United States v. Drew

DECISION ON DEFENDANT’S F.R.CRIM.P. 29(c) MOTION

I. INTRODUCTION

This case raises the issue of whether (and/or when will) violations of an Internet website’s1 terms of service constitute a crime under the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030. Originally, the question arose in the context of Defendant Lori Drew’s motions to dismiss the Indictment on grounds of vagueness, failure to state an offense, and unconstitutional delegation of prosecutorial power. See Case Docket Document Numbers (“Doc.Nos.”) 21, 22, and 23. At that time, this Court found that the presence of the scienter element (i.e. the requirement that the intentional accessing of a computer without authorization or in excess of authorization be in furtherance of the commission of a criminal or tortious act) within the CFAA felony provision as delineated in 18 U.S.C. § 1030(c)(2)(B)(ii) overcame Defendant’s constitutional challenges and arguments against the criminalization of breaches of contract involving the use of computers. See Reporter’s Transcripts of Hearings on September 4 and October 30, 2008. However, Drew was subsequently acquitted by a jury of the felony CFAA counts but convicted of misdemeanor CFAA violations. Hence, the question in the present motion under Federal Rule of Criminal Procedure (“F.R.Crim.P.”) 29(c) is whether an intentional breach of an Internet website’s terms of service, without more, is sufficient to constitute a misdemeanor violation of the CFAA; and, if so, would the statute, as so interpreted, survive constitutional challenges on the grounds of vagueness and related doctrines.2

*452II. BACKGROUND

A. Indictment

In the Indictment, Drew was charged with one count of conspiracy in violation of 18 U.S.C. § 371 and three counts of violating a felony portion of the CFAA, ie., 18 U.S.C. §§ 1030(a)(2)(C) and 1030(c)(2)(B)(ii), which prohibit accessing a computer without authorization or in excess of authorization and obtaining information from a protected computer where the conduct involves an interstate or foreign communication and the offense is committed in furtherance of a crime or tortious act. See Doc. No. 1.

The Indictment included, inter alia, the following allegations (not all of which were established by the evidence at trial). Drew, a resident of O’Fallon, Missouri, entered into a conspiracy in which its members agreed to intentionally access a computer used in interstate commerce without (and/or in excess of) authorization in order to obtain information for the purpose of committing the tortious act of intentional infliction of emotional distress3 upon “M.T.M.,” subsequently identified as Megan Meier (“Megan”). Megan was a 13 year old girl living in O’Fallon who had been a classmate of Drew’s daughter Sarah. Id. at ¶¶ 1-2,14. Pursuant to the conspiracy, on or about September 20, 2006, the conspirators registered and set up a profile for a fictitious 16 year old male juvenile named “Josh Evans” on the www.My Space.com website (“MySpace”), and posted a photograph of a boy without that boy’s knowledge or consent. Id. at ¶ 16. Such conduct violated My Space’s terms of service. The conspirators contacted Megan through the MySpace network (on which she had her own profile) using the Josh Evans pseudonym and began to flirt with her over a number of days. Id. On or about October 7, 2006, the conspirators had “Josh” inform Megan that he was moving away. Id. On or about October 16, 2006, the conspirators had “Josh” tell Megan that he no longer liked her and that “the world would be a better place without her in it.” Id. Later on that same day, after learning that Megan had killed herself, Drew caused the Josh Evans MySpace account to be deleted. Id.

B. Verdict

At the trial, after consultation between counsel and the Court, the jury was instructed that, if they unanimously decided that they were not convinced beyond a reasonable doubt as to the Defendant’s guilt as to the felony CFAA violations of 18 U.S.C. §§ 1030(a)(2)(C) and 1030(e)(2)(B)(ii), they could then consider whether the Defendant was guilty of the “lesser included”4 misde*453meanor CFAA violation of 18 U.S.C. §§ 1030(a)(2)(C) and 1030(c)(2)(A).5

At the end of the trial, the jury was deadlocked and was unable to reach a verdict as to the Count 1 conspiracy charge.6 See Doc. Nos. 105 and 120. As to Counts 2 through 4, the jury unanimously found the Defendant “not guilty” “of [on the dates specified in the Indictment] accessing a computer involved in interstate or foreign communication without authorization or in excess of authorization to obtain information in furtherance of the tort of intentional infliction of emotional distress in violation of Title 18, United States Code, Section 1030(a)(2)(C) and (e)(2)(B)(ii)....” Id. The jury did find Defendant “guilty” “of [on the dates specified in the Indictment] accessing a computer involved in interstate or foreign communication without authorization or in excess of authorization to obtain information in violation of Title 18, United States Code, Section 1030(a)(2)(C) and (c)(2)(A), a misdemeanor.” Id.

