Aaron Swartz's Prosecutors Employ Outrageous Bullying Tactics as Standard Operating Procedure
This article first appeared on WhoWhatWhy.com
The suicide last Friday of information activist, computer hacker and technical wunderkind Aaron Swartz has focused attention on Carmen Ortiz, the U.S. Attorney for Massachusetts, whose overzealous prosecution may have led to his death. Swartz, co-founder of a website later acquired by Reddit as well as a prime developer of the online publishing infrastructure known as Rich Site Summary (RSS), was under federal indictment for logging into JSTOR—a database of scholarly articles accessible from universities across the country—and downloading its content with the intent to distribute the articles online free of charge.
Despite JSTOR’s subsequent securing of the “stolen” content and refusal to press charges, Swartz was arrested by the feds and charged originally with four felony counts under the 1986 Computer Fraud and Abuse Act. On those charges alone, Swartz was facing a possible 35-year sentence and over $1,000,000 in fines. Just three months ago, a “ Superseding Indictment” filed in the case by the U.S. attorney’s office upped the felony count from four to 13. If convicted, Swartz was looking at possibly over 50 years in prison: a conceivable life sentence.
Ortiz, the politically ambitious U.S. attorney for Massachusetts, spearheaded the prosecution against Swartz. “Stealing is stealing whether you use a computer command or a crowbar,” Ortiz proclaimed in a 2011 press release. Her point man in the case was Assistant U.S. Attorney Stephen Heymann, a specialist in computer crime and son of Philip Heymann, the United States Deputy Attorney General during the Clinton administration. Stephen Heymann led the 2010 investigation into Albert Gonzalez, the TJX hacker, in the largest identity fraud case in history. Heymann’s office suspected that one of the unindicted co-conspirators named in that criminal complaint—“JJ”—was Jonathan James, a juvenile hacker who also killed himself two weeks after his house was raided.
The details of the Swartz case are so suggestive of prosecutorial abuse that they have already led to widespread condemnation of Carmen Ortiz and Stephen Heymann. However, what’s missing from much of the expressed outrage is recognition that the “bullying” tactics employed by Ms. Ortiz are standard operating procedure for federal prosecutors when pursuing criminal cases.
The Great Heist of Tewksbury
With a population just under 30,000, the town of Tewksbury, Massachusetts, is hardly considered ground zero for federal drug trafficking crimes. Just off Route 38, the town’s only major thoroughfare, sits the modest Motel Caswell. With just six reviews on tripadvisor.com—one “Poor” and five “Terrible”—even defenders of the $57 per night operation admit its shabby digs: “The Motel Caswell isn’t the Ritz,” its lawyer told a federal courtroom in November 2012. But that didn’t stop the Drug Enforcement Administration (DEA) and Ms. Ortiz’s office from trying to seize its assets .
In 2009, the 69-year-old owner, Russ Caswell, received a letter from the DOJ indicating the government was pursuing a civil forfeiture case against him with the intention of seizing his family’s motel—it was built in 1955 by Russ’s father—and the surrounding property. Ms. Ortiz’s office asserted that the motel had been the site of multiple crimes by its occupants over the years: 15 low-level drug offenses between 1994 and 2008 (out of an estimated 125,000 room rentals). Of those who stayed in the motel from 2001 to 2008, .05% were arrested for drug crimes on the property. Local and state officials in charge of those investigations never accused the Caswells of any wrongdoing.
Nor is the U.S. attorney charging Russ Caswell with a crime. The feds are using a vague but increasingly common procedure known as civil asset forfeiture. In criminalforfeiture, after a person is convicted of a crime the state must prove that the perpetrator’s property had a sufficiently strong relationship to the crime to warrant seizure by the government. In civil forfeiture proceedings, the state asserts the propertycommitted the crime, and—under civil law—the burden of proof is on the defense to demonstrate their property is innocent.