If the US highest court will decide in a few weeks whether a law against hackers could also be applicable against journalists, it has to do with the financial difficulties of a Georgia police officer. Nathan Van Buren was short of money and therefore asked an acquaintance from the demimonde for help.

The friend promised a small loan if Van Buren used his access to a police database and told him the vehicle owner about a license plate. Van Buren agreed to the deal and was immediately exposed. The helpful acquaintance had informed the FBI in advance. It was a trap.

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Van Buren was arrested and sentenced to 18 months in prison for serious “computer fraud”. The basis for this was the “Law against Computer Fraud and Abuse” from 1986. The law was passed at that time in order to be able to punish the hacker attacks on IT systems that were increasing for the first time.

Because the computer systems of the eighties are nowhere near comparable with today’s ubiquitous networking, critics consider the law to be out of date. According to observers, the fact that the case of the policeman Van Buren is now being heard before the Supreme Court indicates that the US chief judges also see a need for clarification.

Untrue information on dating portals could also be punishable by law

According to the “Computer Fraud and Abuse Act”, or CFAA for short, anyone who gains unauthorized access to a computer or “exceeds authorized access” is a criminal offense. The dispute now revolves around this formulation, because Van Buren had argued in his appeal proceedings that he had authorized access to the database of car license plates and should therefore not be convicted under the CFAA.

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Indeed, this formulation was also used against defendants in other contexts. For example against employees who have used their work computers for things that contradict company guidelines. Or against users of websites that violated terms and conditions. These violations have turned into criminal proceedings.

This week the arguments of the parties were heard in the Supreme Court. Van Buren’s lawyer, Jeffrey Fisher, didn’t skimp on superlatives. “It is not an exaggeration to say that ‘the government’s interpretation would brand most Americans as criminals any day'”.

Fisher argued that anyone who made false statements about themselves on a dating platform, although the terms of use forbade this, and who spoke to relatives via a business Zoom account could be liable to prosecution under the CFAA. In the past, some courts only used the law to convict hackers. On the other hand, other courts had ruled on its basis against persons who, although legitimately had access to systems, used this access for unauthorized purposes.

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Journalists fear restrictions on their freedom of research

The persecution of Julian Assange by the USA showed that the question of where hacking begins and where it ends also affects the freedom of the press. He had published information from internal networks of the US Army. The current proceedings before the Supreme Court also affect data journalists who conduct research with special software.

Should the Supreme Court decide against the police officer Van Buren, they too fear restrictions on their work. For several years now, media have been using them, including them Southgerman newspaper, the techniques of so-called “web scraping”. This can be translated as mining the net. Public information is systematically recorded and stored on the Internet using programming code. Then they can be evaluated journalistically and used for reporting. In individual cases, the programs have to register and simulate being a human user. For example, grievances in social networks can be analyzed. However, they often prohibit scraping in their general terms of use. This makes it difficult for journalists to examine technology companies such as Facebook or Amazon and independently verify whether their apps and websites really work as advertised. Research in this gray area is often of great public interest.

The young US medium The Markup specializes in scraping methods and reporting on the powerful technology corporations. The Markup was founded in 2018 by the tech journalist and Pulitzer Prize winner Julia Angwin to advance research that describes and critically questions the influence of information technology on social developments. Angwin and her colleagues argue that formative developments such as algorithms cannot be controlled without web scraping. Her slogan: “Scraping is not a crime.”

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That is why The Markup has brought an official statement to the court in the case of police officer Van Buren. If the government’s requested broad interpretation of the CFAA is upheld by the Supreme Court, “the information gathering techniques that enable data journalism would be undermined,” the letter said. The operators of websites could determine through their terms and conditions what is punishable, it says in the letter. This means “journalists risk criminal liability – and imprisonment – for violating even the most trivial terms of use of any website they investigate.”

In addition to journalists, companies such as Google or comparison portals are likely to have an interest in the process. Their services, such as airfare comparisons, are usually based on web scraping.

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