C. MySpace.com

As Jae Sung (Vice President of Customer Care at MySpace) (“Sung”) testified at trial, MySpace is a “social networking” website where members can create “profiles” and interact with other members. See Reporter’s Transcript of the November 21, 2008 Sung testimony (“11/21/08 Transcript”) at pages 40-41. Anyone with Internet access can go onto the MySpace website and view content which is open to the general public such as a music area, video section, and members’ profiles which are not set as “private.” Id. at 42. However, to create a profile, upload and display photographs, communicate with persons on the site, write “blogs,” and/or utilize other services or applications on the MySpace website, one must be a “member.” Id. at 42-43. Anyone can become a member of MySpace at no charge so long as they meet a minimum age requirement and register. Id.

In 2006, to become a member, one had to go to the sign-up section of the MySpace website and register by filling in personal information (such as name, email address, date of birth, country/state/postal code, and gender) and creating a password. Id. at 44-45. In addition, the individual had to check on the box indicating that “You agree to the MySpace Terms of Service and Privacy Policy.” See Government’s7 Exhibit 1 at page 2 (emphasis in original); 11/21/08 Transcript at 45-47. The terms of service did not appear on the same registration page that contained this “check box” for users to confirm their agreement to those provisions. Id. In order to find the terms of service, one had (or would have had) to proceed to the bottom of the page where there were several “hyperlinks” including one entitled “Terms.” 11/21/08 Transcript at 50; Exhibit 1 at 5. Upon clicking the “Terms” hyperlink, the screen would display the terms of service section of the website. Id. A person could become a MySpace member without ever reading or otherwise becoming aware of the provisions and conditions of the MySpace terms of service by merely clicking on the “check box” and then the “Sign Up” button without first accessing the “Terms” section. 11/21/08 Transcript at 94.8

*454As used in its website, “terms of service” refers to the “MySpace.com Terms of Use Agreement” (“MSTOS”). See Government’s Exhibit 3. The MSTOS in 2006 stated, inter alia:

This Terms of Use Agreement (“Agreement”) sets forth the legally binding terms for your use of the Services. By using the Services, you agree to be bound by this Agreement, whether you are a “Visitor” (which means that you simply browse the Website) or you are a “Member” (which means that you have registered with MySpace.com). The term “User” refers to a Visitor or a Member. You are only authorized to use the Services (regardless of whether your access or use is intended) if you agree to abide by all applicable laws and to this Agreement. Please read this Agreement carefully and save it. If you do not agree with it, you should leave the Website and discontinue use of the Services immediately. If you wish to become a Member, communicate with other Members and make use of the Services, you must read this Agreement and indicate your acceptance at the end of this document before proceeding.

Id. at 1.

By using the Services, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 14 years of age or older; and (d) your use of the Services does not violate any applicable law or regulation.

Id. at 2.

The MSTOS prohibited the posting of a wide range of content on the website including (but not limited to) material that: a) “is potentially offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual”; b) “harasses or advocates harassment of another person”; c) “solicits personal information from anyone under 18”; d) “provides information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous”; e) “includes a photograph of another person that you have posted without that person’s consent”; f) “involves commercial activities and/or sales without our prior written consent”; g) “contains restricted or password only access pages or hidden pages or images”; or h) “provides any phone numbers, street addresses, last names, URLs or email addressesId. at 4. MySpaee also reserved the right to take appropriate legal action (including reporting the violating conduct to law enforcement authorities) against persons who engaged in “prohibited activity” which was defined as including, inter alia: a) “criminal or tortious activity”, b) “attempting to impersonate another Member or person”, c) “using any information obtained from the Services in order to harass, abuse, or harm another person”, d) “using the Service in a manner inconsistent with any and all applicable laws and regulations”, e) “advertising to, or solicitation of, any Member to buy or sell any products or services through the Services”, f) “selling or otherwise transferring your profile”, or g) “covering or obscuring the banner advertisements on your personal profile page____” Id. at 5. The MSTOS warned users that “information provided by other MySpace.com Members (for instance, in their Profile) may contain inaccurate, inappropriate, offensive or sexually explicit material, products or services, and MySpaee.com assumes no responsibility or liability for this material.” Id. at 1-2. Further, MySpaee was allowed to unilaterally modify the terms of service, with such modifications taking effect upon the posting of notice on its website. Id. at 1. Thus, members would have to review the MSTOS each time they logged on to the website, to ensure that they were aware of any updates in order to avoid violating some new provision of the terms of service. Also, the MSTOS provided that “any dispute” between a visitor/member and MySpace “arising out of this Agreement must be settled by arbitration” if demanded by either party. Id. at 7.

