April 30, 2017

The Assault on Patents

The United States patent system is under assault. The most significant changes to patent system in the past two centuries have been, or are in the process of being made. Congress is considering amending patent law to curtail litigation by nonpracticing entities, or “patent trolls,” as they’re pejoratively known, even though their impact on the patent system is open to debate. President Barack Obama has compared patent trolls to extortionists. And the U.S. Supreme Court ruled against patent owners in five cases this term, overturning five of the six decisions from the U.S. Court of Appeals for the Federal Circuit involving questions of patent law. The question is whether the changes and proposed changes will end up causing irreparable harm to the U.S. patent system that has been an engine of economic growth in our country and in the world for over 200 years. [Read more…]

The Administration’s Misguided Proposal to Amend the CFAA

In light of the string of high-profile hacks at companies in 2014, culminating with Sony, it is not surprising that President Obama, as part of the State of the Union, has announced several legislative proposals involving cybersecurity. One of the proposals seeks to amend the controversial Computer Fraud and Abuse Act (“CFAA”), the federal computer hacking statute that was used by the government to prosecute Aaron Swartz, who committed suicide after being charged. Swartz’s father among others blamed overzealous federal prosecutors for the suicide. Since then, commentators have urged Congress to amend the CFAA to make clear, among other things, that simply violating a term of service, as Mr. Swartz allegedly did is not a federal crime. However, it is unlikely that the White House proposal will do much to satisfy these critics since the proposal not only increases the penalties for certain types of cybercrime, but also resolves the current circuit split by explicitly providing that breaching a written restriction on computer use is a crime. Moreover, the proposal is very similar to previous White House proposals that failed to make the case that increasing penalties for certain types of cyber crime will deter future crime. While there is little doubt that the CFAA should be amended, the Administration’s proposal does not really appear to be a constructive step in that direction.

The CFAA is currently composed of a number of provisions that, in general, outlaw computer trespass under a variety of circumstances. The central and most commonly used provision is 18 U.S.C. § 1030(a)(2), which broadly prohibits accessing a computer “without authorization” or “in excess of authorization” and obtaining information. Since the statue does not define “without authorization,” courts have grappled and split on what it means to access a computer without authorization. [Read more…]

Privacy Piracy

I appeared as a guest on Privacy Piracy on KUCI, an NPR station in California, discussing the need to amend our privacy laws.

Here’s a link to the interview to the website where you can hear the full 30 minute interview: http://www.kuci.org/privacypiracy/

 

Trade Secrets: The Intellectual Property for the 21st Century?

The patent system has been under  attack by all three branches of the U.S. governmentin the past year. All is not lost, however, for companies and individuals that need to protect their valuable proprietary technical information. While trade secrets cannot fully replace patent protection in all respects, they do offer a viable alternative to patents for protecting intellectual property in many cases. In addition, while the value of patents in protecting IP has been under attack this year, trade secret protection has been on the rise with, for example, the California appellate court decision in Altavion, Inc. v. Konica Minolta Systems Laboratory, 226 Cal.App.4th 26. 171 Cal.Rptr.3d 714 (1st Dist. 2014).  that broadened the definition of what information can qualify as a trade secret. Moreover, there is a real possibility for the first time that Congress will finally pass a civil trade secrets protection law, which will mean that trade secrets will not be considered patent’s ugly step sister any longer. [Read more…]

Named as National Law Journal 2014 Top 50 IP Trailblazers & Pioneers

 

Here’s what the National Law Journal had to say about me:

“Peter Toren was working in the general litigation section of the criminal division of the Department of Justice when he volunteered to be one of the original five prosecutors in the Computer Crime Unit. He ended up focusing on theft of trade secrets and intellectual property, including prosecuting a case of trade secrets theft from Whirlpool. The defendant was acquitted “largely because there was no statute that fit the crime,” and the case was cited by Congress in support of the Economic Espionage Act of 1996.

Toren’s work at the DOJ included one of the first cases under the Economic Espionage Act, in which Four PillarsEnterprise Co. was convicted of stealing trade secrets from Avery Dennison. Since he left for private practice, he’s been working with companies to get them to refer cases to the DOJ for criminal prosecution. He has also worked on one of the biggest trade secrets cases in history, in which Hilton paid damages and signed a deferred prosecution agreement for stealing trade secrets related to SPG’s luxury brand.

