Probate & Trust Law Section Conference Manual ... - Minnesota CLE

iii. Minn. Stat. § 609.891: Unauthorized computer access. A person is guilty
of unauthorized computer access if the person intentionally and without
authorization attempts to or does penetrate a computer security system and
may be subject to felony penalties of imprisonment for up to ten years or
to payment of a fine of not more than $20,000, or both.
f. 18 USC §1030. The Computer Fraud and Abuse Act. Criminalizes intentional
access of a computer without authorization or exceeding authorization and
thereby obtaining financial data or information from a protected (e.g., private)
computer.
i. The U.S. Department of Justice has stated that violating a term of service
on Facebook or Match.com is a federal crime under the CFAA, however it
is not their intention to prosecute such “minor” violations. U.S. v. Nosal,
No. 10-10038, D.C. No. 3:08-cr-00237 (9 th Cir. April 10, 2012); see also,
testimony presented by DOJ on 11-15-11 before Subcommittee of U.S.
House Judiciary Committee.
ii. For example, the DOJ prosecuted a mom under the CFAA who posed as a
17–year–old and cyber–bullied her daughter’s classmate, which
MySpace’s terms of service prohibiting lying about identifying
information, including age. U.S. v. Drew, 259 F.R.D. 449 (C.D. Cal.
2009).
iii. Many courts have interpreted the CFAA narrowly so that the crime
“exceeds authorized access” is limited to violations of restrictions
on access to information, and not restrictions on its use (i.e.
misappropriation). See e.g., Nosal, i.d; LVRC Holdings LLC v. Brekka,
581 F.3d 1127 (9 th Cir. 2009); Shamrock Foods Co. v. Gast, 535 F. Supp.
2d 962 (D. Ariz. 2008); Orbit One Commc’ns, Inc. v. Numerex Corp., 692
F. Supp. 2d 373 (S.D.N.Y. 2010); Diamond Power Int’l Inc. v. Davidson,
540 F. Supp. 2d 1322 (N.D. Ga. 2007); Int’l Ass’n of Machinists &
Aerospace Workers v. Werner-Masuda, 390 F. Supp. 2d 479 (D. Md.
2005).
iv. However, the DOJ did have at least one “success”– the 11 th Circuit has
held that it is a federal crime under the for an SSA employee to access
social security records of 17 people for no business reason.
U.S. v. Rodriguez, 2010 WL 5253231 (11th Cir. Dec. 27, 2010).
v. Under either of these evolving standards, a fiduciary does not have
authorized access (no matter the use or purpose) if the terms of service of
the applicable digital asset provider prohibit it.
g. 18 USC Chapter 121. The Stored Wire and Electronic Communications and
Transactional Records Access Act (the “SWA”). Contains provisions regarding (i)
unlawful access to a stored communication, (ii) privacy of customer
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