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04.07.22

Hacker’s CFAA “without authorization” defense rejected

By Jason T. Kunze

Last year, the Supreme Court narrowed the scope of the Computer Fraud and Abuse Act (“CFAA”). In that case, the Court considered whether a police officer who used his valid credentials to access a police database for a nefarious purpose had “exceeded authorized access” under the CFAA. The Court determined that he had not, as his use of police-provided access credentials made his access authorized, even if the ultimate use of the data he accessed was improper.

In that decision, the Court discussed its “gates up/gates down” approach to authorization under the CFAA. The Supreme Court did explain that the “without authorization” clause “protects computers themselves by targeting so-called outside hackers—those who ‘access a computer without any permission at all’”—but left it to future cases to determine the precise contours of the “without authorization” prong of the CFAA.

In a recent case in the Western District of Washington involving an alleged computer hacker, Judge Lasnik had the opportunity to do exactly that, in one of the first tests of the CFAA’s without authorization clause since Van Buren. See U.S. v. Paige Thompson, Case No. CR19-159. Ruling on a motion to dismiss the CFAA claims, the Judge denied the hacker’s argument, which attempted to attack the “without authorization” prong based on a theory that her technology usage (a “proxy scanner”) merely detected misconfigured websites and leveraged available security credentials. The defendant leveraged these credentials to copy voluminous data, including data from Capital One with personally identifying information for about 100 million US residents who had completed credit card applications.

Ultimately, Judge Lasnik allowed the claim to proceed based on the fact that the hacker acted on security credentials that did not belong to her, and she was not authorized to use. Thus, even if the initial step of detecting misconfigured servers arguably did not violate the CFAA, it is clear that the later steps did. The Judge compared the defendant’s argument to a claim that “because she is alleged to have found a key rather than smashed the window, she cannot have been ‘without authorization.’” Regardless of the technology used to obtain the security credentials, the further use of those stolen credentials was without authorization, according to the Court.

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Jason T. Kunze

Counsel

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