Law Professor James Grimmelmann Explains How He Probably Violated The Same Laws As Aaron Swartz

from the and-you-may-have-too dept

We've been discussing the ridiculousness of the prosecution against Aaron Swartz, including the fact that if a federal prosecutor decides to take you down, it's not at all difficult to find something they can try to pin on you, especially when it comes to "computer" crimes. Law professor James Grimmelmann explains how it's quite possible that prosecutors could go after him under the same laws as it went after Swartz. He notes that he used to run the (excellent) blog LawMeme (which we used to link to frequently). After it died, he wanted to preserve many of the articles, and so he wrote a script to pull the articles off of the Internet Archive. While it all depends on your interpretation, he shows how a prosecutor could make the argument that he violated the Internet Arvchive's terms of service -- and that some of the decisions he made in writing the script could be taken out of context to be used against him.
And so I became a bulk downloader. I wrote a Perl script: a simple, 70-line program that exhaustively went through the Wayback Machine, looking for a copy of each LawMeme article. Just like Aaron's script, mine “discovered the URLs” of articles and then downloaded them. And just to show how mainstream this is, I'll add that I built my script around an elementary one that Paul Ohm published in “Computer Programming and the Law: A New Research Agenda,” his manifesto for why more law professors should write code. Paul's script downloaded and analyzed the comment counts on posts from the popular legal blog The Volokh Conspiracy.

[....] take the Internet Archive's terms of service. By using the site, I supposedly promised not "to copy offsite any part of the Collections without written permission." The site's FAQ qualifies this statement a bit, adding, "However, you may use the Internet Archive Wayback Machine to locate and access archived versions of a site to which you own the rights." Again, I was confident that this covered me. But confidence is not certainty. I assumed that no one would care to press the question. After Aaron, is that such a safe assumption?

I can't imagine that the Internet Archive would have a problem with what I did. Recreating lost websites for the sake of the public and posterity is completely consistent with Brewster Kahle's expansive humanist vision of digital archiving. But JSTOR quickly made its peace with Aaron, and that didn't save him. Would Brewster's blessing save me from the wrath of the feds?
As for how to take decisions out of context, how about these:
Indeed, my script waited a second between each download. I didn't want to put too much of a load on the Archive's servers. But a cyber-Javert could describe it as an attempt to evade detection. Then, to get the webpages to display right in the LawMeme archive, I wrote another script to delete the bits of HTML added by the Internet Archive to the pages in its archive. Was that an effort to hide my tracks?
And this, of course, is the crux of the problem. The laws are so broad, and written in such a way that makes so little sense, it's quite easy for a prosecutor who wants to bring someone down to figure out a way to make them look like a felon. That's a very dangerous system. As Grimmelmann notes, the problem won't be solved by a simple fix, but a massive overhaul.
Aaron's Law is a start, but the problems with our computer crime laws, and with criminal law in general, run much, much deeper. The Department of Justice thinks millions of parents who made Facebook accounts for their children are federal criminals. Read the majority opinion in United States v. Nosal and ask yourself whether you've fudged your age on a dating site, or let someone else use your account, or used a workplace computer to check the baseball scores. Judge Kozinski noted, skeptically, "The government assures us that, whatever the scope of the CFAA, it won't prosecute minor violations." Tell that to Aaron's family.
Painted in the worst light, our laws make it so that any of us can be made out to be felons. Off the top of my head, I can't think of how I, too, might be a felon, but I'm sure given some time I could cook up a story for myself as well. And so could pretty much any of you. When you reach such a point, we're no longer dealing with a sensible state and "the rule of law," but a world in which arbitrariness rules, and where a prosecutor with a chip on his or her shoulder can take down almost anyone.

Filed Under: aaron swartz, cfaa, downloading, james grimmelmann

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  1. identicon
    Anonymous Coward, 17 Jan 2013 @ 12:52pm

    Re: Trouble Shooting Network Connection?

    I made this same argument last night on the Volokh site.

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