Experts Scratching Their Heads At House Judiciary's Awful CFAA Reform Proposal

from the why-would-they-do-this? dept

Wed, Mar 27th 2013 3:46am — Mike Masnick

On Monday, we broke the news of the House Judiciary Committee circulating a terrible bill that would make the Computer Fraud and Abuse Act (CFAA) much worse, rather than better. It would expand definitions and make it even easier for the Justice Department to go after people for harmless activity. In fact, even the part we originally thought might fix one of the worst parts of the CFAA actually makes it worse.

Now that the bill has been out a few days, various experts on the CFAA are scratching their heads about why the House Judiciary Committee is even bothering with this draft bill. As Orin Kerr notes, this seems to be a basic rehash of the DOJ's attempt 2 years ago to expand the CFAA. He suggests (and we agree) that the Judiciary Committee stop taking DOJ language from 2011 and start dealing in the present, and deal with the very real problems with the CFAA, and not just with a DOJ who wants more power.

They’re looking for feedback, so here is mine: Stop taking DOJ’s language from back in 2011 and packaging it as something new. Based on a quick read, it seems that the amendments for 1030 in the new draft are mostly copied from a bill that Senator Leahy offered (with substantial input from DOJ, as I understand it) back in November 2011. I criticized that language here. The new circulating draft also adopts the sentencing enhancements (minus mandatories) and the proposed 1030a that DOJ advocated in May 2011. I criticized that initial DOJ language here. (There’s also a breach notification provision in the new language, but I haven’t followed that issue closely; I don’t know if that proposal is also based on old language.)

[....] This language is really, really broad. If I read it correctly, the language would make it a felony to lie about your age on an online dating profile if you intended to contact someone online and ask them personal questions. It would make it a felony crime for anyone to violate the TOS on a government website. It would also make it a federal felony crime to violate TOS in the course of committing a very minor state misdemeanor. If there is a genuine argument for federal felony liability in these circumstances, I hope readers will enlighten me: I cannot understand what they are.

Of course, when we brought up similar examples in our original post, people said we were overreacting. Hmm. Meanwhile Paul Rosenzweig, the former Deputy Assistant Secretary for Policy at Homeland Security is similarly stumped by the direction of the reform.

My quick review and reaction to this bill is that it seems to answer most of what the Department of Justice wants with very little for the internet online community in return. Most notably the bill would make violations of the CFAA predicate acts for a RICO criminal charge — what this means is that if you engage in just two instances of violating the CFAA, then you are engaged in a pattern of racketeering, with substantial criminal penalties and .. .since the criminal definitions translate directly to civil liability .. a very significant possibility of a “bet the company” civil suit. Not a move designed to foster innovation, I think.

Hopefully, the House Judiciary Committee goes back to the drawing board on this, and takes a closer look at things like Aaron's Law, which is being developed to cut back on the excesses of the CFAA, rather than expand them.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: cfaa, cfaa reform, doj, house judiciary committee, orin kerr, paul rosenzweig

39 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

This comment has been flagged by the community. Click here to show it

Anonymous Coward, 27 Mar 2013 @ 4:19am

Of course, when we brought up similar examples in our original post, people said we were overreacting. Hmm.

You could have said the very same things as Kerr, but the difference is that he's open, human, and awesome--not to mention an expert in the field--and you're an extremist, zealous FUD-packer. Don't blame others when you've got self-imposed boy-who-cried-wolf syndrome. Have you ever considered slowing down, calming down, and not being so extreme? You might be surprised by the new-found respect you'd get. Rather than vying for the love of the lowest common denominator, step up your game a little. You're a smart guy, I know you can do it.
[ link to this | view in thread ]
Josef Anvil (profile), 27 Mar 2013 @ 4:22am

Pass this
As one of "We the People..." I'm throwing my suggestion in the basket.

