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SCOTUS Rejects Review of Password Sharing Hacking Cases

By George Khoury, Esq. on October 11, 2017 | Last updated on March 21, 2019

A pair of closely watched tech cases which were expected to be taken up by SCOTUS have been denied certiorari. Both Facebook v. Powers and U.S. v. Nosal were expected to be taken up in order for the High Court to settle, once and for all, the question that has been killing legal scholars ever so softly: Is it a federal crime to share your Netflix password?

The actual question that needs to be answered definitively is who has the authority to grant third party access to a user's online service account: the user or the service provider? Or, in more modern terms that any millennial would understand: Does a Netflix user have the authority to share their password with another person, or is doing so a federal crime (thanks to the Netflix Terms of Service)?

What This Rejection Means?

Right now, since SCOTUS has rejected review, it seems that the letter of law makes sharing a Netflix password a federal crime under the CFAA.

However, notably, the Ninth Circuit addressed a different set of facts in both cases. Neither case involved an individual who shared his Netflix password with out of state family. Rather, the Powers case involved a company scraping data from Facebook using the authorization, usernames, and passwords, of Facebook's users (who knowingly provided access), even after Facebook sent a formal demand for Powers to cease and desist. And the Nosal case involved the theft of trade secret data by gaining access to an ex-employer's database through current employees who willingly provided access.

Is the Netflix Party Over?

In case you were worried about your chill getting harshed, no federal task force has been set up to track down and prosecute the streaming service account sharers. Though, seemingly in anticipation of the news (or not) Netflix announced a price hike to its service offerings.

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