About 40 percent of prosecutions brought under the Economic Espionage Act have some Chinese connection, and Toren expects this to continue. Also, “trade secrets probably will take on an increased importance in protection of IP as there have been limitations placed on patents to fight trolls.”Toren is also hopeful that Congress will pass a Civil Trade Secrets bill. “They’ve been considering it for the past 10 years.”

Maybe in the next session there’s a chance.”

NLJ-14-07101-NLJ-IP-Trailblazers-Custom-Logos-PToren

 

The Government vs. General Alexander: Who Owns His Inventions

Since retiring as the director of the National Security Agency in March of this year, General Keith Alexander has co-founded a company, IronNet Cybersecurity Inc., that reportedly charges up to $1 million a month to assist companies in protecting their computer networks from hackers. Gen. Alexander has suggested that this fee is justified in part because his company’s technology is based on his inventions relating to a “unique” approach to detecting hackers. Alexander has stated that he plans to file at least nine patent applications relating to this technology. Certainly, Gen. Alexander can seek to leverage his NSA experience and expertise in developing a lucrative post-government career, however, the filing of the patent applications so soon after leaving government service and their cybersecurity subject raises serious questions about who actually owns these inventions and whether Gen. Alexander is seeking to profit from inventions that actually belong to the government. In interviews, Gen. Alexander has asserted that he discussed the ownership of these patent applications with lawyers at the NSA and has been assured that his inventions are not related to any work he did for the NSA, and, consequently, the inventions belong to him and not to the government. That NSA lawyers have purportedly concluded that his inventions are unrelated to his work is cold comfort in this era of Edward Snowden revelations.

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Updates on Federal Law Concerning Criminal Theft of Trade Secrets and Computer Hacking

Whether you are a criminal lawyer seeking guidance on intellectual property issues or a civil lawyer with questions about criminal law or the use of criminal statutes in civil litigation, you’ll want to get a copy of my book, Intellectual Property & Computer CrimesIt is a invaluable reference for you Internet and Computer Law practice. To obtain a copy click here.

Release 22 of my classic work was just published and this update features an analysis of the recent Supreme Court case, Kirtsaeng v. John Wiley & Sons. The Supreme Court considered whether the first sale provision of Section 109 applies to copies “lawfully made” outside the United States, which would permit purchasers of copies manufactured abroad to import such copies into the U.S.  and sell or otherwise distribute them without permission from the copyright owner, so long as copies were originally produced with the copyright owner’s authorization. The issue requires unraveling the copyright owner’s right of public distribution, its lesser included rights of importation and the first sale doctrine limitation’s on the distribution right.

Other topics discussed in this Release include:

*  Availability of preregistration for certain types of works considered by the Copyright Office to be especially vulnerable to piracy before their lawful release or publication.

* Criminal violations involving unlawful distribution of a work being prepared for commercial distribution under Section 506(a) of the Copyright Act.

* Whether a distributor of copyrighted works may, under the Mandatory Victims Restitution Act, qualify for restitution from a criminal infringer of the works.

*  Regulatory exemptions to liability under Section 1201(a)(1) of the DMCA.

*  Statutory maximum terms of imprisonment for defendants convicted of trafficking in counterfeit military goods.

*  Standing analysis under the CAN-SPAM Act.

Inellectual Property & Computer Crimes explains the criminal laws that apply to violations of intellectual property rights and unauthorized computer access, as well as civil violations under the Computer Fraud and Abuse Act — and their impact on your clients. Intellectual Property and Computer Crimes examines criminal infringement, the expanded scope of computer hacking laws, and the important legal issues that arise when these crimes are prosecuted.

To obtain a copy click here.

