Friday's suicide of entrepreneur and activist Aaron Swartz is getting attention from both sides of the aisle in Congress. Swartz was facing felony hacking charges that could have led to as much as 35 years in prison.
On Tuesday, Rep. Zoe Lofgren (D-CA) took to the pages of reddit to introduce legislation she dubbed "Aaron's Law." Lofgren's bill would modify the Computer Fraud and Abuse Act, the basis for Swartz's prosecution, to clarify that its definition of unauthorized access "does not include access in violation of an agreement or contractual obligation, such as an acceptable use policy or terms of service agreement, with an Internet service provider, Internet website, or employer." It would make a similar change to the wire fraud statute.
The language was praised by Harvard law professor Lawrence Lessig, a friend of Swartz whose wife organized his legal defense fund. "This is a CRITICALLY important change that would do incredible good," Lessig wrote on reddit. "The CFAA was the hook for the government's bullying of @aaronsw. This law would remove that hook."
But other observers expressed doubts that Lofgren's proposal would have ruled out Swartz's prosecution. While Swartz's violation of JSTOR's terms of use was one factor mentioned in the federal indictment against him, the government also mentioned that he switched IP addresses, spoofed his MAC address, and entered an MIT network closet. Conceivably, those actions could be construed as sufficient to establish "unauthorized access" even with Lofgren's bill on the books.
"The current language would have narrowed Aaron's indictment, so possibly would have reduced sentence," tweeted University of Virginia law professor Chris Sprigman. But he conceded that Swartz would likely be "still indictable" under Lofgren's proposal. Sprigman argued that "if it attracts GOP co-sponsors and gets a hearing, there will be plenty of opportunity to amend."
Marcia Hoffman, an attorney at the Electronic Frontier Foundation, agreed. "It’s a great first step," she told Forbes. "But if it’s trying to make sure what happened to Aaron can’t happen to someone else, it needs to do more."
Investigating Carmen Ortiz
Meanwhile, Rep. Darrell Issa (R-CA) has told the Huffington Post that he is investigating the actions of the US Attorney’s Office in Massachusetts, led by Carmen Ortiz.
"I’m not condoning [Swartz's] hacking, but he’s certainly someone who worked very hard,” Issa said. “Had he been a journalist and taken that same material that he gained from MIT, he would have been praised for it. It would have been like the Pentagon Papers."
Swartz faced a theoretical maximum sentence of 35 years in prison. Issa told the Huffington Post that the sentence "does seem like it was an awful lot. I’ll make a risky statement here: Overprosecution is a tool often used to get people to plead guilty rather than risk sentencing."
Ortiz's tactics were also savaged by Rep. Jared Polis (D-CO). “The charges were ridiculous and trumped-up,” he told The Hill. “It's absurd that he was made a scapegoat. I would hope that this doesn't happen to anyone else.” Polis labeled Swartz a "martyr."
Issa chairs the House Committee on Oversight and Government Reform. Lofgren, Issa, and Polis are all members of the House Judiciary Committee, which oversees the Justice Department.
They were also three of the most prominent opponents of the Stop Online Piracy Act. Swartz and the organization he founded, Demand Progress, helped to organize the grassroots opposition to the legislation. We interviewed Lofgren at CES last week.
The Obama administration is also facing grassroots pressure to fire Ortiz. A petition asking for Ortiz's removal has attracted more than 35,000 signatures, easily clearing the 25,000 signatures needed for an official response from the White House.
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