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US Supreme Court to hear arguments on hacking law, First Amendment implications

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RCFP has argued that the Computer Fraud and Abuse Act significantly chills First Amendment activity.

On Monday, the U.S. Supreme Court will hear oral arguments in Van Buren v. United States. The Court’s decision in this case will resolve a circuit court split and bring clarity to a federal hacking law that has long vexed data journalists, security researchers and the technology industry.

The FirstFifthSeventhEighth and Eleventh Circuits have held that improperly using a computer by acting contrary to written instructions, such as terms of service, constitutes “exceeding authorized access” and is punishable under the Computer Fraud and Abuse Act. The SecondFourthSixth and Ninth Circuits, on the other hand, have held that only bypassing a technical access restriction falls under the scope of the Act.

The Reporters Committee filed a friend-of-the-court brief in this case, arguing that the statute, as written, is overly broad and implicates the First Amendment such that it is subject to application of the vagueness doctrine. Specifically, the law significantly chills First Amendment activity, including both traditional newsgathering and new data-journalism techniques.

The decision will bring clarity to the law — and either calm or calamity to journalists and others who have to navigate its terrain. The ongoing City of Fullerton litigation, in which the Reporters Committee has filed a friend-of-the-court brief, demonstrates how the misuse of computer crime laws implicates the press.

In that case, the city of Fullerton, California, provided local bloggers with access to a Dropbox account containing documents responsive to a public records request. The emails to the bloggers only referenced certain documents, but the other files in the Dropbox folder were publicly accessible. The city sued under the CFAA and the state’s computer crime law, alleging the bloggers accessed those additional files. The Supreme Court’s decision in Van Buren could either construe “exceeding authorized access” broadly, which could continue to chill public interest data journalism, or find a narrower meaning more akin to what computer security experts consider “hacking.”

You can tune in to the Supreme Court oral arguments in Van Buren on Monday — or catch up on the recording later.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.

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