

Fixing the worst law in technology  - mitmads
http://www.newyorker.com/online/blogs/newsdesk/2013/03/fixing-the-worst-law-in-technology-aaron-swartz-and-the-computer-fraud-and-abuse-act.html

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anigbrowl
Good god, this is stupid.

 _The damage was trivial, yet he is threatened with two hundred and fifty
thousand dollars in damages and up to twenty-five years in prison._

Really? The prosecutor is seeking the maximum statutory penalty for this?
Somehow I doubt that.

 _All the Administration needs to do is to rely on the ancient common-law
principle called the “rule of lenity.” This states that ambiguous criminal
laws should be construed in favor of a defendant._

BY A COURT. The rule of lenity is something that is supposed to guide the
behavior of _judges_.

This is lousy journalism, which misleads the audience in an attempt to pander
to their sensibilities. There is no way the author of this piece ran it past a
lawyer.

~~~
danso
Well, most of my legal knowledge comes from watching The Wire, but I think
you're too critical of the OP's point, though he obviously could've stated
them clearer:

> _Really? The prosecutor is seeking the maximum statutory penalty for this?
> Somehow I doubt that._

The penalties listed are what's defined in the statutes. Keep in mind that the
case at hand was just revealed. The prosecutors won't be saying what penalties
they seek until the bargaining and sentencing phase.

> _2\. BY A COURT. The rule of lenity is something that is supposed to guide
> the behavior of judges._

You're correct that this is a guideline for judges. But the OP is apparently
referring to "the rule of lenity" in how 13 federal judges so far have
rejected the DOJ's interpretation of the CFAA. To the OP, this is proof that
the law is so vague that it needs to be changed, or else "the rule of lenity"
will constantly be invoked.

~~~
anigbrowl
OK, but any journalist writing on legal matters should know that the statutory
maximum is not a good guide to the likely sentence in the event of a
conviction. To mention the statutory maximum without any qualification is
sensationalism masquerading as cold fact.

By that standard I could say 'X has been arrested for littering - he _could_
face the death penalty!!' Well, it's possible - until X has been charged with
something specific, who am I to say he won't get hit with a capital murder
charge or somesuch?

I don't agree with you about the how the OP is using the rule of lenity. He
specifically says the executive needs to change its enforcement on that basis,
whereas changing the law is something that would be done by Congress. If he
can't say what he means then he has no business reporting on legal topics.

~~~
AnthonyMouse
>To mention the statutory maximum without any qualification is sensationalism
masquerading as cold fact.

If may be misleading, but strictly speaking it's factually accurate. That is
the maximum penalty -- and as long as it is, people who don't like it are
going to report it.

If you want them to stop, amend the law so that minor offenses don't fall
under the same section as major offenses. For a law to carry felony penalties,
it should require something in the nature of profit motive and nontrivial
actual harm. Then some fool who vandalizes a website for fun can be convicted
of a misdemeanor and pay a fine or go to jail for a couple months while we
still get to throw the book at people who make fraudulent credit card charges
or engage in industrial espionage, and you won't see any more stories about
how the former class of people could be jailed until death for the computer
equivalent of disregarding a sign that says "don't walk on the grass."

~~~
anigbrowl
They're only reporting _half the story_. I don't want them to stop reporting
the maximum penalty, I want them to put it in its factual context. But most
won't, because if they said 'the statutory maximum is 25 years but most
convictions draw sentences of less than 5 years,' people would not think it's
that big of a deal.

As a matter of fact, the mean sentence under the CFAA (as of 2008 EDIT: typo.
This is as of 2000.) is only _6.8 months_. Minor offenders tend to get
probation, and the heaviest sentences fall on those who interfere with the
administration of justice or commit industrial espionage - and they face an
average sentence of 17.3 months.[1]

