POLITICS
04/12/2013 10:58 am ET | Updated Apr 12, 2013

CFAA: Internet Activists Win First-Round Victory In Fight Over Anti-Hacking Law

WASHINGTON -- Internet activists won a major victory this week when House Republicans put the brakes on an effort to vote on reforms to federal anti-hacking laws. The reforms had become a legislative flashpoint in the wake of the death of Aaron Swartz, an Internet activist who was facing a bevy of charges under the controversial Computer Fraud and Abuse Act (CFAA) before committing suicide in January.

A House subcommittee with jurisdiction over the law, chaired by Rep. Jim Sensenbrenner (R-Wisc.), had planned to vote on a reform of the bill next week as part of a House Republican legislative flurry they dubbed "Cyber Week," according to both Republican and Democratic aides on the panel. However, the bill was pulled back because of pressure from the Internet community. "It was going to be part of Cyber Week," confirmed a GOP committee aide. "There were some concerns that we felt were worth going back and addressing." He added that there is "no timeline" set to bring the bill back.

The CFAA is loosely interpreted by prosecutors and criminalizes a sweeping range of online behavior, much of it entirely benign and committed by people who would be stunned to learn they are committing felonies that could land them in prison for decades -- such as violating terms of service that very few people actually read. While most of that behavior doesn't get prosecuted, if the DoJ decides it wants to target a certain person, it is relatively easy to find a host of charges that could stick -- or at least that are threatening enough to coerce a guilty plea, as the prosecution attempted with Swartz.

The flurry of lobbying against the new bill, which advocates said would make the CFAA even more dangerous in the hands of zealous prosecutors, included a left-right alliance that organized action on Reddit.com and sent a letter to Congress signed by a wide range of groups spanning the political spectrum. Open-Internet activists say they want the CFAA reformed, not expanded, and lobbied on the issue intensely for weeks.

The move to pull back plans to change CFAA is another indication of the growing strength of the cyber community, which first flexed its muscles in a public way to block SOPA, a bill that would have handed much more control of the Internet to government and its corporate allies.

Swartz played a leading role in thwarting SOPA. He was facing 13 felony charges, 11 of them stemming from the CFAA, for attempting to download millions of academic articles from the database JSTOR with the alleged purpose of posting them online for free. JSTOR asked that the Department of Justice not press charges, but prosecutors went ahead anyway, demanding he plead guilty to all charges and serve a sentence. If Swartz refused the offer and fought the charges in court, prosecutor Stephen Heymann threatened that he would seek up to seven years in prison, according to Swartz' lawyer, Elliot Peters, and Swartz' partner, Taren Stinebrickner-Kauffman. The Justice Department is now offering a different story to Congress and to the media, insisting they never intended for Swartz to serve more than a short sentence. U.S. Attorney General Eric Holder, in testimony to Congress, said the case was "a good use of prosecutorial discretion." Members of both parties have been much less generous in their assessments of the performance of U.S. Attorney Carmen Ortiz and prosecutor Stephen Heymann, whose careers have been stunted by their involvement in the effort.

Those who knew Swartz are certain that the prosecution played a major role in his suicide.

Swartz' death has focused attention on the CFAA and changed the political dynamic around the law. "Prior to six months ago, people kind of knew what the CFAA was, but truly there wasn't a ton of understanding of that law until the death of Aaron Swartz," said a Democratic committee aide who is not authorized to speak on the record. "That suddenly threw a light on CFAA and how it can be abused and is being abused. Suddenly there was more public awareness, certainly more education here in Congress."

A memorial held for Swartz in a House office building was attended by members of Congress from both parties, including Reps. Darrell Issa (R-Calif.) and Alan Grayson (D-Fla.) and Sen. Elizabeth Warren (D-Mass.).

As part of the rally against CFAA reforms, Demand Progress, an advocacy group co-founded by Swartz, organized roughly a dozen Hill meetings for both liberal and conservative opponents of the bill, said David Segal, another co-founder. "There were many problems with this draft, and it was extraordinary to watch Internet organizations and rank-and-file activists kick into high gear so quickly to highlight them and push back. It's made it clear that the ground has shifted on this issue over the last few months -- we have a real chance to reform the CFAA so that it no longer criminalizes mundane Internet use, and stops chilling speech and innovation," said Segal.

Segal, along with Democratic aides involved in the fight, said that both Sensenbrenner and the full committee's chair, Rep. Bob Goodlatte (R-Va.), have been working in good faith with Internet activists and seem genuinely interested in tightening the scope of the CFAA. "They honestly thought they had been narrowing the law," said the Democratic aide, referring to the draft legislation. Segal noted that the CFAA revisions were never officially endorsed by Sensenbrenner -- a further sign he was open to compromise.

"We're heartened that Chairman Goodlatte has expressed a willingness to engage with Internet activists in good faith, and take him at his word on this. It would make for a welcome contrast with his predecessor," said Segal, referring to former panel chairman Lamar Smith (R-Texas), who pressed forward with SOPA against the advice of members of his own party and seemed caught off-guard by the backlash, which included a much-hyped Internet blackout led by Wikipedia.

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