Game over for the ‘Wargames’ hacking law?

When a law that governs technology stays on the books for decades, the results can be a puzzling mess. Later today, the Supreme Court will take up a dispute over the 1984 Computer Fraud and Abuse Act, which has become messy in the hands of prosecutors and corporations seeking to punish people using computers in ways they don’t approve of.

The origin of the law is simple yet absurd: The president of the United States watched the 1983 movie Wargames and got scared about hackers. I am not kidding. He then started pressing members of Congress to do something. So, they did.

The resulting law imposed criminal penalties for accessing computer systems without authorization. That was a clear danger back in the 1980s before the Internet was available to most people. Wargames fictional hacker David Lightman (played with great, nervous energy by actor Matthew Broderick) would surely be prosecutable under the CFAA for dialing into WOPR, the fictional nuclear war simulation program, even if the program was welcoming. “Shall we play a game,” WOPR famously asked Lightman. Great quote that I try not to overuse in this newsletter.

But over time, as the Internet spread, accessing other people’s computers became considerably more common (every time you read a web page, order an Uber, or stream on Netflix, you’re technically tapping into someone else’s computer). That’s raised questions about just what accessing someone else’s computer “without authorization” means under the law.

One of the most debatable prosecutions: In 2011, CFAA was used to prosecute programmer and tech activist Aaron Swartz after he downloaded millions of articles from a subscription database. Facing possibly decades of jail time, Swartz took his own life. And there are zillions of other cases that don’t seem in the spirit of what lawmakers intended back in the 1980s when they were trying to avoid future David Lightmans accidentally starting a nuclear war.

What if student researchers found grave vulnerabilities in a transit system’s fare collection computers? Or what if you changed the headline on a news story as a prank? What if you just violated the “terms of service” of Facebook by lying about your home city? Even that could be considered unauthorized access under the law, according to cyberlaw expert Orin Kerr. He’s blogged that, depending on your interpretation, the law “either makes most people or very few people criminals.” 

The case the Supreme Court is hearing today, Van Buren v. United States, concerns an allegedly bad cop in Georgia who took $6,000 from a pal to look up a license plate number in the state’s crime information database. CFAA critics hope the Supreme Court will use the case to curtail the law’s reach or, at least, set a national standard for what constitutes unauthorized access. Stay tuned for a decision.

Aaron Pressman


RIP to a startup legend. Retired Zappos CEO Tony Hsieh, a beloved figure in the tech world, died on Sunday at age 46 after being caught in a house fire in Connecticut. Known for his devotion to customer service, Hsieh had run the popular shoe sales site even after selling it to Amazon in 2009. He retired in August.

The ghosts of shoppers past. Fortune's intrepid retail reporter Phil Wahba hit the malls on Friday and discovered that Black Friday has shifted mostly online thanks to COVID-19. "At the sprawling Newport Centre in Jersey City, N.J., across the Hudson River, it was a ghost town: not a single customer inside its Sears store, and only a smattering of shoppers at its J.C. Penney or Kohl's," Wahba notes. Speaking of online sales, Amazon is paying its frontline staff a $300 bonus in December, the second bonus payment since the company ended an extra $2 per hour for wages at the end of May. The announcement came as unionized Amazon workers in countries like Germany and Australia staged protests for better working conditions on Friday.

Pop goes my heart. Renewable fuel-powered truck startup Nikola got some bad news on Monday morning. Turns out, General Motors will not agree to manufacture an electric pickup truck for Nikola in return for an equity stake. Instead, GM will only consider using Nikola's hydrogen tech in its own trucks under a non-binding agreement. Nikola stock, which went public by merging with a SPAC in June, plunged 21% in premarket trading.

You have 17 billion unread messages. Trying to catch Microsoft in the productivity software wars, Salesforce is pursuing an acquisition of messaging service Slack, the Wall Street Journal reports. Data Sheet's Tuesday guy, Robert Hackett, explains why Salesforce "wants to slurp up Slack."

Check the numbers. Two of the largest providers of financial data could be combining. S&P Global is offering a reported $44 billion for IHS Markit in order to create a titan of market-moving information. Elsewhere on Wall Street, prepare for the IPO onslaught. DoorDash wants to raise almost $3 billion in its initial public offering at a valuation of $30 billion. Airbnb is targeting a similar value in its IPO. I reviewed the pros and cons of those two IPOs and a few others last week.


To become truly popular, electric vehicles need access to a much bigger network of charging stations, writer Steve LeVine argues on his blog, The Mobilist. Should the government step in and speed up the construction process?

[Mike] Calise, the executive from Tritium, said the build-out should begin like the Eisenhower-era highway system, with the construction of EV charging corridors. These would involve the construction of EV charging stations every 10 miles or so along the country’s main highways. From there, spokes can be filled in where people live and work, especially inner cities.

The problem is that they are expensive, requiring the government to get behind them, Calise said. President-elect Joe Biden is proposing that the federal government subsidize the construction of 500,000 charging stations. If Congress approves funding, charging will be accelerated. “You will start to see them at all the gas stations, convenience stores, hotels, ports, stadiums, fleet depots,” Calise said. “The pure gas station is going to be disrupted.”


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(Some of these stories require a subscription to access. Thank you for supporting our journalism.)


The Great British Baking Show (or Bake Off in the U.K.) concluded last week and crowned its latest winner as the best amateur baker of the year. There was a little too much controversy this year, but it's hard to be disappointed with the final outcome (spoiler warning: That link names the winner).

Also, the mysterious Utah monolith I mentioned last email has now vanished. Maybe it wanted to hit the malls before the crowds returned?

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