The U.S. Crackdown on Hackers Is Our New War on Drugs

Written by on January 26, 2014 in Agencies & Systems, Government with 4 Comments

HanniI Fakhoury| Wired | Jan 27th 2014

Aaron-sopa-640x325Before Edward Snowden showed up, 2013 was shaping up as the year of reckoning for the much criticized federal anti-hacking statute, the Computer Fraud and Abuse Act (“CFAA”). The suicide ofAaron Swartz in January 2013 brought the CFAA into mainstream consciousness, so Congress held hearings about the case, and legislative fixes were introduced to change the law.

Finally, there seemed to be a newfound scrutiny of CFAA prosecutions and punishment for accessing computer data without or in excess of “authorization” — which affected everyone from Chelsea Manning to Jeremy Hammond to Andrew “Weev” Auernheimer (disclosure: I’m one of his lawyers on appeal). Not to mention less illustrious personalities and everyday users, such as people who delete cookies from their browsers.

But unfortunately, not much has changed; if anything, the growing recognition of the powerful capabilities of modern computing and networking has resulted in a “cyber panic” in legislatures and prosecutor offices across the country. Instead of reexamination, we’ve seen aggressive charges and excessive punishment.

This cyber panic isn’t just a CFAA problem. In the zeal to crack down on cyberbullying, legislatures have passed overbroad laws criminalizing speech clearly protected by the First Amendment. This comes after one effort to use the CFAA to criminalize cyberbullying — built on the premise that violating a website’s terms of service was unauthorized access, or the equivalent of hacking – was thrown out as unconstitutionally vague.

The panic has even spread to how crime is investigated. To prevent digital contraband from coming into the United States, border officials can now search electronic devices without any suspicion of wrongdoing. To get to illicit files on a seized computer, the government can force you to decrypt your computer and threaten you with jail for noncompliance. To get information about one customer, the FBI can demand a service provider turn over the key that unlocks communications from all of the service’s customers. And let’s not even get started on what the NSA has been up to.


The Problem of Excessive Punishment

There’s no doubt that there are good intentions here: to catch bad guys, keep people safe, and preserve some order in a chaotic and changing world. But this “cyber panic,” particularly with the excessive and aggressive use of the CFAA, comes with a real consequence: locking up people in prison for years.

 

Take the case of Matthew Keys, a former social media editor at Reuters, charged with violating the CFAA in federal court in Sacramento. He allegedly turned over the username and password of a server belonging to the Tribune Company to members of Anonymous, who made changes to the article of a headline in a Los Angeles Times story online. Among other changes, the headline was changed from “Pressure builds in House to pass tax-cut package” to “Pressure builds in House to elect CHIPPY 1337.” It seems like a clear-cut case of vandalism, a prank that caused some damage but little other harm.

Under California law, physical vandalism – like spray painting graffiti on a building — can be punished as either a misdemeanor or a felony, with probation available for both types of charges. If probation is granted, the longest sentence a defendant can serve as a condition of probation is one year in county jail.

But look at the punishment awaiting Keys. He didn’t get charged with a misdemeanor; he got indictedon three felony charges, for which he faces a harsh prison sentence. No, he won’t get anything close to the 10-year maximum. But a cursory calculation of his potential sentence under the federal sentencing guidelines suggest he’s looking at a sentence between 21 and 27 months — about three years of his life — if he decides to go to trial and loses.

Here are more details on how such sentencing works:

…Federal sentencing is based on two things: the seriousness of a crime and the person’s criminal history. The two factors are plotted on a table, with the y-axis a scale of 1 to 43 “levels” that determines the seriousness of a crime, and the x-axis a scale of I to VI that measures criminal history. At sentencing, the judge must determine both scores, plot them on the table, and determine the sentencing range in months, which the court can follow or disregard at its own discretion.

…Someone like Keys, who has no criminal history, is in criminal history category I. Thestarting point for most CFAA crimes is level 6, which is low on the scale but can quickly increase.

…Assuming the allegations in Key’s search warrant are correct, the Tribune company spent $17,650.40 to fix the damage, resulting in an increase of 4 levels for causing more than $10,000 and less than $30,000 in damage. Because Keys is charged with causing damage to a computer, he receives another 4 level increase. And because he likely abused aposition of trust, he receives another 2 level increase, for a total offense level of 16 — which has a sentencing range between 21 and 27 months for a person in criminal history category I. (That places Keys in “Zone C” of the Sentencing Table, which means the Guidelines don’t authorize a grant of probation, though the judge could impose probation if she wanted to.)

As a country and a criminal justice system, we’ve been down this road of excessive punishment before: with drugs. Prosecutors and lawmakers need to take a step back and think long and hard about whether we’re going down the same road with their zeal towards computer crimes.

For many years, there was a radical disparity in how federal law treated crack and powder cocaine. A person who possessed 5 grams of crack cocaine could be charged with a felony. But it took 500 grams of powder cocaine to get the same felony punishment. This 100-to-1 ratio was born in the 1980s, when Congress was concerned that crack — predominantly used in urban areas by people of color — was becoming an epidemic and a violent one at that.

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4 Reader Comments

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  1. My emails are being blocked. Items on my hard drive have
    been scattered all over, attachments are taken from my emails,
    copyrights have been stolen. My ability to market my songs to various songmarkets have been stopped by making it impossible to send my songs to places like Reverbnation so I can market them. Etc..etc ad infinitum….

  2. I actually have underatated, if anything, not overstated.
    I have my own hacker hanging around my computer 24/7.
    He has every in road he needs to screw up virtually anything he wants to. I even think I know his name and address. And phone number.
    One who has over 40 years with ATandT plus worked a number of year as a computer expert a the state of Georgia.

  3. Louis Brown is my name and that listed email address above is
    correct.

  4. I have been one of the most maligned customer on Charter.net.
    I have told the truth to the best of my abilities. I do not blame Charter.net for any of it but my site has been hacked to the point of not being able to use my PC properly. What am I supposed to say if it’s screwed up on my site?

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