wired | Before Edward Snowden showed up, 2013 was shaping up as the year of
reckoning for the much criticized federal anti-hacking statute, the
Computer Fraud and Abuse Act (“CFAA”). The suicide of Aaron Swartz
in January 2013 brought the CFAA into mainstream consciousness, so
Congress held hearings about the case, and legislative fixes were introduced to change the law.
Finally, there seemed to be a newfound scrutiny of CFAA prosecutions
and punishment for accessing computer data without or in excess of
“authorization” — which affected everyone from Chelsea Manning to Jeremy Hammond to Andrew “Weev” Auernheimer (disclosure:
I’m one of his lawyers on appeal). Not to mention less illustrious
personalities and everyday users, such as people who delete cookies from their browsers.
But unfortunately, not much has changed; if anything, the growing
recognition of the powerful capabilities of modern computing and
networking has resulted in a “cyber panic” in legislatures and
prosecutor offices across the country. Instead of reexamination, we’ve
seen aggressive charges and excessive punishment.
This cyber panic isn’t just a CFAA problem. In the zeal to crack down
on cyberbullying, legislatures have passed overbroad laws criminalizing
speech clearly protected by the First Amendment. This comes after one
effort to use the CFAA to criminalize cyberbullying — built on the
premise that violating a website’s terms of service was unauthorized access, or the equivalent of hacking – was thrown out as unconstitutionally vague.
The panic has even spread to how crime is investigated. To prevent
digital contraband from coming into the United States, border officials
can now search
electronic devices without any suspicion of wrongdoing. To get to
illicit files on a seized computer, the government can force you to decrypt
your computer and threaten you with jail for noncompliance. To get
information about one customer, the FBI can demand a service provider
turn over the key that unlocks communications from all of the service’s customers. And let’s not even get started on what the NSA has been up to. Fist tap Dale.
