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11/2/18
Breaking Into an Empty House: A Theory of Remedies for CFAA Unauthorized Access to Non-Proprietary Information
Omri Rachum-Twaig, Ohad Somech
The CFAA prohibits the unauthorized access to computers. But what happens if the access is meant only to obtain non-proprietary information? Current case law struggles to calibrate the restriction of unauthorized access to computers and the freedom to use non-proprietary information. In two pending high-profile appeals, the conflict between the statutory protection of boundaries and the choice to leave some types of information in the public domain is the center of discussion. If courts decide to fully protect boundaries, information will effectively be taken out of the public domain. If they do not protect boundaries, privately owned computers will be freely accessible to the public, undermining the basic purpose of the CFAA. This Article offers a novel account of how this tension could be resolved, offering both theoretical and practical tools to determine the proper scope of the CFAA’s unauthorized access provision and the appropriate remedies in different circumstances. To do this, the Article proposes a private-public dichotomy that distinguishes between computers kept private and computers accessible to an indeterminate public. In cases of unauthorized access to private non-proprietary information, injunctive relief and enforcement costs should be granted. In cases of unauthorized access to publically-available non-proprietary information, no remedies should be granted for obtaining the information, but a judicial order granting the access must be pre-obtained and adequate access fees must be paid.
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