"The breadth of this legal theory would make felons of millions of Americans." [View all]
Swartz’s prosecution was based on a radical interpretation of the Computer Fraud and Abuse Act (CFAA), which Congress passed in 1984 to prosecute hackers who accessed computers to steal information or to commit cyber-vandalism. Like some other prosecutors in the Justice Department who were apparently incapable of distinguishing between private rights and the public interest, Ortiz, Heymann and Garland interpreted the law to include violating a website’s terms of service or a company’s computer usage policy.
Thus the indictment filed against Swartz explains that because “each user must agree and acknowledge that they cannot download or export contents from JSTOR’s computer servers with automated computer programs such as Web robots, spiders, or scrapers,” Swartz’s use of a spider violated JSTOR’s terms, and as such constituted an unauthorized access under the CFAA.
The breadth of this legal theory would make felons of millions of Americans. CNN.com, for example, has terms that include the following: “You agree not to upload, post or otherwise transmit any User Content that advocates or provides instruction on illegal activity or discuss illegal activities with the intent to commit them.” This language, if it were set forth in a statute, would be a blatantly unconstitutional violation of the First Amendment and its enforcement would be struck down.
Under the government’s theory of the CFAA, however, a commenter on CNN’s website who advocates “illegal activity,” like disobeying the recently signed executive orders relating to gun control or refusing to register for the draft, would be guilty of a felony for violating the website terms. In effect, this theory gives privately-owned websites the power to pass national legislation that ignores the Constitution, and offers them the services of the Department of Justice to enforce their edicts.