Assistant Attorney General Andrew Lourie)).
201 18 U.S.C. § 1030(a)(7).
202 Extortion, BLACK’S LAW DICTIONARY (11th ed. 2019).
203 See, e.g., Inplant Enviro-Sys. 2000 Atlanta, Inc. v. Lee, No. 1:15-CV-0394-LMM, 2015 WL 13297963, at *4 (N.D.
Ga. June 9, 2015) (holding that plaintiff alleged a valid claim for § 1030(a)(7) violation where defendant allegedly
demanded $137,705 for the return of master access to the plaintiff’s domains).
204 U.S. DEP’T OF JUSTICE, supra note 9, at 53.
205 18 U.S.C. § 1030(a)(7).
206 See Inplant Enviro-Sys. 2000 Atlanta, Inc., No. 1:15-CV-0394-LMM, 2015 WL 13297963, at *4 (concluding that
plaintiff adequately stated a § 1030(a)(7) violation against defendant who transmitted extortionate communication “in
interstate or foreign commerce, as [it was] sent via internet . . . .”); accord United States v. Kammersell, 196 F.3d 1137,
1139 (10th Cir. 1999) (concluding in that interstate commerce element of 18 U.S.C. § 875(c) —a federal threat
statute—was satisfied where defendant transmitted threat via instant message between computers in the same state,
where it was routed to a server in a second state).
207 18 U.S.C. § 1030. T he CFAA gives the FBI “primary authority to investigate” certain CFAA violations such as
those involving espionage or national security information, but the statute also expressly permits investigation by the
United States Secret Service and any other agency with authority. 18 U.S.C. § 1030(d); accord FBI, Cyber Crim e,
https://www.fbi.gov/investigate/cyber (last visited July 27, 2020). T he Department of Justice prosecutes CFAA
violations. See generally U.S. DEP ’T OF JUSTICE, supra note 9 (summarizing DOJ policies and guidance on CFAA
prosecutions).
208 18 U.S.C. § 1030.
209 Id. § 1030(c)(2)(A).
210 Id. § 1030(c)(3)(A).
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1030(a)(1)—which prohibits obtaining and disclosing national security information through
unauthorized computer access—a violation is general y subject to a maximum prison term of ten
years, a fine, or both.211 But if that violation occurs after another CFAA offense, it is subject to a
maximum prison term of twenty years, a fine, or both.212 Within some CFAA provisions, the
relevant penalties also depend on the gravity of the defendant’s conduct (see Table 2; Table 3;
Table 4). For example, under § 1030(a)(2)—prohibiting obtaining information in certain
circumstances—the penalties are stiffer if the value of the information obtained is greater than
$5,000 (see Table 2).213 The CFAA provision prohibiting damage to computers—§ 1030(a)(5)—
offers another il ustration (see Table 3; Table 4). It authorizes longer prison terms for certain
outcomes, such as when a violation results in bodily injury or death.214
Table 1. Overview of CFAA Maximum Penalties
Maximum Prison Terms by Subsection for First and Subsequent Of enses
Subsequent
Section*
Description
First Offense**
Offense***
1030(a)(1)
Cyber Espionage
10 Years
20 Years
1030(a)(2)
Obtaining Information by Unauthorized
1 Year (M); 5 Years
10 Years
Computer Access
(F)
1030(a)(3)
Government Computer Trespassing
1 Year
10 Years
1030(a)(4)
Computer Fraud
5 Years
10 Years
1030(a)(5)(A)
Knowing Transmission + Intentional
1 Year (M); 10 Years
20 Years
Damage to Computer
(F)
1030(a)(5)(B)
Intentional Access + Reckless Damage to
1 Year (M); 5 Years
20 Years
Computer
(F)
1030(a)(5)(C)
Intentional Access + Damage to Computer
1 Year
10 Years
+ Loss
1030(a)(6)
Password Trafficking
1 Year
10 Years
1030(a)(7)
Threats and Extortion
5 Years
10 Years
Source: 18 U.S.C. § 1030(c).
Notes:
* Bolded subsection authorizes additional penalties beyond those reflected in this Table where there are certain
aggravating factors such as causing death, broken down in further detail in Table 3.
** (M) denotes misdemeanor; (F) denotes felony. CFAA subsections that may be charged as a misdemeanor or a
felony are broken down in further detail in Table 2, Table 3, and Table 4.
*** Subsequent offense refers to maximum penalties possible for offense committed fol owing conviction for
another CFAA offense.

