Obama’s proposed changes to the computer hacking statute: A deep dive by Orin Kerr.
From the post:
As part of the State of the Union rollout, President Obama has announced several new legislative proposals involving cybersecurity. One of the proposals is a set of amendments to the controversial Computer Fraud and Abuse Act (“CFAA”), the federal computer hacking statute. This post takes a close look at the main CFAA proposal. It starts with a summary of existing law; it then considers how the Administration’s proposal would change the law; and it concludes with my views on whether Congress should enact the changes.
My bottom line: My views are somewhat mixed, but on the whole I’m skeptical of the Administration’s proposal. On the downside, the proposal would make some punishments too severe, and it could expand liability in some undesirable ways. On the upside, there are some notable compromises in the Administration’s position. They’re giving up more than they would have a few years ago, and there are some promising ideas in there. If the House or Senate Judiciary Committees decides to work with this proposal, there’s room for a more promising approach if some language gets much-needed attention. On the other hand, if Congress does nothing with this proposal and just sits on it, letting the courts struggle with the current language, that wouldn’t necessarily be a bad thing.
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Just as general awareness you need to read Orin’s take on the proposed amendments.
What I find disturbing from Orin’s analysis is that the administration has been pushing for increased punishments in this area for years.
I find that troubling because the purpose of longer sentences isn’t to put a guilty person in jail longer. Longer sentences enable you to threaten an innocent person with a long time in jail (does Aaron Swartz comes to mind?).
You can force an innocent person to inform on their friends, plead guilty to charges they aren’t guilty of, to work uncover to entrap others.
No, I don’t think increased sentences are as benign as Orin seems to think.
Increased sentences are key to more overreaching by federal prosecutors in marginal cases.
If you had the alternatives of a guarantee of ninety-nine (99) years in jail versus entrapping someone in a crime as an informant, which one would you take?
The administration isn’t asking for that much of an increase here but you really don’t want to do federal time outside of one of the club feds for the rich doctors/lawyers that cheat on their taxes.