The Attack on Patents

This version originally  appeared in The Hill, August 13, 2014. The United States patent system is under assault. The most significant changes to patent system in the past two centuries have been, or are in the process of being made. Congress is considering amending patent law to curtail litigation by nonpracticing entities, or “patent trolls,” as they’re pejoratively known, even though their impact on the patent system is open to debate. President Barack Obama has compared patent trolls to extortionists. And the U.S. Supreme Court ruled against patent owners in five cases this term, overturning five of the six decisions from the U.S. Court of Appeals for the Federal Circuit involving questions of patent law. The question is whether the changes and proposed changes will end up causing irreparable harm to the U.S. patent system that has been an engine of economic growth in our country and in the world for over 200 years. Congressional efforts to amend the Patent Act have stemmed largely from the (incorrect) perception that so-called patent trolls jeopardize the patent system by extorting settlements from companies and by engaging in other unethical practices. These entities, it is argued, reduce market efficiency and social welfare because their activities impose unwarranted taxes and create disincentives for true innovators, who fear the prospects of litigation.  NPEs have also been incorrectly linked to a great increase in patent litigation. A report from the President’s Council of Economic Advisers concluded that there was an explosion of “patent troll litigation” from 2010 until 2012. Putting aside that the report’s conclusion was fundamentally flawed and was completely discredited by a subsequent study by three law professors, supporters of amending the Patent Act in Congress have seized upon it as evidence that the Patent Act needs to be amended, even though it was amended about three years ago. It is very possible that Congress will enact legislation in the near future that, under the guise reining in patent trolls, also will weaken the rights of other types of patentees. Indeed, previous bills have not clearly defined “patent troll,” and have simply tarred all nonpracticing entities with the broad brush. However, this is a gross oversimplification and may lead to undercut one of the most important stated goals of the patent system — to encourage the advancement of technology. Contrary to criticism, most types of nonpracticing entities actually do play a constructive role and contribute to technological advances. For example, many prestigious universities may qualify as patent trolls since they do not generally manufacture products but do seek to license and enforce their patents. However, universities are responsible for scientific and technological breakthroughs and provide a valuable source of revenue, which has become more and more important as federal funding has dried up. The patent system should be designed to encourage the creation of patents by universities and other nonprofit research entities. Finally, at least one study has suggested that the historical trend in litigation rates relative to patents granted clearly does not support claims that patent litigation in the past decade has “exploded” above the long term norm. In fact, the per patent rate of litigation was highest in the era before the Civil War and during the subsequent market expansion that started in the 1870s. While the impact of the proposed legislation is somewhat speculative, the same cannot be said for a number of Supreme Court decisions. The Roberts court has issued a number of opinions that narrow the scope of patentability and limit the enforceability of patent rights. In addition, the court has not been reluctant to become involved in the patent arena or to defer to the “expertise” of the patent judges on the Federal Circuit. Between 1982, when the Federal Circuit was created, and 2005, the high court decided only eight patent cases. Yet the Roberts court has decided around 20. Prior to the recent term, in which the high court reversed the Federal Circuit on five of six cases, the Roberts court reversed the Federal Circuit nine times, vacated its decision three times, affirmed but changed the applicable standard twice, and affirmed only three times. In addition, Justice Samuel Alito, writing for the majority in a 2014 patent case, stated, “The Federal Circuit’s analysis fundamentally misunderstands what it means to infringe a method patent.” Members of the patent bar described Alito’s language as an unnecessary “slapdown” of the Federal Circuit. Further, the Roberts court has not been as friendly to the rights of patentees as the Federal Circuit. Roberts court opinions have had a negative impact on patent rights over a dozen times while having a positive effect approximately five times. The Roberts court has ruled against patent owners and raised the standard of patentability in a number of cases prior to the most recent term by among other things holding that patent licensees can challenge the validity of the licensed patents and that that new patents involving correlations between natural phenomena must do more than simply recite the natural correlation and describe how to apply it. The anti-patent owner trend picked up force this year. The Court, among other things, reversed the Federal Circuit and made it easier to a district court to award attorney’s fees to the prevailing party in a patent case, which is expected to limit the number of cases brought by NPEs. Finally, just before the end of the term in June, the high court ruled against patent holders in three cases making it far more difficult for a patentee to prove that the defendant induced infringement, far easier for a defendant to establish that a patent is invalid and much harder to obtain protection for a business method. The patent system has served the United States well for over 200 years. It has helped this country become a world leader in many important industries and in economic growth. The evidence and review of the historical record suggests that the patent system is hardly in a state of crisis as many commentators have maintained. The primary core of the anti-patent movement seems to largely consist of industries that would benefit from the royalty-free usage of patented ideas at the expense of small companies and individual inventors. Before this movement gains even further traction, interested parties, and especially Congress, must have a true debate about this crucial issue without resort to name calling. There is simply too much at-risk to proceed in any other way.