211 Id. § 1030(c)(1)(A).
212 Id. § 1030(c)(1)(B).
213 Id. § 1030(c)(2)(B).
214 Id. §§ 1030(c)(4)(E)–(F).
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Table 2. Overview of Maximum Penalties Under 18 U.S.C. § 1030(a)(2)
Maximum Prison Terms for Obtaining Information by Unauthorized Computer Access
Description of Offense Under § 1030(a)(2)
Classification
Sentence
First Offense (No Special Conditions)
Misdemeanor
1 Year
Offense with One of Three Special Conditions:
Felony
5 Years
1. Offense committed for purpose of commercial
advantage or private financial gain;
2. Offense committed in furtherance of any
criminal or tortious act in violation of the
Constitution or state or federal law; or
3. The Value of the information obtained is greater
than $5,000.
Subsequent Offense*
Felony
10 Years
Source: 18 U.S.C. § 1030(c)(2)(C).
Note: * Subsequent offense refers to maximum penalties possible for offense committed fol owing conviction
for another CFAA offense.
Table 3. Overview of Maximum Penalties Under 18 U.S.C. § 1030(a)(5)(A)
Maximum Prison Terms for Knowing Transmission + Intentional Damage to a Computer
Description of Offense Under § 1030(a)(5)(A)
Classification
Sentence
First Offense (No Special Harms)
Misdemeanor
1 Year
First Offense with One of Six Special Harms:
Felony
10 Years
1. Minimum loss of $5,000 to at least one person
during a one year period;
2. Modification/impairment/potential modification
or impairment of medical examination,
diagnosis, treatment, or care of at least one
individual;
3. Physical injury to any person;
4. Threat to public health or safety;
5. Damage affecting a computer used by or for the
federal government in furtherance of the
administration of justice, national defense, or
national security; or
6. Damage affecting at least 10 protected
computers in a 1-year period.
Subsequent Offense*
Felony
20 Years
Offense where defendant knowingly/recklessly causes serious bodily
Felony
20 Years
injury, or attempts to do so
Offense where defendant knowingly/recklessly causes death, or
Felony
Life
attempts to do so
Imprisonment
Source: 18 U.S.C. § 1030(c)(4).
Note: * Subsequent offense refers to maximum penalties possible for offense committed fol owing conviction
for another CFAA offense.
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Table 4. Overview of Maximum Penalties Under 18 U.S.C. § 1030(a)(5)(B)
Maximum Prison Terms for Intentional Access + Reckless Damage to a Computer
Description of Offense Under § 1030(a)(5)(B)
Classification
Sentence
First Offense (No Special Harms)
Misdemeanor
1 Year
First Offense with One of Six Special Harms:
Felony
5 Years
1. Minimum loss of $5,000 to at least one person
during a one year period;
2. Modification/impairment/potential modification
or impairment of medical examination,
diagnosis, treatment, or care of at least one
individual;
3. Physical injury to any person;
4. Threat to public health or safety;
5. Damage affecting a computer used by or for the
federal government in furtherance of the
administration of justice, national defense, or
national security; or
6. Damage affecting at least 10 protected
computers in a 1-year period.
Subsequent Offense*
Felony
20 Years
Source: 18 U.S.C. § 1030(c)(4).
Note: * Subsequent offense refers to maximum penalties possible for offense committed fol owing conviction
for another CFAA offense.
In addition to these criminal penalties, the CFAA also provides a private right of action that
permits a person who suffers damage or loss due to a CFAA violation to bring suit against the
violator. Under a civil CFAA claim, the plaintiff can obtain compensatory damages and
injunctive relief or other equitable relief.215 However, civil actions are only possible if the
violation results in certain types of losses or damages, such as physical injury, a threat to public
health or safety, damage to 10 or more protected computers within the span of a year, or certain
losses with a total value of at least $5,000.216 Final y, the CFAA includes forfeiture provisions that
authorize government confiscation of property that was used in, or derived from, CFAA
violations.217
Selected CFAA Issues in the 116th Congress
The CFAA exists in the larger context of a rapidly changing technological world. Such changes
have made the application of the CFAA to certain activities uncertain and even controversial. For
example, with the modern prevalence of cybercrime, some contend that private actors who fal
victim to cyberattacks should be able to hack back against the initial aggressor.218 However, the

215 Id. § 1030(g).
216 Id. § 1030(c)(4)(A)(i). A complete examination of these requirements, and the CFAA’s civil remedy more broadly,
is beyond the scope of this Report. For a more detailed examination, see Doyle, supra note 23.
217 Id. § 1030(j). A more detailed examination of the laws governing forfeiture is beyond the scope of this Report. For
an analysis of forfeiture, including under § 1030, see CRS Report 97-139, Crim e and Forfeiture, by Charles Doyle.
