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1 1 (March 19, 2020)

handle is hein.crs/govcaxr0001 and id is 1 raw text is: ~* o 0 re.i ,, Researh Servi kM- From Clickwrap to RAP Sheet: Criminal Liability under the Computer Fraud and Abuse Act for Terms of Service Violations March 19, 2020 Computers and the internet are ubiquitous, and so too are contractual restrictions on their use. Users of smarlphones, tablets, personal computers, social media websites, apps, online shopping platfonns, streaming services, and more are generally bound by terms of service (ToS) agreements-contracts that govern the use of a product. Often, ToS agreements take the form of clickwrap agreements requiring users to click a box indicating that they are aware of, and agree to, certain terms on a website. In other instances ToS agreements may simply amount to a written notification that by using a product, the user agrees to be bound by the product's ToS. Either way, ToS agreements are now so prevalent that, at least according to some empirical studies, users generally do not read them. That is perhaps unsurprising given that ToS agreements are often lengthy, covering everything from the number of authorized users of a product to the types of content that may be shared through a device or service. But providers of computer and internet products and services rely on ToS for a variety of purposes, including limiting liability, protecting proprietary data, and preventing their products or services from being used in a harassing, threatening, or abusive manner. Against this backdrop, federal courts have diverged on the issue of whether an individual may-under certain circumstances-be criminally liable under federal law for ToS violations. The judicial disagreement stems from two conflicting interpretations of the Computer Fraud and Abuse Act (CFAA), IS U.S.C. § 1030-a civil and criminal cybersecurity law prohibiting certain computer- related activities. Federal appellate courts are divided on when an individual who violates a ToS agreement runs afoul of the CFAA and is subject to liability under the statute. This Sidebar begins with background on the relevant provisions of the CFAA, before examining the split among the federal appellate courts over when, if ever, the CFAA imposes criminal liability for violations of ToS agreements. The Sidebar concludes with some considerations for Congress. The CFAA: Background and Key Provisions The CFAA prohibits a number of activities where a person illicitly accesses a qualifying computer if he is without authorization or if he exceeds authorized access. The phrases appear in a number of the Congressional Research Service https://crsreports.congress.gov LSB10423 CRS Leg Sideba Prepared for Members and Gomrnittees of Congress

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