Publication | Legaltech News

Nervous System: Florida Man, Joe Biden, and the Federal Computer Crimes Act

David Kalat

August 4, 2021

Trying to pass legislation governing the prosecution of computer crimes was a rocky road before the Computer Fraud and Abuse Act, as David Kalat explains in this month’s history of cybersecurity and privacy.

In 1978, Florida became the first state to pass a law specifically covering computer crimes. It was quickly hailed as a model for the types of legislation that would be needed in other states or even nationwide to deal with growing threats to information security. Nine states soon followed Florida’s lead and passed similar legislation. The Florida bill’s author, Representative Bill Nelson (D), turned his attention to proposing federal legislation that would define computerized information as property and make misuse of the data a federal offense. It turned out to be a rocky road.

As the nation’s economy transitioned to being cashless, information-focused, and computerized, Nelson recognized that criminal laws were woefully behind the times. His proposal sought to define electronic information as property and make misuse of electronic information a federal offense. He felt this was needed because, at the time, both the law and the public at large still struggled to recognize computer crime as “real,” as compared to physical theft, even though in some cases the sums at issue in computer crimes vastly dwarfed those that a “real-life” burglar might steal.

As a politician, Nelson naturally was attracted to punchy turns of phrase to help sell his pet project. As he put it, there was an inherent problem when a thief could make off with a $5 million software program but only risk prosecution for the $5 cost of the cassette tape used to store it.

Although modern readers may find the reference to “cassette tapes” a little quaint, the problem was real.

For example, in United States v. Kelly (E.D. Pa., 1981), the defendants misappropriated the resources and time of their employers’ computers to conduct their own separate business. In the end, they were prosecuted only for having failed to disclose that theft on the brochures they mailed to prospective customers, thereby committing mail fraud. Had they admitted in those brochures that their business was using another company’s computers to perform its services, there would have been no case against them. Or, in United States v. Seidlitz, the prosecution of a defendant charged with copying stolen software code fell apart when the district court concluded that nothing had been transported across state lines if the original data had remained in the victim’s computer.

Nelson’s proposal led to congressional hearings in 1978 and 1980 where then-Senator Joe Biden, chairman of the Senate Judiciary Subcommittee on Criminal Laws and Procedures, took a prominent role in shaping the debate.

Senator Biden requested industry comment on Nelson’s proposed legislation. One area of focus for that testimony was on the importance of developing layers of remedies and punishments to ensure that more serious computer attacks, such as ones that threatened national security, would be treated differently from less serious ones, such as teenage misadventures exploring computer networks.

Biden’s hearings found considerable resistance to categorizing the misuse of computers as a distinct form of federal crime. The organizations that maintained large computer systems were reluctant to admit to a problem, especially when the wider public did not even perceive there to be one. Speaking in 1981 and quoted in the Christian Science Monitor, L. John Rankine, IBM’s data security director, said, “The actual, purposeful frontal attack on a computer from the information available to us is way down the scale of what can happen to a machine.” The real threat to data security, according to Rankine and others, was poor administration, not hackers or malicious attacks from outsiders.

Other opponents argued that computer crime laws were not needed because few such incidents were reported. Along those lines, Milton Wessel, a lawyer and instructor of computer law at Columbia University, testified that no prosecutions had yet occurred under Florida’s law.

Although the proposed law was not passed, the debate surrounding it helped shape the discussion around cybersecurity until the eventual passage of the Computer Fraud and Abuse Act in 1986. Nelson’s law stalled out each time he proposed it—in 1978, 1980, 1982, and 1983. For several years, the only direct impact of the congressional testimony was to provide a model to individual states seeking to emulate Florida’s law.

At the federal level, though, there was not enough support for a nationwide response to the issue of computer crime. That is, until a high-profile incident emerged in which the plot of the movie WarGames seemed to come true, and a teenage misadventure on a computer network actually did threaten national security. That event (described in an earlier installment of Nervous System) led to the passage of the Computer Fraud and Abuse Act, which—not coincidentally—contained much of Nelson’s language.

Read the full article at Legaltech News. (subscription required)

The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions, position, or policy of Berkeley Research Group, LLC or its other employees and affiliates.

BRG Experts

Related Professionals

David Kalat