U.S. Supreme Court Won’t Review Computer Fraud Cases

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By Alexis Kramer

Two decisions on the scope of unauthorized access under a federal computer fraud law won’t be reviewed by the U.S. Supreme Court.

The high court Oct. 10 declined to review two decisions by the U.S. Court of Appeals for the Ninth Circuit that a defendant can run afoul of the Computer Fraud and Abuse Act (CFAA) by accessing a computer or social media data without permission, or if permission has been explicitly revoked ( Nosal v. United States, No. 16-1344, cert. petition denied 10/10/17 ; Power Ventures, Inc. v. Facebook, Inc., No. 16-01105, cert. petition denied 10/10/17 ).

The cases had given the court chances to weigh in on the reach of the 31-year-old statute, which was originally designed to criminalize computer hacking. Critics have argued that the Ninth Circuit’s interpretation created confusion over whether the law criminalizes password sharing.

The Ninth Circuit ruled in the Nosal case that David Nosal violated the CFAA by using a past colleague’s password to access a former employer’s computers after the employer expressly revoked Nosal’s access credentials. The same court ruled in Power Ventures that social media aggregator Power Ventures Inc. violated the statute by accessing, with users’ permission, Facebook data after receiving a cease and desist letter from the social network.

Social media giants like Facebook have been invoking the CFAA to “deter start-ups” from accessing user data with those users’ consent, Thomas Lee, attorney for Power Ventures and of counsel at Hughes Hubbard & Reed LLP in New York, told Bloomberg BNA Oct. 10. “This is an application of the statute that Congress in 1986 could not have imagined, and it is shaping the future by diminishing online users’ ability to transfer data among social-media providers and by aggrandizing Facebook’s vast power,” he said.

A Facebook spokesperson and an attorney for Nosal didn’t immediately respond to Bloomberg BNA requests for comment.

Another Chance

The Supreme Court declined to consider the law’s scope in these two cases, but the Ninth Circuit could revisit the issue in a third case involving a company’s access to LinkedIn Corp.'s profile data, according to Jeffrey D. Neuburger, a partner and co-head of the technology, media and communications group at Proskauer Rose LLP. A federal district court decision in hiQ Labs Inc. v. LinkedIn Corp., ruling that LinkedIn can’t block access to its public data, is on appeal in the Ninth Circuit.

The LinkedIn case “will be the next decision in the area,” Neuburger told Bloomberg BNA Oct. 10.

To contact the reporter on this story: Alexis Kramer in Washington at aKramer@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

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