The EFF is Wrong About Aaron Swartz, But Right About the CFAA

A newsletter today from the Electronic Frontier Foundation (EFF) proclaims, “Help us save the next Aaron Swartz.”  But, when you click through to their webpage, Fix the CFAA, most of the criticism is about: “The Justice Department thinks the CFAA [Computer Fraud and Abuse Act, Title 18, United States Code, Section 1030, et seq.] criminalizes violations of website terms of service and employer computer use policies. Don’t let the government turn a private contract into one policed by federal law.”

As Professor Orin Kerr (a highly respected source) points out, the charges are NOT that Mr. Swartz exceeded his authorization to the expensive JSTOR database.  Rather, the charges were that Mr. Swartz tried multiple attempts to download the data from an Institution with which he did not have an account, and ultimately was successful only after physically breaking into a closet in the basement of MIT and connecting directly to MIT’s network while concealing his computer under a box.  Allegedly, he was caught on video tape using a mask to conceal his identity, and he fled when police attempted to stop him.  This is simply not a case, as the EFF puts it, of attempting to impose “criminal penalties for violating a website’s fine print.”

I agree with the EFF that reasonable limits should be placed upon interpreting the law’s prohibition of “unauthorized access or access exceeding authorization” such that violations of obscure user agreements do not become Federal crimes punishable by lengthy imprisonment.  On the other hand, using Aaron Swartz as a cause célèbre for that argument is akin to arguing for lower penalties for unknowing simple trespass because an alleged burglar and large-scale thief sadly committed suicide after being charged for burglary and theft, not simple trespass.  The one just does not follow from the other.

To be fair, here is a response to Orin Kerr from thepublicdomain.org.

The Indictment alleges (meaning that the Grand Jury found probable cause to believe) that Swartz:

“enter[ed] a restricted network interface closet in the basement of MIT’s Building 16, plugging the computer directly into the network, and operating the computer to assign itself two IP addresses. … On January 4, 2011, Swartz entered the restricted basement network wiring closet and replaced an external hard drive attached to the laptop. … On January 6, 2011, Swartz returned to the wiring closet to remove his computer equipment.  This time he attempted to evade identification at the entrance to the restricted area.  Apparently aware of or suspicious of a video camera, as Swartz entered the wiring closet, he held his bicycle helmet like a mask to shield his face, looking through ventilation holes in the helmet.”

Read the whole Indictment for yourself.

My ultimate point is that mixing Aaron Swartz with the effort to amend the CFAA is counterproductive.  Congress is highly unlikely to countenance the conduct the Indictment alleges, so mixing the two reduces the chances of getting much-needed limitations on prosecuting trivial violations of obscure user agreements as serious felonies.  I am encouraging the EFF to continue to fight for “No more criminal penalties for violating a website’s fine print” while ending attempts to convince the world that the Indictment of Aaron Swartz charges something other than very serious criminal behavior.

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Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

Ryan D. WhiteRyan is currently a third year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic. Full biography

Shelby E. Mann

Ryan D. WhiteShelby is a second year law student at the Syracuse University College of Law. She is the 2018-9 Editor in Chief of the Syracuse Law Review, as well as a member of the Journal on Terrorism and Security Analysis, and the senior editor for the Syrian Accountability Project. During her final year at the University of Missouri, she served as a full-time news producer for ABC 17 News. Shelby spent her first summer of law school at the Shelby County District Attorney General's Office in Memphis, Tenn., in the Public Corruption and Economic Crimes Unit. Full biography

Christopher w. FolkChristopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Anna Maria Castillo

Anna Maria Castillois 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She wrote for this blog when a student. She is now a member of the U.S. Army Judge Advocate General's Corps.

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography

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