On July 7, 2020, the Knight Institute joined an amicus brief filed by the ACLU in Van Buren v. United States. In Van Buren, the Supreme Court is considering the scope of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(2)(C), which makes it a crime to “access a computer without authorization, or exceed authorized access, and thereby obtain . . . information from any protected computer.” The Department of Justice and several courts have interpreted this language expansively to criminalize accessing information on a computer for an “improper purpose.”
The scope of the Computer Fraud and Abuse Act, or CFAA, has significant ramifications for digital researchers and journalists. To understand the role social media and other online platforms play in our lives—including whether platforms are enabling the spread of disinformation and discrimination—these researchers rely on the basic tools of digital journalism, particularly the automated collection of public data and the creation of temporary research or tester accounts. But many prominent platforms set terms of service that prohibit researchers from using these tools. An expansive reading of the CFAA could make it a crime for researchers and journalists to access platforms in ways that violate the platform’s terms of service, even if the investigations they’re conducting are manifestly in the public interest.
The amicus brief argues that the CFAA should not be read to criminalize violations of website terms of service, in part because of the serious First Amendment concerns that would arise from an expansive interpretation.
Status: Briefing ongoing.
Case Information: Van Buren v. United States, No. 19-783 (U.S.).