by William D. Cohan
By now, most Americans are familiar with the sad story of Aaron Swartz, the self-styled “hacktivist” and political organizer, and the Justice Department’s terribly ill-conceived prosecution of him, in which it claimed that Swartz repeatedly violated the federal Computer Fraud and Abuse Act in 2011 when he downloaded without authorization millions of academic articles from JSTOR, the digital library. On January 11, 2013, facing a plea bargain that would force him to spend six months in prison and plead guilty to thirteen felony charges, Swartz committed suicide in his Brooklyn apartment. He was 26 years old.
Now the Computer Fraud and Abuse Act, or CFAA, is once again at the center of an ill-advised prosecution, except this time a private corporation is using the law against working journalists and their sources.
The proceedings in this little-noticed case, which has alarming implications for press freedom, were set in motion a year ago in a federal court in Rochester, New York, when an entity known as NXIVM Corporation (pronounced nex-ee-um) filed a civil lawsuit against two journalists—Suzanna Andrews, a contributor to Vanity Fair, and James Odato, of the Albany Times Union—and a blogger, John Tighe, creator of the now-defunct “Saratoga in Decline” blog. An examination of the court filings reveals the lawsuit to be a thinly veiled attempt to retaliate against journalists for writing accurate but hard-hitting stories that were critical of NXIVM and the strange behavior of its principals. In the same lawsuit, NXIVM also sued two of their sources—Toni Foley (formerly known as Toni Natalie) and Joseph O’Hara—but did not sue either Condé Nast, Andrews’s deep-pocketed employer, or the Hearst Corporation, which owns the Times Union. (The conclusion that NXIVM is being retaliatory is bolstered by the fact that it also sued fifty-nine unnamed “John Does” but only named Andrews, Odato, Tighe, Foley and O’Hara.) The case remains in the procedural stage but if NXIVM prevails, an unprecedented new front will have been opened in the war against the press in this country.