218 See infra § “Hacking Back.”
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provisions of the CFAA that prohibit hacking also ostensibly criminalize hacking back, which
some legislation has sought to change.219 Another technological development that has prompted
reexamination of the CFAA by some policymakers involves the growing market for the sale and
rental of botnets: “network[s] of compromised computers, ‘often programmed to complete a set
of repetitive tasks’ without ‘the owner’s knowledge or permission.’”220 Although the CFAA
general y criminalizes creating botnets or using them for other computer crimes, it may not
prohibit the sale or renting of botnets.221 The proliferation of Terms of Service (ToS)
Agreements—contracts that govern the use of a product such as a website—has resulted in
another area of uncertainty under the CFAA.222 Specifical y, federal courts disagree over whether
the CFAA imposes criminal liability for ToS violations.223 This section discusses the CFAA in
relation to each of these examples of the intersection between technological change and the law.
The CFAA and ToS Violations
One ongoing issue with respect to the CFAA is whether the statute imposes criminal liability for
the bare violations of ToS agreements—contracts that govern the use of a product.224 The issue is
of considerable significance given the prevalence of ToS agreements, which frequently govern the
use of smartphones, tablets, personal computers, social media websites, apps, online shopping
platforms, streaming services, and more.225 The countervailing policy concerns are the danger of
over criminalization on the one hand, versus the importance of enforcing ToS agreements on the
other.226
Currently, there is an unresolved circuit split over whether the CFAA imposes criminal liability
for ToS violations, as a result of conflicting interpretations of the breadth of the phrases “without
authorization” and “exceeds authorized access.” Several courts, including the U.S. Court of
Appeals for the First,227 Fifth,228 Seventh,229 and Eleventh230 Circuits have interpreted “exceeds
authorized access” and “without authorization” broadly, in a manner that would permit criminal
liability for violations of ToS agreements and other contractual computer use restrictions. For

219 Id.
220 Beale, supra note 1, at 173 (quoting Zach Lerner, Microsoft the Botnet Hunter: The Role of Public-Private
Partnerships in Mitigating Botnets, 28 HARV. J.L. & T ECH. 237, 239 (2014)); accord United States v. Gasperini, 894
F.3d 482, 485 (2d Cir. 2018) (describing botnets as “ network[s] of infected computers under the attacker’s control.”).
221 See infra § “Botnet T rafficking.”
222 See infra § “T he CFAA and T oS Violations.”
223 Id.
224 Berris, supra note 14. More broadly, legal commentators have described this issue as whether the CFAA imposes
criminal liability for the violation of “contract-based restrictions.” KERR, supra note 7, at 51.
225 Berris, supra note 14.
226 Id.
227 EF Cultural T ravel BV v. Zefer Corp., 318 F.3d 58, 62 (1st Cir. 2003) (“A lack of authorization could be established
by an explicit statement on the website restricting access.”).
228 United States v. John, 597 F.3d 263, 271 (5th Cir. 2010) (holding that authorized access may “ encompass limits
placed on the use of information obtained by permitted access to a computer system and data available on that system .
. . at least when the user knows or reasonably should know that he or she is not a uthorized to access a computer and
information obtainable from that access in furtherance of or to perpetrate a crime.”)
229 Int’l Airport Ctrs., LLC v. Citrin, 440 F.3d 418, 420–21 (7th Cir. 2006) (concluding that defendant lacked
authorization after breaching duty of loyalty to employer) .
230 United States v. Rodriguez, 628 F.3d 1258, 1263 (11th Cir. 2010) (concluding that defendant exceeded authorized
access by violating employer policy against using employer database for personal purposes).
