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1 1 (December 21, 2020)

handle is hein.crs/goveaxf0001 and id is 1 raw text is: Congressional ______ *.Research Service Informing the legislative debate since 1914 __________________ From Clickwrap to RAP Sheet: Criminal Liability Under the Computer Fraud and Abuse Act for Terms of Service Violations Updated December 21, 2020 Update: On November 30, 2020, the Supreme Court held oral arguments in Van Buren v. United States-a case that could resolve the judicial disagreement over whether the Computer Fraud andAbuse Act (CFAA) authorizes criminal liabilityfor the violation of a terms of service agreement. Specifically, the issue before the court is whether an individual may be held criminally liable under the CFAA if he is authorized to access information on a computer for certain purposes, but accesses that information for unauthorized purposes. At oral argument, questioning by the Justices focused on the policy implications of interpreting the CFAA broadly or narrowly. Justices asked whether a broad interpretation would criminalize routine conduct like lying on a dating website in violation of its terms of service. Other questions focused on whether a narrow interpretation, on the other hand, could jeopardize personal privacy if for instance, an employee might not be criminally liable under the CFAA for using highly sensitive customer information in ways that are outside the scope of his employment duties. At oral argument, the attorney for the government argued that the CFAA unambiguously prohibits accessing information for unauthorized purposes-a view adopted by some federal appellate courts, but rejected by others (as discussed below). The defendant's attorney disagreed that the text or legislative history compel such a reading, and countered that a broad interpretation of the CFAA would render the statute unconstitutionally vague and result in arbitrary prosecutions. The attorney for the government disputed that risk, arguing that the government has not obtained CFAA convictions for routine conduct like terms of service violations in the past. Howeve, in recent cases, the Court has declined to rely on prosecutorial discretion to narrow the otherwise wide-ranging scope of a criminal statute and has rejected broad interpretations of ambiguous statutory language that would authorize expansive criminal liability. A decision in Van Buren v. United States is expected before the Court's summer recess. Computers and the Internet are ubiquitous, and so too are contractual restrictions on their use. Users of smartphones, tablets, personal computers, social media websites, apps, online shopping platforms, 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 Congressional Research Service https://crsreports.eongress.gov LSB10423 CRS Legal Sidebar Prepared for Membersand Committeesof Congress

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