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January 14, 2013

How the Government’s Prosecution of Aaron Swartz Pushed Him Toward Death

Posted in: Freedom of Information,Justice

Aaron Swartz, who led the groundswell of activism that defeated SOPA/PIPA (Photo by selfagency)

Three major newspapers ran stories this morning on the suicide of Internet activist Aaron Swartz, who the government was aggressively prosecuting for allegedly “hacking” into JSTOR to liberate some academic articles and make them more widely available to the world. Swartz was set to go on trial in April.

The Wall Street Journal reported, “Just days before he hanged himself, Internet activist Aaron Swartz’s hopes for a deal with federal prosecutors fell apart.” The newspaper notes he “allegedly used the computer network at the Massachusetts Institute of Technology to download nearly five million articles from a fee-charging database of academic journals.”

Swartz’s lawyer, Elliot Peters, discussed “a possible plea bargain with Assistant U.S. Attorney Stephen Heymann last fall.” Heymann would not accept a plea bargain if Swartz did not plead guilty to every count he faced—13 felonies. Peters tried last Wednesday to force a compromise and Heymann would change his position.

As the New York Times described, Swartz realized “he would have to face a costly, painful and public trial.” He could have been in jail for 50-plus years and fined around $4 million.

His girlfriend, Taren Stinebrickner-Kauffman, told the New York Times, “The case was draining his money, and he would need to ask for help financing his defense; two of his friends had recently been subpoenaed in the case. Both situations distressed him.” He did not want to ask other people for money.

Under the Computer Fraud and Abuse Act (CFAA), government prosecutors enjoy wide discretion. Typically, a prosecutor would push for a punishment proportional to the harm done by the crimes alleged. In Swartz’s case, it is clear this did not happen. JSTOR declined to press charges, but the government pursued the case anyway.

On July 19, 2011, his indictment was unsealed. United States Attorney Carmen M. Ortiz declared in a statement, “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.”

Steven D. Ricciardi, Special Agent in Charge of the United States Secret Service in New England, contended, “The New England Electronic Crimes Task Force has taken an aggressive stance in the investigation of computer intrusions and other cybercrimes…Through this task force, the Secret Service and our partners on the Cambridge and MIT Police Departments demonstrate the importance of cooperation among law enforcement to focus resources and respond effectively to investigate and prevent this type of fraud.”

In September 2012, a “superseding indictmentexpanded his charges from four to thirteen felonies. The government may have been willing to seek only seven years in jail at trial, according to the WSJ. It may have bargained that down to “six to eight months in exchange for a guilty plea.” However, Swartz did not want to go to jail at all.

Peters told WSJ: ”I think Aaron was frightened and bewildered that they’d taken this incredibly hard line against him…He didn’t want to go to jail. He didn’t want to be a felon.”

According to the WSJ, he started dating Stinebrickner-Kauffman in June 2011, one month before he was indicted on four counts. She “lived with him in Brooklyn for a few months.” In the week before his suicide, he was experiencing pain that was “too much to contemplate,” she said, and having “depressive episodes.” He also concluded “MIT wasn’t going to stand up for him.” It was a “tragedy” that MIT would not stop the government’s prosecution.

The US Attorney’s office in Massachusetts, which was leading the aggressive prosecution, hid behind the notion that it needed to “respect” the “family’s privacy” and refused to offer a comment over the weekend. But the family has no wish to keep any of what the government did or thought about Swartz private. They want the malpractice and zeal of government prosecutors out in the open.

The family stated:

…Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US 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. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community’s most cherished principles.

The New York Times spoke to E.J. Hilbert, a former cybercrimes investigator for the Federal Bureau of Investigation, who said, “The broader issues around such activist transgressions raise many complex questions that are subject to ‘a lot of discretion from prosecutors,” and continued, “The United States Attorney’s Office for the District of Massachusetts has long been renowned for a particularly aggressive pursuit of cybercrimes.

