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Financial Services Law Insights and Observations

DOJ will not charge researchers who report cybersecurity flaws in “good faith”

Agency Rule-Making & Guidance DOJ Computer Fraud and Abuse Act Privacy/Cyber Risk & Data Security

Agency Rule-Making & Guidance

On May 19, the DOJ revised its policy for charging cases under the Computer Fraud and Abuse Act (CFAA), directing prosecutors to not charge researchers who report cybersecurity flaws in “good faith.” The policy directive informs prosecutors that the DOJ will not prosecute security researchers that access computers “solely for purposes of good-faith testing, investigation, and/or correction of a security flaw or vulnerability, where such activity is carried out in a manner designed to avoid any harm to individuals or the public.” Instead, the policy directive focuses the DOJ’s resources “on cases where a defendant is either not authorized at all to access a computer or was authorized to access one part of a computer— such as one email account—and, despite knowing about that restriction, accessed a part of the computer to which his authorized access did not extend, such as other users’ emails.” The new policy directive explains, however, that “claiming to be conducting security research is not a free pass for those acting in bad faith,” and provides that “discovering vulnerabilities in devices in order to extort their owners, even if claimed as ‘research,’ is not in good faith.”

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