For

Alexander Southwell, partner, Gibson Dunn; former assistant U.S. attorney

The Obama administration’s proposed increase in the sentences cyberattackers can face sends an important deterrent message. As we continue to see on an almost daily basis, attacks are difficult to stop, can have millions of victims and can be launched from anywhere in the world. Cybercriminals who target the most sensitive government and private networks – to steal or attack critical national security, corporate and personal information – need to know they will face serious penalties. While the message will not be heeded by every attacker, the proposed increase in the applicable statutory maximum term of imprisonment gives prosecutors important flexibility in sentencing those who target our most sensitive computer networks.  And it sends a significant message about the seriousness with which the United States takes cyberattacks, which can provide an example for other countries, encouraging them to take the problem more seriously.  The higher potential prison sentence for threatening our nation’s cyber infrastructure is about keeping Americans safe.

Against

Gregory Nojeim, senior counsel, Center for Democracy & Technology

The Computer Fraud and Abuse Act (CFAA) gives law enforcement the authority to pursue cybercrime, and is an important component of the trust framework for online communications. However, court decisions have extended its reach well beyond the computer hacking it was enacted primarily to address. CFAA liability turns on whether one “accesses” a computer “without authorization” or in “excess of authorization.” To some prosecutors and courts, this means one violates the CFAA if they don’t adhere to the terms of service when using something like MySpace or Facebook because they are “accessing” their computers in excess of authorization. Prison, fines and lawsuits for violating terms of service? Let’s fix the statute first so everyone understands what it prohibits. Then, we can discuss whether the administration’s proposal to double penalties, impose mandatory minimum sentences, eliminate first-time offender provisions, and subject the family home to forfeiture, on account of CFAA violations of a wayward teenager in his bedroom, should become law.