The Defense of Rationality, Enlightenment, and Morality Act. (Yes its the DREAM Act)

Any Senator or Representative that has shown a well documented (print or video evidence reviewed by experts) lack of comprehension/ignorance of a particular topic, shall not be allowed to lobby/legislate for or against said topic until he/she shows marked improvement in the understanding of said topic as determined by expert review.
[ link to this | view in thread ]
Anonymous Howard (profile), 27 Mar 2013 @ 4:32am

Re: Pass this
That should stop legislation for a good century XD
[ link to this | view in thread ]
Ninja (profile), 27 Mar 2013 @ 4:32am

Re: Pass this
That would put most of them out of any law making.
[ link to this | view in thread ]
Anonymous Howard (profile), 27 Mar 2013 @ 4:34am

Re:
Respect of who?
The pro-league trolls? please, who needs THAT?
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 4:36am

Re:
That's a good one, you've really have that dementia dialed in.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 4:45am

Re: Pass this
Most "lawmakers" admit they neither write nor read the laws that they vote upon whilst supposedly representing us, their constituents. In fact, most "laws" submitted these days are the product of subversive PACs like ALEC whose goals are very dissimilar to those of the general population. This is called a representative form of government, only problem is the majority of people are not being represented. Really good plan there, what could possibly go wrong.
[ link to this | view in thread ]
Benjamin C. Wade (profile), 27 Mar 2013 @ 5:02am

Love it.
Let's put it on We The People.
[ link to this | view in thread ]
Violated (profile), 27 Mar 2013 @ 5:03am

Abuse
It is things like this that makes me sad these days.

During the earlier days of the Internet many just saw it as a weird network filled with tech-heads and buttholes. Now not only do they realise how important the Internet is in the commercial and social sense when they can also strip out data like never before.

So you now have a vast array of Government agencies and more now rushing to carve out their own slice of the Internet to enhance their own power and control.

The DoJ now wants to be able to arrest almost anyone it seems but of course they would say it is only for the really bad people so don't worry about the little guys.

No DoJ we do not trust you and no you cannot have this abusive power.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 5:36am

Re:
"You could have said the very same things as Kerr, but the difference is that he's open, human, and awesome..."

I'm pretty sure Mike is a human too. I mean, a robot would've fixed the "Hot Topics" links on the right by now.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 5:48am

rather than scratch their heads just over the ridiculous changes proposed for the CFAA, the more important and worrying things are
a)how did these people ever get voted in to be Senators? the other choices must have been even more diabolical or they were forced out of the race
b) it doesn't take a rocket scientist to know where these ridiculous changes have stemmed from (entertainment industries!), but having proof would be a help. anyone know when the various meetings took place and who attended?
c) when something like this happens, it is usually because the proposers have more skeletons in their closets, so what are they trying to hide that warrants such harsh punishments for transparency?
[ link to this | view in thread ]
out_of_the_blue, 27 Mar 2013 @ 5:57am

Who's stumped? It's more fascism. Can't you see the trend?
"federal felony crime to violate TOS" -- Yot, extending those legalistic frauds.

Let's see. -- Long argument (based on implications of the above snip) shortened: IF you wish freedom, FIRST place to start is with corporations. Facebook and Google are the front line of the war that The Rich through THEIR "gov't" are making on you.

Take that quote above to mean that you'll be bound by Facebook's TOS as enforced by federal attack dogs. Now put that together with the growing influence of Facebook as de facto log-in credentialer, which means essentially that most of everyday activity WILL eventually require using Facebook, and you can surely see the confluence of forces lead directly to Beyond Big Brother.

To say the least, don't follow those who don't know where this OBVIOUS road goes. Mike only wishes "Hopefully" that sanity will break out. Well, it won't: The Rich and THEIR gov't never stop committing crimes until they've ruined all.
[ link to this | view in thread ]
Anonymous, 27 Mar 2013 @ 6:04am

Re:
a)Money
b)People with money
c)Their money
[ link to this | view in thread ]
special-interesting (profile), 27 Mar 2013 @ 6:06am

Been said before but this has got to be one of the worst bills written. There can be no good coming from enforcing TOS or other hardware based encryption/protection(izm). On the face of such nonsense it the fact that TOS and EULA are such an abused part of contract law as to make written law a farce. Why would congress dilute written law with contract madness?