At one point, MySpaee was receiving an estimated 230,000 new accounts per day and eventually the number of profiles exceeded 400 million with over 100 million unique visi*455tors worldwide. 11/21/08 Transcript at 74-75. “Generally speaking,” MySpace would not monitor new accounts to determine if they complied with the terms of service except on a limited basis, mostly in regards to photographic content. Id. at 75. Sung testified that there is no way to determine how many of the 400 million existing MiySpace accounts were created in a way that violated the MSTOS.9 Id. at 82-84. The MySpace website did have hyperlinks labeled “Safety Tips” (which contained advice regarding personal, private and financial security vis-a-vis the site) and “Report Abuse” (which allowed users to notify MySpace as to inappropriate content and/or behavior on the site). Id. at 51-52. MySpace attempts to maintain adherence to its terms of service. Id. at 60. It has different teams working in various areas such as “parent care” (responding to parents’ questions about this site), handling “harassmenVcyberbully cases, imposter profiles,” removing inappropriate content, searching for underage users, etc. Id. at 60-61. As to MySpace’s response to reports of harassment:

It varies depending on the situation and what’s being reported. It can range from ... letting the user know that if they feel threatened to contact law enforcement, to us removing the profile, and in rare circumstances we would actually contact law enforcement ourselves.

Id. at 61.

Once a member is registered and creates his or her profile, the data is housed on computer servers which are located in Los Angeles County. Id. at 53. Members can create messages which can be sent to other

MySpace members, but messages cannot be sent to or from other Internet service providers such as Yahoo!. Id. at 54. All communications among MySpace members are routed from the sender’s computer through the MySpace servers in Los Angeles. Id. at 54-55.

Profiles created by adult MySpace members are by default available to any user who accesses the MySpace website. Id. at 56. The adult members can, however, place privacy settings on their accounts such that only pre-authorized “friends” are able to view the members’ profile pages and contents. Id. For members over 16 but under 18, their profiles are by default set at “private” but can be changed by the member. Id. at 57. Members under 16 have a privacy setting for their profiles which cannot be altered to allow regular public access. Id. To communicate with a member whose profile has a privacy setting, one must initially send a “friend” request to that person who would have to accept the request. Id. at 57-58. To become a “friend” of a person under 16, one must not only send a “friend” request but must also know his or her email address or last name. Id. at 58.

According to Sung, MySpace owns the data contained in the profiles and the other content on the website.10 MySpace is owned by Fox Interactive Media which is part of News Corporation. Id. at 42.

III. APPLICABLE LAW A. F.R.CrimP. 29(c)

A motion for judgment of acquittal under F.R.Crim.P. 29(c) may be made by a *456defendant seeking to challenge a conviction on the basis of the sufficiency of the evidence, see, e.g., United States v. Freter, 31 F.3d 783, 785 (9th Cir.1994), or on other grounds including ones involving issues of law for the court to decide, see, e.g. United States v. Pardue, 983 F.2d 843, 847 (8th Cir.1993) (issue as to whether a defendant is entitled to a judgment of acquittal based on outrageous government conduct is “one of law for the court”). Where the Rule 29(c) motion rests in whole or in part on the sufficiency of the evidence, the evidence must be viewed “in the light most favorable to the government” (see Freter, 31 F.3d at 785), with circumstantial evidence and inferences drawn in support of the jury’s verdict. See United States v. Lewis, 787 F.2d 1318, 1323 (9th Cir.1986).

B. The CFAA

In 2006, the CFAA (18 U.S.C. § 1030) provided in relevant part that:

(a) Whoever—

(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains — •

(A) information contained in a financial record of a financial institution, or of a card issuer as defined in section 1602(n) of title 15, or contained in a file of a consumer reporting agency on a consumer, as such terms are defined in the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.);

(B) information from any department or agency of the United States; or

(C) information from any protected computer if the conduct involved an interstate or foreign communication^ [11]

shall be punished as provided in subsection (c) of this section.

