Today, the Justice Department will brief the Senate Judiciary staff on the prosecution of the late activist and Internet pioneer Aaron Swartz, who died in January. Swartz has become a lasting symbol for how the Computer Fraud and Abuse Act (CFAA) can be twisted by authorities to mete out draconian punishments and turn millions of Internet users into criminals.

Previously, Sen. John Cornyn asked pointed questions to Attorney General Eric Holder about the case in an oversight hearing of the Justice Department (DOJ). Thursday’s briefing will be an opportunity for the Judiciary Committee to ask more detailed questions and follow up on answers that Holder promised the Senators.

The briefing is closed to the public, but here are some questions we’d like to see asked:

1) At last month’s hearing in front of the Senate Judiciary Committee, Senator Leahy asked Attorney General Holder whether the department would consider prohibiting CFAA prosecutions based solely on Terms of Service (ToS) violations. Holder replied “that is something we can look at.”

Has the DOJ looked into changing its current policy to ensure prosecutions based solely on ToS violations don’t happen in the future? Have any official internal reviews been conducted to identify other prosecutions based on this dangerous legal theory? Would the DOJ support legislation to update the CFAA to clarify that ToS violations aren’t a crime?

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