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How a 'hopelessly out of date' law makes you a computer criminal

A 26-year-old law says that any unauthorized access into a protected network or computer — like your access to this website — is a federal crime with longer prison sentences than most violent crimes.

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"The punishments for these crimes are hugely disproportionate to the offenses listed," said Adam Goldstein, an attorney advocate at the Student Press Law Center in Arlington, Va. "We wrote these laws based on the 1980s view of the worst-case scenario of hacking in a networked world."

To Robert Graham, chief executive officer of Errata Security in Atlanta, the CFAA is "hopelessly out of date, and can be used to prosecute anybody for almost anything."

"The issue is 'authorization,'" Graham said. "Back in 1986, everyone had to be explicitly authorized to use a computer with an assigned username and password.

"But today, with the Web, we access computers with reckless abandon without knowing whether we are authorized or not," he added. "When you click on a URL, you are technically in violation of the law as it was designed."

Swartz was facing more prison time than he would have if he'd committed a serious physical crime, such as assault, burglary, grand theft larceny or involuntary manslaughter.

"Why the penalties are stiffer for e-crime does not make sense," said Chester Wisniewski, an American who works as a senior security analyst in the Vancouver, British Columbia, office of the British security firm Sophos. "These penalties are more in line with murder than theft."

"There is a serious problem in federal criminal law where the use of a computer ratchets up a criminal sentence dramatically out of proportion from the harm caused," said Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation in San Francisco.

"We wrote laws designed to punish the worst monsters of William Gibson's nightmares," Goldstein said. "We're wielding them against people who download journal articles and steal naked pictures from Scarlett Johansson."

Tomorrow: How the CFAA is abused, and how it might be amended.

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