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1 1 (April 27, 2020)

handle is hein.crs/govdaet0001 and id is 1 raw text is: i% 'N\ x From Clickwrap to RAP Sheet: Criminal Liability under the Computer Fraud and Abuse Act for Terms of Service Violations Updated April 27, 2020 Computers and the internet are ubiquitous, and so too are contractual rcstrictions on their use. Users of smartphones, tablets, pcrsolai computcrs, social mnedia ,websitos, apps, oniline shopping piatfbrns, streaming services, and more are generally bound by terms of senice (ToS) agreements-contracts that gocm the use of a product. Often, ToS agreements take the form of clickwrap agreements requiring users to click a box indicating that thycy are aware of. and agrce to, certain terms on a wcbsitc. In other instances ToS agreements may simply amount to a w ritten notification that by using a product, the user ag rces to be bound by the product's ToS. Either way, at least according to some empirical studics, users generally do not read TOS agreements. 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 dvice or serice. But providers of computer and internet products and services rely on ToS for a variety of purposes, including irniting fiability, protctng prjp-rtarv data, and preventing their products or services from being used in a harassing, thratening., or abusive manner. Against this backdrop, federal courts has c 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 Cornputer Fraud and Abusc Act (CFA A), I U.SC. § I00--a civil and criminal cybcrsccunty la, prohibiting certain computer- related activities. Federal appellate courts are dis, idcd on when an individual who violates a ToS agreement runs afoul of the CFAA and is subject to liability under the statute. The United States Supreme Court appears poised to weigh in on the issue; on April 20, 2020 the Court agreed to hear Van Buren v. United States, an appeal from the Elovcinth Circuit. 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. It then briefly describes the background and implications of the Van Buren case. The Sidebar concludes with some considerations for Congress. Congressional Research Service https://crsreports.congress.gov LSB10423 CRS LegMi Sidebar Prepared for Members and Committees ootCongress ...........................................................................................................................................................................................................

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