In the American case, the interpretation of the CFAA under Van Buren (2021) would provide at least the defense that one does not violate the law if there is no

In the American case, the interpretation of the CFAA under Van Buren (2021) would provide at least the defense that one does not violate the law if there is no meaningful authorization scheme in place to determine what constitutes "exceeds authorized access". This may sound pedantic but when reporting on the decision much of the non-specialist media seemed to have failed to appreciate that in order to determine what conduct exceeds authorized access, it's necessary to be able to determine where authorized access starts and ends in every case as a factual matter, and the courts essentially threw out the theory that one can simply use a non-technological solution (like a very broad ToS) as a backstop and require some sort of notice and specificity. I don't think the mere fact that such a technological scheme can be erected is relevant since in theory you can put in some sort of basic authorization scheme - including basic HTTP authorization - around pretty much anything accessible via the protocol, but anything beyond a showing of actually putting such an authorization scheme in place, there's no real way to determine the unimplemented intent of some company in a way with any certainty. It's Orin Kerr's "gate-up-gate-down" theory - you need to have a gate in place to start with, instead of just a space where a gate can go or the assumption where a gate should be to figure out whether the gate is up or down, and without that determination one cannot meet all of the elements required to prove a violation of the statute. I wouldn't even consider this "hacking" really. If prosecuted a defense attorney familiar with both the technology and the admitted niche area of computer crime law can readily conduct some very effective cross-examination against whoever the state is bringing out as a witness. The government does frequently rely on the lack of tech-competent and accessible counsel as a way to exert coercion (and usually resulting in a plea), and it doesn't help that the layperson has a very difficult time figuring out what qualities constitute competency when looking for attorneys (hence the enduring popularity of jingles since being memorable is frequently mistaken for being competent), but they are out there.