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The Prosecution of Aaron Swartz Paints Obama's Justice Department as Needlessly Cruel and Capricious

A powerful indictment of our justice system, the Swartz case exemplifies the sick hypocrisy of persecuting information activists while corrupt corporations and bankers get off easy.
 
 
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On Friday, January 11, 2013, 26-year-old visionary technologist and social activist Aaron Swartz hanged himself in New York City. A passionate advocate for making access to online information as widespread as possible, Swartz was grappling with the fallout from his efforts to do just that.

Two years before Swartz ended his life, he was arrested by police from the Massachusetts Institute of Technology and the City of Cambridge, Mass., police for breaking and entering into an MIT storage closet. In the closet, Swartz had stashed an Acer laptop  he had programmed to download in bulk millions of scholarly articles from JSTOR, a non-profit database that provides access to the articles for academic libraries. At the time, articles on JSTOR were locked behind a paywall for non-academics who wished to access them through their own computers. Swartz aimed to make them available, free of charge, to anyone who wanted to read them.

At the time of his arrest, an investigation of Swartz’s MIT/JSTOR action was already underway, and two days earlier, the Secret Service’s online crime division assumed controlof the probe. The Secret Service routinely conducts complex computer crime investigations; its involvement signaled the treatment of this as a major crime, not a caper. Six months later, U.S. Attorney Carmen Ortiz charged Swartz with a four-count indictment.  

To those who knew Swartz’ ethic, that indictment already seemed like overkill, essentially labeling an effort to share information as wire and computer fraud. But then last year, Ortiz multiplied each of the main charges, turning the same underlying actions into a 13-count indictment that threatened Swartz with a 35-year sentence.

Swartz had long struggled with depression that may have contributed to his suicide. But his family and associates have also blamed the government’s conduct in prosecuting Swartz. A statement issued by the family the day after Swartz’s suicide charges that “the U.S. Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims.”

And therein lies the almost incomprehensible legal background to this tragedy. Both before and after his arrest, Swartz had dedicated much of his life to using the internet to making information freely accessible. His goal here -- the government claims he intended to publish the journals online, but made no claim he wanted to profit off of them -- would have put academic research, much of it funded by federal grants, in the hands of the people who paid for it.

The Free Exchange of Ideas

Academic inquiry is founded on the free exchange of ideas. And most of the journals’ authors do not get paid for the articles they wrote. Swartz’s “crime” here would have served to foster intellectual exchange, the entire point of publishing scholarly journals. In fact, since Swartz’s indictment, JSTOR has opened up access to its journals for individuals who register. To some extent, then, Swartz’ goal has been implemented by his alleged victim.

Moreover, as Alex Stamos, an expert witness who would have testified in Swartz’s defense, points out, both the alleged victims of this crime had built their systems to foster openness. MIT deliberately allows visitors to access their system. At the time of the alleged crimes, JSTOR permitted users at MIT an unlimited number of downloads. Both networks lacked very basic safeguards to prevent abuse.

And both alleged victims have expressed regret at what has happened. Before the federal government charged Swartz, JSTOR settled its complaint against him, though MIT did not. In response to his death, JSTOR reiterated that it “regretted being drawn into from the outset, since JSTOR’s mission is to foster widespread access to the world’s body of scholarly knowledge.” And in addition to also expressing sorrow, MIT President Rafael Reif promised an investigation into MIT’s role in his prosecution, raising questions about what alternatives MIT had to cooperating in Swartz’s prosecution.

While MIT’s remorse may be tragically belated, both the alleged victims in this case seem to recognize that the prosecution violated the ethics of openness that JSTOR and MIT claim to uphold.

In spite of all this, the government portrayed Swartz’s action as theft, painting him as a common criminal. “Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away,” said Ortiz at a press conference announcing the charges.

An Example to All Who Might Follow

It seems clear that someone was keen to make an example of Swartz. In plea negotiations described by the Wall Street Journal, the government insisted Swartz plead guilty to all 13 charges and serve prison time.  As Harvard Law Professor Lawrence Lessig, -- who advised Swartz in the days after his first arrest -- emphasizes, they insisted that Swartz be branded a felon. Government attorneys reiterated this hard-nosed stance just last Wednesday, two days before Swartz took his own life.

