Detailed here at Wired.
Federal prosectors added nine new felony counts against well-known coder and activist Aaron Swartz, who was charged last year for allegedly breaching hacking laws by downloading millions of academic articles from a subscription database via an open connection at MIT. … Like last year’s original grand jury indictment on four felony counts, (.pdf) the superseding indictment (.pdf) unveiled Thursday accuses Swartz of evading MIT’s attempts to kick his laptop off the network while downloading millions of documents from JSTOR, a not-for-profit company that provides searchable, digitized copies of academic journals that are normally inaccessible to the public. n essence, many of the charges stem from Swartz allegedly breaching the terms of service agreement for those using the research service.
“JSTOR authorizes users to download a limited number of journal articles at a time,” according to the latest indictment. “Before being given access to JSTOR’s digital archive, each user must agree and acknowledge that they cannot download or export content from JSTOR’s computer servers with automated programs such as web robots, spiders, and scrapers. JSTOR also uses computerized measures to prevent users from downloading an unauthorized number of articles using automated techniques.”
MIT authorizes guests to use the service, which was the case with Swartz, who at the time was a fellow at Harvard’s Safra Center for Ethics. The case tests the reach of the Computer Fraud and Abuse Act, which was passed in 1984 to enhance the government’s ability to prosecute hackers who accessed computers to steal information or to disrupt or destroy computer functionality.
The government, however, has interpreted the anti-hacking provisions to include activities such as violating a website’s terms of service or a company’s computer usage policy, a position a federal appeals court in April said means “millions of unsuspecting individuals would find that they are engaging in criminal conduct.” The 9th U.S. Circuit Court of Appeals, in limiting reach of the CFAA, said that violations of employee contract agreements and websites’ terms of service were better left to civil lawsuits. The rulings by the 9th Circuit cover the West, and not Massachusetts, meaning they are not binding in Swartz’ prosecution. The Obama administration has declined to appeal the ruling to the Supreme Court.
Notorious lefty rabble-rouser Orin Kerr wrote an op-ed last year about the crazy ways in which federal prosecutors were interpreting the CFAA.
If that sounds far-fetched, consider a few recent cases. In 2009, the Justice Department prosecuted a woman for violating the “terms of service” of the social networking site MySpace.com. The woman had been part of a group that set up a MySpace profile using a fake picture. The feds charged her with conspiracy to violate the Computer Fraud and Abuse Act. Prosecutors say the woman exceeded authorized access because MySpace required all profile information to be truthful. But people routinely misstate the truth in online profiles, about everything from their age to their name. What happens when each instance is a felony?
I’d be startled if there is a single US-based Crooked Timber reader out there who hasn’t committed this ‘felony’ at some point. Aaron is a friend of Crooked Timber, and a personal friend of mine (if there is some fundraising for his defense, I will very possibly be involved). He is also someone who has given freely to a wide variety of good things and useful causes (not only lefty ones - I’m writing this post in Markdown, a markup language that Aaron helped create; anyone who has ever used an RSS feed also owes him a debt). This means that I feel particularly strongly about this travesty of abuse of prosecutorial discretion. But even those who don’t know Aaron should recognize that this is an outrageous assault on basic civil liberties, and the ability to use the Internet as you want to, not as corporate entities dictate. Those who agree, and who have access to some kind of public platform, or otherwise can exert influence should do what they can to push back against this.
Update: those who want to donate should do so at http://free.aaronsw.com.