Prosecutors allege that Swartz downloaded the articles because he intended to distribute them for free online, though Swartz was arrested before any articles were made public. He had often spoken publicly about the importance of making academic research freely available.
Other online activists have increasingly turned to computer networks and other technology as a means of political protest, deploying a range of tactics — from temporarily shutting down servers to disclosing personal and corporate information.
Most of these acts, including Swartz’s downloads, are criminalized under the federal Computer Fraud and Abuse Act (CFAA), an act that was designed to prosecute hackers. But as Swartz’s and other “hacktivist” cases demonstrate, you don’t necessarily have to be a hacker to be viewed as one under federal law. Are activists like Swartz committing civil disobedience, or online crimes? We break down a few strategies of “hacktivism” to see what is considered criminal under the CFAA.
Accessing and downloading documents from private servers or behind paywalls with the intent of making them publicly available.
Swartz gained access to JSTOR through MIT’s network and downloaded millions of files, in violation of JSTOR’s terms of service (though JSTOR declined to prosecute the case). Swartz had not released any of the downloaded files at the time his legal troubles began.
The most famous case of publishing private documents online may be the ongoing trial of Bradley Manning. While working as an intelligence analyst in Iraq, Manning passed thousands of classified intelligence reports and diplomatic cables to Wikileaks, to be posted on their website.
“I want people to see the truth… regardless of who they are… because without information, you cannot make informed decisions as a public,” Manning wrote in an online chat with ex-hacker Adrian Lamo, who eventually turned Manning in to the Department of Defense.
Both Swartz and Manning were charged under a section of the CFAA that covers anyone who “knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer…”
The charges hinge on an interpretation of this section that says anyone in violation of a website’s terms of service is an unauthorized user. Because they’re unauthorized, all of their activity on that website could therefore be considered illegal. Both were charged with felonies under the CFAA, on top of other allegations.
The Ninth and Fourth Circuit Court of Appeals have ruled that such an interpretation of the CFAA casts too wide a net. With the circuit courts divided over whether a broad definition of “unauthorized” is constitutional, it may fall on the Supreme Court to ultimately decide.
Assistant U.S. Attorney Steve Heymann of Massachusetts was the lead prosecutor in Swartz’s case. (He was known for winning a 2010 case that landed hacker Albert Gonzalez 20 years in prison.) Heymann offered Swartz a plea bargain of six months in prison but Swartz’s defense team rejected the deal, saying a felony and any time behind bars was too harsh a sentence. Swartz’s family blamed his death in part on “intimidation and prosecutorial overreach.”
As a result of Swartz’s suicide, some lawmakers are now calling for a review of the CFAA. On Tuesday, Rep. Zoe Lofgren (D-Calif.) proposed a piece of legislation called “Aaron’s Law,” which would amend the law to explicitly state that merely violating a site’s terms of service cannot fall under the federal CFAA.
Distributed Denial of Service
A Distributed Denial of Service, orDDoS attack, floods a web site’s server with traffic from a network of sometimes thousands of individual computers, making it incapable of serving legitimate traffic.
In 2010, the group Anonymousattempted to overload websites for PayPal, Visa and Mastercard after the companies refused to process donations to Wikileaks. Anonymous posted their “Low Orbit Ion Canon” software online, allowing roughly 6,000 people who downloaded the program to pummel the sites with traffic.
A DDoS attack can be charged as a crime under the CFAA, as it “causes damage” and can violate a web site’s terms of service. The owner of the site could also file a civil suit citing the CFAA, if they can prove a temporary server overload resulted in monetary losses.
Sixteen alleged members of Anonymous were arrested for their role in the PayPal DDoS, and could face more than 10 years in prison and $250,000 in fines. They were charged with conspiracy and “intentional damage to a protected computer” under the CFAA and the case is ongoing.
Some web activists have pressed for DDoS to be legalized as a form of protest, claiming that disrupting web traffic by occupying a server is the same as clogging streets when staging a sit-in. A petitionstarted on the White House’s “We the People” site a few days before Swartz’s death has garnered more than 5,000 signatures.
“Distributed denial-of-service (DDoS) is not any form of hacking in any way,” the petition reads. “It is the equivalent of repeatedly hitting the refresh button on a webpage. It is, in that way, no different than any ‘occupy’ protest.”
Doxing involves finding and publishing a target’s personal or corporate information.
Anonymous also recently doxed members of the Westboro Baptist Church after several tweeted their plans to picket funerals for Sandy Hook victims. Hackers were able to access Church members’ twitter accounts and publish their personal information, including phone numbers, emails and hotel reservation details.
Jeremy Hammond could face life in prison for allegedly leading the Stratfor hack and a separate attack on the Arizona Department of Safety website. Former Anonymous spokesman Barrett Brown was also indicted for computer fraud in the Stratfor dox, not for hacking into the system, but for linking to the hacked information in a chat room.
The charges for doxing depend on how the information was accessed, and the nature of published information. Simply publishing publicly available information, such as phone numbers found in a Google search, would probably not be charged under the CFAA. But hacking into private computers, or even spreading the information from a hack, could lead to charges under the CFAA.
Hacktivists take over a website to publish their own content or messages.
One of the first known hacking protests was in 1989, when the “WANK worm” targeted NASA, the Department of Energy and other government websites to protest nuclear armament. The sites were changed to read, “Worms Against Nuclear Killers. Your Site has officially been WANKed. You talk of times of peace for all, and then prepare for war.”
Robert Morris, the hacker behind the WANK worm, was the first person to be prosecuted under the CFAA. He was sentenced in 1990 to a $10,000 fine and 400 hours of community service. At the time, the law only applied to computers owned by the federal government or large financial institutions, but it was amended in 1996 to include any unauthorized computer access.