Senators push for changes in cybercrime law

The main U.S. law targeting cybercrime may need to be changed because it has allowed law enforcement agencies to target people who simply violate websites' terms of service or their employers' computer use policies, two senators said Wednesday.

In May, President Barack Obama called for changes to the Computer Fraud and Abuse Act (CFAA), with his focus mostly on increasing the criminal penalties for computer crimes. On Wednesday, however, Democratic Senators Patrick Leahy of Vermont and Al Franken of Minnesota asked Obama administration officials to look at tightening up the law's definition of illegal access to computers.

The U.S. Department of Justice should use discretion when applying the law, Leahy said during a Senate Judiciary Committee hearing on CFAA. "We want you to concentrate on the real cybercrimes, and not the minor things," he told James Baker, the DOJ's associate deputy attorney general.

Under CFAA, employees could be charged with a crime if they access personal email or check the weather online in violation of their companies' computer use policies, Franken said. In two cases, judges have ruled against the DOJ in prosecutions involving terms-of-service or computer-use-policy violations, and it may be time to change the law, Franken said.

"People don't read those policies, and if they do, they can be long and complex and full of fine print," he said.

The Obama administration's proposed changes to the CFAA don't address concerns from several groups about criminal charges for terms-of-service or computer-use-policy violations. The law imposes civil and criminal penalties for people who access protected computers without or in excess of authorization, but does not define authorization.

The DOJ will work with senators about their concerns, but it has brought computer crime charges in "a responsible way," Baker told senators.

However, changes in CFAA's language may open up U.S. companies or government agencies to more insider threats, he added. "The challenge is to address those concerns and, at the same time, not to create a significant loophole" that would allow workers at federal agencies or private companies to steal the personal information of customers, he said.

"This insider case, where somebody violates the rules of their employer in misusing a computer, is a very challenging thing to address," he said.

Critics have pointed to several cases where U.S. residents were charged with crimes for violating terms of service or computer use policies.

In July, the DOJ charged Internet activist Aaron Swartz with wire fraud, computer fraud, unlawfully obtaining information from a protected computer and recklessly damaging a protected computer. Swartz allegedly broke into a computer closet at the Massachusetts Institute of Technology, signed into MIT's broadband network as a guest and downloaded 4.8 million documents provided to MIT by Journal Storage (JSTOR), a nonprofit archive of scientific journals and academic work.

Swartz, a fellow at nearby Harvard University, had access to JSTOR documents through Harvard, and critics have suggested he faces 35 years in prison for violating the MIT and JSTOR terms of service.

In 2008, Missouri woman Lori Drew was indicted on CFAA charges in a California court for using a fake identity in violation of MySpace.com's terms of service. Drew was accused of bullying a 13-year-old girl on MySpace but was acquitted.

On Tuesday, a coalition of groups and Internet activists called on Congress to narrow the language in CFAA before considering additional penalties. Violations of terms of service or computer use policies are not computer crimes, said the groups, including the Center for Democracy and Technology, the American Civil Liberties Union, the Electronic Frontier Foundation and Americans for Tax Reform.

"Our primary concern -- that this will lead to overbroad application of the law -- is far from hypothetical," the group said in a letter to the Judiciary Committee. "Three federal circuit courts have agreed that an employee who exceeds an employer's network acceptable use policies can be prosecuted under the CFAA. At least one federal prosecutor has brought criminal charges against a user of a social network who signed up under a pseudonym in violation of terms of service."

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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