The Assault on Patents

The Assault on Patents

By Peter J. Toren

All three branches of the U.S. government have attacked the patent system in the past year. Congress is considering amending patent law to curtail litigation by nonpracticing entities, or “patent trolls,” as they’re pejoratively known, even though their impact on the patent system is open to debate. President Barack Obama compared patent trolls to “extortionists.” And the U.S. Supreme Court ruled against patent owners in five cases this term, overturning five of the six decisions from the U.S. Court of Appeals for the Federal Circuit involving questions of patent law. This lack of deference to rulings by the Federal Circuit, which by virtue of hearing all district court patent appeals is considered very patent savvy and sensitive to the interests of patent owners, also bodes ill for the long-term future of the rights of patent owners before the Supreme Court. Accordingly, inventors should consider alternatives to patent law to protect their intellectual property.

Congressional efforts to amend the Patent Act have stemmed largely from the (incorrect) perception that so-called patent trolls jeopardize the patent system by extorting settlements from companies and by engaging in other unethical practices. In addition to Obama referring to them as “extortionists,” a report from the President’s Council of Economic Advisers concluded that there was an explosion of “patent troll litigation” from 2010 until 2012. Putting aside that the report’s conclusion was fundamentally flawed and was completely discredited by a subsequent study by three law professors, supporters of amending the Patent Act in Congress have seized upon it as evidence that the Patent Act needs to be amended, even though it was amended about three years ago.

It is very possible that Congress will enact legislation in the near future that, under the guise reining in patent trolls, also will weaken the rights of other types of patentees. Indeed, previous bills have not clearly defined “patent troll,” and have simply tarred all NPEs with the broad brush. However, this is a gross oversimplification and may lead to undercut one of the most important stated goals of the patent system — to encourage the advancement of technology.

Contrary to criticism, most types of NPEs actually do play a constructive role and contribute to technological advances. For example, many prestigious universities may qualify as patent trolls since they do not generally manufacture products, but do seek to license and enforce their patents. However, universities are responsible for scientific and technological breakthroughs and provide a valuable source of revenue, which has become more and more important as federal funding has dried up. The patent system should be designed to encourage the creation of patents by universities and other nonprofit research entities.

While the impact of the proposed legislation is somewhat speculative, the same cannot be said for a number of Supreme Court decisions. The Roberts court has issued a number of opinions that narrow the scope of patentability and limit the enforceability of patent rights. In addition, the court has not been reluctant to become involved in the patent arena or to defer to the “expertise” of the patent judges on the Federal Circuit. Between 1982, when the Federal Circuit was created, and 2005, the high court decided only eight patent cases. Yet the Roberts court has decided around 20.

Prior to the recent term, in which the high court reversed the Federal Circuit on five of six cases, the Roberts court reversed the Federal Circuit nine times, vacated its decision three times, affirmed but changed the applicable standard twice, and affirmed only three times. In addition, in Limelight Networks v. Akamai Technologies, 134 S.Ct. 2111, 2117 (2014), Justice Samuel Alito, writing for the majority, stated, “The Federal Circuit’s analysis fundamentally misunderstands what it means to infringe a method patent.” Members of the patent bar described Alito’s language as an unnecessary “slapdown” of the Federal Circuit.

Further, the Roberts court has not been as friendly to the rights of patentees as the Federal Circuit. Roberts court opinions have had a negative impact on patent rights over a dozen times while having a positive effect approximately five times. Some of the older cases that have gone against patent owners or raised the standard of patentablity include: MedImmune Inc. v. Genentech Inc., 549 U.S. 118 (2007), which reversed the Federal Circuit and held that patent licensees can challenge the validity of the licensed patentees; Bilski v. Kappos, 130 S.Ct. 3218 (2010), which rejected the “machine or transformation” test as the sole test for determining whether business method claims were patentable subject matter; and Mayo Collaborative Services v. Prometheus Laboratories Inc., 132 S.Ct. 1289 (2012), which held that the patent at issue was an unpatentable law of nature and that new patents involving correlations between natural phenomena must do more than simply recite the natural correlation and describe how to apply it.