�We vote to become irrelevant and enforce everybody else's written law instead� Would a congressperson raise their hand and vote yes to that? On tech issues congress is in way over their heads and worse the people advising them don't know scat either. (Or worse special interest groups with axes to grind.) You don't have to be a lawyer or congressperson to see this as an open barn door.

I include EULA because almost everything is becoming a computer and this will be abused just like TOS is already. Just prohibit everyday use (common already) and a firm will never pay out for warranty returns. Better yet impose fines and fees for every little infraction/mistake.

Since the CFAA was a mangled (relying on other peoples TOS/EULA legalese is like so random) act to start its unlikely that a quick fix would help. -not surprised-

Its got to be a pride thing that congress never repeals law. Nobody's perfect.

Aaron's Law makes a good focal point. No way I could understand his pain and no way to grasp the apparent effrontery of the prosecution. My support.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 27 Mar 2013 @ 6:25am

Re: Re:
He's not demented. He does need to understand that when it comes to Masnick, once an intellectually dishonest asshat, always an intellectually dishonest asshat.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 6:50am

Re:
"I don't care what you say or how right you are I'll always be a belligerent ass in the comments and vomit hypocritical ad homs all over the place."

Stay classy AJ.
[ link to this | view in thread ]
Anonymous Howard (profile), 27 Mar 2013 @ 6:57am

Re: Re: Re:
You Keep Using That Word, I Do Not Think It Means What You Think It Means
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 7:00am

Re: Who's stumped? It's more fascism. Can't you see the trend?
You know baby blue sometimes I envy you. Life would be so much simpler if literally every single issue broke down to the same easy class warfare narrative the way it always seems to for you.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 7:10am

Or, we could let the bill be passed, and then get someone to take over the DOJ and use the new CFAA to prosecute all the people who voted for changing CFAA and making it even worse.

"You lied about your name and age online congressman, you're facing up to 50 years in jail"

"You violated the site's TOS by calling another user a 'stupid retarded Nazi', now you have to pay for the crime with 30 years in jail congressman"
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 7:50am

Re:
Or, we could let the bill be passed, and then get someone to take over the DOJ and use the new CFAA to prosecute all the people who voted for changing CFAA and making it even worse.

"You lied about your name and age online congressman, you're facing up to 50 years in jail"

"You violated the site's TOS by calling another user a 'stupid retarded Nazi', now you have to pay for the crime with 30 years in jail congressman"

Silly rabbit, politicians aren't subject to the laws they pass.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 27 Mar 2013 @ 7:51am

Re: Re:
I'm pretty sure Mike is a human too. I mean, a robot would've fixed the "Hot Topics" links on the right by now.

I'm sure in the scientific sense he's a human being, it's just that he's not good at being human.
[ link to this | view in thread ]
anarcho (profile), 27 Mar 2013 @ 7:53am

Scratching Heads
"...various experts on the CFAA are scratching their heads about why the House Judiciary Committee is even bothering with this draft bill."

There is nothing to scratch, you scratch with the misconception that they are listening to you, that they care what you think. They don't care, and any request for input is merely perfunctory. They are worried about their position and power, how it was exposed by online activism, and how they look to those who they think really matters - moneyed interest. They patently will do anything to destroy you so they can viably subsist in the current corrupt system, that is the bottom line. Stop scratching your heads and start using them - stop living in a dream world of what has been presented to you via propaganda, and act accordingly.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 7:53am

Re: Re:
Classy like Mike accusing a sitting U.S. Senator of being "incredibly out of touch or corrupt" because he doesn't share Mike's extremist views? Now *that's* classy.
[ link to this | view in thread ]
Josh in CharlotteNC (profile), 27 Mar 2013 @ 8:35am

Re: Re: Re:
Certainly classier than your usual M.O.

