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Senate Probes Swartz Case as Hacking Law Changes Pitched

Senate aides will learn more this week about the prosecution that supporters blame for causing the death of Internet “hacktivist” Aaron Swartz.

Justice Department officials will brief Senate Judiciary Committee staff members Thursday about the prosecution of Swartz for hacking and other computer crimes related to his downloading of scholarly articles from the subscription service JSTOR. Swartz had reportedly been threatened with a lengthy prison term by prosecutors before committing suicide in January.

Since his death, Swartz’s supporters have led a campaign to amend the law used to prosecute him, and to punish the prosecutors involved for their perceived overreach. Lawmakers on both sides of the aisle — including Senate Minority Whip John Cornyn, R-Texas — have criticized the Justice Department’s handling of the case, arguing that the government unjustly sought to make an example of Swartz over an innocuous violation of an antiquated statute.

David Segal, executive director of the Internet freedom group Demand Progress, who was a friend and ally of Swartz, said he expects Senate questions about the Justice Department’s motives in the prosecution, particularly related to Swartz’s previous activism.

Swartz was a vocal advocate of making information freely available online, and some reports suggest he planned to publish millions of articles he had downloaded from JSTOR via the Massachusetts Institute of Technology network. But Segal said that, at the time of Swartz’s death, JSTOR had lost interest in pursuing the legal case.

Swartz’s attorneys have accused Assistant U.S. Attorney Stephen Heymann of withholding exculpatory evidence that may have helped Swartz’s case and of abusing his discretion by attempting to coerce Swartz into pleading guilty by threatening him with more than seven years in prison if he went to trial. Swartz’s lawyers wrote to the Justice Department’s Office of Professional Responsibility requesting an investigation in January, and his estate has moved to modify a protective order in the case to disclose all discovery materials.

“Congress must also subpoena Heymann’s entire case file and all records he kept related to the case,” Taren Stinebrickner-Kauffman, Swartz’s partner, said in a statement last month.

The Justice Department has acknowledged there was no evidence that Swartz committed his alleged crimes for financial gain, but it has maintained that the case was an appropriate exercise of prosecutorial discretion.

Although the underlying statute, the 1986 Computer Fraud and Abuse Act (PL 99-474), remains a hot-button topic, the prospects for legislative action are uncertain.

Immediately after Swartz’s death, lawmakers from both sides of the aisle called for an overhaul of the law. They have been particularly interested in reining in the harsh punishments imposed for terms of service violations, although no consensus has emerged yet. Rep. Zoe Lofgren, D-Calif., has circulated draft legislation dubbed “Aaron’s Law” that she is expected to introduce in two to three weeks.

The House Judiciary Committee, which would be the natural home for Lofgren’s bill, was actually on the verge of expanding the CFAA’s provisions earlier this month, before a diverse coalition of advocacy groups including Demand Progress, the Electronic Frontier Foundation, FreedomWorks and Americans for Tax Reform succeeded in rallying the opposition. Critics of the CFAA took that as a victory, and a Democratic aide said the rapid withdrawal of the bill shows that the Judiciary Committee’s leadership is at least looking at action on the issue.

While many Internet activists view the CFAA and its punishments as draconian, law enforcement and prosecutors steadily maintain that the current tools they have to deal with cyber-criminals are inadequate. Those views are also why prosecutors are unlikely to heed congressional calls that they limit prosecutions of certain violations, which have risen with the increasing recognition that legislative action is unlikely.

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