1\. <http://proc.isecon.org/2000/128/ISECON.2000.Nwokoma.pdf>

It's a bit pointless demanding reform of the law without any context for how
it is actually working in the real world.

~~~
AnthonyMouse
>if they said 'the statutory maximum is 25 years but most convictions draw
sentences of less than 5 years,' people would not think it's that big of a
deal.

I imagine people convicted of manslaughter also don't typically serve anything
like the statutory maximum. But we calibrate our expectations and sense of
proportionality based on the maximum because that's the number that gets
published and compared to penalties for other offenses, and actual sentences
are often set in proportion to the maximum, so changing the maximum has the
practical consequence of changing the result in typical cases.

>As a matter of fact, the mean sentence under the CFAA (as of 2008) is only
_6.8 months_.

If you get convicted of a felony and sentenced to probation, you still get a
felony record. I don't think we should be making felons out of people who have
done something that deserves to be punished only with probation. The maximum
penalty is extremely relevant because that's what makes it a felony, even if
it bears little resemblance to what happens in the typical case.

>It's a bit pointless demanding reform of the law without any context for how
it is actually working in the real world.

By the real world you mean the court system, but what about the real real
world? The maximum is what you read in the statute when you're trying to
decide whether to break an unclear law for a good reason. It probably has more
influence on the behavior of people in the real world than the unpublicized
actual outcomes do.

~~~
anigbrowl
_But we calibrate our expectations and sense of proportionality based on the
maximum because that's the number that gets published_

Well, this is the problem - it's often the only number that gets published,
because it makes for a better story than qualifying that sensational number
with the rather less exciting reality of sentences administered.

You can't go complaining about the length of the maximum sentence and then
waving aside the much lower sentences that are actually handed out as if they
didn't matter.

 _I don't think we should be making felons out of people who have done
something that deserves to be punished only with probation._

We're not, generally. Not every offense prosecuted under CFAA is a felony; in
many cases defendants are charged with a misdemeanor instead. This was
mentioned int he link I gave you earlier, and it's treated in much more detail
here: <http://www.justice.gov/criminal/cybercrime/docs/ccmanual.pdf>

This is why I'm grumbling about the inaccuracy in reporting. You see the big
maximum sentence as if it were the only thing that mattered, and you develop a
really inaccurate idea of the law as a result.

~~~
AnthonyMouse
>Well, this is the problem - it's often the only number that gets published,
because it makes for a better story than qualifying that sensational number
with the rather less exciting reality of sentences administered.

I think it's more of an issue that the truth is complicated and a journalist
can't cover a story in the detail you might like without losing too many
readers to "TL;DR" or spending more hours to research it than the editor has
assigned for the story. The typical sentences handed down are by far not the
only important thing left out of articles like this. The things missing from
these articles could span volumes of books. And each one of them needs to be
put into context. If you discuss the typical sentences handed down then they
ought to be compared to the sentences handed down for other similar offenses,
or to the offenses that have similar typical sentences, and a thorough
treatment would go down the rabbit hole into plea bargaining and sentencing
guidelines and the whole works. But given limited resources and limited column
inches, instead we end up with heuristics like using the maximum penalty as a
proxy for the severity with which the law treats the behavior.

Whenever there is a popular push to change the law, most people aren't going
to understand all the details. People don't have time to learn everything
about everything. At some point the layman will have to defer to someone
trustworthy (like the EFF or the ACLU) to do the legwork and then adopt their
position on the strength of their reputation. _They_ need to get down into the
weeds and make sure they understand what's going on, but they aren't the ones
getting their information from popular media, they're the ones reading the
statutes and the case law and engaging in discussions with scholars and
legislators etc. Articles in The New Yorker aren't meant for those people,
they're meant for the man in the street who needs to be made aware that
something is going on and the people who have done their homework are saying
it's a problem and we should do something about it. That way a critical mass
of people willing to support doing something about it can be achieved, even if
it isn't possible for all of those people to each be individually aware of
every nuance of the issue. If someone wants to know more then the information
is available. Anyone so inclined can look it up. But most people won't; I
don't see any obvious way around that. And an article that skims over some of
the details for the sake of brevity and approachability is a lot more likely
to be read by those people, so that at least they know that something is
happening and maybe some subset of the currently-oblivious can be inspired to
learn more.

>Not every offense prosecuted under CFAA is a felony; in many cases defendants
are charged with a misdemeanor instead.

I'm not sure how that changes anything. That some cases are prosecuted as
misdemeanors or in an otherwise unproblematic fashion doesn't mean we can't do
better in the cases that aren't. And if many of the cases prosecuted as
misdemeanors could under the law have been prosecuted as felonies but for the
grace of the prosecutor, that still points to a problem in the law.

