A Case Study in E-Commerce

在本案例研究中，我们将分析Lori监控一些应用程序的数据流的行为。正如前面的例子，Lori作为一所知名学校的教授，利用Wireshark来查看智能手机上的医疗和健身应用程序将数据发送到哪里，然后监控这些应用程序的数据流，不仅是她自己的数据流，还有其他用户的数据流。然后这些应用之一，Befit根据计算机欺诈和滥用法案(CFAA)， 18 USC 1030 (a)(2)(C)起诉Lori。本节规定:(1)故意访问计算机(2)未经授权，以及(3)由此获得信息是非法的。在这个案例研究中，我将讨论双方的观点。这意味着我将讨论罗莉违反CFAA的最有力论据是什么，以及罗莉没有违反CFAA的最有力论据是什么。

Introduction

In this case study, we will have an analyzation about Lori’s behaviors of monitoring the data flows about some apps. As the case given before, Lori, as a professor in a well-known school, uses the Wireshark to see where medical and fitness apps on smart phones send their data and then monitors the data flows not only about her own data but other users’ data flows of these apps. Then one of these apps, the Befit sues Lori under the Computer Fraud and Abuse Act (CFAA), 18 USC 1030 (a)(2)(C). This section makes it illegal to (1) intentionally access a computer (2) without authorization, and (3) thereby obtain information. in this case study, I will discuss both sides of arguments. It means that I will discuss what is the strongest argument for the claim that Lori violates the CFAA and what is the strongest argument for the claim that Lori does not violate the CFAA.
The Strongest Argument for the Claim that Lori violates the CFAA
The strongest argument for the claim that Lori violates the CFAA is that Lori intentionally access a computer and then thereby obtain information which is illegal under (1) intentionally access a computer and (3) thereby obtain information. First of all, Lori violates CFAA under the section of intentionally access a computer. As the case given before, Lori can monitor the data flow because she wants to see where the data and information of medicine and sports apps sends. Not only can she see her own data flow of medicine and sports apps, but also see all the data flows from other computers. This means that Lori accesses computer. What is more, Lori violates the CFAA under the first section. What is more, after one of the apps, Befit, sends the letter stating that she is no longer authorized to monitor data flows in or out of the BeFit. But Lori continues monitoring the data flow. In this occasion, Lori violates the CFAA under the first section which is “intentionally”. The first time when Lori see the data flows from the medical and sports apps can slightly express the meaning of “intentionally”. After the letter which is sent by one of the apps – the Befit, Lori still monitors the data flow from computers. This means that Lori is obviously intentionally access data and information from computers because she does not stop continuing monitoring the data flow from the Befit. As a result, Lori violates the CFAA under the first section that intentionally access a computer. Moreover, Lori violates the CFAA under the section of obtain information. Also as the case given before, Lori wants to see where the medical and sports apps send their data. What is more, Lori still accesses computers after one of the apps – Befit sending a letter stating that Lori is no longer authorized to monitor computers instead of roughly stopping Lori from monitoring their data flows. This means that Lori is likely to obtain information by means of monitoring the data flows from other computers and continuing monitoring data flows after one of the apps – Befit’ s letter of announcement. As a result, Lori violates the CFAA under the section of obtaining information. After explaining the contents of the first and the third section, Lori violates the CFAA under (1) intentionally access a computer and (3) thereby obtain information.
The Strongest Argument for the Claim that Lori Does not violate the CFAA
The strongest argument for the claim that Lori does not violate the CFAA is that she does not access computer and information without authorization. As the case given before, Lori monitors not only the data flow from her own computer but also data flow of information from other computers. In this case, monitoring the data flows from other computer means that see where those apps send their data and information. What is more, monitoring the data flow and information from other computers is not accessing computer without authorization. The reason is that the discussion of the Court from hiQ Labs v. Linkedin (2017) said that the hiQ has the authorization of analyzing data from Linkedin. In that case, the key question is whether, by continuing to access public Linkedin profiles after Linkedin has explicitly revoked permission to do so, hiQ has “access[d] a computer without authorization” within the meaning of the CFAA. This means that Linkedin considered the hiQ does not have the authorization of accessing computer information from their own data base, which Linkedin thinks the hiQ violates the CFAA under the section of “without authorization” in the plain meaning. What is more, Linkedin gives two primarily cases. First case is the Facebook, Inc. v. Power Ventures, Inc. The Ninth Circuit held that “a defendant can run afoul of the CFAA when he or she has no permission to access a computer or when such permission has been revoked explicitly.” In Power Ventures, the defendant operated a site that extracted and aggregated users’ social networking information from Facebook and other sites on a single page. The defendant gained access to password-protected Facebook member profiles when its users supplied their Facebook login credentials. When users selected certain options on the defendant’s site, the defendant, in many instances, “caused a message to be transmitted to the user’s friends within the Facebook system.” The Ninth Court found the Power Ventures has a CFAA violation where “after receiving written notification from Facebook” Power Ventures “circumvented IP barriers” and continued to access Facebook severs. In a word, the Ninth Court thinks that Power Ventures accessed Facebook computers violates the CFAA under the section of “without authorization”. Furthermore, Linkedin gives another example of United States v. Nosal (Nosal II), 844 F.3d 1024 (9th Cir. 2016). In this case, the Ninth Circuit held that an employee “whose computer access credentials were affirmatively revoked by [his employer] acted ‘without authorization’ in violation of the CFAA when he or his former employee coconspirators used the login credentials of a current employee” to gain access to the employer’s computer systems. But the court in the case of hiQ Labs v. Linkedin (2017) thinks that the cases which given by Linkedin are distinguishable in an important respect: none of the data in Facebook or Nosal II is public data. In the case of hiQ Labs v. Linkedin, hiQ’s information from Linkedin are public information about employees which are useful for their employers. This means that hiQ’s actions of analyzing information from Linkedin is different from the Facebook and Nosal II. The reason is that the hiQ analyzes the public data and information from the Linkedin instead of controlling information under passwords or barriers. In this condition, the hiQ does not violates the CFAA under the section of without authorization. This means that Lori’s behaviors of monitoring the data flows of medical and sports apps does not violate the CFAA. The reason is that under the case of hiQ Labs v. Linkedin (2017), Lori monitors the data flows of medical and sports apps and this is not means access computers without authorization. As it said in the discussion in the hiQ Labs v. Linkedin (2017), the court’s discussion can also support in the case of Lori’s behaviors about monitoring apps’ data flows. It is said that the CFAA must be interpreted in its historical context, mindful of Congress’ purpose. This means that in 1984 when the Internet did not exist, the CFAA was intended instead to deal with “hacking” or “trespass” onto private, often password – protected mainframe computers. As for today, the behaviors that just analyze data and information such as monitoring data flow and information from medical and sports apps are not “without authorization” under the meaning in the CFAA. In short, Lori does not violate the CFAA under the section of without authorization.
Evaluation about the argument that Lori does not violates the CFAA

In my opinion, the argument that Lori does not violates the CFAA is better than the argument that Lori violates the CFAA. The reason is that Lori’s behaviors of monitoring the data flows from medical and sports apps are not harmful in terms of public interests. In the case of hiQ Labs v. Linkedin (2017), the hiQ is not harmful to the public interests. The Court (2017) concluded that the actual privacy interests of Linkedin users in their public data are at best uncertain. It is likely that those who opt for the public view setting expect their public profile will be subject to searches, date mining, aggregation, and analysis. On the other hand, “conferring on private entities such as LinkedIn, the blanket authority to block viewers from accessing information publicly available on its website for any reason, backed by sanctions of the CFAA, could pose an ominous threat to public discourse and the free flow of information promised by the Internet.” This means that the hiQ does not violates the CFAA in terms of public interest. As a result, Lori’s behaviors are not harmful to the public interests. What is more, Lori does not violate the CFAA in terms of public interests. Moreover, in this condition, the argument for the claim that Lori does not violates the CFAA is better than the argument for the claim that Lori violates the CFAA.

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