“The expansion of ‘exceeding authorized access’ would seem to allow lots of prosecutions under a ‘you knew the computer owner wouldn’t like that’ theory,” Kerr writes in Washington Post. “And that strikes me as a dangerous idea, as it focuses on the subjective wishes of the computer owner instead of the individual’s actual conduct.”

Much of the administration’s language in the new proposal is worrisome, Kerr continues. Because every state already has its own unauthorized access laws that are similar to the CFAA, the proposal raises a question, Kerr says: “If Congress makes it a crime to commit an act ‘in furtherance of’ a different crime, does the existence of overlapping crimes mean that a person’s conduct violates the first crime because it was ‘in furtherance of’ the second?”

“One wonders what the point is: Why not just punish the underlying felony?” Kerr says.

The Electronic Frontier Foundation similarly analyzed the president’s proposals, calling them “troubling.”

EFF legislative analyst Mark Jaycox and senior staff attorney Lee Tien wrote in a blog post on Tuesday:

Swartz’s case, Jaycox wrote in an earlier post, “was only of one of many instances where the CFAA has been used to threaten draconian penalties against defendants in situations where little or no economic harm had occurred.”

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