Care to address the actual topic at hand, or are you satisfied with your boringly repetitive ad-homs and evasion of a real discussion on how harmful the current CFAA is and this attempt to make it worse?
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 8:51am

Re: Re: Re: Re:
I'm still waiting for Mike to have a substantive discussion on the merits about why he thinks Swartz didn't do anything wrong. People with integrity and credibility, like Prof. Kerr, are willing to discuss that. Why not Mike? Hmmm.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 8:56am

Re: Re: Re:
There is an idea of a Mike Masnick, some kind of abstraction, but there is no real me, only an entity, something illusory, and though I can hide my cold gaze and you can shake my hand and feel flesh gripping yours and maybe you can even sense our lifestyles are probably comparable: I simply am not there.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 9:38am

Re: Re: Re: Re: Re:
You're not going to get your way AJ. Ever.

And we're all laughing at you for your whining, petulant child behavior because we see right through it. Your sole purpose for being here is to just snipe at everyone, particular at Mike. You don't have a substantive argument to make, short of sniping indiscriminately.

Carry on.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 9:44am

Re: Re: Re: Re: Re:
I can't imagine why...
[ link to this | view in thread ]
Jeffrey Nonken (profile), 27 Mar 2013 @ 9:49am

Hail, hail Freedonia! Land of the brave and free!
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 10:06am

Re: Re: Re: Re: Re:
As soon as someone thinks you're even capable of 'a substantive discussion' on any topic they will engage you in one and quickly discover that they've misjudged you. I'm speaking from multiple first hand experiences here.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 10:08am

Re: Re: Re:
Thanks for proving my point by being a belligerent ass and vomiting hypocritical ad homs all over the place in your follow up. It's always nice to so quickly be vindicated.
[ link to this | view in thread ]
HiggsLight (profile), 27 Mar 2013 @ 10:23am

I'm so impressed
Mike's ability to really fire up the trolls is so amazing.

The more I see them around the more I know TechDirt must really be a thorn in the side of legacy crybabies and non-thinking conformists everywhere.

I think I may buy some TD merch in appreciation.
[ link to this | view in thread ]
DOlz, 27 Mar 2013 @ 10:23am

Re:
You do know that the little boy who cried wolf was about a kid who did it for attention and kicks when there weren't any wolves, right? It is not about a little boy that cried wolf cause the damn wolves kept coming and coming.
[ link to this | view in thread ]
Josh in CharlotteNC (profile), 27 Mar 2013 @ 10:54am

Re: Re: Re: Re: Re:
And an expected attempt to deflect the conversation away from the real topic. Mike won't take your bait when you've clearly shown your only reason for commenting is your bizarre obessesion for throwing insults and poor attempts to paint him into a corner with out of context answers.

Did the attempt work? :game show buzzer: No, it did not. But thanks for playing.

Again, I'll ask, do you want to have a discussion regarding how damaging the current CFAA is, and this attempt to make it worse?
[ link to this | view in thread ]
Rikuo (profile), 27 Mar 2013 @ 11:08am

Re: Re: Re: Re: Re:
I remember Mike writing article after article after article about what he thinks and believes about Aaron Swartz. If, after (not) reading all of them, you still don't know what he thinks, then it's your own fucking fault.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 2:11pm

Re:
Are you aspiring to replace the definition of hypocrisy with a picture of yourself?
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 2:18pm

They dont�like the fact that not everybody is cheerleading big government.

Makes them edgy,
Makes them obvious
Makes them stupid
Makes them write bills

God bless Orin Kerr for actually reading and attemting to understand a god damn bill presented to him
[ link to this | view in thread ]
Rekrul, 27 Mar 2013 @ 3:56pm

Now that the bill has been out a few days, various experts on the CFAA are scratching their heads about why the House Judiciary Committee is even bothering with this draft bill.

Seems perfectly clear to me. They want to send a message to the public and the internet community, and that message is "Fuck you! We can do whatever we want!"
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 4:36pm

Re:
Using the same old 'can't attack the argument, so attack the speaker' tactic, hmm? That really doesn't work around here. It just gets the anti-Mike idiots foaming at the mouth, again.
[ link to this | view in thread ]