The great divide: Reforming the CFAA

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Rep. Zoe Lofgren wants to "prevent the kind of abusive prosecution directed at Aaron Swartz."
Rep. Zoe Lofgren wants to "prevent the kind of abusive prosecution directed at Aaron Swartz."

Aaron Swartz's death inspired Rep. Zoe Lofgren to want to reform the federal anti-hacking law, but some security pros worry this would sterilize a potent enforcement weapon, reports Dan Kaplan.

Eight days after Aaron Swartz hanged himself in his apartment, the woman he wanted to marry walked to the podium in the Great Hall at Cooper Union in Manhattan – the same stage where, in 1860, President Lincoln delivered one of his most memorable addresses decrying the spread of slavery – to not only mourn her partner's unthinkable death and examine his legacy, but to describe how he himself was a captive – a prisoner, she said, of the “deeply dysfunctional” U.S. criminal justice system.

“Last Friday, he faced the prospect of yet another three months of uncertainty and ups and downs and being forced by the government to spend every fiber of his being on this damnable, senseless trial with no guarantee that he could exonerate himself at the end of it,” Taren Stinebrickner-Kauffman told a plaintive crowd, the sadness in the packed auditorium clearly palpable even to someone who had never met Swartz and only was marginally familiar with his work. “He was so scared and so frustrated and so desperate, and more than anything else, just so weary. I think he just couldn't take it another day.”

Nobody knows for sure what ultimately catalyzed Swartz, who was 26 when he died and had reportedly battled depression for many years before that, to tighten the noose. But his passing was equal parts tragic, troubling and energizing. Since the suicide of Swartz, the Reddit co-founder, RSS creator and political activist, his circumstance has become a cause célébre for critics of a federal computer crime law they believe has run amok. His death quickly garnered the attention of some members of Congress – Swartz was well-known in political circles for his work to end the controversial Stop Online Piracy Act (SOPA), which was shelved last year. 

It was during that campaign that he met Rep. Zoe Lofgren, a Democrat who represents California's 19th congressional district. Lofgren, also a SOPA opponent, was impressed by Swartz. And in the days following his death, she unveiled, fittingly on Reddit, a draft of “Aaron's Law,” which seeks to reform and update the 29-year-old Computer Fraud and Abuse Act (CFAA), the federal anti-hacking statute under which Swartz was prosecuted – and, many believe, bullied.

“I met him along with a lot of other technologists who were incredibly smart and committed to public service,” Lofgren recalls. “[When I heard he died], I felt very badly for him, his family, as well as the country."

Swartz one day dreamed of perhaps working in the White House, believing that his prodigious technical ability and creative genius could translate into crusading for policy reform. He was particularly interested in topics that exploited the downtrodden and the marginalized, issues like health care, financial corruption and the drug war. Among his many pursuits, Swartz had served as an intern at Rep. Alan Grayson's office, where his colleague at the time, Matthew Stoller, would later remember how Swartz, as a developer, “broke politics down and systematically attempted to understand the system. Aaron learned, tried, gabbed and then built.”

Yet, in a cruel twist of irony, the very system he sought to join ultimately worked against him, the victim of what many believe is an outdated, draconian even, law: the CFAA. Swartz had faced decades in prison, but even if he had agreed to plead guilty and accept a minimal sentence, perhaps as little as a few months in prison, he still would have carried with him the stigma of felon for the rest of his life, something that would forever bar him from holding an influential policy position within the Beltway. To those who knew him well, that was a crushing prospect.

The story of Aaron Swartz's aggressive prosecution by the U.S. attorney's office is a well-known one. In 2011, he allegedly broke into a wiring closet to access the computer network at the Massachusetts Institute of Technology. Then, thanks to an automated script he wrote, he downloaded millions of academic journals from subscription-based academic research repository JSTOR, which he believed should be lifted from corporate control and into the domain of the public – for free. He was slapped with 13 felony counts, 11 under the CFAA.

But some believe such a heavy-handed prosecution was exactly the plan all along for a boat-rocking activist like Swartz. Friends, professors and civil liberties groups say he personified the growing target of prosecutorial abuse and overreach, a culture sprouted amid a government and corporate state committed to silencing online dissent to ensure it can operate in secrecy and for profit, without worries that a coder who preferred graphic T-shirts to expensive suits could ever beat them at their own game. In many ways, Swartz was a member of a two-tiered justice system, and he sat on the wrong side. As his mentor and friend Larry Lessig, a law professor at Harvard, would write soon after his death: “For remember, we live in a world where the architects of the financial crisis regularly dine at the White House –  and where even those brought to ‘justice' never even have to admit any wrongdoing, let alone be labeled ‘felons'.”

Coincidentally, perhaps, Swartz was indicted amid a brazen spree of compromises at the hands of hacktivist groups Anonymous and offshoot LulzSec, which sought to showcase reprehensible corporate behavior and embarrass major companies by defacing websites and exposing data by the terabyte.

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