Aaron Swartz (center) and Lawrence Lessig (right) pose at a Creative Commons event in December 2002. (Flickr/Gohsuke Takama)
Everyone is looking for a solution to the Aaron Swartz case, some kind of quickly enacted, cathartic maneuver that would make us feel better. In the middle of the week, Representative Zoe Lofgren (D.-Calif.) announced that she would introduce a bill to amend the Computer Fraud and Abuse Act (CFAA). She calls it “Aaron’s Law.” Lofgren’s move would do what Internet law experts have been asking for some time and keep the CFAA from giving the terms of service agreements—yes, those contracts you don’t read—the effective force of law. As written right now, the CFAA allows a prosecutor to characterize your violation of terms of service as a fraud on the service provider, making your access of their system “unauthorized.” Lofgren’s amendment would limit the law to actions where someone deliberately circumvents the programming of a system to access it, more like what we picture when we think of hackers.
This is an excellent development. But lost in the praise is the fact that such an amendment wouldn’t necessarily, as Jennifer Granick of the Center for Internet Law and Society observed days ago, have kept Aaron Swartz from being prosecuted. The case against Swartz hinged precisely on his having circumvented MIT and JSTOR’s “code-based” attempts to kick his laptop off the system. They had detected his downloads and blocked his IP address, and then his MAC address, a signifier that every computer has. He simply masked both of those to keep his downloads going. His masking would be exactly the sort of programming workaround that would still violate the statute.
The imperfectness of the “Aaron’s Law” solution, however well-meant and even welcome, shows how a lot of us are missing the point. The wrongness of Swartz’s prosecution went beyond whether or not he was a “hacker.” It was wrong because it reflected a completely bizarre set of priorities in law enforcement, one which fetishizes the technicalities of the issues over the real justice of them. There is a broader, and deeper problem to address here.
That’s particularly important because there are already insidious arguments being made in Aaron Swartz’s name. On Wednesday, for example, the Daily Beast published a piece by Michael Moynihan that analogized Swartz’s struggles with the DoJ to those of—wait for it—Conrad Black. The basis for the comparison is this: Black has, since his brief stint in a Florida jail, become a sudden crusader for prisoners’ rights, because like many an accused white-collar criminal, he styles himself the victim of overzealous prosecutors. Never mind that the SEC recently fined Black $6.1 million for various accounting violations; never mind that Black, like many businessmen accused of wrongdoing, met his overzealous prosecution with what one imagines was a pretty well-funded defense. And certainly never mind that much of prosecutorial zeal in this country is actually directed at young black men, and is therefore much more likely to be the product of racism than free-floating harshness. As it turns out, there is no critique of the American criminal justice system that people will treat more credulously than one articulated by a rich white businessman, and one which just so happens to absolve himself of wrongdoing.