'Aaron's Law' Proponents Talk About Restraining Prosecutorial Abuse

After open access activist Aaron Swartz committed suicide while facing federal prosecution for downloading academic journals from the Massachusetts Institute of Technology, California Rep. Zoe Lofgren began crafting "Aaron's Law."  The goal of the law was to amend the vaguely written Computer Fraud and Abuse Act. The alleged "anti-hacking" law is written in such a way to allow for federal prosecutions and potentially large prison sentences for things like violating a web site's terms of use.

Today at Wired, Lofgren and Sen. Ron Wyden of Oregon introduced the final wording of the law and talked about their aims:

Vagueness is the core flaw of the CFAA. As written, the CFAA makes it a federal crime to access a computer without authorization or in a way that exceeds authorization. Confused by that? You're not alone. Congress never clearly described what this really means. As a result, prosecutors can take the view that a person who violates a website's terms of service or employer agreement should face jail time.

So lying about one's age on Facebook, or checking personal email on a work computer, could violate this felony statute. This flaw in the CFAA allows the government to imprison Americans for a violation of a non-negotiable, private agreement that is dictated by a corporation. Millions of Americans — whether they are of a digitally native or dial-up generation — routinely submit to legal terms and agreements every day when they use the Internet. Few have the time or the ability to read and completely understand lengthy legal agreements.

Another flaw in the CFAA is redundant provisions that enable a person to be punished multiple times … for the same crime. These charges can be stacked one on top of another, resulting in the threat of higher cumulative fines and jail time for the exact same violation.

This allows prosecutors to bully defendants into accepting a deal in order to avoid facing a multitude of charges from a single, solitary act. It also plays a significant role in sentencing. The ambiguity of a provision meant to toughen sentencing for repeat offenders of the CFAA may in fact make it possible for defendants to be sentenced based on what should be prior convictions — but were nothing more than multiple convictions for the same crime.

The text of the legislation can be read here (pdf).

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