Academic journal article Journal of Law, Technology and the Internet

Computer Fraud and Abuse or Prosecutorial Fraud and Abuse: Time for Change

Academic journal article Journal of Law, Technology and the Internet

Computer Fraud and Abuse or Prosecutorial Fraud and Abuse: Time for Change

Article excerpt


On January 11, 2013, Aaron Swartz hung himself. (1) Swartz was 26, and despite his youth, was already a well-known and accomplished programmer. Most notably, Swartz helped develop Creative Commons, and his company Infogami merged with Reddit. (2) Many prominent computer programmers and scholars considered Swartz a genius and a friend, and mourned his death. (3) Tim Berners-Lee, the inventor of the World Wide Web, reacted to Swartz' death saying "Aaron dead. World wanderers, we have lost a wise elder. Hackers for right, we are one down. Parents all, we have lost a child. Let us weep." (4)

Almost two years to the day before his death, on January 6, 2011, Swartz was arrested in connection with a series of network break-ins of MIT's computer system. The break-ins spanned a few months and Swartz carried them out from a storage closet on MIT's campus. (5) Between September 2010 and January 2011, Swartz, a Harvard graduate student at the time, physically entered MIT campus, and from a storage closet, hooked up his computer to MIT's network. He spoofed his ID on the network to remain undetected and downloaded millions of academic journals from JSTOR. (6)

On July 11, 2011, a Federal grand jury indicted Swartz for wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. (7) The charges carried a maximum sentence of 35 years in prison. Swartz refused a plea deal, and on September 12, 2012 Federal prosecutors added nine more felony counts under the Computer Fraud and Abuse Act ("CFAA") (8), increasing the maximum prison time to 50 years. (9)

In all, Swartz was charged with two counts of wire fraud (10) and eleven violations of the Computer Fraud and Abuse Act. (11) Usually, wire fraud charges involving computers are prosecuted along with the CFAA. (12) Thus the essence of the prosecution's case depended on their interpretation and application of the CFAA.

Reaction to Swartz' death was very opinionated, dividing legal scholars and prompting a public debate about whether Swartz was overcharged (13)--or whether he even committed a crime to begin with. (14) At Swartz' funeral, his father, Robert Swartz, condemned the prosecution, saying "[Aaron] was killed by the government, and MIT betrayed all of its basic principles." (15) Prosecutor Carmen Ortiz declined to comment, but her husband replied through Twitter, writing: "Truly incredible that in their own son's obit[uary] they blame others for his death and make no mention of the 6 month offer." (16)

Perhaps Robert Swartz' words were an emotional reaction by a mourning father, but many legal scholars' reaction targeted the CFAA's harsh criminal treatment of Swartz in light of an intrusion that was neither malicious nor prolonged. (17) Jennifer Garnick, director of Civil Liberties for the Center of Internet and Society at Stanford Law School wrote: "The CFAA is incredibly broad and covers swaths of online conduct that should not merit prison time." A former criminal defense attorney and friend of Swartz', Garnick concluded: "Exactly because the CFAA arguably applies to Aaron's alleged actions, it should be amended." (18)

Others differed. Professor Orin Kerr (19) believed the charges were based on an appropriate reading of the law. (20) But Kerr recognized that the CFAA, in its current form, lead to undesired outcomes: "The problem raised by the Swartz case is... [that] felony liability under the statute is triggered much too easily. The law needs to draw a distinction between low-level crimes and more serious crimes, and current law does so poorly..." (21) The back and forth correspondence, publicized through blogs and online editorials (22) differed in sympathy expressed towards Swartz, but agreed in principal that the CFAA no longer worked well as a viable, well-balanced, computer crime statute.

Originally, the CFAA created three federal crimes limited to federal interest computers. …

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