Abstract
In Van Buren v. United States, the Supreme Court adopted a “gates-up-or-down” analogy from physical trespass law to define “authorization” under the Computer Fraud and Abuse Act (CFAA). Despite historical shifts in judicial interpretation, courts have recently relied on this binary framework to interpret authorization as it applies to online trespass. But courts have struggled to apply this binary inquiry while still accounting for complications in modern authentication technologies. When pursuing a code-based inquiry based on the gates-up-or-down analogy, courts risk oversimplifying the dynamic nature of online trespass. Such an approach fails to account for how modern authentication measures—such as CAPTCHAs, unsearchable URLs, and compromised passwords—blur the line between public and private information. This Note argues that the gates-up-or-down framework is inadequate in defining authorization in online trespass and calls for a more balanced approach that looks beyond a code-based inquiry.
Citation
Yucen Zhong, The Myth of Sufficient Technological Barriers: Reevaluating the "Gates-Up-or-Down" Analogy in Data Scraping, 26 Duke Law & Technology Review 87-110 (2026)
Available at: https://scholarship.law.duke.edu/dltr/vol26/iss1/4