(c) The punishment for an offense under subsection (a) or (b) of this section is — ■

* * * *

(2)(A) except as provided in subparagraph (B), a fine under this title or imprisonment for not more than one year, or both in the case of an offense under subsection (a)(2), (a)(3), (a)(5)(A)(iii), or (a)(6) of this section which does not occur after a conviction for another offense under this section or an attempt to commit an offense punishable under this subparagraph; ...

(B) a fine under this title or imprisonment for not more than 5 years, or both, in the case of an offense under subsection (a)(2), or an attempt to commit an offense punishable under this subparagraph, if—

(i) the offense was committed for purposes of commercial advantage or private financial gain;

(ii) the offense was committed in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or of any State; or

(iii) the value of the information obtained exceeds $5,000....

As used in the CFAA, the term “computer” “includes any data storage facility or communication facility directly related to or operating in conjunction with such device....” 18 U.S.C. § 1030(e)(1). The term “protected computer” “means a computer— (A) exclusively for the use of a financial institution or the United States Government ...; or (B) which is used in interstate or foreign commerce or communication____” Id. § 1030(e)(2). The term “exceeds authorized access” means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter ....” Id. § 1030(e)(6).

In addition to providing criminal penalties for computer fraud and abuse, the CFAA also states that “[A]ny person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief.” 18 U.S.C. § 1030(g). Because of the availability of civil remedies, much of the law as to the meaning and scope of the *457CFAA has been developed in the context of civil cases.

IV. DISCUSSION

A. The Misdemeanor 18 U.S.C. § 1030(a)(2)(C) Crime Based on Violation of a Website’s Terms of Service

During the relevant time period herein,12 the misdemeanor 18 U.S.C. § 1030(a)(2)(C) crime consisted of the following three elements:

First, the defendant intentionally [accessed without authorization] [exceeded authorized access of] a computer;

Second, the defendant’s access of the computer involved an interstate or foreign communication; and

Third, by [accessing without authorization] [exceeding authorized access to] a computer, the defendant obtained information from a computer ... [used in interstate or foreign commerce or communication]____

Ninth Circuit Model Criminal Jury Instruction 8.79 (2003 Ed.) (brackets in original).

In this case, a central question is whether a computer user’s intentional violation of one or more provisions in an Internet website’s terms of services (where those terms condition access to and/or use of the website’s services upon agreement to and compliance with the terms) satisfies the first element of section 1030(a)(2)(C). If the answer to that question is “yes,” then seemingly, any and every conscious violation of that website’s terms of service will constitute a CFAA misdemeanor.

Initially, it is noted that the latter two elements of the section 1030(a)(2)(C) crime will always be met when an individual using a computer contacts or communicates with an Internet website. Addressing them in reverse order, the third element requires “obtain[ing] information” from a “protected computer” — which is defined in 18 U.S.C. § 1030(e)(2)(B) as a computer “which is used in interstate or foreign commerce or communication....” “Obtaining] information from a computer” has been described as “‘includ[ing] mere observation of the data. Actual aspiration ... need not be proved in order to establish a violation____’ S.Rep. No. 99-432. at 6-7 (1986). reprinted at 1986 U.S.C.C.A.N. 2479, 2484.” Comment, Ninth Circuit Model Criminal Instructions 8.77.13 As for the “interstate or foreign commerce or communication” component, the Supreme Court in Reno v. American Civil Liberties Union, 521 U.S. 844, 849, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), observed that: “The Internet is an international network of interconnected computers.” See also Brookfield Communications v. West Coast Entertainment Corp., 174 F.3d 1036, 1044 (9th Cir.1999) (“The Internet is a global network of interconnected computers which allows individuals and organizations around the world to communicate and to share information with one another.”). The Ninth Circuit in United States v. Sutcliffe, 505 F.3d 944, 952 (9th Cir.2007), found the Internet to be “similar to — and often using — our national network of telephone lines.” It went on to conclude that:

