How To Honor Aaron Swartz
In the wake of the brilliant technology activist's death, let's fix the draconian Computer Fraud and Abuse Act.
Outpourings of grief and calls for change continue to flood the Internet after the suicide of Aaron Swartz, only 26 years old.
Aaron was one of our community's best and brightest, and he achieved great heights in his short life. He was a coder, a political activist, an entrepreneur, a contributor to major technological developments (like RSS), and an all-around Internet freedom rock star. As Wired noted, the world will miss out on decades of magnificent things Aaron would have accomplished had his time not been cut short.
Over the past two years, Aaron was forced to devote much of his energy and resources to fighting a relentless and unjust felony prosecution brought by Justice Department attorneys in Massachusetts. His alleged crimes stemmed from using MIT's computer network to download millions of academic articles from the online archive JSTOR, allegedly without "authorization." For that, he faced 13 felony counts of hacking and wire fraud (PDF), which carried the possibility of decades in prison and crippling fines. His case would have gone to trial in April.
The government should never have thrown the book at Aaron for accessing MIT's network and downloading scholarly research. However, some extremely problematic elements of the law made it possible. We can trace some of those issues to the U.S. criminal justice system as an institution, and I suspect others will write about that in the coming days. But Aaron's tragedy also shines a spotlight on a couple of profound flaws of the Computer Fraud and Abuse Act in particular and gives us an opportunity to think about how to address them.
Problem 1: Hacking laws are too broad, and too vague
Among other things, the CFAA makes it illegal to gain access to protected computers "without authorization" or in a manner that "exceeds authorized access." Unfortunately, the law doesn't clearly explain what a lack of "authorization" actually means. Creative prosecutors have taken advantage of this confusion to craft criminal charges that aren't really about hacking a computer but instead target other behavior the prosecutors don't like.
An obvious problem with this argument is that it would mean anyone who runs afoul of a web site's fine print is a criminal—and many of us intentionally or unintentionally violate those agreements every day. Prosecutors wouldn't bother filing criminal charges against most of us, of course. But if they wanted to, they would have the leeway to do it under the government's theory.
But other criminal defendants haven't been so lucky.
In November, a jury convicted Andrew Auernheimer after someone else wrote a script to collect thousands of iPad owners' email addresses—which AT&T had failed to secure. Auernheimer's involvement in the "hack" appears to have been primarily telling journalists about then vulnerability after the fact (PDF). He plans to appeal the conviction.
It's possible that Auernheimer's unsympathetic reputation as an Internet troll played a role in the government's decision to indict him. And the CFAA's vague and overbroad language gave the jury an excuse to punish someone who didn't carry out anything remotely resembling a serious computer intrusion, even though that's the concern that caused Congress to criminalize "unauthorized" access in the first place.
Let's be clear: Being an unsympathetic person is not a computer crime.
Most of the government's charges against Aaron alleged "unauthorized" access. We'll never know exactly how prosecutors planned to argue at trial that Aaron's access to JSTOR and the MIT network was "unauthorized." However, the allegations in the indictment suggest the case was based at least in part on the idea that Aaron violated JSTOR and MIT's network rules and user agreements. Under Drew and more recent precedent(PDF), that theory of criminal liability is dubious at best.
Marcia Hofmann is a senior staff attorney at the Electronic Frontier Foundation, where she works on a broad range of civil liberties issues including computer security, electronic privacy, free expression, and copyright. She is also a non-residential fellow at the Stanford Law School Center for Internet and Society and an adjunct professor at the University of California Hastings College of the Law. She tweets about law and technology issues at @marciahofmann.