In some ways, what was happening to Swartz was not all that unusual. George Washington University Law Professor Orin Kerr -- a leading expert on computer crime law who is sympathetic to the issues Swartz championed -- explains that the government’s charges fall within the norm for computer crimes. Moreover, the tactics used in this case are normal for the Department of Justice. The government often multiplies charges in order to coerce defendants to plead guilty without a trial.

Nor is Swartz’s the only case prosecuted by Ortiz, the U.S. Attorney for the District of Massachusetts, that has raised concerns nationally about her exercise of prosecutorial discretion. Last year, pharmacist Tarek Mehanna was sentenced to more than 17 years in prison after Ortiz successfully won his conviction for conspiracy to support terrorism, in a decision that threatens to criminalize scholarship and other activities that should be protected as speech. His crime? Translating jihadist works and posting them online.

Assistant U.S. Attorney Stephen Heymann, who presided over Swartz’s plea negotiations, has aggressively pursued hackers; he received an award in 1998 from then-Attorney General Janet Reno for his “exceptional work in the investigation and prosecution of computer crime.” But such aggressive investigations have had costs before. As noted by the Huffington Post, a hacker caught up in a 2008 Heymann investigation, Jonathan James, also committed suicide, complaining he had no faith in the judicial system. Elliott Peters, Swartz’s attorney, accused Heymann of being unmovable in attempts to negotiate a plea for Swartz. 

"He was very intransigent," Peters said of Heymann. "It was his philosophy that as you got closer to trial the plea offers only got worse. But the offer he was making was so unreasonable that having it get worse didn't concern me much."

And Heymann knew about Swartz's mental health problems. In an interview with the Boston Globe, Andy Good, Swartz's first lawyer, said: "I told Heymann the kid was a suicide risk, ... they were aware of the risk, and they were heedless.” In what Good says is typical of prosecutors when dealing with a target who is a potential suicide, he recounted Heymann's response as: "Fine, we’ll lock him up."

The government’s demands in Swartz’s plea negotiations were actually similar to those of others accused of illegally liberating information, although those cases bear one difference: they dealt with the release of classified U.S. government information.

The War on Information

In the case of John Kiriakou, who passed on the name of an officer involved in the CIA’s torture program, the government insisted he plead guilty to Intelligence Identities Protection Act, even though the officer’s name was only ever “published” in a sealed court filing by lawyers with Top Secret clearances. With Army Private Bradley Manning, who is being tried in a military court for allegedly leaking hundreds of thousands of Defense Department and State Department cables to WikiLeaks, the government refuses to drop its pursuit of a guilty plea on an Aiding the Enemy charge, even though Manning has offered to plead guilty to the charges tied to his actual act of leaking information, but contends he never intended to harm the United States.

In all of its treatment of unsanctioned leakers, then, the administration of President Barack Obama has insisted on legally labeling those who liberate information as the worst kind of felons. In fact, in the case against Jeffrey Sterling, who is accused of leaking information about a questionable CIA operation to the New York Times’ James Risen, the government argued that leaking information to journalists -- functionally releasing information to the general public, rather than just to, say, a foreign government who might pay for the information -- is “more pernicious” than leaking it to our enemies. This attitude -- that release of information to the general public is more pernicious than release to our enemies -- treats Open Access activists like those who leak classified information.

The laws governing computer crime criminalize all sorts of actions that don’t seem like they should be crimes. The government inflates charges beyond all proportion to coerce plea deals. The government’s prosecutorial powers are overwhelming. This administration and these prosecutors have aggressively used the law to shut off the free flow of information.

So to the extent people are horrified by how Swartz was treated, they should also be horrified by the abuse of prosecutorial discretion more generally, whether it affects a genius like Swartz nabbed on an computer crime charge or a regular person brought in on drug charges.

But in Swartz’s case, there’s more than that. After all, he wasn’t accused of leaking classified information, but the penalties with which he was threatened were on a par with those slammed on those who did. There is reason to believe the government was especially vindictive with Swartz because of who he was, and what he represents. Then there’s the fact that Swartz embarrassed the Department of Justice itself some four years ago, in an action of information liberation that he actually got away with.