We have previously agreed that “[i]t can not be questioned that the nation’s vast network of telephone lines constitutes interstate commerce,” United States v. Holder, 302 F.Supp. 296, 298 (D.Mont. 1969)), aff'd and adopted, 427 F.2d 715 (9th Cir.1970) (per curiam), and, a fortiori, it seems clear that use of the internet is intimately related to interstate commerce. As we have noted, “[t]he Internet engenders a medium of communication that enables information to be quickly, conveniently, and inexpensively disseminated to hundreds of millions of individuals worldwide.” United States v. Pirello, 255 F.3d 728 729 (9th Cir.2001). It is “comparable ... to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services,” ACLU, 521 U.S. at 853, 117 S.Ct. 2329, and is “a valuable tool in today’s commerce,” Pirello, 255 F.3d at 730. We are therefore in agreement with the Eighth Circuit’s conclusion that “[a]s both *458the means to engage in commerce and the method by which transactions occur, the Internet is an instrumentality and channel of interstate commerce.” United States v. Trotter, 478 F.3d 918, 921 (8th Cir.2007) (per curiam) (quoting United States v. MacEwan, 445 F.3d 237, 245 (3d Cir.2006)).

Id. at 952-53. Thus, the third element is satisfied whenever a person using a computer contacts an Internet website and reads any response from that site.

As to the second element (ie., that the accessing of the computer involve an interstate or foreign communication),14 an initial question arises as to whether the communication itself must be interstate or foreign (i.e., it is transmitted across state lines or country borders) or whether it simply requires that the computer system, which is accessed for purposes of the communication, is interstate or foreign in nature (for example, akin to a national telephone system).15 The term “interstate or foreign communication” is not defined in the CFAA. However, as observed in Patrick Patterson Custom Homes, Inc. v. Bach, 586 F.Supp.2d 1026, 1033 (N.D.Ill.2008), “[t]he plain language of section 1030(a)(2)(C) requires that the conduct of unlawfully accessing a computer, and not the obtained information, must involve an interstate or foreign communication.” See also Charles Schwab & Co. Inc. v. Carter, 2005 WL 2369815 at *8, 2005 U.S. Dist. LEXIS 21348 at *26 (N.D.Ill.2005). It has been held that “[a]s a practical matter, a computer providing a ‘web-based’ application accessible through the internet would satisfy the ‘interstate communication’ requirement.” Paradigm Alliance, Inc. v. Celeritas Technologies, LLC, 248 F.R.D. 598, 602 (D.Kan. 2008); see also Patrick Patterson Custom Homes, 586 F.Supp.2d at 1033-34; Modis, Inc. v. Bardelli 531 F.Supp.2d 314, 318-19 (D.Conn.2008); Charles Schwab & Co., 2005 WL 2369815 at *8, 2005 U.S. Dist. LEXIS 21348 at *26-27. This interpretation is consistent with the legislative history of the CFAA.16 Therefore, where contact is made between an individual’s computer and an Internet website, the second element is per se established.

As to the first element (ie. intentionally accessing a computer without authorization or exceeding authorized access), the primary question here is whether any conscious violation of an Internet website’s terms of service will cause an individual’s contact with the website via computer to become “intentionally accessing] ... without authorization” or “exceeding authorization.” Initially, it is noted that three of the key terms of the first element (ie., “intentionally,” “access a computer,” and “without authorization”) are undefined, and there is a considerable amount of controversy as to the meaning of the latter two phrases. See EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 582 n. 10 (1st Cir.2001) (“Congress did not define the phrase ‘without authorization,’ perhaps assuming that the words speak for themselves. The meaning, however, has proven to be elusive.”); Southwest Airlines Co. v. Board-*459First, L.L.C., 2007 WL 4823761 at *12-13, 2007 U.S. Dist. LEXIS 96230 at *36 (N.D.Tex.2007) (“BoardFirst ”) (“The CFAA. does not define the term ‘access’.”); Orin S. Kerr, Cybercrime’s Scope: Interpreting “Access” and “Authorization” in Computer Misuse Statutes, 78 N.Y.U.L.Rev. 1596, 1619-21 (2003) (“Kerr, Cybercrime’s Scope ”); Mark A. Lemley, Place and Cyberspace, 91 Cal. L.Rev. 521, 528-29 (2003); Dan Hunter, Cyberspace as Place and the Tragedy of the Digital Anticommons, 91 Cal. L.Rev. 439, 477 (2003).

