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84 Geo. Wash. L. Rev. 1477 (2016)
A Trespass Framework for the Crime of Hacking

handle is hein.journals/gwlr84 and id is 1561 raw text is: A Trespass Framework for the Crime of Hacking Josh Goldfoot* & Aditya Bamzai** ABSTRACT Computer crime statutes prohibit accessing a computer without authori- zation. In recent years, this element has attracted considerable controversy, with some courts expressing concern that authorization is so indeterminate that the Computer Fraud and Abuse Act (CFAA) is void for vagueness. This Article argues that authorization under the CFAA has the same mean- ing as authorization under criminal physical trespass laws. This approach is more straightforward than the alternatives currently offer, and it aligns with Congress's announced intention to bring physical trespass law to computer networks. Although interpreting authorization under the CFAA can be dif- ficult, near-identical difficulties also arise in the context of physical trespass. As a result, questions under the CFAA can be resolved by looking to the reso- lution of similar questions in the context of physical trespass. In addition, because both physical trespass and the CFAA require proof that the defendant knew his access was unauthorized, the merits of a void-for-vagueness chal- lenge to computer trespass rise and fall with the merits of a similar challenge to physical trespass. Given the pedigree of the latter, a constitutional challenge to the former seems questionable. TABLE OF CONTENTS INTRODUCTION ................................................. 1478 I. A CONCEPTUAL FRAMEWORK FOR UNDERSTANDING THE CFAA's RIGHT TO EXCLUDE ...................... 1480 II. THE MEANING OF AUTHORIZATION UNDER THE CFAA .................................... 1483 A. Element 1: The Computer's Owner Objectively Prohibited Access, Express or Implied ............ 1483 * Principal Deputy Chief (Acting), Computer Crime & Intellectual Property Section, Criminal Division, U.S. Department of Justice; Deputy Chief for Cyber Policy, National Security Division. ** Associate Professor of Law, University of Virginia School of Law. The Authors would like to thank Divya Bamzai, Will Baude, Matthew Berry, Adam Hickey, Orin Kerr, and the other members of The George Washington Law Review's 2015 Symposium. All statements of fact, opinion, or analysis expressed are those of the authors and do not reflect the official positions or views of the Department of Justice or any other U.S. government agency. Nothing in the content should be construed as asserting or implying U.S. government authentication of information or agency endorsement of the Authors' views. This material has been reviewed by the Department of Justice to prevent disclosure of classified information. December 2016 Vol. 84 No. 6 1477

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