Tim Wu's New Yorker piece on Aaron Swartz and the Computer Fraud and Abuse Act explains how Obama could, with one speech, fix the worst problem with the worst law in technology. The CFAA makes it a felony to "exceed your authorization" on a computer system, and fed prosecutors have taken the view that this means that if you violate terms of service, you're a felon, and they can put you in jail. As Wu points out, Obama doesn't need Congress to pass a law to fix this, he could just tell the DoJ that they should stop doing this. There's plenty of precedent, and it would be excellent policy.
When judges or academics say that it is wrong to interpret a law in such a way that everyone is a felon, the Justice Department has usually replied by saying, roughly, that federal prosecutors don’t bother with minor cases—they only go after the really bad guys. That has always been a lame excuse—repulsive to anyone who takes seriously the idea of a “a government of laws, not men.” After Aaron Swartz’s suicide, the era of trusting prosecutors with unlimited power in this area should officially be over…
There is a much more immediate and effective remedy: the Justice Department should announce a change in its criminal-enforcement policy. It should no longer consider terms-of-service violations to be criminal. It can join more than a dozen federal judges and scholars, like Kerr, who adopt a reasonable and more limited interpretation. The Obama Administration’s policy will have no effect on civil litigation, so firms like Oracle will retain their civil remedies. President Obama’s DREAM Act enforcement policy, under which the Administration does not deport certain illegal immigrants despite Congress’s inability to make the act a law, should be the model. Where Congress is unlikely to solve a problem, the Administration should take care of business itself.
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. As the Supreme Court puts it, “When choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.” So far, at least thirteen federal judges have rejected the Justice Department’s interpretation of the Computer Fraud and Abuse Act. If that’s not a sign that the law is unclear and should be interpreted with lenity, I don’t know what is.
Fixing the Worst Law in Technology
