Remember the “Computer Worm” incident of 1988? There are likely readers who weren’t even born then, a time before the Internet was public. But an enterprising graduate student of computer science at Cornell University launched a “worm” that all but shut down the nascent “Internet” of that era – network system mainly connecting government and research computers. Prosecuted under this law, Mr. Morris argued that he did not know the effect that the code he had written and set loose on the network would have. The Second Circuit federal judge recognized that while actionable, the facts of the case did not map exactly to the original purpose of the law, which was to prosecute criminals who “hacked” computers with the intent to steal money from financial institutions. Consequently, Mr. Morris’s sentence of some financial restitution and probation reflected the gap between that purpose and actual incident. He went on to become a professor of computer science at … MIT.
Aaron Swartz faced so many violations of the Computer Fraud and Abuse Act that the accumulation presented a possible sentence of 30-odd years in federal prison. It is important to note that the assistant district attorney for the case had offered him a deal that reduced that time to 6 months, before dismissing the case altogether after Mr. Swartz suicide.
Private Manning was found guilty of a number of crimes this week. Most notable were those included from the Espionage Act; unsuccessful was the claim that he aided the enemy. Not mentioned in the news reports of his crimes were violations of the Computer Fraud and Abuse Act, mainly, according to Wikipedia, those sections that refer to actions whereby the individual who has legitimate access discloses information to unauthorized persons. My heart has always gone out to Private Manning and a recent article in the New York Times about him helped me to understand why. His sentence is yet to come, and I pray that it be fair.
Mr. Snowden has received one year of asylum in Russia, much to the consternation of the Obama Administration. Many readers of this blog disagreed with my assessment of him as naïve. Be that as it may, the focus of his alleged crimes again go to the Espionage Act. It would not surprise me, however, to find the Computer Fraud and Abuse Act tacked on in the same manner as Private Manning were Mr. Snowden to return to the United States and face trial.
The MIT Report on the Swartz case calls for higher education to take a leading role not only in educating students about law and technology but in educating society about the various gaps and social policy implications of existing law in the digital “Internet” age. I could not cheer loud enough in support of this conclusion. These cases alone, not to mention all of the ones that have gone down ridiculously over file sharing to the tune of millions of dollars in damages for some scapegoated defendants, suggest that the law and technology are grossly out of synch. Needless to say, economic and social-psychological issues play into this gap. If American society wants to revive itself in the global market and give renewed breath to the meaning of citizenship at home, as well as by example abroad, it would do well to pay close attention to that report. And leaders in higher education, do you hear the clarion call?