While “intentionally” is undefined, the legislative history of the CFAA clearly evinces Congress’s purpose in its choice of that word. Prior to 1986, 18 U.S.C. § 1030(a)(2) utilized the phrase “knowingly accesses.” See United States Code 1982 Ed. Supp. Ill at 16-17. In the 1986 amendments to the statute, the word “intentionally” was substituted for the word “knowingly.” See 18 U.S.C.A. § 1030 “Historical and Statutory Notes” at 450 (West 2000). In Senate Report No. 99^432 at 5-6, reprinted at 1986 U.S.C.C.A.N. 2479, 2483-84, it was stated that:

Section 2(a)(1) amends 18 U.S.C. 1030(a)(2) to change the scienter requirement from “knowingly” to “intentionally,” for two reasons. First, intentional acts of unauthorized access — rather than mistaken, inadvertent, or careless ones — -are precisely what the Committee intends to proscribe. Second, the Committee is concerned that the “knowingly” standard in the existing statute might be inappropriate for cases involving computer technology____ The substitution of an “intentional” standard is designed to focus Federal criminal prosecutions on those whose conduct evinces a clear intent to enter, without proper authorization, computer files or data belonging to another. Again, this will comport with the Senate Report on the Criminal Code, which states that “ ‘intentional’ means more than that one voluntarily engaged in conduct or caused a result. Such conduct or the causing of the result must have been the person’s conscious objective.” [Footnote omitted.]

Under § 1030(a)(2)(C), the “requisite intent” is “to obtain unauthorized access of a protected computer.” United States v. Willis, 476 F.3d 1121, 1125 (10th Cir.2007) (“The government need not also prove that ... the information was used to any particular ends.”); see also S.Rep. No.104-357, at 7-8 (“[T]he crux of the offense under subsection 1030(a)(2)(C) ... is abuse of a computer to obtain the information.”).

As to the term “accesses a computer,” one would think that the dictionary definition of verb transitive “access” would be sufficient. That definition is “to gain or have access to; to retrieve data from, or add data to, a database.... ” Webster’s New World Dictionary, Third College Edition, 7 (1988) (henceforth “Webster’s New World Dictionary”). Most courts that have actually considered the issue of the meaning of the word “access” in the CFAA have basically turned to the dictionary meaning. See e.g. BoardFirst, 2007 WL 4823761 at *12-13, 2007 U.S. Dist. LEXIS 96230 at *36; Role Models Am., Inc. v. Jones, 305 F.Supp.2d 564, 566-67 (D.Md. 2004); Am. Online, Inc. v. Nat’l Health Care Discount, Inc., 121 F.Supp.2d 1255, 1272-73 (N.D.Iowa 2000). However, academic commentators have generally argued for a different interpretation of the word. For example, as stated in Patricia L. Bellia, Defending Cyberproperty, 79 N.Y.U.L.Rev. 2164, 2253-54 (2004):

We can posit two possible readings of the term “access.” First, it is possible to adopt a broad reading, under which “access” means any interaction between two computers. In other words, “accessing” a computer simply means transmitting electronic signals to a computer that the computer processes in some way. A narrower understanding of “access” would focus not merely on the successful exchange of electronic signals, but rather on conduct by which one is in a position to obtain privileges or information not available to the general public. The choice between these two meanings of ‘access’ obviously affects what qualifies as unauthorized conduct. If we adopt the broader reading of access, and any successful interaction between computers qualifies, then breach of policies or contractual terms purporting to outline permissible uses of a system can constitute unauthorized access to the system. Under the narrower reading of access, however, *460only breach of a code-based restriction on the system would qualify.

Professor Bellia goes on to conclude that “[c]ourts would better serve both the statutory intent of the CFAA and public policy by limiting its application to unwanted uses only in connection with code-based controls on access.” Id. at 2258. But see Kerr, Cybercrime’s Scope, 78 N.Y.U.L.Rev. at 1619-21, 1643, and 1646-48 (arguing for a “broad construction of access .... as any successful interaction with the computer”). It is simply noted that, while defining “access” in terms of a code-based restriction might arguably be a preferable approach, no case has adopted it17 and the CFAA legislative history does not support it.