Additionally, MIT should not be excused. The institute attempted to engage in damage control on Sunday:

I want to express very clearly that I and all of us at MIT are extremely saddened by the death of this promising young man who touched the lives of so many. It pains me to think that MIT played any role in a series of events that have ended in tragedy.

I will not attempt to summarize here the complex events of the past two years. Now is a time for everyone involved to reflect on their actions, and that includes all of us at MIT. I have asked Professor Hal Abelson to lead a thorough analysis of MIT’s involvement from the time that we first perceived unusual activity on our network in fall 2010 up to the present. I have asked that this analysis describe the options MIT had and the decisions MIT made, in order to understand and to learn from the actions MIT took. I will share the report with the MIT community when I receive it.

This clear attempt to manage perception did not admit how complicit, cooperative or involved MIT had been in the government’s prosecution. And, essentially, what the MIT president appears to be requesting is a cost-benefit analysis to show that MIT did not err and bears no responsibility for Swartz’s death.


Swartz published a “Guerrilla Open Access Manifesto” in July 2008 in which he clearly stated why he would want to engage in an act that would make academic articles more widely available:

Information is power. But like all power, there are those who want to keep it for themselves. The world’s entire scientific and cultural heritage, published over centuries in books and journals, is increasingly being digitized and locked up by a handful of private corporations. Want to read the papers featuring the most famous results of the sciences? You’ll need to send enormous amounts to publishers like Reed Elsevier…

He urged:

Those with access to these resources — students, librarians, scientists — you have been given a privilege. You get to feed at this banquet of knowledge while the rest of the world is locked out. But you need not — indeed, morally, you cannot — keep this privilege for yourselves. You have a duty to share it with the world. And you have: trading passwords with colleagues, filling download requests for friends.

Swartz understood this might be considered “stealing or piracy, as if sharing a wealth of knowledge were the moral equivalent of plundering a ship and murdering its crew.” But, it was a “moral imperative” to defy those “blinded by greed” and let “friends” make copies.

He concluded corporations and politicians had established unjust laws. “In the grand tradition of civil disobedience,” it was time to “declare our opposition to this private theft of public culture.”

We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that’s out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access.

This may have been the oft-ignored idealism of an Internet activist weeks ago. Since it is widely perceived the government pushed Swartz to kill himself, they unwittingly created a hero, who is now guaranteed to inspire more acts like the ones Swartz committed.

Swartz did not—as Alex Stamos, who was going to testify as an expert witness during Swartz’s trial, put it—pose any danger to JSTOR, MIT or the public. He did not technically hack but rather took advantage of a “loophole” that was “created intentionally by MIT and JSTOR, and was codified contractually in the piles of paperwork turned over during discovery.” He really was not showing utter disregard for property or the law.

The government chose to make an example out of him. The government prosecutor refusing to agree to a less severe plea deal probably thought of his career path and decided convicting an Internet activist on 13 felony counts would make a move upward in the ranks of government possible. The government may have also thought there needed to be a case that could become precedent and clearly demonstrate to the public that information was not free. Intellectual property must be respected and individuals cannot be allowed to take advantage of “loopholes” to share knowledge.

Just as the government sought to make an example out of NSA whistleblower Thomas Drake, made an example out of former CIA officer John Kiriakou for “leaking” a name of an agent and is making an example out of Pfc. Bradley Manning for allegedly providing classified and non-classified information to WikiLeaks, it pursued Swartz hoping to convict him and set a precedent that would limit Internet freedom and the free flow of information. Meanwhile, banks like HSBC received no jail time for terrorist financing, not a single person from a Big Bank on Wall Street was prosecuted for major financial crimes that led to the 2008 economic collapse and those in the Bush administration and intelligence community, who authorized torture, were allowed to roam free.

Finally, do not expect his suicide to change anything. The government will continue to take up cases against Internet activists, who do no real harm, while looking the other way as white collar criminals and war criminals receive accolades, enjoy prestige and success and benefit from government welfare.

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