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Congress plans to make computer crime law much, much worse

Learning the wrong lesson from Swartz suicide

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Comment In the wake of the tragic suicide of Aaron Swartz, there have been many calls to reform the Computer Fraud and Abuse Act used to prosecute him.

Work is currently afoot for "Aarons Law" legislation, which simplifies and brings a measure of sense to the law, but now the House Judiciary Committee has begun circulating an update to the CFAA that can only be described as a "screw you" to internet users and the very concept of justice as a whole.

The proposed revisions to the 1986 CFAA would have enabled Department of Justice prosecutors to add another 60 years prison time to the possible sentence Swartz could have faced, bumping up the penalty for some crimes from five years to 20. Other offenses have also seen their potential punishment rates get a boost.

In addition, if two or more crimes are committed under the CFAA, the activity is also classed as a crime under the Racketeer Influenced and Corrupt Organizations (RICO) Act as well. This allows prosecutors a whole new level of sentencing and asset-forfeiture options when dealing with suspects.

Suspects can now be charged with full penalties for a crime not if they actually commit it, but if they discuss committing it. As a journalist who talks to a lot of security professionals about the ins and outs of hacking, this makes me more nervous than a long-tailed cat in a room full of rocking chairs.

The proposed law might also potentially criminalize almost all internet users in some circumstances, according to an analysis by professor of law at the George Washington University Law School Orin Kerr. He points out that the new language is almost a complete rehash of DOJ proposals in 2011 to greatly extend the range of the CFAA and could potentially cover almost anyone.

"If I read it correctly, the language would make it a felony to lie about your age on an online dating profile if you intended to contact someone online and ask them personal questions," Orr writes.

"It would make it a felony crime for anyone to violate the TOS on a government website. It would also make it a federal felony crime to violate TOS in the course of committing a very minor state misdemeanor."

Welcome to the Machine

As the Attorney General Eric Holder admitted in recent Congressional hearings, no one is actually going to get sent away for the long prison terms proposed. Instead, these types of laws are designed to give prosecutors a strong negotiation position with which to threaten suspects and avoid all the expense and hassle of actually holding trials.

In the case of Swartz, Holder said that threatening to put him away for 50 years for a crime neither the victim nor the host wished to prosecute was "a good use of prosecutorial discretion." He admitted that the DOJ only wanted Swartz to plead guilty to the felony, serve a few months in jail, and presumably tell them about what his friends were up to as well.

None of this matters if you're innocent, of course – the truth will out, as the argument goes. But this seldom seems to be the case in reality. Jurors are often confused by the nature of computer law (or easily led, as the Apple-Samsung battle appears to have shown), and when the penalty for losing could be years of hard time in prison, it's quite a gamble.

Last week Andrew Auernheimer gambled and lost, getting three years and five months in prison for exposing iPad user's emails to embarrass Apple and AT&T. Swartz, who suffered from depression, took another route and hanged himself rather than face finaincial ruin and an uncertain amount of time behind bars.

Everyone understands the need for sensible criminal sanctions, but this isn't justice – it's judicial bullying and overreach. And based on this latest proposed law, things are going to get much, much worse. ®

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