The tragedy of the suicide of Internet activist Aaron Swartz shines a spotlight on profound flaws in the Computer Fraud and Abuse Act. According to the Electronic Frontier Foundation, current hacking laws are too broad and too vague, and the penalties are too heavy-handed.
UPDATE from EFF: Aaron Swartz’s Work, Computer Crime Law, and “The Internet’s Own Boy” (27 August 2014)
(EFF/IFEX) – January 14, 2013 – 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 the Massachusetts Institute of Technology’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, 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 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 infamous example is United States v. Drew, a case in which a woman created a fake MySpace page to taunt a teenage girl. The girl became distraught and committed suicide. No crime made the bullying itself illegal, so prosecutors charged Drew under the CFAA, claiming her fake profile violated MySpace’s terms of use, which made her access to the social networking site’s computers “unauthorized.”
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.
The judge ultimately reached the right result, finding that Drew didn’t violate the CFAA just because she breached MySpace’s terms of use.
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. 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 a more recent precedent, that theory of criminal liability is dubious at best.
The prosecutors also made more technical claims that Aaron registered as a guest on the MIT network under a pseudonym, bypassed IP blocks, and spoofed his laptop’s MAC address to avoid detection on the MIT network. Respected information security expert Alex Stamos, who would have testified at trial, has debunked the idea that these practices amounted to the grim hacking scheme suggested by the government, especially because MIT purposely maintains an open network. Stamos concluded:
Aaron Swartz was not the super hacker breathlessly described in the Government’s indictment and forensic reports, and his actions did not pose a real danger to JSTOR, MIT or the public. He was an intelligent young man who found a loophole that would allow him to download a lot of documents quickly. This loophole was created intentionally by MIT and JSTOR, and was codified contractually in the piles of paperwork turned over during discovery.
The Justice Department’s press release announcing Aaron’s indictment suggests the true motivation for pursuing the case was that Aaron downloaded academic literature from JSTOR and planned to make it available to the public for free as a political statement about access to knowledge. According to United States Attorney Carmen M. Ortiz, “Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away.” And the CFAA’s vague language and broad reach helped to give the government the means to bring a criminal prosecution, even though the situation would have been better resolved privately among Aaron, JSTOR, and MIT.
It’s time for Congress to amend the CFAA to clarify what counts as access “without authorization” and what doesn’t. This will help ensure prosecutors can’t use the law to bring arbitrary cases against people they simply don’t like.
Problem 2: Hacking laws have far too heavy-handed penalties
