As potential attorney general appointees go, Loretta Lynch of the Eastern District of New York struck me as one of the better ones. No, she’s not Ramsey Clark, but who is? Yes, she’s up to her eyeballs in federal in rem forfeitures, but her turf covers two huge airports and, well, much as I hate to admit it, only Volokh Conspiracy’s David Post and I seem to remember the days when U. S. v. One 1936 Model Ford V-8 De Luxe Coach (that the law abhors a forfeiture) was the rule.
So I’ve been fairly lenient, probably more so than many others, in excusing Lynch’s “issues” in consideration of her appointment. You see, the job of AG is unlikely to be handed to someone who shares my sensibilities toward the law, and so my perspective is from the “who will do the least harm” point of view. On the whole, my dealings with the EDNY have been pretty good, finding them to be far more realistic and reasonable than, say, their pals over at SDNY. That doesn’t mean there isn’t a better office in flyover land, but then, their United States Attorney isn’t getting the nod anyway, so who cares?
Yet, my hopes were dashed upon reading Mike Masnick’s Techdirt post about Lynch’s response to a question from former Saturday Night Live writer Al Franken. The subject of his question? Aaron Swartz and the Computer Fraud and Abuse Act.
Question 1. The Computer Fraud and Abuse Act (CFAA) has received attention for its potentially harsh penalties. In 2013, I wrote a letter to the Department of Justice expressing my concern about the way in which Aaron Swartz was aggressively prosecuted under the CFAA, and associating myself with a similar letter by Senator Cornyn. The Department’s response was, in short, that the prosecution of Swartz was consistent with the Act. Since then we have heard many people – from all over the political spectrum – call for reform of the CFAA. Recently, the White House announced a proposal to amend the Act. Some have characterized the proposal as a step in the wrong direction, noting – for example – that it would increase certain sentences. What is your assessment of these criticisms, and what is your opinion of the proposal?
RESPONSE: I believe that the Department of Justice has a responsibility to protect Americans from invasions of their privacy and security by prosecuting and deterring computer crimes. Accordingly, we must ensure that the CFAA, like all of our tools, remains up-to-date and reflects the changes in the way that cybercrimes are committed, changes that have occurred in the decades since it was first enacted. For example, I understand that the Administration’s proposals include provisions designed to facilitate the prosecution of those who traffic in stolen American credit cards overseas, to enable the Department to dismantle botnets that victimize hundreds of thousands of computers at a time, and to deter the sale of criminal “spyware.”
With respect to the sentencing provisions contained in those proposals, I believe it is appropriate to ensure that, in the event a defendant is convicted of a hacking offense, the sentencing court has the authority to impose a sentence that fits the crime. For example, the enormous harm caused by the massive thefts of Americans’ personal financial data from retailers illustrates the need to ensure that the maximum sentences available are adequate to deter the worst offenders. As the level of harm caused by the worst cybercrimes increases, I support increasing the maximum penalties available to punish those crimes to a level commensurate with similar crimes, such as mail fraud or wire fraud.
It is also important to understand that these statutory maximum sentences do not control what sentence is appropriate for less significant offenses under the CFAA. In many criminal prosecutions, including prosecutions under the CFAA of all but the most serious offenses, the statutory maximum penalty has little or no impact on the sentencing of convicted defendants. Instead, in each case, prosecutors make individualized sentencing recommendations, and judges make individualized decisions, based on such factors as the facts of the case, the offender’s history, and the U.S. Sentencing Guidelines.
Finally, I note that the Administration’s 2015 proposal does not include any new mandatory minimum sentences, and I support the decision not to seek any such new sentences in the CFAA at this time.
Had Lynch given a response like this to a judge, I would hope the judge would have ripped her a new one for being outrageously non-responsive. This was a politician’s answer, not a lawyer’s. I reject the proposition that she didn’t appreciate the question; she knew. She chose to string together all those words for the sole purpose of saying nothing. And nothing is exactly what she said.
How many times has a politician appeared on a Sunday morning interview show, been asked a halfway intelligent question and responded without answering anything? And, of course, the interviewer never follows up by saying, “Senator, that was totally non-responsive. What are you hiding?”
We may accept such circumvention from politicians, but the office of Attorney General demands a lawyer, and as such, confirmation should demand a lawyer’s response.
While the Aaron Swartz case, ending in his tragic suicide, was not, as the Hacktivists mistakenly thought, a singular attack on a beloved geek, it did offer an important example of the failure of the CFAA and the improper use of prosecutorial discretion in enforcing this absurdly out-dated mutt of a law.
Sen. Franken’s raising this question, raising the Aaron Swartz case, raising the CFAA which may be one of the most important criminal laws going forward in the development of a technological future, was critically important. Lynch’s response to it reflected something far more disturbing than the fact that she did her job in EDNY as one would typically expect her to. If she’s to be the Attorney General, then she should be expected to deal with the tough questions, the massive legal failures of outdated laws, the issues that arise in significant cases because they have come to represent the failure of law to reflect what the public expects and demands of it.
Lynch’s response tells us only one thing: she’s more interested in being a politician than a lawyer, and she’s perfectly willing to deflect responsibility with non-responsive responses to get there. While it may be a truism that the choices range from bad to worse when it comes to the appointment of an Attorney General, Lynch’s response moved her toward the deep and ugly hole of worse.
If she refuses to provide meaningful responses, and thus keeps digging, that’s where she’ll stay. And the shame may be that she’s confirmed anyway.