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example, in United States v. Rodriguez, the Eleventh Circuit231 concluded that an employee
“exceeded authorized access” under the CFAA when he used a database he was authorized to
access, but did so for personal purposes in a manner prohibited by his employer’s computer use
policy.232 In other words, for the Eleventh Circuit, “the concept of ‘exceeds authorized access’
may include exceeding the purposes for which access is ‘authorized.’”233 In general, these courts
view the CFAA to be concerned with not just hacking, but also with other computer-based harms
such as the misappropriation of confidential information by rogue employees or former-
employees.234
In contrast, several other courts, including the Second,235 Fourth,236 and Ninth237 Circuits, have
more narrowly interpreted “without authorization” and “exceeds authorized access,” based on an
understanding that the CFAA’s central purpose is to criminalize hacking. These courts apply
CFAA liability only to those who lack any authorization to access a computer or website238 or
those who are “authorized to access only certain data or files” but access “unauthorized data or
files.”239 For example, under the narrow view, an employee with permission to access only
product information on his employer’s computer would exceed authorized access if he also looks
at customer data on that computer, as he was whol y lacking authority to view the customer
information.240 But, if that employee were permitted to access customer data for certain reasons
(e.g., business purposes) and he did so for other purposes (e.g., personal curiosity), under the
narrow view, he would not have exceeded authorized access. Thus, courts applying the narrow
view would general y exclude from CFAA liability those who have merely violated ToS
agreements because those agreements general y do not restrict access, but rather restrict the
purposes to which a database or computer may be used once it has been accessed.241 Under this
view, CFAA liability could only apply to such individuals if their permission to access a computer
or website “has been revoked explicitly,” such as through a cease and desist letter.242 Courts
adopting the narrow interpretation have expressed concern that a broad reading of “without
authorization” and “exceeds authorized access” would risk defining authorized access by contract
terms that “most people are only dimly aware of,” and are subject to change without notice,
risking “mak[ing] criminals of large groups of people who would have little reason to suspect

231 T his report references a significant number of decisions by federal appellate courts of various regional circuits. For
purposes of brevity, references to a particular circuit in the body of this report (e.g., the First Circuit) refer to the U.S.
Court of Appeals for that particular circuit.
232 Rodriguez, 628 F.3d at 1263.
233 John, 597 F.3d at 272.
234 Berris, supra note 14.
235 United States v. Valle, 807 F.3d 508, 523 (2d Cir. 2015) (concluding that an individual does not exceed authorized
access where individual is authorized for certain uses, and surpasses those).
236 WEC Carolina Energy Sols. LLC v. Miller, 687 F.3d 199, 206 (4th Cir. 2012) (“[W]e adopt a narrow reading of the
terms ‘without authorization’ and ‘exceeds authorized access’ and hold that they apply only when an individual
accesses a computer without permission or obtains or alters information on a computer beyond that which he is
authorized to access.”).
237 United States v. Nosal, 676 F.3d 854, 863 (9th Cir. 2012) (“ Instead, we hold that the phrase ‘exceeds authorized
access’ in the CFAA does not extend to violations of use restrictions.”).
238 See Valle, 807 F.3d at 528.
239 Nosal, 676 F.3d at 856–57.
240 Id. at 857.
241 Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058, 1067 (9th Cir. 2016) (“Second, a violation of the terms of
use of a website—without more—cannot establish liability under the CFAA.”).
242 Id.
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they are committing a federal crime.”243 Adherents to the broad interpretation counter that
application of the CFAA is sufficiently tempered by, among other things, prosecutorial discretion
and statutory intent requirements.244
The Supreme Court is currently considering a case that could resolve whether the CFAA imposes
criminal liability for mere ToS violations. On April 20, 2020 the Court agreed to hear Van Buren
v. United States,245 an appeal from the Eleventh Circuit.246 Van Buren, involves former police
sergeant Nathan Van Buren’s conviction for, among other things, violating § 1030(a)(2) by using
a law enforcement database for purposes prohibited by department policy.247 The Court is
expected to hear arguments in Van Buren in its October 2020 term.248
And regardless of what the Court does in Van Buren, Congress could clarify the CFAA’s reach
with respect to ToS agreements. In past Congresses, legislation has been introduced that sought to
modify the “without authorization” and “exceeds authorized access” language in the CFAA.249
One example, Aaron’s Law,250 “[n]amed in honor of the late Internet innovator and activist Aaron
Swartz,”251 was introduced in the 113th Congress. Aaron’s Law would have replaced the phrase
“exceeds authorized access” with the phrase “access without authorization,” defining the latter as
obtaining “information on a protected computer . . . that the accesser lacks authorization to
obtain” by “knowingly circumventing one or more technological or physical measures that are
designed to exclude or prevent unauthorized individuals from obtaining that information.”252 That
proposal would have limited the CFAA’s breadth in a manner more consistent with the
understanding of courts applying the narrow view of the statute. No bil s have been introduced in
this Congress addressing the split.
Botnet Trafficking
The role of the CFAA has also received attention in the context of botnets—“network[s] of
compromised computers, ‘often programmed to complete a set of repetitive tasks’ without ‘the
owner’s knowledge or permission.’”253 Botnets pose a significant risk because they are sometimes
used for attacks on the internet itself, for example in DDoS attacks against core internet
infrastructure.254 The creation of a botnet and the use of a botnet to commit crimes general y

243 Nosal, 676 F.3d at 859, 861.
244 Berris, supra note 14.
245 Van Buren v. United States, 206 L. Ed. 2d 822 (Apr. 20, 2020).
246 United States v. Van Buren, 940 F.3d 1192 (11th Cir. 2019), cert. granted, No. 19-783, 2020 WL 1906566 (Apr. 20,
2020).
