Clarity on Computer Fraud Liability Urged in Light of Password-Sharing Confusion

 computer typing

Does sharing a computer password count as “authorization” to use the computer? A defendant is seeking clarification from a federal appeals court.

The U.S. Court of Appeals for the Ninth Circuit, in a controversial opinion last month, attempted to define the term “without authorization” under a federal computer fraud law.

The court held in United States v. Nosal (“Nosal II”) that defendant David Nosal violated the Computer Fraud and Abuse Act by using a past colleague's password to access a former employer's computers after his own access was terminated. Nosal asked Aug. 18 for a full appellate court rehearing.

The scope of the Computer Fraud and Abuse Act (CFAA) has been widely debated, particularly because the law was originally designed to criminalize computer hacking. In the first ruling in this case (“Nosal I”), the Ninth Circuit held that Nosal’s colleagues didn’t exceed authorized access under the statute by violating company use restrictions.

Now, critics argue that Nosal II creates confusion over whether the law would criminalize password sharing.

The CFAA is “one of the most important statutes in the federal criminal code, but no one knows what it means,” Nosal argued in his petition.  He asked for at least “minimal guidance” on what conduct is illegal under the law.

Nosal proposed that the court develop a multi-factor test to determine whether password sharing is allowed in a given situation.  An amicus brief filed by the BSA | The Software Alliance, a trade group of software manufacturers, suggests that the court consider factors such as whether the authorized computer user:

  • had a legitimate basis for permitting third-party access;

  • actually allowed the third-party access;

  • permitted the access for the benefit of the computer owner; and

  • acted within the scope of authorization granted by the computer owner.

Nosal said that if the court chooses to govern liability by a multi-factor test, it should articulate what those factors are.

“As a matter of fair warning, every other computer user in the world is entitled to know whether and when sharing access credentials is a federal crime or not,” Nosal said.