The Impact of "Aaron's Law" on Aaron Swartz's Case

Like so many around the greater Berkman community I was stunned and saddened to hear that Aaron Swartz committed suicide late last week. I truly admired Aaron's work and consider the future of Internet policy substantially worse off without his presence. For more on his life and work, I'd encourage you to visit this gathering of Berkman blog feeds, which this week is filled with posts that discuss his life and work in greater detail.

Much of my attention towards Aaron was focused on his recent federal prosecution. This week Representative Zoe Lofgren has announced on Reddit that she plans to introduce a new bill that changes computer crime law to protect activities like Aaron's from future prosecution. (This action itself is a very fitting tribute to both Aaron's work in shaping a pro-Internet political climate and his early and involved work with Reddit.)

The bill provides two edits to two different computer crime statutes, the Computer Fraud and Abuse Act ("CFAA") and the federal wire fraud law. A preliminary element of many of the prohibitions under the CFAA focuses on whether a defendant accessed a computer "without authorization" or "exceed[ing] authorized access." The bill would change the CFAA definition of "exceed[ing] authorized access" to expressly not include

access in violation of an agreement or contractual obligation, such as an acceptable use policy or terms of service agreement, with an Internet service provider, Internet website, or employer, if such violation constitutes the sole basis for determining that access to a protected computer is unauthorized.

As to wire fraud, the bill would amend the federal wire fraud statute to say:

A violation of an agreement or contractual obligation regarding Internet or computer use, such as an acceptable use policy or terms of service agreement, with an Internet service provider, Internet website, or employer is not in itself a violation of this section.

EFF has now announced its own markup of the Lofgren bill, both on Reddit and on EFF's website.

There is some disagreement over how much "Aaron's Law" (as it is being called) would have helped Aaron himself. Orin Kerr states in part two of his comprehensive analysis of Swartz's case that Aaron's Law would not have changed the outcome. EFF's Marcia Hofmann seems to agree. Lawrence Lessig, on the other hand, suggests that this would have made a very large difference, perhaps removing the felony counts entirely. Jennifer Granick doesn't expressly come out either way, but calls it a good first step. Given all this, it seems appropriate to take some time to go over the Swartz prosecution and Aaron's Law in more detail, and explore exactly how the case would have turned out, and how the proposed law could have changed the outcome of the case.

I'm following in some very large footsteps here, so I'll try to distinguish this analysis by laying out some of the law and facts more explicitly that has been done already. I'll also try and identify how, exactl