__Restore balance to the CFAA by eliminating a redundant provision of the law that can subject an individual to duplicate charges for the same CFAA violation. __This is, in fact, what happened to Aaron Swartz: more than one-third of the charges in the superseding indictment against him were based on this redundant provision of the CFAA. Removing the redundant provision simplifies the law, reduces duplicate charges, but would not create a gap in protection against hackers.
__Provide greater proportionality to CFAA sanctions. __Currently, CFAA sentences are tiered and prosecutors have broad discretion to increase the severity of sentences in various circumstances, leaving little room for charges that are not CFAA felonies (i.e., charges with penalties that carry less than one year in prison). . For example, under current law, a prosecutor can attempt to inflate potential sentences by piling on new charges on top of violations of state laws. Aaron’s Law would reform the penalty for certain violations to ensure that prosecutors cannot attempt to inflate sentences by stacking multiple charges under the CFAA, including state law equivalents of the CFAA and torts (non-criminal violations of the law).
Will it work?
>The government has shown itself incapable of limiting its use of power. It has repeatedly failed to stop the abuse and, in fact, has resulted in abuse itself.
Some say that while the CFAA may be a broad statute, prosecutorial discretion will ensure it is not abused. We don’t agree. Whether with respect to privacy, civil liberties, or Internet use, the government has proven unable to limit its use of power. So far, government discretion has repeatedly failed to curb abuse and, in fact, has resulted in abuse itself.
Other critics may argue that Aaron’s Law reforms eliminate one specific scenario from the CFAA: an authorized individual using his or her own authorization (such as password credentials) to access and use information in an unauthorized manner. While we do not wish to create new vulnerabilities, the overly broad approach currently taken by the CFAA potentially criminalizes millions of Americans for common Internet activity. Additionally, numerous laws such as trade secret theft, the Privacy Act, copyright law, the Stored Communications Act, wire fraud, and HIPAA already criminalize the misuse of information.
The CFAA allows private parties to sue violators, but this private cause of action is not always present in other federal laws. We have heard some concern from companies that Aaron’s Law would hinder their ability to take matters into their own hands to protect their proprietary information from insider theft. We look forward to robust discussions on this issue and addressing any warranted concerns.
Laws can stimulate innovation… or stop it
The introduction of this legislation is just the beginning of a necessary process to return balance to the CFAA. Still, achieving even the specific and important reforms of the Law of Aaron will not be easy.
>The public can speak out loud thanks to the Internet. And when you do, lawmakers will listen.
Congress rarely acts in haste. Correcting this complex law, enacted more than a quarter of a century ago, to make it work in the digital age will take a significant amount of time. Successfully enacting meaningful CFAA reforms into law will require sustained public commitment and support.
But events in recent years have shown that the public can speak out loud thanks to the Internet. And when you do, lawmakers will listen.
The consequences of inaction are all too clear. We live in a time when people connect globally simply by touching a device in the palm of their hand, thanks to online advances that have enriched the world scientifically, culturally and economically.
But ill-conceived cybercrime laws can undermine this progress if they ensnare more and more people simply for creative uses of the technology that increasingly mediates our everyday activities and our interactions with the world. This not only fails us today, but can also become an obstacle to the innovations of tomorrow.
The Internet faces broad challenges to the fundamental characteristics that have allowed it to be the transformative technology we know. An update to the CFAA should be part of the discussion that seeks to resolve these challenges. Today, there is an entire generation of young digital natives who have never known a world without an open Internet and their ability to use it as a platform to develop and share ideas. It’s up to all of us to keep it that way.
Editor: Sonal Chokshi @smc90