247 Id. at 1197–98, 1208.
248 October Term 2020, SCOT USBLOG, https://www.scotusblog.com/case-files/terms/ot2020/?sort=mname (last visited
Sept. 9, 2020).
249 Aaron’s Law Act of 2013, H.R. 2454, 113th Cong. (2013).
250 Id.
251 Press Release, U.S. Congresswoman Zoe Lofgren, Rep Zoe Lofgren Introduces Bipartisan Aaron’s Law (June 20,
2013), https://lofgren.house.gov/media/press-releases/rep-zoe-lofgren-introduces-bipartisan-aarons-law.
252 Aaron’s Law Act of 2013, H.R. 2454, 113th Cong. (2013).
253 Beale, supra note 1, at 173 (quoting Zach Lerner, Microsoft the Botnet Hunter: The Role of Public-Private
Partnerships in Mitigating Botnets, 28 HARV. J.L. & T ECH. 237, 239 (2014)); accord United States v. Gasperini, 894
F.3d 482, 485 (2d Cir. 2018) (describing botnets as “ network[s] of infected computers under the attacker’s control.”).
254 See Beale, supra note 1, at 190 (“In contrast, botnets present the reverse issue: devices connected to the internet may
be used to disrupt the internet itself.”).
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violates the CFAA.255 However, at times, individuals develop botnets that are rented or sold256 to
other individuals who, in turn, then use them for various crimes such as DDoS attacks and
identity theft.257 Federal courts have not resolved whether the CFAA criminalizes such botnet
trafficking, and the issue is particularly uncertain in the case of botnets offered for rent or sale by
individuals who did not also create them (the CFAA general y criminalizes the creation of a
botnet).258 For example, in a 2015 blog post the DOJ recounted one undercover investigation that
revealed a sel er offering a botnet comprised of thousands of computers; prosecutors were unable
to bring charges against the sel er because it was unclear whether he had created the botnet or was
simply sel ing it.259
Thus, the DOJ has seemingly acknowledged that some botnet trafficking conduct may fal outside
the scope of the CFAA.260 A review of the language of the CFAA reveals the reason. The only
CFAA provision that expressly prohibits trafficking—§ 1030(a)(6)—covers only passwords and
related information, not botnets.261 Another relevant CFAA subsection—§ 1030(a)(5)’s
prohibition against damaging certain computers—requires that the defendant acts with intent to
damage.262 However, those trafficking in botnets might lack such intent, if they simply intend to
profit or are unaware of how the botnet wil be used.263 Nevertheless, the DOJ has reached several
plea agreements with defendants accused of botnet trafficking.264 The counts included in those
plea agreements have general y been some combination of conspiracy (under 18 U.S.C. § 371) to
violate the CFAA or the wire fraud statute,265 attempt to damage computers by transmission of
programs, codes or commands in violation of the CFAA,266 and “advertising a device used to
intercept electronic communications” in violation of 18 U.S.C. § 2512.267
Although at first glance the conspiracy statute invoked by the DOJ in some such plea agreements
appears like it could have widespread applicability in the context of botnet trafficking, a

255 U.S. Dep’t of Justice, Prosecuting the Sale of Botnets and Malicious Software (Mar. 18, 2015),
https://www.justice.gov/archives/opa/blog/prosecuting-sale-botnets-and-malicious-software.
256 See Matwyshyn, supra note 13, at 503 (“T here are cases where brokers who sell access to botnets are not the
criminals who created them.”).
257 U.S. Dep’t of Justice, Prosecuting the Sale of Botnets, supra note 255.
258 Id.; accord T riana, supra note 13, at 1315 (discussing uncertainty of whether sale of botnets and malware would
violate the CFAA).
259 U.S. Dep’t of Justice, Prosecuting the Sale of Botnets, supra note 255.
260 See id. (“While trafficking in botnets is sometimes chargeable under other subsections of the Computer Fraud and
Abuse Act, [the problem of individuals trafficking in botnets that they did not create] has resulted in, and will
increasingly result in, the inability to prosecute individuals selling access to thousands of infected computers.”).
261 18 U.S.C. § 1030(a)(6).
262 Id. § 1030(a)(5).
263 See T riana, supra note 13, at 1315 (“ Since hackers selling malware more clearly intend to profit off of their skills,
they likely do not meet the mens rea requirement of ‘intentionally’ causing ‘damage.’”).
