The Computer Fraud and Abuse Act (CFAA) was first drafted in 1984 as a response to computer crime. The government's response to network security and network-related crimes was to revise the act in 1994 under the Computer Abuse Amendments Act to cover crimes such as trespassing (unauthorized entry) into an online system, exceeding authorized access, and exchanging information on how to gain unauthorized access. Although the act was intended to protect against attacks in a network environment, it does also have its fair share of faults. The IT auditor must be aware of it significance.
Under this act, penalties are obviously less severe for "reckless destructive trespass" than for "intentional destructive trespass." The reasoning behind this is that reckless attackers may not necessarily intend to cause damage, but must still be punished for gaining access to places that they should not have access to. However, the impact of such terminology appears to possibly create some confusion in prosecuting the trespasser because it resides in such a "gray area." In Morris v. United States, it was determined that "intent" applied to access and not to damages. The implication here would be that if the "intentional" part of the violation was applied to access and not the damage, then the culprit could possibly be prosecuted under the lesser sentence.
For example, if an individual intentionally intended to release a virus over a network, it would seem difficult for prosecutors to prove the motive for the violation. What if the individual stated that he or she was conducting some type of security test (as Morris contested) and "accidentally" set off a procedure that released a virus over the network? Intentional could refer to access to a system but it may not apply to damage. In this case, the lesser penalty of "reckless destructive trespass" may be applied. Within the courts, this is a matter that must be contemplated on a case-by-case basis, observing the facts of each individual case. In some instances, however, it would appear that even "intentional" trespass could be defended by claims that the violation was due to negligence and therefore falls under the less severe of the two circumstances.
This legislation has been helpful as a legal tool for prosecuting crimes involving some of the aforementioned intruders and violators of system security, but it also seems to have a loophole in certain cases. Unfortunately, this loophole may be large enough for a serious violator of the act to slip through and be prosecuted under a lesser penalty by virtue of having to prove intent. All states have closed a portion of that loophole through statutes prohibiting harassment or stalking, including "e-mail." This act has been amended several times since 1984 to keep it current.