The Computer Fraud and Abuse Act is no stranger to these pages. The tragic suicide of Aaron Swartz at the beginning of the year following the relentless pursuit of the Department of Justice against him for his downloading of the JSTOR archive has galvanized a reform movement to overhaul – or at least ameliorate – some of the most troublesome provisions of the CFAA.
One such provision can be found at 18 U.S.C. § 1030(g), which creates a civil cause of action for a party claiming to be aggrieved by the purported wrongdoings described in subsection (a). While civil causes of action are generally beyond the scope of this blog, having a civil cause of action buried in a statute designed to enable criminal prosecutions can be problematic for defendants facing the latter because the civil litigation, as it explores the contours of the statute and its internal definitions, tends to leave in its wake precedent that prosecutors can later use. Which is unfortunate, because how the statute may be interpreted in a civil context – which inherently can only reflect the particular dynamics of the particular civil dispute between these particular private parties – reshapes how the statute will be interpreted in a criminal context. Especially with a law like the CFAA, whose language always tempts excessive application, these civil precedents can vastly expand the government’s prosecutorial power over people’s technology use, and easily in a way Congress never intended. One should also never presume that the outcome of a civil dispute correlates to a result that is truly fair and just; miscarriages of justice happen all the time, often simply because it is often so difficult and expensive to properly defend against a lawsuit, especially one asserting a claim from such an imprecisely-drafted and overly broad statute like the CFAA.
The reality is that plaintiffs often abuse the judicial process to bully defendants, and that brings us to the second subject of this post, Prenda Law, which is currently being exposed, judicially and publicly as one of the biggest bullies on the block. But why should we care here? Because although Prenda has most notoriously exploited the Copyright Act for its legal attacks, it has also showed itself ready, willing, and able to abuse the easily-abusable CFAA in order to enrich itself as well.