Jonathan Mayer
84 Geo. Wash. L. Rev. 1644
Over the past decade, courts have radically reshaped the landscape of federal computer crime law. Through a set of innovative interpretive maneuvers, the judiciary has both greatly clarified and sharply narrowed the scope of Computer Fraud and Abuse Act (“CFAA”) liability. This “narrow” CFAA doctrine is winning rapid adoption; it has persuaded three courts of appeals and numerous district courts.
But the narrow interpretation of the CFAA has proven perplexing for scholars and practitioners. It does not neatly match prior judicial constructions of the statutory scheme. It also does not match prior scholarly interpretations, including the “code-based” standard that has captured academic favor.
This Article aims to clarify and formalize the narrow CFAA doctrine. It makes three contributions: First, it explains the recent trends in judicial interpretation, demonstrating the precise textual constructions that courts have developed. Second, the Article reviews how the narrow CFAA doctrine applies to common fact patterns involving disloyal employees and breaches of contract-like restrictions. Third, it makes a normative argument in favor of the narrow CFAA doctrine. Courts are making critical concessions to substantial societal interests—while remaining firmly grounded in legislative text and history.
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