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GRAVES, JAMES T.; ACQUISTI, ALESSANDRO; ANDERSON, ROSS
The journal of criminal law & criminology, 03/2019, Volume: 109, Issue: 2Journal Article
The U.S. Computer Fraud and Abuse Act (CFAA) is not a popular law. Enacted in 1986 to deal with the nascent computer crimes of that era, it has aged badly. It has been widely criticized as vague, poorly structured, and having an overly broad definition of loss that invites prosecutorial abuse. One of the problems with sentencing under the CFAA has received little attention: a misalignment between the facts that affect sentencing and the importance of those facts to the seriousness of CFAA crimes. It has been observed, for example, that CFAA sentences escalate rapidly as (easily inflated) losses increase. But this escalation may be rapid not only in an absolute sense, but in disproportion to other attributes of the crime. Other factors, such as the offender's motivation, the context of the crime, its scope, or the type of data affected, may play a larger role in the seriousness of a crime.
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