As to the term “without authorization,” the courts that have considered the phrase have taken a number of different approaches in their analysis. See generally Kerr, Cybercrime’s Scope. 78 N.Y.U.L.Rev. at 1628-40. Those approaches are usually based upon analogizing the concept of “without authorization” as to computers to a more familiar and mundane predicate presented in or suggested by the specific factual situation at hand. See e.g. United States v. Phillips, 477 F.3d 215, 219 (5th Cir.), cert. denied, 552 U.S. 820, 128 S.Ct. 119, 169 L.Ed.2d 27 (2007), (“Courts have therefore typically analyzed the scope of a user’s authorization to access a protected computer on the basis of the expected norms of intended use or the nature of the relationship established between the computer owner and the user.”). Thus, for example, where a case arises in the context of employee misconduct, some courts have treated the issue as falling within an agency theory of authorization. See, e.g., International Airport Centers, L.L.C. v. Citrin, 440 F.3d 418, 420-21 (7th Cir.2006); Shurgard Storage Centers, Inc. v. Safeguard Self Storage, Inc., 119 F.Supp.2d 1121, 1124-25 (W.D.Wash.2000). Likewise, the Ninth Circuit (in dealing with the issue of purported consent to access emails pursuant to a subpoena obtained in bad faith in the context of the Stored Communications Act, 18 U.S.C. § 2701 et seq., and the CFAA) applied the law of trespass to determine whether a subpoenaed party had effectively authorized the defendants’ access. See Theofel v. Farey-Jones, 359 F.3d 1066, 1072-75, 1078 (9th Cir.2004). Further, where the relationship between the parties is contractual in nature or resembles such a relationship, access has been held to be unauthorized where there has been an ostensible breach of contract. See e.g., EF Cultural Travel BV, 274 F.3d at 583-84; Phillips, 477 F.3d at 221 (“[c]ourts have recognized that authorized access typically arises only out of a contractual or agency relationship.”). But see Brett Senior & Associates v. Fitzgerald, 2007 WL 2043377 at *4, 2007 U.S. Dist. LEXIS 50833 at *13-14 (E.D.Pa.2007) (observing — in the context of an employee’s breach of a confidentiality agreement when he copied information from his firm’s computer files to give to his new employer: “It is unlikely that Congress, given its concern ‘about the appropriate scope of Federal jurisdiction’ in the area of computer crime, intended essentially to criminalize state-law breaches of contract.”).

Within the breach of contract approach, most courts that have considered the issue have held that a conscious violation of a website’s terms of service/use will render the access unauthorized and/or cause it to exceed authorization. See, e.g., Southwest Airlines Co. v. Farechase, Inc., 318 F.Supp.2d 435, 439-40 (N.D.Tex.2004); Nat’l Health Care Disc., Inc., 174 F.Supp.2d at 899; Register.com, Inc. v. Verio, Inc., 126 F.Supp.2d 238, 247-51 (S.D.N.Y.2000), aff'd, 356 F.3d 393 (2d Cir.2004); Am. Online, Inc. v. LCGM, Inc., 46 F.Supp.2d 444, 450 (E.D.Va. 1998); see also EF Cultural Travel BV v. Zefer Corp., 318 F.3d 58, 62-63 (1st Cir.2003) (“A lack of authorization could be established by an explicit statement on the website restricting access____ [W]e think that the public website provider can easily spell out explicitly what is forbidden.... ”). But see BoardFirst, 2007 WL 4823761 at *13-14, 2007 U.S. Dist. LEXIS 96230 at *40 (noting that the above cases and their particular application of the law “have received their share of criticism from eommenta*461tors”). The court in BoardFirst farther stated:

[It] is at least arguable here that Board-First’s access of the Southwest website is not at odds with the site’s intended function; after all, the site is designed to allow users to obtain boarding passes for Southwest flights via the computer. In no sense can BoardFirst be considered an “outside hacker[] who break[s] into a computer” given that southwest.com is a publicly available website that anyone can access and use. True, the Terms posted on southwest.com do not give sanction to the particular manner in which BoardFirst uses the site — to check in Southwest customers for financial gain. But then again § 1030(a)(2)(C) does not forbid the use of a protected computer for any prohibited purpose; instead it prohibits one from intentionally accessing a computer “without authorization”. As previously explained, the term “access”, while not defined by the CFAA, ordinarily means the “freedom or ability to ... make use of’ something. Here BoardFirst or any other computer user obviously has the ability to make use of southwest.com given the fact that it is a publicly available website the access to which is not protected by any sort of code or password. Cf. Am. Online, 121 F.Supp.2d at 1273 (remarking that it is unclear whether an AOL member’s violation of the AOL membership agreement results in “unauthorized access”).[18]

Id. at 2007 WL 4823761 at *14-15, 2007 U.S. Dist. LEXIS 96230 at 43-44 (emphasis in original).

In this particular case, as conceded by the Government,19 the only basis for finding that Drew intentionally accessed MySpace’s computer/servers without authorization and/or in excess of authorization was her and/or her co-conspirator’s violations of the MSTOS by deliberately creating the false Josh