NACDL - Technology & Overcriminalization

Technology & Overcriminalization

Technology is now a part of every day life. And, as the use and development of technology increases, the government's regulation of technology and its use similarly increases.

Congress has enacted statutes such as the Computer Fraud and Abuse Act to punish a broad range of computer activity and prosecutors have stretched many other statutes to reach conduct done through or related to the use of computers. Taking cues from such innovative prosecutions, Congress has criminalized offensive conduct, that may otherwise be lawful, when it takes place online or through the use of technology. NACDL supports reform of the Computer Fraud and Abuse Act and other overly expansive statutes criminalizing the use of technology and opposes expansion of these dangerous criminal laws. 

Related Legislation         

Aaron’s Law Act

H.R. 2454, "Aaron's Law Act of 2013" 

Aaron’s Law Act would amend provisions of the Computer Fraud and Abuse Act (CFAA) prohibiting computer fraud to replace the phrase "exceeds authorized access" with "access without authorization," which is defined as obtaining information on a protected computer that the accesser lacks authorization to obtain by knowingly circumventing one or more technological or physical measures that are designed to exclude or prevent unauthorized individuals from obtaining that information.

Cyber Stalking Provision of Violence Against Women Reauthorization Act

Section 107 of S. 47, the “Violence Against Women Reauthorization Act” (VAWA)

Since its original passage in 1994, VAWA's focus has expanded from domestic violence and sexual assault to also include dating violence and stalking. It funds services to protect adult and teen victims of these crimes, and supports training on these issues, to ensure consistent responses across the country. Section 107 would expand the federal cyber stalking statute, codified at 18 U.S.C. 2261A, to cover conduct done with the intent to intimidate. Further, this section would remove the statute's requirement that the conduct actually cause substantial emotional distress and eliminate the statute's interstate travel or communication requirements.

Unlocking Technology Act

H.R. 1892, the “Unlocking Technology Act of 2013”

Unlocking Technology Act of 2013 - Amends the prohibition under federal copyright law on the circumvention of a technological measure that controls access to a copyright-protected work to require that such prohibition apply only to circumventions carried out in order to infringe or facilitate infringement of a protected work.

Why These Bills Matter

Aaron’s Law Act

Aaron’s Law Act would modify CFAA penalty provisions to:

(1) limit the imposition of enhanced penalties to subsequent offenses under such Act (currently, additional penalties are allowed if there is a conviction for another offense) and to criminal acts punishable under federal or state law by a term of imprisonment for more than one year; and (2) require the determination of the value of information for enhanced penalty purposes to be made by reference to fair market value.

Violence Against Women Reauthorization Act

Sec. 107 of VAWA amends the federal criminal code with respect to the crime of stalking to prohibit the use of any interactive computer or electronic communication service to stalk victims.          

Unlocking Technology Act

The Unlocking Technology Act declares that it shall not be a violation to:

  1. circumvent a technological measure if the purpose is to engage in a use that is not an infringement of federal copyright law; or
  2. use, manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part primarily designed or produced to facilitate noninfringing uses of protected works by circumventing a technological measure that effectively controls access to such work, unless the intent is to infringe or facilitate infringement of a copyright.

The act also declares that it is not an infringement to copy or adapt the software or firmware of a user-purchased mobile communications device for the sole purpose of enabling the device to connect to a wireless communications network if:

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  1. the copying or adapting is initiated by, or with the consent of, the owner of that device or the owner's agent;
  2. the owner or agent is in legal possession of the device; and
  3. the owner has the consent of, or an agreement with, the authorized operator of such wireless communications network to make use of its network. (Thus allowing the "unlocking" of mobile devices without requiring an owner to obtain the consent of the initial carrier network before switching to a new carrier.)

NACDL’s Position on Technology Related Criminal Provisions

NACDL Supports Aaron's Law Act

 

NACDL Opposes Section 107 of VAWA

 

NACDL Supports Unlocking Technology Act

 

Status of These Bills

Aaron’s Law Act

H.R. 2454 was introduced to the House on June 20, 2013 and referred to the House Committee on the Judiciary and later to the subcommittee on Crime, Terrorism, Homeland Security, and Investigations, where it is currently residing. 

Violence Against Women Reauthorization Act

S. 47 was introduced by Senator Patrick Leahy on January 22, 2013 and reported out of committee less than a week later on January 28.  The bill passed the Senate on a vote of 78-22 on February 12, and passed the House on a vote of 286-138 on February 28.  The bill was signed by the president and enacted into law on March 7, 2013. 

Unlocking Technology Act

H.R. 1892 was introduced in the House by Representative Zoe Lofgren on May 8, 2013.  The bill was referred to both the House Committee on the Judiciary and the House Ways and Means Committee.  On June 14 the Judiciary Committee referred the bill to the Subcommittee on Courts, Intellectual Property, and the Internet.  The bill has had no further action.

How to Get Involved

Please use NACDL’s Contact Congress function to call or e-mail your U.S. Representative or Senator to encourage them to re-introduce, co-sponsor, or generally support similar legislation in the 113th Congress.   

Click HERE to find and contact your elected officials in Washington.

Resources

Computer Fraud and Abuse Act 

Overcriminalization Reform