The 9th circuit, followed by the 4th, has been limiting the CFAA's scope precisely due to the concern about prosecutorial abuse and criminalizing simple unauthorized system access. I wonder if this case would have moved forward if the alleged events happened in San Francisco.
From US v. Nosal, 676 F. 3d 854 (9th Cir.):
"The government assures us that, whatever the scope of the CFAA, it won't prosecute minor violations. But we shouldn't have to live at the mercy of our local prosecutor. Cf. United States v. Stevens, ___ U.S. ___, 130 S.Ct. 1577, 1591, 176 L.Ed.2d 435 (2010) ("We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly."). And it's not clear we can trust the government when a tempting target comes along. Take the case of the mom who posed as a 17-year-old boy and cyber-bullied her daughter's classmate. The Justice Department prosecuted her under 18 U.S.C. ยง 1030(a)(2)(C) for violating MySpace's terms of service, which prohibited lying about identifying information, including age. See United States v. Drew, 259 F.R.D. 449 (C.D.Cal.2009). Lying on social media websites is common: People shave years off their age, add inches to their height and drop pounds from their weight. The difference between puffery and prosecution may depend on whether you happen to be someone an AUSA has reason to go after.
In United States v. Kozminski, 487 U.S. 931, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988), the Supreme Court refused to adopt the government's broad interpretation of a statute because it would "criminalize a broad range of day-to-day activity." Id. at 949, 108 S.Ct. 2751. Applying the rule of lenity, the Court warned that the broader statutory interpretation would "delegate to prosecutors and juries the inherently legislative task of determining what type of ... activities are so morally reprehensible that they should be punished as crimes" and would "subject individuals to the risk of arbitrary or discriminatory prosecution and conviction." Id. By giving that much power to prosecutors, we're inviting discriminatory and arbitrary enforcement."
From US v. Nosal, 676 F. 3d 854 (9th Cir.):
"The government assures us that, whatever the scope of the CFAA, it won't prosecute minor violations. But we shouldn't have to live at the mercy of our local prosecutor. Cf. United States v. Stevens, ___ U.S. ___, 130 S.Ct. 1577, 1591, 176 L.Ed.2d 435 (2010) ("We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly."). And it's not clear we can trust the government when a tempting target comes along. Take the case of the mom who posed as a 17-year-old boy and cyber-bullied her daughter's classmate. The Justice Department prosecuted her under 18 U.S.C. ยง 1030(a)(2)(C) for violating MySpace's terms of service, which prohibited lying about identifying information, including age. See United States v. Drew, 259 F.R.D. 449 (C.D.Cal.2009). Lying on social media websites is common: People shave years off their age, add inches to their height and drop pounds from their weight. The difference between puffery and prosecution may depend on whether you happen to be someone an AUSA has reason to go after.
In United States v. Kozminski, 487 U.S. 931, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988), the Supreme Court refused to adopt the government's broad interpretation of a statute because it would "criminalize a broad range of day-to-day activity." Id. at 949, 108 S.Ct. 2751. Applying the rule of lenity, the Court warned that the broader statutory interpretation would "delegate to prosecutors and juries the inherently legislative task of determining what type of ... activities are so morally reprehensible that they should be punished as crimes" and would "subject individuals to the risk of arbitrary or discriminatory prosecution and conviction." Id. By giving that much power to prosecutors, we're inviting discriminatory and arbitrary enforcement."
*disclaimer: I am not a lawyer