Cyber Round Up: Justice Say Hacking Conviction Survives Bad Jury Instructions, 2016 Marks 30th Anniversary of CFAA — Time for a Change, Casino Sues Cybersecurity Firm for ‘Woefully Inadequate’ Investigation

Jan 25th, 2016 CFAA
  • Justice Say Hacking Conviction Survives Bad Jury Instructions (Law360): Today, the U.S. Supreme Court held that bad jury instructions which seemingly required jurors to find that the defendant not only made an unauthorized access of data but that this access also exceeded the defendant’s authorization was deemed a clerical error and did not require jurors to convict based on satisfying both of these prongs, according to an article by Joe Van Acker which appeared in Law360.

This case, The United States v. Musacchio originated in Texas and was originally appealed in the Fifth Circuit, according to the article.  According to Van Acker’s article, Musacchio was the CEO of Exel and he left in 2004 to start a shipping company.  However, upon doing so, Musacchio apparently accessed confidential Exel information after he departed and while that was pursued via civil claims (and settled for $10M), the Fed’s indicted Musacchio in 2010, according to the article; the full text of which appears here.

  • 2016 Marks 30th Anniversary of CFAA — Time for A Change (Law360): Peter J. Toren’s article highlights some of the key issues with the CFAA, specifically that there is a split between the narrow or broad interpretation of exactly what “without authorization” actually means.  According to the article, the Second, Fourth and Ninth Circuits have adopted a narrow interpetation that basically posits that “exceeding authorized access” applies to insiders who access data that they are not entitled to obtain and the motive behind the access is irrelevant; whereas “without authorized access” applies only to outside hackers.  However, the article points out that the First, Fifth, Seventh, and Eleventh Circuits take a broader approach and view that exceeding authorized access occurs when a person who is authorized to access data does so with a purpose or intent that is outside or beyond the scope of their duties.  The issue that then arises is that if a person is authorized to access a computer and then the stated policy is that persons are not allowed to use social media while at work and on corporate devices, were they to do so they could be prosecuted under the CFAA’s exceeding authorized access prong, according to the article.  This raises a number of issues since the article points out that Congress seems loathe to revisit the CFAA and the Supreme Court has not spoken thus the split amongst the circuits raises a rule of lenity issue.  The full text of the article can be found here.
  • Casino Sues Cybersecurity Firm for ‘Woefully Inadequate’ Investigation (LegalTech): This article may be a wake up call for the cybersecurity start ups looking to cash in on the latest craze — cybersecurity.  The article states that Affinity Gaming suffered a data breach in 2013 and hired a Chicago based firm — Trustwave which performed an investigation and advised Affinity that the breach was contained. Much to Affinity’s chagrin however it was determined that while Trustwave was auditing their security they were experiencing an ongoing cyberbreach which continued before, during, and after the assessment, according to the article.  Trustwave consequently retained Mandiant, the breach was uncovered and thereafter Affinity initiated a lawsuit against Trustwave alleging that they were ‘grossly negligent’ during their investigation, according to the article.  The full text of the article is here.

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Authors

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Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

Ryan D. WhiteRyan is currently a third year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic. Full biography

Shelby E. Mann

Ryan D. WhiteShelby is a second year law student at the Syracuse University College of Law. During her final year at the University of Missouri, she served as a full-time news producer for ABC 17 News. Shelby spent her first summer of law school at the Shelby County District Attorney General's Office in Memphis, Tenn., in the Public Corruption and Economic Crimes Unit. She is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and the senior editor for the Syrian Accountability Project. Full biography

Christopher w. FolkChristopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Anna Maria Castillo

Anna Maria Castillois 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She wrote for this blog when a student. She is now a member of the U.S. Army Judge Advocate General's Corps.

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography

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