~~~
anigbrowl
Look, I get it, you want to change the law and I agree with you in many
regards about the necessity of doing so. But you can't dumb your way down to
success over the long term, and misleading your readership is neither
effective nor ethical.

~~~
AnthonyMouse
Well I'm open to suggestions. How do you get a million instances of Joe Bloggs
to appreciate the subtleties of plea bargaining negotiations without causing
them to change the proverbial channel?

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matt2000
Perhaps we should make a site who's terms of service explicitly bars use by
members of congress. Once some member of congress goes to the site, we try to
get them put in jail, at which point they'll change the law.

~~~
derekp7
Good idea, but I don't think it is possible for a private citizen to bring a
prosecution. You could report it as a crime to the local police / FBI, but
then they would probably file charges against you for wasting their time.

~~~
Retric
It's all in how you approach it. If your goal is change then the press is your
best option. So, send a vary nicely worded letter to the FBI and the press
along with a video and logs and the FBI will simply add you to a few watch
lists...

------
gz5
The law of any overly generalized and overly complex law: the law is no good.

Don't try to repair it. Rip it out and establish clear, concise, use-case
specific laws, when necessary.

------
michaelfeathers
That law is pretty bad, but I wonder whether it is the worst law in
technology. Can anyone think of a contender?

~~~
svantana
The Mickey Mouse Act springs to mind...
<http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act>

~~~
AnthonyMouse
DMCA 1201 is definitely on the short list too. But I don't think either of
them is strictly as bad as the CFAA. At least with the DMCA you have some
general idea when you might be violating it. Nobody even really even seems to
know exactly what the CFAA prohibits, and even the narrow readings make
felonies out of stuff that really ought not to be that serious.

------
jessaustin
Does Matthew Keys deserve to mentioned alongside Aaron Swartz? Swartz's
actions seem somehow more... noble. Both of them "abused" their access, but
Swartz did so to make a political point about scientific knowledge, in the
hopes of improving our society. I can't discern what Keys's motivations were
in this case.

It's possible however that this makes Keys a "better" defendant, in that the
law is clearly unjust even in his case.

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gmcrews
The author of the article has overlooked something ancient and obvious. Jury
nullification (<http://en.wikipedia.org/wiki/Jury_nullification>) is exactly
for laws such as this one. It's been part of English-based common law for many
centuries. If the Swartz case had reached trial and I had been a juror, the
chances of me nullifying the "worst law in technology" would have been near
100%. I'm sure most of us feel the same way. If I'm right, the problem is not
as bad as the author makes it seem.

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infogulch
'... President Obama ... the ultimate enforcer of the law'

Um what?

~~~
MartinCron
That's the role of the executive branch, and President Obama is the head of
the executive branch. It's weird to see it phrased that way, but it's not
incorrect.

~~~
anigbrowl
Yes, but he can't just rewrite the law by making a speech, as the author
suggests. He's charged with the faithful execution of the laws, not their
interpretation.

If you read court decisions where a law is criticized by a judge or justice as
unjust or unfair (but not necessarily unconstitutional), they _never_ say that
prosecutors should stop bringing such cases to court; they say that changing
the law will require _Congress_ to act.

To take a current example of the dichotomy, the Obama administration has filed
a brief with the Supreme Court asking it to overturn DOMA (Defense of Marriage
Act), as it's the administration's belief that the law is unconstitutional -
but in the meantime, the administration is still implementing DOMA as written,
because until the SC rules against it (if they do) it remains the law of the
land. If two married gay people file a joint tax return, the IRS will send it
back with an apologetic letter and tell them they have to file separately and
so on.

~~~
crusso
Not sure if you pulled your example from the politifact article, which was the
top Google hit on "enforcing doma", or not... but it also mentions specific
examples of where DOMA is NOT enforced because the administration has decided
it has more authority than is Constitutionally and legislatively prescribed.

[http://www.politifact.com/florida/statements/2012/apr/09/ver...](http://www.politifact.com/florida/statements/2012/apr/09/vern-
buchanan/vern-buchanan-says-obama-will-no-longer-enforce/)

~~~
anigbrowl
I hadn't read that. However, in the counter-examples given, which all involve
immigration, the AG is using his explicit statutory discretion to halt or
defer proceedings on individual cases.

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kylelibra
Good to see positive change come from tragedy.

