In the early 1980s law enforcement agencies faced the dawn of the computer age with growing concern about the lack of criminal laws available to fight the emerging computer crimes. Although the wire and mail fraud provisions of the federal criminal code were capable of addressing some types of computer-related criminal activity, neither of those statutes provided the full range of tools needed to combat these new crimes.
In response, Congress included in the Comprehensive Crime Control Act of 1984 provisions to address the unauthorized access and use of computers and computer networks. The legislative history indicates that Congress intended these provisions to provide “a clearer statement of proscribed activity” to “the law enforcement community, those who own and operate computers, as well as those who may be tempted to commit crimes by unauthorized access.” Congress did this by making it a felony to access classified information in a computer without authorization, and a misdemeanor to access financial records or credit histories stored in a financial institution or to trespass into a government computer. In so doing, Congress opted not to add new provisions regarding computers to existing criminal laws, but rather to address federal computer-related offenses in a single, new statute, 18 U.S.C. § 1030.
Even after enacting section 1030, Congress continued to investigate problems associated with computer crime to determine whether federal criminal laws required further revision. Throughout 1985, both the House and the Senate held hearings on potential computer crime bills, continuing the efforts begun in the year before. These hearings culminated in the Computer Fraud and Abuse Act (CFAA), enacted by Congress in 1986, which amended 18 U.S.C. § 1030.
In the CFAA, Congress attempted to strike an “appropriate balance between the Federal Government’s interest in computer crime and the interests and abilities of the States to proscribe and punish such offenses.” Congress addressed federalism concerns in the CFAA by limiting federal jurisdiction to cases with a compelling federal interest-i.e., where computers of the federal government or certain financial institutions are involved, or where the crime itself is interstate in nature.
In addition to clarifying a number of the provisions in the original section 1030, the CFAA also criminalized additional computer-related acts. For example, Congress added a provision to penalize the theft of property via computer that occurs as a part of a scheme to defraud. Congress also added a provision to penalize those who intentionally alter, damage, or destroy data belonging to others. This latter provision was designed to cover such activities as the distribution of malicious code and denial of service attacks. Finally, Congress also included in the CFAA a provision criminalizing trafficking in passwords and similar items.
As computer crimes continued to grow in sophistication and as prosecutors gained experience with the CFAA, the CFAA required further amendment, which Congress did in 1988, 1989, 1990, 1994, 1996, 2001, and 2002.
The current version of the CFAA includes seven types of criminal activity, outlined in Table 1 below. Attempts to commit these crimes are also crimes. 18 U.S.C. § 1030(b). Lawfully authorized activities of law enforcement or intelligence agencies are explicitly excluded from coverage of section 1030. 18 U.S.C. § 1030(f).
Table 1. Summary of CFAA Compromising Confidentiality Provisions
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Source: U.S. Department of Justice