CFAA: Internet Activists Win First-Round Victory In Fight Over Anti-Hacking Law


WASHINGTON — Internet activists won a major victory this week when House Republicans put the brakes on an effort to vote on reforms to federal anti-hacking laws. The reforms had become a legislative flashpoint in the wake of the death of Aaron Swartz, an Internet activist who was facing a bevy of charges under the controversial Computer Fraud and Abuse Act (CFAA) before committing suicide in January.

A House subcommittee with jurisdiction over the law, chaired by Rep. Jim Sensenbrenner (R-Wisc.), had planned to vote on a reform of the bill next week as part of a House Republican legislative flurry they dubbed "Cyber Week," according to both Republican and Democratic aides on the panel. However, the bill was pulled back because of pressure from the Internet community. "It was going to be part of Cyber Week," confirmed a GOP committee aide. "There were some concerns that we felt were worth going back and addressing." He added that there is "no timeline" set to bring the bill back.

The CFAA is loosely interpreted by prosecutors and criminalizes a sweeping range of online behavior, much of it entirely benign and committed by people who would be stunned to learn they are committing felonies that could land them in prison for decades — such as violating terms of service that very few people actually read. While most of that behavior doesn't get prosecuted, if the DoJ decides it wants to target a certain person, it is relatively easy to find a host of charges that could stick — or at least that are threatening enough to coerce a guilty plea, as the prosecution attempted with Swartz.

The flurry of lobbying against the new bill, which advocates said would make the CFAA even more dangerous in the hands of zealous prosecutors, included a left-right alliance that organized action on and sent a letter to Congress signed by a wide range of groups spanning the political spectrum. Open-Internet activists say they want the CFAA reformed, not expanded, and lobbied on the issue intensely for weeks.

The move to pull back plans to change CFAA is another indication of the growing strength of the cyber community, which first flexed its muscles in a public way to block SOPA, a bill that would have handed much more control of the Internet to government and its corporate allies.

Swartz played a leading role in thwarting SOPA. He was facing 13 felony charges, 11 of them stemming from the CFAA, for attempting to download millions of academic articles from the database JSTOR with the alleged purpose of posting them online for free. JSTOR asked that the Department of Justice not press charges, but prosecutors went ahead anyway, demanding he plead guilty to all charges and serve a sentence. If Swartz refused the offer and fought the charges in court, prosecutor Stephen Heymann threatened that he would seek up to seven years in prison, according to Swartz' lawyer, Elliot Peters, and Swartz' partner, Taren Stinebrickner-Kauffman. The Justice Department is now offering a different story to Congress and to the media, insisting they never intended for Swartz to serve more than a short sentence. U.S. Attorney General Eric Holder, in testimony to Congress, said the case was "a good use of prosecutorial discretion." Members of both parties have been much less generous in their assessments of the performance of U.S. Attorney Carmen Ortiz and prosecutor Stephen Heymann, whose careers have been stunted by their involvement in the effort.

Those who knew Swartz are certain that the prosecution played a major role in his suicide.

Swartz' death has focused attention on the CFAA and changed the political dynamic around the law. "Prior to six months ago, people kind of knew what the CFAA was, but truly there wasn't a ton of understanding of that law until the death of Aaron Swartz," said a Democratic committee aide who is not authorized to speak on the record. "That suddenly threw a light on CFAA and how it can be abused and is being abused. Suddenly there was more public awareness, certainly more education here in Congress."

Written By: Ryan Grim
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  1. I have always hated the ” by clicking continue, you agree to the terms and conditions” button. This is the evolved parasite of “fine print”. It is not just that I do not like to waste time reading them, what I really object to is that :-

    1- the terms are unnecessarily complicated. (like holy books)

    2- The terms are unfair often hidden in complex and misleading language. (like holy books)

    3- It includes terms which are completely irrelevant and self contradictory. (like holy books)

    Am I getting paranoid?

  2. In reply to #2 by old-toy-boy:

    Am I getting paranoid?

    Maybe, and if so, it wouldn’t mean they’re not out to get you. (cf. Kurt Cobain)

  3. I’m all for open internet, though it sure would be nice if someone went after those jackasses who hacked this site a while back.

  4. In reply to #1 by Nodhimmi:

    Government hacking would be exempt, of course?

    Some. And probably more corporate hacking. Either they’ll be “too big to prosecute”, or the cost of fines will rolled into that of “doing business” and be no deterrent.

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