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By Matwyshyn, Andrea M.; Pell, Stephanie K. | Harvard Journal of Law & Technology, Spring 2019 | Go to article overview

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Matwyshyn, Andrea M., Pell, Stephanie K., Harvard Journal of Law & Technology


TABLE OF CONTENTS    I. INTRODUCTION                                                  481  II. DEBUGGING REQUIRED: THE LIMITATIONS OF THE      COMPUTER FRAUD AND ABUSE ACT                                  483      A. The Problem of "Double Whammy" Conduct: Doctrinal         Limitations                                                484         1. Void for Vagueness                                      484         2. Damaging Contract                                       487      B. The Problem of Doctrinal Swapping: Harms to         Innovation and National Security                           492      C. The Problem of Contagion: Botnets and Malware              497         1. Post-Morris Malware and the Need for Security            Epidemiology                                            498         2. Public-Private Malware Outbreak Management              502 III.  THE NEXT RELEASE: A SECURITY EPIDEMIOLOGY MODEL       AND THE NEW COMPUTER INTRUSION AND ABUSE ACT       ("CIAA")                                                     508      A. The CIAA                                                   510         1. The Trespass Fixation                                   510         2. Technical Harms + Intent + Consent                      514            a. Technical harms                                      515            b. Defendant intent                                     517            c. Consent: Kerr's Paradox and Grimmelmann's               Resolution                                           519              i. Kerr's Trespass Norms and Grimmelmann's                 Consent                                            520              ii. Consent Dualism: Factual versus Legal Consent     522              iii. Why the Consent Dualism Distinction Matters      524         3. The New Language                                        526            a. Change 1: 1030(a)(1) - Criminal Computer               Intrusion                                            527            b. Change 2: 1030(a)(2) - Criminal Impersonation               with a Credential                                    536            c. Change 3: 1030(a)(3) - Abuse of Government               Position of Trust                                    540            d. Change 4: 1030(a)(4) - Epidemic Malware              541            e. Change 5: Elimination of the Civil Provisions        552      B. How the CIAA Would Work in Practice                        558         1. Hypothetical #1: The Malicious Third-Party Intruder     558         2. Hypothetical #2: The Infrastructure Disrupter           559         3. Hypothetical #3: The Security Researcher                559         4. Hypothetical #4: The Scared Consumer                    561         5. Hypothetical #5: The Script Kiddie                      562         6. Hypothetical #6: The DDoS Participants                  563         7. Hypothetical #7: The Fibbing Consumer                   563         8. Hypothetical #8: The Artful CAPTCHA Dodger              564         9. Hypothetical #9: The Grabby User                        564         10. Hypothetical #10: The Nosy Aggregator                  565         11. Hypothetical #11: The (Un)Advanced Persistent User     566         12. Hypothetical #12: The Competitor Aggregator            567         13. Hypothetical #13: The Rogue Corporate Insider          568         14. Hypothetical #14: The Password Sharer                  570         15. Hypothetical #15: The Rogue Government Insider         571         16. Hypothetical #16: Bots for Tots, Silver Spears, and             Research Recon                                         572         17. Hypothetical #17: The Silverphishing Botnet             Harpoon                                                573  IV. CONCLUSION                                                    573 

I. INTRODUCTION

Sometimes the "secret ingredient" is a dash of typhoid fever. In an (in)famous moment in the dramatic history of epidemiology, a cook named Mary Mallon, whose hygiene practices were allegedly suboptimal, accidentally transmitted typhoid fever to diners through the meals she prepared. …

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