Tenth Circuit Broadens CFAA ‘Loss’ Beyond Technological Harm–Moxie v. Nielsen (Guest Blog Post)

by guest blogger Kieran McCarthy After the Supreme Court’s first and only CFAA decision in Van Buren v. US in 2021, I wrote that the Court “could have done 10% more work here and provided clarity on very key questions….[but SCOTUS] declined the opportunity to do so. In the end, there are remarkably few clear, declarative sentences in this opinion that provide guidance for future cases.” The Court intentionally left open many key questions. And so it should come as no surprise that there has been an emerging doctrinal divergence related to key concepts with the CFAA. Perhaps most notably, Courts have been applying the concept of “technological harm” in the CFAA differently in different circuits. In Van Buren, Justice Barrett wrote: …§1030(a)(2) also gives rise to civil liability, §1030(g), with the statute defining ‘damage’ and ‘loss’ to specify what a plaintiff in a civil suit can recover. ‘[D]amage,’ the statute provides, means ‘any impairment to the integrity or availability of…