Alex Goldman is a producer for On the Media. One time he got run over by a car.
Wednesday, September 28, 2011 - 11:25 AM
On our most recent episode, we spoke to Marcia Hofmann, senior attorney for the Electronic Frontier Foundation, about an ages old law called The Computer Fraud and Abuse Act. The act, passed in 1986, was originally meant to prosecute criminal computer hacking, but in recent years it has expanded to cover everything from wiping information from your work hard drive to violating the terms of service agreements for sites like MySpace. Advocates have called for serious reforms for the law, and at least in the case of terms of service violations, it appears the Senate is listening.
In our segment last week, Hofmann laid her case out thusly:
The important thing is for Congress to decide what behavior it is that we want to penalize and make that behavior illegal. You know, one of the hallmarks of our criminal justice system is that people know what behavior is illegal. And in some of these situations they may or may not know what behavior is illegal.And if they don't have notice, then you’re talking about a potentially unconstitutional law.
As the law is written, it prohibits "unauthorized access" of a computer, but what constitutes exceeding authorization is very vague. As such, there have been attempts at prosecution in the past saying that a violation of the terms of service for a site like MySpace makes the user's behavior unauthorized, and is therefore punishable under the computer fraud and abuse act. In the notorious case of Lori Drew, the Missouri woman whose MySpace harassment drove 13-year-old Megan Meier to suicide, she was actually convicted on these grounds, but it was overturned on appeal.
Late last week, the Senate Judiciary Committee approved an amendment to the law that specifically decriminalizes terms of service violations. On the Electronic Frontier Foundation website, Marcia Hofmann expressed gratitude for the latest changes but emphasized that she thinks the bill is still in need of more reform. "EFF is thankful to Senators Franken and Grassley for introducing this important amendment, which we believe is a huge step in the right direction," writes Hofmann. "But the legislation could be better still. As the bill is currently written, government employees who violate employment agreements remain vulnerable to contract-based prosecutions under the CFAA. We urge Congress to protect all computer users against such charges, no matter where they work."