Why Is Congress Trying to Make Our Internet Abuse Laws Worse, not Better?

Orin Kerr and Lawrence Lessig warn in The Atlantic, Why Is Congress Trying to Make Our Internet Abuse Laws Worse, not Better?

"Swartz's death has turned a light on the statute that had put Swartz's liberty in jeopardy: the Computer Fraud and Abuse Act, or CFAA for short. This federal criminal statute has gotten way out of hand. The CFAA was passed in 1986 to punish the new crime of computer hacking. But a lot has changed since 1986. Use of computer networks was rare then. Now it is ubiquitous. And Congress has expanded the law several times, making its reach broader and its punishments more severe. The act has become a sprawling mess -- a powerful and mysterious weapon that could potentially reach millions of ordinary Americans."

"The problem results from the law's vague language: The act criminalizes "unauthorized access" to a computer. But almost 30 years after its passage, no one yet knows when access is unauthorized. Some courts say (correctly, we think) that access is unauthorized only when a person bypasses a technological restriction like a password gate. But other courts take a broader view, finding access unauthorized whenever a user violates the terms of service on a website or even just uses the computer in a way the owner wouldn't like."

"The law cries out for a common-sense reworking. After Swartz's death, a cross-partisan coalition in Congress, led by Democrat Zoe Lofgren and Republican Darrell Issa, did just that, proposing a law that would end liability for terms-of-service violations and would limit felony liability for violations. But, incredibly, some in Congress are going the other way. Last month, the House Judiciary Committee, ignoring that common-sense reworking, circulated a draft of proposed changes to the law that would actually increase its penalties, not decrease them -- making the law even broader and more punitive than before. The new bill would jack up criminal penalties and largely embrace the broadest views of the law's reach."

They quote Judge Alex Kozinski, here's the full line. "Under the government’s proposed interpretation of the CFAA, posting for sale an item prohibited by Craigslist’s policy, or describing yourself as “tall, dark and handsome,” when you’re actually short and homely, will earn you a handsome orange jumpsuit."