264 See, e.g., Press Release, U.S. Dep’t of Justice, Marcus Hutchins Pleads Guilty to Creating and Distributing the
Kronos Banking T rojan and UPAS Kit Malware (May 3, 2019), https://www.justice.gov/usao-edwi/pr/marcus-
hutchins-pleads-guilty-creating-and-distributing-kronos-banking-trojan-and-upas.
265 Id.; Press Release, U.S. Dep’t of Justice, Russian Citizen Sentenced to 46 Months in Prison for Involvement in
Global Botnet Conspiracy (Aug. 3, 2017), https://www.justice.gov/opa/pr/russian-citizen-sentenced-46-months-prison-
involvement -global-botnet-conspiracy.
266 See Press Release, U.S. Dep’t of Justice, Arizona Man Sentenced to 30 Months in Prison for Selling Access to
Botnets (Sept. 6, 2012), https://www.justice.gov/opa/pr/arizona-man-sentenced-30-months-prison-selling-access-
botnets.
267 See Press Release, supra note 264.
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defendant is not guilty of conspiracy unless: (1) he has agreed to commit a specific offense with
at least one other person; (2) he knowingly participated in the conspiracy while intending to
commit that offense; and (3) a conspirator commits an overt act in furtherance of the
conspiracy.268 The second element—intent—likely presents a significant obstacle in some cases,
because as discussed, botnet traffickers may be unaware of how the buyer or renter plans to use
the botnet, and may be intending only to profit.269 Thus, the sel er may lack the requisite intent to
commit an underlying offense.270 And, for the reasons outlined above, botnet trafficking by itself
does not appear to violate the CFAA and therefore would likely not amount to an underlying
federal offense. Even in instances where the conspiracy statute does reach botnet trafficking—for
example, if a botnet trafficker rents botnet access with the intent that it should be used to damage
a computer in violation of § 1030(a)(5)—the statute authorizes a maximum prison term of five
years,271 less than under some subsections of the CFAA.272
At least one state has enacted a law aimed at botnet trafficking,273 and the issue has generated
legislative proposals in previous administrations274 and Congress.275 For example, one proposal
introduced in the 116th Congress, titled the Defending American Security from Kremlin
Aggression Act of 2019, contains a provision that would amend the CFAA to prohibit
“intentional y traffic[king] in the means of access to a protected computer.”276 Although the
proposal does not define “means of access,” the intent appears to be to include botnets.277 If
enacted, the prohibition would be subject to two main limitations.278 First, the trafficker must
“know[] or [have] reason to know the protected computer has been damaged in a manner
prohibited by” the CFAA.279 Second, the trafficker must know or have reason to know that the
purchaser or renter intends to use the means of access to violate certain laws or to “damage a
protected computer” in violation of the CFAA.280 The botnet trafficking provision of in this
legislation is largely identical to a stand-alone botnet trafficking proposal first introduced in the
114th Congress: the Botnet Prevention Act of 2016.281 That legislation faced criticism from those
who feared it would criminalize valid cybersecurity research among other things.282 Proponents

268 United States v. Smith, 950 F.3d 893, 895 (D.C. Cir. 2020) (citing United States v. Gatling, 96 F.3d 1511, 1518
(D.C. Cir. 1996)). For a detailed examination of federal conspiracy law, see, e.g., CRS Report R41223, Federal
Conspiracy Law: A Brief Overview, by Charles Doyle.
269 See supra note 263 and accompanying discussion.
270 Id.
271 18 U.S.C. § 371.
272 See supra § “Remedies and Penalties.”
273 T ex. Bus. & Com. Code Ann. § 324.055 (West).
274 President Barack Obama, Remarks by the President at the National Cybersecurity Communications Integration
Center (Jan. 13, 2015), reprinted at 2015 WL 163517, at *3 (“ [W]e’re proposing to update the authorities that law
enforcement uses to go after cyber criminals. We want to be able to better prosecute those who are involved in cyber
attacks, those who are involved in the sale of cyber weapons like botnets and spyware.”).
275 See, e.g., Defending American Security from Kremlin Aggression Act of 2019, S. 482, 116th Cong. (2019).
276 Id.
277 T he relevant provision is titled “Stopping T rafficking in Botnets; Forfeiture.” Id. § 406.
278 Id.
279 Id.
280 Id.
281 S. 2931, 114th Cong. (2016).
282 Letter from Access Now et al., to Senate (June 1, 2016), https://www.eff.org/document/coalition-letter-opposing-
botnet -prevention-act.
