The case in New York demonstrates several things. First, criminal statutes that allow civil lawsuits (like the RICO statute and others) inevitably result in distortions of the criminal law -- with potentially bad consequences for criminal defendants. They unnecessarily expand the scope of what is criminal. Second, even though the statute has been amended at least a half a dozen times, it's still hard for the courts to tell the difference between "damage" -- harming the system -- and "damages" -- harming the owner of the system in a way that results in quantifiable loss. It's time for Congress, or the Supreme Court, to clarify the matter once and for all. And while they're at it, they should take another hard look at what's meant by "unauthorized" access. . . .
In a little-observed civil lawsuit involving tracking of magazine subscriptions, a federal court in Manhattan issued a ruling last week that could theoretically result in prosecutors going after people who use another person's password and userid with their permission, but without the permission of the issuer.

The case, decided last Monday, arose out of a dispute between two competing companies, Inquiry Management Systems (IMS), and Berkshire Information Systems, both of whom tracked magazine advertisements for their clients. Employees of Berkshire obtained a userid and password from a client of IMS, and used them to access IMS's website and tracking service. This act violated the customer's agreement with IMS.

From there, the Berkshire employees either read, or downloaded (or both) certain copyrighted information about the tracking of magazine advertisements, which of course, they used to compete with IMS.

Is this an unfair and deceptive trade practice? Sure! Inducing a breach of contract between IMS and its customer? Absolutely! Fraud? Sure, why not.

But IMS sued Berkshire for computer crime, and a violation of the DMCA.

On the DMCA claim, the court accepted the argument that IMS's data was copyrighted, and that the passwords designed to restrict access to them were a "technological measure" designed to prevent access to a copyrighted work -- the magic incantation of the DMCA. However, the court made a distinction between what the law prohibits -- "circumventing" such a technological measure -- and what it concluded Berkshire had done -- simply avoiding the measure. Or, as the court concluded, what Berkshire "avoided and bypassed was permission to engage and move through the technological measure from the measure's author." Not a DMCA violation.

But the court took a more expansive reading of the federal Computer Fraud and Abuse Act, which punishes anyone who:


intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damages; or intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damages; and by [this] conduct ... cause[s] ... loss to 1 or more persons during any 1-year period ... aggregating at least $ 5,000 in value ...


The statute defines "damage" as "any impairment to the integrity or availability of data, a system, or information" and allows a civil lawsuit to be filed by "[a]ny person who suffers damage or loss by reason of a violation."

The link for this article located at SecurityFocus.com is no longer available.