Lessig, Demand Progress support investigation of Swartz prosecutor

Congress should also pass Aaron's Law to decriminalize terms of service violations, Lessig and Demand Progress say

Demand Progress, the tech activist group founded by the late Aaron Swartz, and Harvard law professor Lawrence Lessig have called on supporters to press the U.S. Congress to investigate Swartz's prosecuting attorney and to pass a law to decriminalize the type of hacking he was charged with.

The 26-year-old Swartz, faced with a 35-year prison sentence for hacking into a Massachusetts Institute of Technology network and downloading research articles, committed suicide last Friday.

Lessig, a long-time tech activist and commentator, and Demand Progress, a group founded by Swartz to fight the Stop Online Piracy Act, asked supporters to back an investigation by U.S. Representative Darrell Issa, a California Republican, into U.S. Attorney for Massachusetts Carmen Ortiz's prosecution of Swartz.

Lessig and Demand Progress also asked supporters to contact their lawmakers in support of Aaron's Law, proposed legislation from Representative Zoe Lofgren, a California Democrat, that would amend the Computer Fraud and Abuse Act to decriminalize violations of terms of service agreements.

"We spent Tuesday burying and mourning our friend Aaron," Lessig and Demand Progress said in a letter released Thursday. "We're sad, we're tired, we're frustrated -- and we're angry at a system that let this happen to Aaron. Now we want to set upon honoring his life's work and helping to make sure that such a travesty is never repeated."

Decriminalizing terms of use violations would be an important step, the letter said. The current law makes TOS or user agreement violations felonies even though those agreements are "that fine print you never read before you check the box next to it," the letter said. "That's how over-broad this dangerous statute is, and one way it lets showboating prosecutors file charges against people who've done nothing wrong."

Demand Progress is concerned that prosecutors could go after many TOS violations, said David Moon, program director for the group. "If a TOS violation is considered 'felony hacking,' simply breaking a website's rules (such as lying on a social network) could land you in court facing decades in prison," he said in an email. "A growing number of ordinary Americans are becoming less concerned about the effect of criminal hacking on their lives, and more concerned by our government's now persistent attempts to control the Internet and undermine its core principles."

The letter praised Issa's investigation of the Swartz prosecution, and called on supporters to ask that the investigation be broadened "to include a more thorough investigation into rampant over-prosecution of alleged crimes with no victims -- as in the case of what Aaron was accused of."

Ortiz on Wednesday defended her office's prosecution of Swartz, saying she did not intend to seek the maximum penalties under the law. "The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct -- while a violation of the law -- did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases," Ortiz said in a statement.

Ortiz and her office need to be held accountable for the prosecution, Moon said.

"Many who have been following the unfounded prosecution of Aaron Swartz -- even before his death -- have seen the government's pursuit of criminal charges against him to be amazingly out-of-step with our collective sense of justice," Moon added. "Without launching a formal investigation into the decisions that led to Aaron's persecution by the federal government, we will not be able to find out where things went wrong and learn how to create a deterrent effect for overzealous prosecutors."

Swartz was concerned about the "rapid over-criminalization of many ordinary behaviors and common activities," not just computer hacking, Moon added. "We hope that by shedding light on any potential abuses in Aaron's case, we will help trigger a broader awareness of the dysfunctional arc of our current criminal 'justice' system," he said.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.

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Tags David MoonU.S. CongressDemand ProgressLawrence LessigCarmen OrtizAaron SwartzlegislationgovernmentcybercrimeDarrell IssaCriminalZoe Lofgrenlegal

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