Is Visiting a Web Site a Crime?

Is it a crime to visit a Web site? That’s one of the issues the Ninth Circuit Court of Appeals has been addressing in United States v. Nosal (decided April 10, 2012) and in Facebook v. Vachani (decided July 12, 2016).

I briefly described these cases and the July 6, 2016, Nosal II opinion in a prior posting. Essentially, Nosal I said violating a Web site’s Terms of Service Agreement is not a crime under the Computer Fraud and Abuse Act, but Vachani said that accessing a Web site after receiving a cease-and-desist letter can be a crime under the CFAA. The bottom line is that it’s difficult to distinguish the two decisions.

The reason I’m posting about this topic again is that the attorneys for the defendants in the Vachani case filed a petition on August 9, 2016, for rehearing of the case with respect to liability under the Computer Fraud and Abuse Act. The rehearing is requested so the court can correct or clarify its interpretation of the CFAA, because the court’s opinion conflicts with the opinion in Nosal I.

Hopefully, the court will clarify their decision so that users will know more clearly when it is a crime to visit a Web site in violation of the company’s Terms of Service Agreement.

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