This trend continued with greater force this year. In Medtronic Inc. v. Mirowski Family Ventures LLC, 134 S.Ct. 843 (2014), the Supreme Court reversed the Federal Circuit and held that when a licensee seeks a declaratory judgment against a patentee the burden of proving infringement remains with the patentee. Next, Octane Fitness, LLC v. ICON Health & Fitness Inc., 134 S.Ct. 1749 (2014), reversed the Federal Circuit’s understanding of Section 285 of the Patent Act, which authorizes a district court to award attorney fees in “exceptional cases.” The Federal Circuit had held that a case is exceptional in two limited circumstances “when there has been some material inappropriate conduct,” or when the litigation is both “brought in subjective bad faith” and is “objectively baseless.” Brooks Furniture Mfg. Inc. v. Dutailier Int’l Inc., 393 F.3d 1378 (2005). The Supreme Court found that this framework is unduly rigid and impermissibly encumbers the statutory grant of discretion to district courts. In a companion case, the Supreme Court determined that an appellate court should apply an abuse-of-discretion standard to Section 285 decisions. Highmark Inc. v. Allcare Health Management System Inc., 134 S.Ct. 1744 (2014).

Finally, just before the end of the term in June, the high court ruled against patent holders in three cases. In Limelight Networks Inc. v. Akamai Technologies Inc., 134 S.Ct. 2111 (2014), the court reversed the Federal Circuit holding that a defendant is not liable for inducing infringement under Section 35 U.S.C. Section 271(b) when no party has directly infringed under Section 271(a) or any other statutory provision. It held in Nautilus Inc. v. Biosig Instruments Inc., 134 S.Ct. 2120 (2014), that the test used by Federal Circuit to determine whether a patent is invalid for indefiniteness that tolerates some ambiguous claims, but not others, does not satisfy Section 112’s definiteness requirement. The court stated “that a patent is invalid for indefiniteness if its claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform with reasonable certainty those skilled in the art about the scope of the invention.” Finally, in the only patent case in which the Supreme Court agreed with the Federal Circuit, in Alice Corp. Pty. Ltd. V. CLS Bank Intern., 134 S.Ct. 2347 (2014), the court concluded that because the claims of a business method patent are drawn to a patent-ineligible idea, they are not patent eligible under Section 101 of the Patent Act which defines the subject matter eligible for patent protection. The court found that the method claims of the patent, which merely require generic computer implementation, fail to transform the abstract idea of an “intermediated settlement” into a patent-eligible invention.

Past actions are not always an accurate predictor of future ones. However, given the actions by Congress, Obama and the recent trend of the Supreme Court, inventors and developers of technology would be remiss not to consider other alternatives. In particular, whether trade secrets may offer a better way to protect their intellectual property especially since Congress may finally enact a federal trade secrets act — not to mention that a California appellate court in Altavion Inc. v. Konica Minolta Systems Laboratory recently broadened the definition of what information can qualify as a trade secret.

Administration Policy On Enforcing the CFAA Should Change

Almost exactly one year ago, Senator Wyden of Oregon and Rep. Lofgren of California introduced “Aaron’s Law” in response to the death of Internet activist and co founder of reddit Aaron Swartz. He committed suicide in January of 2013 at age 26, while under indictment for violating the Computer Fraud and Abuse Act (CFAA) for downloading research materials from an academic website. The publicity in the aftermath of the suicide highlighted many of the problems with the CFAA which has been on the books since 1984, and has grown from a narrowly circumscribed law against computer hacking into a law that under the federal government’s understanding turns breaching a terms of service computer agreement into a felony. Yet despite this harsh criticism Congress has not amended the CFAA reportedly because of opposition by certain technology company or companies. Accordingly, it is time for the Obama Department of Justice to declare that it will no longer seek to prosecute individuals for simply violating a terms of service agreement.

The CFAA was first enacted in 1984 and was quite narrow in scope. The original intent was to prosecute individuals who broke into a computer system and stole valuable data or maliciously caused damage. Since then, however, Congress has amended the CFAA numerous times and not only significantly broadened its scope, but also added a private cause of action. The current version of the CFAA contains seven major provisions that create liability for different types of computer misuse or harm. In addition, the penalties for violating the CFAA have been significantly increased. Misdemeanors have become felonies, two-year felonies have become five-year felonies and so on.

