The Law Used To Target Aaron Swartz Doesn't Make Sense Anymore

War Games

Photo: Metro-Goldwyn-Mayer Studios Inc./IMDB

Reddit co-founder Aaron Swartz’s recent suicide sparked an outcry over his prosecution for illegaly downloading scholarly articles. His death also spurred calls to reform the federal anti-hacking law.Swartz was prosecuted under the Computer Fraud and Abuse Act, and a debate has raged over whether prosecutors used that law to bully the troubled 26-year-old before he killed himself.

On Tuesday, U.S. Rep. Zoe Lofgren, D-Calif., took to Reddit to say she was introducing “Aaron’s Law” to limit the scope of the CFAA in honour of Swartz.

Like Lofgren, many advocates for loosening copyright laws have called the CFAA way too broad, not to mention outdated. Indeed, Congress passed the law in the dark ages of the Internet — 1986, a few years after the iconic hacker film “War Games” came out.

In “War Games,” the Matthew Broderick character hacks into a military central computer and nearly starts World War III just by playing what he believes are games.

When the CFAA was originally introduced post-“War Games,” it was meant to criminalise “only important federal-interest computer crimes,” George Washington law professor Orin Kerr has written.

The law forbade people from accessing computers without permission if they were part of an interstate computer network.

At a time when use of the Internet remained in its infancy,” Kerr writes, “few crimes would be included in its reach.”

The law was eventually amended several times but still prohibits “access without authorization” and activities that “exceed authorised access” to computers.

Critics of the law have said both those terms are vague, and could for example, spur an employer to sue a worker for “exceeding authorised access” to a computer by checking personal email. Others are concerned the law could target people who simply violate websites’ terms of service.

In 2011, Congress tried to remedy the latter problem when it considered a bill to exempt people who violated terms of service, but it never gathered enough steam to hit the president’s desk.

Like that Senate bill, the recently-proposed “Aaron’s Law” would also exempt people who violate websites’ terms of service. But it’s unclear whether the proposal would have saved Swartz from being prosecuted.

In Swartz’s case, he wrote a program that allowed him to illicitly access millions of academic papers from the website J-STOR from the MIT campus. By doing that, the 26-year-old hacker was not just violating terms of service, the Electronic Frontier Foundation’s Marcia Hofmann pointed out to Forbes.

“It’s a great first step,” Hoffman said, referring to “Aaron’s Law.” “But if it’s trying to make sure what happened to Aaron can’t happen to someone else, it needs to do more.

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