The Electronic Frontier Foundation (EFF) and a team of legal experts has called on the U.S. Court of Appeals to free Andrew Auernheimer, a computer hacker recently sentenced to 41 months in prison for illegally accessing data from AT&T's networks.
In a motion filed Monday, the digital rights group claimed that the government's prosecution of Auernheimer was based on an improper application of the Computer Fraud and Abuse Act (CFAA), and the the sentence was far too long for his crimes.
"The government set out to make an example of Auernheimer," EFF staff attorney Hanni Fakhoury wrote in a blog post on Monday. "But the only message this sends to the security-research community is that if you discover a vulnerability, you could go to jail for sounding the alarm."
Auernheimer made headlines in June 2010, when he and a partner, Daniel Spitler, used an automated script they called the iPad 3G Account Slurper to extract from AT&T servers the email addresses and SIM card ID numbers of more than 100,000 iPad owners.
The data included the email addresses of New York Mayor Michael Bloomberg, Chicago Mayor and former White House chief of staff Rahm Emmanuel and other well-known figures, and was subsequently leaked to reporters.
Auernheimer and Spitler maintained that they did not directly hack into AT&T systems, nor did they misuse passwords to gain access to data. Instead, they said an automated script was used to download data that the was publicly accessible from a website because of poor server configuration.
The duo claim they accessed the data only to show weaknesses in AT&T's technology and to convince the company to better secure its data.
However, prosecutors charged both with violating provisions of the CFAA, which makes it illegal for individuals to knowingly access a computer without authorization, to exceed authorized use of a system, or to access information valued at more than $5,000 from a system.
The CFAA was enacted by Congress in 1986.
Prosecutors claimed the caper was a self-serving stunt by Auernheimer to promote himself and Goatse Security, a security group to which he belonged. The Goatse team's aim is to expose online security flaws.
The prosecutors noted that AT&T had to spend more than $73,000 for breach notifications as a result of the disclosure of the alleged server weakness.
Spitler accepted a plea bargain in 2011 but Auernheimer decided to fight the charges in court. He was convicted in November 2012 and sentenced in March to 41 months in federal prison, the maximum sought by prosecutors.
In the motion filed this week, the EFF contended that the Computer Fraud and Abuse Act was improperly applied to prosecute Auernheimer. The group contended that the law is, in intent and spirit, an online anti-trespassing law targeting criminal hackers who break into systems to steal or sabotage data.
"Visiting a publicly available website is not unauthorized access under the Computer Fraud and Abuse Act," the motion noted. "AT&T chose not to employ any passwords or any other protective measures to control access to the email addresses of its customers."
By configuring its servers to make the information publicly available on its website, AT&T in fact had authorized access to the data to anybody that visited the site, the EFF motion noted.
The group also contends that the 41-month sentence was imposed because the government unfairly characterizes Auernheimer's actions as a felony. The action is at most a misdemeanor, they say.
The appeal also contends that the breach notification costs considered by the judge cannot be considered a "loss" for the purposes of sentencing an individual.
In an interview with Computerworld today, Fakhoury said the case is more proof that the scope of the CFAA has been broadened by prosecutors far beyond the intent of the legislators who passed it.
The statute has been under intense scrutiny since Internet activist Aaron Swartz committed suicide earlier this year, apparently over fears that he faced a long prison sentence if convicted of violating the CFAA.
Swartz' death prompted two lawmakers to introduce "Aaron's Law," a bill that would tighten some language in CFAA. The proposed tweaks are designed to ensure that CFAA is applied only in situations where somebody actually breaks into a system, and not merely misuses it.
"Courts are starting to be more cautious in applying CFAA too broadly," Fakhour said.
There has been a lot of debate judicially whether CFAA can be applied to situations where someone might break a terms-of-service agreement, he said. With the Auernheimer case, what the appeals court is being asked to consider is whether CFAA covers situations where someone accesses data on a publicly available website, Fakhoury said.
Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at @jaivijayan, or subscribe to Jaikumar's RSS feed . His email address is firstname.lastname@example.org.
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