Swartz Shames the Justice Department

In 2008, DOJ briefly experimented with making PACER, its database of all federal court dockets, accessible from selected libraries for free, waiving the $.08 per page it charged users at the time. (It now costs $.10 a page to download a court document from PACER.) During that window, Swartz downloaded about 20 percent of PACER’s materials, and donated them to be accessed for free to anyone who wanted them. (PACER’s fees were shown to be well above the break-even mark for the government.) As Swartz documented a year later when he posted his own FBI file, the bureau investigated and considered charging him, but ultimately dropped the investigation.

Swartz was also a leader in political efforts to defeat a series of laws -- including the deceptively-named Stop Online Piracy Act, or SOPA -- intended to make it even easier for the government to prosecute copyright violations and, in the process, close off parts of the Internet. As such, Swartz must be considered a political leader who had successfully fought the same kind of legal overreach that ultimately led to the kind of aggressive prosecution that Ortiz and Heymann subjected him to.

Perhaps most important, though, are Swartz’s ties to a group of Cambridge hacktivists who -- at precisely the moment the Secret Service triggered Swartz’s first local arrest -- the government was bearing down on in its investigation of WikiLeaks and the collective known as Anonymous. After all, Swartz was first arrested (despite a lack of evidence that he intended to profit off JSTOR’s archives), just the day before Twitter informed several WikiLeaks associates the government had demanded that the microblogging site turn over information that would allow the tracking of their online activities.

During that same period, the government was subjecting Manning to what a judge has now declared illegal treatment at the Quantico brig where he was being held because, some people surmised, they wanted Manning to help build a case against WikiLeaks founder Julian Assange. Given the timing and Swartz’s proximity, as a public figure, to a community the government wanted to punish or infiltrate, it is hard to see the government’s treatment of Swartz as unrelated to its larger efforts to crush a movement dedicated to the freedom of information.  

As technologist Danah Boyd sees it:

When the federal government went after him -- and MIT sheepishly played along -- they weren’t treating him as a person who may or may not have done something stupid. He was an example. And the reason they threw the book at him wasn’t to teach him a lesson, but to make a point to the entire Cambridge hacker community that they were p0wned. It was a threat that had nothing to do with justice and everything to do with a broader battle over systemic power.

In a filing from late last year defending the way in which it had collected evidence in this case, the government pointed to a 2008 manifesto that Swartz helped write as almost the sole explanation for why Swartz's choice to download the JSTOR archives at MIT -- rather than at Harvard, where, as a fellow in the Safra Center for Ethics, he had legal access to JSTOR materials -- constituted illegitimate activity.

Prosecutors, in their filing, write:

In the Guerilla Open Access Manifesto, which Swartz actively participated in drafting and had posted on one of his websites, Swartz advocated ‘tak[ing] information, wherever it is stored, mak[ing] our copies and shar[ing] them with the world.’

The government essentially asserts, then, that Swartz’s First Amendment-protected call to liberate information is part of what made made its investigation of him legitimate.

More Dangerous than Bank Fraud or Drug-Dealing?

Those who know Swartz’s contributions to both the technological and political spheres find that ludicrous. Though still a young man, after all, Swartz had provided technical solutions to help people share information (through his contributions to RSS, Creative Commons, and Reddit, among others) and had pushed for ways to make our society more democratic and just (through DemandProgress and Progressive Change Campaign Committee).

The government, when it explains why it will neither prosecute banks for both foreclosure and LIBOR fraud on a massive scale nor for helping drug cartels and terrorists finance their crimes, points to their systemic importance.

Most who knew him or knew of him would say that the causes championed by Swartz -- open access to information by all and social justice -- were of true systemic importance, and that he was the kind of visionary who could lead this country through this new century. Both online and off, Swartz fought to empower ordinary people against the more powerful. And that may be precisely what DOJ so aggressively pursued him.  

On Monday, a day before the family of Aaron Swartz planned to lay him to rest, the government dropped all charges against him.

Marcy Wheeler blogs on law, national security, and civil liberties at Emptywheel.net. She is the author of Anatomy of Deceit: How the Bush Administration Used the Media to Sell the Iraq War and Out a Spy.

 
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