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have countered that proposals to prohibit botnet trafficking would be sufficiently limited by the
legislation’s intent requirements.283
Hacking Back
Another issue that has garnered legal,284 academic,285 media,286 and legislative287 attention is that
of “hacking back”—where the victim of hacking launches an invasive counterattack against the
initial hacker.288 Hacking back has been the subject of significant policy debate.289 Critics argue
that hacking back could result in escalation and retaliation290 and harm innocent parties though
misattribution of the source of a cyber-attack.291 Others have cautioned that hacking back could
cause private actors to inadvertently wade into the realm of cyberwarfare and foreign relations if
they hack back against an initial aggressor who turns out to be the agent of a foreign state.292
Much of the recent scholarship on hacking back has been in this vein,293 but hacking back has its

283 See U.S. Dep’t of Justice, Prosecuting the Sale of Botnets, supra note 255 (defending proposal to prohibit botnet
trafficking on grounds that “ proposal requires that the government . . . [meet] the burden to prove, beyond a reasonable
doubt, that the individual intentionally undertook an act (trafficking in a means of access) that he or she knew to be
wrongful”).
284 See, e.g., U.S. DEP’T OF JUSTICE, BEST PRACTICES FOR VICTIM RESPONSE AND REPORTING OF CYBER INCIDENTS 23
(2018), https://www.justice.gov/criminal-ccips/file/1096971/download#page=23 (discussing hacking back).
285 See, e.g., Shane Huang, Proposing A Self-Help Privilege for Victims of Cyber Attacks, 82 GEO. WASH. L. REV. 1229,
1233 (2014).
286 See, e.g., Nicholas Schmidle, Vigilantes Who Hack Back, NEW YORKER (Apr. 30, 2018),
https://www.newyorker.com/magazine/2018/05/07/the-digital-vigilantes-who-hack-back.
287 See, e.g., Active Cyber Defense Certainty Act, H.R. 3270, 116th Cong. (2019).
288 See Beale, supra note 1, at 189 n.190 (describing hacking back). Related terms include, “counterstrikes, ‘active
defense,’ ‘back hacking,’ ‘retaliatory hacking,’ or ‘offensive countermeasures’” Id. at 190 (quoting Sean L.
Harrington, Cyber Security Active Defense: Playing with Fire or Sound Risk Managem ent? 20 RICH. J.L. & TECH. 12, 4
(2014)).
289 Compare Josephine Wolff, Attack of the Hack Back, SLATE (Oct. 17, 2017),
https://slate.com/technology/2017/10/hacking-back-the-worst -idea-in-cybersecurity-rises-again.html (proclaiming
hacking back “[t]he worst idea in cybersecurity”) and Martin Giles, Five Reasons “Hacking Back” is a Recipe for
Cybersecurity Chaos, MIT T ECH. REV. (June 21, 2019),
https://www.technologyreview.com/2019/06/21/134840/cybersecurity -hackers-hacking-back-us-congress/ (describing
hacking back as a “terrible idea”), with KERR, supra note 7, at 133 (summarizing debate over hacking back and
collecting articles arguing in favor of hacking back) and Michael Edmund O’Neill, Old Crim es in New Bottles:
Sanctioning Cybercrim e, 9 GEO. MASON L. REV. 237, 277 (2000) (“ In other words, just as settlers in the American
West could not reliably count on the local sheriff to protect them, and instead kept a weapon handy to stymie potential
aggressors, Internet users may need to protect themselves.”).
290 Josephine Wolff, When Companies Get Hacked, Should They Be Allowed to Hack Back? , ATLANTIC (July 14, 2017),
https://www.theatlantic.com/business/archive/2017/07/hacking-back-active-defense/533679/ (summarizing concern of
security advocates that hacking back “will merely serve as a vehicle for more attacks and greater chaos, particularly if
victims incorrectly identify who is attacking them, or even invent or stage fake attacks from adversaries as an excuse
for hacking back”).
291 See, e.g., Beale, supra note 1, at 198 (summarizing view that due to difficulty in accurately attributing the source of
a cyber-attack, that “ remedial actions risk collateral damage to innocent parties”).
292 See PATRICK LIN, ETHICS OF HACKING BACK: SIX ARGUMENTS FROM ARMED CONFLICT TO ZOMBIES 15 (2016),
http://ethics.calpoly.edu/hackingback.pdf (“ Regardless of attribution, hacking back against a foreign target may be
misinterpreted by the receiving nation as a military response fr om our state, to serious political and economic
backlash.”).
293 See, e.g., CTR. FOR CYBER & HOMELAND SEC., GEO. WASH. UNIV., INTO THE GRAY ZONE: THE PRIVATE SECTOR AND
ACTIVE DEFENSE AGAINST CYBER THREATS 27 (2016), http://cchs.auburn.edu/_files/into-the-gray-zone.pdf (“ First,
‘hacking back’ by the private sector to intentionally cause substantial harm and destroy other parties’ data is clearly
unauthorized and rightly prohibited.”); accord Giles, supra note 289 (critiquing hacking back).
