March 7, 2013 | By Mark Jaycox

Senate Demands Answers About Aaron Swartz, But More Must Be Done

Members of Congress continue to demand more answers from the Department of Justice (DOJ) about the aggressive prosecution of the late Aaron Swartz. Yesterday, at a Senate Judiciary Committee hearing about general Justice Department oversight, Senator Cornyn—who initiated one of the two congressional investigations into Aaron's death—asked Attorney General Holder about Aaron's prosecution.

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The Attorney General denied any prosecutorial misconduct, but, at the behest of Senator Leahy, did promise to look into the aggressive use of the Computer Fraud and Abuse Act (CFAA)—one of the laws used to prosecute Aaron. Aaron’s case proved the CFAA is ripe for abuse. You can go here to tell your representative to support reform.

The other congressional investigation, led by Rep. Darrell Issa, has not released anything publicly, but received a closed door briefing two weeks ago by the DOJ. At the briefing, prosecutors admitted that Aaron’s political speech, specifically his Guerilla Open Access Manifesto, a document collaboratively written years before his alleged crime, was a main motivator in pursuing a case against Aaron. Of course, prosecuting someone, or prosecuting them more severely, because of their speech should raise red flags for Congress. Additionally, according to Techdirt, a DOJ representative also admitted “that part of the reason it insisted on having Swartz plead guilty to a felony and go to jail, no matter what, was that it feared the public backlash for the original arrest if they couldn't then show a felony conviction and jailtime.” The investigations intend to get at the root of these troubling facts.

Congress’ attention to Aaron's case is a good first step. But more must be done: users can join us and urge Congress to reform the draconian CFAA to scale back the discretion that prosecutors have against people like Aaron. A hearing is scheduled next week on the issue, but so far it seems that it may be focused on the DOJ’s dream of getting even more power and making the CFAA even more draconian, rather than on rationalizing it. 

Investigations Into Aaron's Prosecution Still Unanswered

The public is still waiting to hear the outcome of investigations into Aaron's death and we urge Congress to be as transparent as possible about them. Rep. Issa and Senator Cornyn's investigations have each asked important questions about the CFAA and the aggressive prosecution of Aaron. The public needs to know the DOJ’s specific answers and whether Congress is satisfied with them. Rep. Issa has said he plans to hold a hearing on the issue, but no date has been announced.

In the Senate, Cornyn has not received any responses from the DOJ. Answers to Cornyn's letter will shed light on many of the core problems in the DOJ's prosecution. One question asks to know why the prosecution continued after JSTOR withdrew its support. Even the state prosecutor in Massachusetts decided to let Aaron off with a stern warning until federal prosecutors stepped in. How did this prosecution get so far off track? Outside of Congress, MIT is investigating the school's role in the government's prosecution. All three investigations should be completed soon, but no updates have been released.

More Can Be Done

The Senators' questions are a good first step, but they are no replacement to reforming the CFAA—a law that allowed prosecutors to charge Aaron with felonies that carried 35 years in prison and over $1 million in damages. It's a law that is far too often used to stifle innovation with excessive penalties. Orin Kerr, an ex-DOJ prosecutor and Professor, described the CFAA as a law the government could use to put "any Internet user they want [in jail]." The law’s wide latitude must be narrowed to go after real cyber criminals, not security researchers and activists. Tell Congress now is the time to reform the law.


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