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Unpublished Paper
Hacking the Anti-Hacking Statute: Using the Computer Fraud and Abuse Act to Secure Public Data Exclusivity
ExpressO (2014)
  • Nicholas A Wolfe
Abstract

Work smarter, not harder. Perhaps no other saying better captures the era of hyper-productivity and automation in which we live. Titles such as ‘Top Ten Hacks to Avoid Paywalls,’ ‘Five ways You’re Wasting Your time,’ and ‘One Weird Trick’ fly across our computer screens on a commoditized basis. [1] These tips and tricks help us automate our lives and get more done, faster. Better living through automation. However, as these shortcut solutions get better and automation advances, a question arises. When does working smarter cross the line into cheating?

The Computer Fraud and Abuse Act was designed to draw this line, but in terms of hacking and computer crimes. Drafted in 1986 and amended on a frequency similar to iOS updates, the Act is intended to deter the exploitation of computer system vulnerabilities, but in so doing has exposed its own vulnerabilities in the face of a dynamic technological landscape. Vulnerabilities that are not better demonstrated than in the 3Taps decision. [2] Additionally, this decision also highlights the manner in which companies are hacking the Act for use as a para-copyright tool to secure exclusivity to publicly-accessible data. This vulnerability arises in two respects: (i) the literal application of access controls and (ii) the cursory review of loss declarations pursuant to subsection 1030(e)(11). These vulnerabilities are clear when applied to public data. This Article therefore proposes that courts should interpret the Act in the context of data types and with reference to computer security technology.

[1] See e.g., Thorin Klosowski, Bypass Paywalls and Other Blocks with a Few Google Proxy Servers (Jul. 17, 2013), http://lifehacker.com/use-google-as-a-proxy-server-to-bypass-paywalls-and-oth-799030304.

[2] Craigslist, Inc. v. 3TAPS INC., 942 F. Supp. 2d 962 (N.D. Cal. 2013)

Keywords
  • Web Scraping,
  • web crawling,
  • computer fraud and abuse act,
  • hacking
Publication Date
March 19, 2014
Citation Information
Nicholas A Wolfe. "Hacking the Anti-Hacking Statute: Using the Computer Fraud and Abuse Act to Secure Public Data Exclusivity" ExpressO (2014)
Available at: http://works.bepress.com/nicholas_wolfe/1/