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proponents who argue, among other things, that hacking back is necessary to “establish
attribution of an attack, . . . retrieve and destroy stolen files, [and] monitor the behavior of an
attacker.”294 In addition, it has been suggested that hacking back could be particularly useful in its
“ability to prevent future [cyber] attacks by combatting existing botnets.”295
The debate over hacking back is largely academic, as it appears that much hacking back is
currently il egal—at least when conducted by private actors.296 Although federal courts have not
resolved the issue, the weight of persuasive authority suggests that the same provisions of the
CFAA that prohibit hacking—such as § 1030(a)(5)’s prohibition against certain damage to
computers—also general y prohibit hacking back by the victim of the initial attack.297 At least one
legislative proposal introduced in the 116th Congress would aim to authorize certain self-help
measures. The Active Cyber Defense Certainty Act would create two new exceptions to the
CFAA that would clarify that the law does not prohibit hacking back.298 First, the Active Cyber
Defense Certainty Act would amend the CFAA to expressly permit certain attributional
technologies used to identify cyber intruders.299 Second, with exceptions, the proposal would
create an exclusion from CFAA prosecution for active cyber defense measures, which include
defensive measures “consisting of accessing without authorization” the attacker’s computer to
gather information necessary to determine attribution, disrupt certain continued authorized
activity, or monitor the behavior of an attacker to create “cyber defense techniques.”300 Such

294 Press Release, Congressman T om Graves, Graves, Gottheimer Introduce the Active Cyber Defense Certainty Act
(June 13, 2019), https://tomgraves.house.gov/news/documentsingle.aspx?Documen tID=401122.
295 Beale, supra note 1, at 191.
296 See, e.g., U.S. DEP’T OF JUSTICE, BEST PRACTICES FOR VICTIM RESPONSE, supra note 284, at 23 (cautioning that
“[r]egardless of the victim’s motive” it is possible that “accessing, modifying, or damaging a computer it does no t own
or operate” will “violate federal law and possibly also the laws of many states and foreign countries, if the accessed
computer is located abroad.”).
T he CFAA has a carve out for certain law enforcement activity, which provides that: “ This section does not prohibit
any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United
States, a State, or a political subdivision of a State, or of an intelligence agency of the United States.” 18 U.S.C.
§ 1030(f).
Although beyond the scope of this Report, it is worth observing that the federal wiretapping statute, 18 U.S.C. § 2511,
contains the following carve out applicable to certain acts of hacking back conducted under color of law:
(i) It shall not be unlawful under this chapter for a person acting under color of law to intercept the wire or
electronic communications of a computer trespasser transmitted to, through, or from the protected computer, if --
(I) the owner or operator of the protected computer authorizes the interception of the computer trespasser’s
communications on the protected computer;
(II) the person acting under color of law is lawfully engaged in an investigation;
(III) the person acting under color of law has reasonable grounds to believe that the contents of the computer
trespasser’s communications will be relevant to the investigation; and
(IV) such interception does not acquire communications other than those transmitted to or from the computer
trespasser.
18 U.S.C. § 2511(2)(i).
297 E.g., U.S. DEP’T OF JUSTICE, BEST PRACTICES FOR VICTIM RESPONSE, supra note 284, at 23; Orin Kerr, The Legal
Case Against Hack-Back: A Response to Stewart Baker, STEPTOE CYBERBLOG (Nov. 2, 2012),
https://www.steptoecyberblog.com/2012/11/02/the-hackback-debate/; Beale, supra note 1, at 191; CTR. FOR CYBER &
HOMELAND SEC., GEO. WASH. UNIV., supra note 293; but see Stewart Baker, RATs and Poison Part II: The Legal Case
for Counterhacking, STEPTOE CYBERBLOG (Nov. 2, 2012), https://www.steptoecyberblog.com/2012/11/02/the-
hackback-debate/ (arguing that hacking back may not be a violation of the CFAA).
298 Active Cyber Defense Certainty Act, H.R. 3270, 116th Cong. (2019).
299 Id.
300 Id.
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cyber defense measures would general y require notification to, and pre-approval by, the FBI.301
The Active Cyber Defense Certainty Act was previously introduced in the 115th Congress.302

Author Information

Peter G. Berris

Legislative Attorney

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301 Id.
302 Active Cyber Defense Certainty Act, H.R. 4036, 115th Cong. (2017).
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