Netflixers' Worst Case Scenario

By Victoria Robertson on July 16, 2016
We all watch Netflix. Like, a little bit too much. For most of us, Netflix is a great way to unwind: we get to sit back, relax and binge on some of the most popular TV shows from the past and some even better current ones as well.

And that’s not even mentioning the hours we spend searching for the perfect film for our movie nights.

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With Netflix, DVDs and theaters are becoming obsolete, as we don’t need to leave the comfort of our couch to watch quality television. And we certainly don’t have to pay those increasingly ridiculous cable bills.

But that free ride might be over soon, as a new opinion passed by the U.S. Ninth Circuit Court of Appeals would greatly limit the number of Netflix users.

Many Netflix users share their password with friends and family to save everyone some money. This might be going away in the near future.

On July 5, under the Computer Fraud and Abuse Act (CFAA), the Court of Appeals rules that sharing passwords is a crime that could be prosecutable, at least, in part. If this was the case, then everyone that has ever shared a Netflix password would now be “unwitting federal criminals.”

So why in God’s name did this issue ever get raised?

You can thank David Nosal.

Nosal was a headhunter for firm Korn/Ferry International. He left said firm back in 2004 because he was denied a promotion. He continued on at the firm as a contractor, but in the meantime, he was ready to launch a competing search firm, bringing along several other employees with him.

When he left the firm, his computer access to the firm’s information was revoked, but he continued to access it to profit from the information in his competing firm. His company continued to access the Korn/Ferry database using the information from one of the employees still active at the firm.

When the firm found out where their clients were being stolen from, Nosal was charged with conspiracy, trade secret theft and three different counts under the CFAA.

And the charges stuck.

He was sentenced to time in prison, probation and a total of about $900,000 in restitution and additional fines. The conviction was on the basis that anyone who “knowingly and with intent to defraud, accesses a protected computer without authorization” would be criminalized under a clause under the CFAA.

So while first and foremost, the CFAA is largely known as an anti-hacking law, specific clauses such as this one is applied in cases that fall short of specific tampering in systems. So simply getting around the law by doing the bare minimum in terms of tampering with systems is no longer going to save you from being charged.

This, however, is not always a good thing.

When people aren’t ripping off their past employers, other, technically innocent individuals are being charged with violations that don’t quite fit.

For instance, Aaron Swartz, a young programmer and research fellow at MIT, was charged under the CFAA in violation of the Terms of Service agreement set forth by MIT. Swartz was using the MIT database to mass-download research papers from the database, which is in violation with the database’s terms of service.

Even though Swartz was authorized to use said database, he was charged due to being in violation of the Terms of Service.

He committed suicide shortly after.

Following this incident, and many others like it, the law is largely disliked. Tim Wu, writer at The New Yorker, described it as “the worst law in technology.”

And he isn’t alone.

In fact, one of the Ninth Circuit judges, Stephen Reinhardt, agrees with this view. He is the judge with a dissenting opinion. He agreed in convicting Nosal for his trade secret violations, but he also stated that implementing this ruling would technically mean that “consensual password sharing” would be a prosecutable offense in future cases.

His dissenting opinion was largely due to foresight, as it’s more than likely cases of password sharing (albeit, of much lesser consequence) will be brought up, and the prosecutors will expect similar verdicts.

Reinhardt stated that the decision in Nosal’s case “loses sight of the anti-hacking purpose of the CFAA, and … threatens to criminalize all sorts of innocuous conduct engaged in daily by ordinary citizens.”

So essentially, what Reinhardt fears, and what will probably become a much bigger issue, is that sharing passwords on your Netflix or Hulu accounts or even sharing the passwords for HBO Go and other streaming sites, will be considered federal offenses.

And while the average Joe probably isn’t going to face these charges (unless you have a very angry ex with lots of money to lose), this is still a potential problem that all Netflix and such users should be keeping in mind.

In other words, don’t share your passwords. Or, if you do, make sure you’re sharing them with trustworthy people, or you know what the consequences might be.

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