What has been the subject of intense scrutiny since Swartz’s death is the CFAA’s broadest provision, 18 U.S.C. § 1030(a)(2)(c), which makes it a crime to “exceed authorized access, and thereby obtain … information from any protected computer.” The Justice Department has taken the position that “exceeds authorized access” includes violating terms of service policies that are included with nearly all software and Internet services today. As Judge Kosinski of the Ninth Circuit has noted, “minds have wandered since the beginning of time and the computer gives employees new ways to procrastinate, by g-chatting with friends, playing games, shopping or watching sports highlights. Such activities are routinely prohibited by many computer use policies, although employees are seldom disciplined for occasional use of work computers for personal computers. Nevertheless, under the [government’s] broad interpretation of the CFAA, such minor dalliances would become federal crimes.” United States v. Nosal, 676 F.3d 854, 859 (9th Cir. 2012).

Most people would probably admit that they never read those  pages of fine print and simply “clicked here” when installing new software in their computer or accessing a new website. However, despite this social norm, the Department of Justice continues to take the position that a user’s breach of terms of service may be a violation of section 1030(a)(2) of the CFAA. For example, in a highly publicized case, the government charged a MySpace user with a crime for having breached MySpace’s Terms of Service.  However, in United States v. Drew, 259 F.R.D. 449, 28 ILR 215 (C.D. Cal. 2009), the U.S. District Court for the Central District of California acquitted the defendant of her misdemeanor conviction for violating section 1030(a)(2), finding that a conviction based solely on a defendant’s intentional violation of a website’s terms of service would violate the void-for-vagueness doctrine. That doctrine requires a penal statute to define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.  Since breaches of contract are not ordinarily the subject of criminal prosecution, an individual would not be on notice that a breach could be a crime.

In Swartz’s instance, the government charged that he had obtained illegal access to the JSTOR database with the intent to “liberate” the academic journals stored there and to allow everyone to have access to the journals in the database. JSTOR is an organization that sells universities, libraries, and publishers access to a database of over 1,000 academic journals. Before being caught, he succeeded in downloading a major portion of JSTOR’s database.

Since it is the government’s stated position that that breaching the terms of service may constitute a crime under the CFAA, what is it that prevents the federal government from charging a violation almost anytime? The simple answer is that the government does not have the resources to pursue minor cases. But do most Americans really want to leave it for the government to decide what constitutes a “minor case.” Americans want a “government of laws, not men.” After the indictment of Aaron Swartz and the more recent spying by the NSA, giving the government the benefit of the doubt no longer seems to be quite so appealing.

So what should be done? Congress should revise the CFAA so that an individual who breaches a terms of service agreement is not subject to criminal prosecution, or at a minimum should not be subject to felony penalties as required by the current version of the CFAA. Congress should make clear that the CFAA is intended to address true computer hacking and not individuals who simply breach a term of service that they may or may not have read. Only people who actually break into computers by circumventing technical restrictions should be criminally prosecuted. Congress should also recognize that simply increasing the penalty provisions of the CFAA is unlikely to deter computer crime but is more likely to result in unjust harsh treatment of individual defendants. While it seems clear to many people that a fresh legal approach to computer crime is necessary, it is almost impossible to believe that Congress will actually act. Putting aside certain technology industry resistance to amending the CFAA, the odds of getting the greatest do-nothing Congress in history to act seems farfetched, especially since over a year has passed since Swartz’s death. If nothing happened in its immediate aftermath, it is not going to happen now.

So what can be done? Attorney General Holder should announce a change of administration policy so that breaches of terms of service agreements by themselves will no longer be considered criminal. This understanding would be consistent with holdings in the Fourth and Ninth Circuits that the CFAA does not reach the mere misuse of employer information or violations of company use policies. See WEC Carolina Energy Solutions LLC v. Miller, 687 F.3d 199 (4th Cir. 2012); United States v. Nosal, 676 F.3d 854 (9th Cir. 2012). As noted by the en banc Nosal court, the government approach “would make criminals of large groups of people who would have little reason to suspect they are committing a federal crime.” Nosal, 676 F.3d at 859. Moreover, this approach would be consistent with the common law rule of lenity that provides that ambiguous criminal laws should be construed in favor of the defendant.

President Obama has recently shown that where Congress refuses to act or simply does not act he is willing to do so when he believes that it is the right thing to do. Here there is no doubt that the Computer Fraud and Abuse Act is overbroad in a way that turns ordinary Americans into felons. Congress has not surprisingly abdicated its responsibility by not amending the CFAA in the year since the introduction of Aaron’s law. President Obama should not abdicate his responsibility by letting more time pass before making clear that the Department of Justice will not prosecute individuals whose only “crime” is to breach a terms of service agreement.