The suicide of famed programmer and free access advocate Aaron Swartz shocked the world. However, the underlying story of the how the Obama Administration prosecuted — and, in the eyes of many, persecuted — Swartz for seeking to publish academic papers which were later released by MIT without charge. Nevertheless, United States Attorney Carmen M. Ortiz and the Obama Administration relentlessly pursued Swartz and sought an absurd 35 years in prison and $1 million in fines before he took his own life. His family blames the Justice Department and Ortiz for his suicide. Swartz opposed the Administration’s fight against public access and particularly President Obama’s “Kill List.” The Swartz prosecution was widely criticized for months but the Obama Administration and Justice Department remained committed to putting him in jail.
Swartz was one of this country’s most extraordinary individuals. At age 14, he helped create RSS, the tool allowing people to subscribe to online information. He later was a founder of a company that merged with Reddit where we get many of our daily stories.
Swartz, 26, hanged himself and appears to have suffered from depression. Thus, the prosecution cannot be entirely attributed with his death. However, the Obama Administration hammered Swartz for months over his downloading of academic articles. Swartz has long been an advocate for public access to information. Like many of us, Swartz was critical of increasingly stringent laws balkanizing information in our society from works to words to even common images. He however took that crusade to extraordinary lengths.
In 2008, he took on PACER, or Public Access to Court Electronic Records, for its charging of 10 cents a page for documents. I agreed with Swartz about this charge as being a barrier to public access to our courts and important cases. He argued correctly that there should be free access. He co-founded Demand Progress to seek online access and fought for social reforms. The federal government, at the behest of industry groups, shutdown his free library program.
In 2011, Swartz took on JSTOR, the academic repository of papers and research. It is a subscription based service. He broke into the computer system at MIT through a utility closet using a laptop and a false identity. He downloaded 4.8 million documents. Notably, however, MIT chose not to pursue charges — to its credit. For many years, academics argued that such material should be free to the public as a matter of principle. Two days before Swartz’s death, MIT releases all documents publicly free of charge.
However, despite MIT’s position that it did not want to bring charges, Carmen M. Ortiz saw her chance. 
Ortiz is the United States Attorney for Massachusetts and a graduate of our law school who spoke recently at our commencement. Industry groups and lobbyists have long gotten what they wanted from Obama on criminalizing trademark and copyright violations. States have shown the same capture by industry groups. Swartz was a prime target as an advocate of public access and the Obama Administration threw everything that they had at him.
There is no question that Swartz crossed the line and broke into the system. However, given MIT’s position against charging Swartz, it would seem a case for prosecutorial discretion or a deal with Swartz. After all, students commit such acts regularly (though certainly not to the size of this download) without charges. Ortiz, however, sought decades in jail and ruinous fines to the great pleasure of the copyright hawks that run throughout the Administration. To the Administration, Swartz was just another felon who needed to be jailed for decades for his crime.
It is doubtful that the Administration will take any action to reduce the stranglehold on creativity and discussion by these laws. The Administration has brought in copyright hawks into the Administration and appointed them to the courts in a windfall for industry.
MIT has started an investigation into any role the school may have played in the prosecution by the Obama Administration. What is notable is that Swartz’s treatment at the hands of the Justice Department has caused outrage. However, thousands of average citizens have been ravaged by the Administration or industry law firms like the U.S. Copyright Group under these laws without attention or concern.
The abuse of Swartz speaks of industry capture of our government that has now claimed the life of one of the brightest of our country. He is the ultimate personification of how our copyright and trademark laws have been flipped on their head. Rather than protect creativity, they now stifle such creativity. We now have prosecutors and lawyers pursuing people like Swartz to prevent public access to information. His tragic image hanging in his apartment speaks to the dismal state of information control in this country. His was truly a beautiful mind and his death should galvanize his cause to empower citizens in their demand to breakdown the rising barriers to information in this country.
Source: NY Times
mespo727272
You said “he broke into a public building.” I don’t see that in the indictment.
As I understand it, the wiring closet was unlocked.
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The building at MIT was open to the public — in certain areas — hence the characterization. And lest you think what he didn’t wasn’t breaking in, the next time you arrive home to find someone rifling through your living room with the excuse that you left the door open please memorialize your reaction for us.
First off in your home the person would be charged with trespass, a misdemeanor. It is NOT even that if it takes place in a public building or one which has public access. Thus no foul.
mespo727272
Yes, he’s an expert witness, so that’s something to consider, to be sure. There are many things that we’ll never know — you’re certainly right about that.
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The full posting is worth reading, IMO. An excerpt below.
The Truth about Aaron Swartz’s “Crime”
http://unhandled.com/2013/01/12/the-truth-about-aaron-swartzs-crime/
Excerpt:
Should you doubt my neutrality, let me establish my bona fides. I have led the investigation of dozens of computer crimes, from Latvian hackers blackmailing a stock brokerage to Chinese government-backed attacks against dozens of American enterprises. I have investigated small insider violations of corporate policy to the theft of hundreds of thousands of dollars, and have responded to break-ins at social networks, e-tailers and large banks. While we are no stranger to pro bono work, having served as experts on EFF vs Sony BMG and Sony vs Hotz, our reports have also been used in the prosecution of at least a half dozen attackers. In short, I am no long-haired-hippy-anarchist who believes that anything goes on the Internet. I am much closer to the stereotypical capitalist-white-hat sellout that the antisec people like to rant about (and steal mail spools from) in the weeks before BlackHat.
I know a criminal hack when I see it, and Aaron’s downloading of journal articles from an unlocked closet is not an offense worth 35 years in jail.
The facts:
MIT operates an extraordinarily open network. Very few campus networks offer you a routable public IP address via unauthenticated DHCP and then lack even basic controls to prevent abuse. Very few captured portals on wired networks allow registration by any visitor, nor can they be easily bypassed by just assigning yourself an IP address. In fact, in my 12 years of professional security work I have never seen a network this open.
In the spirit of the MIT ethos, the Institute runs this open, unmonitored and unrestricted network on purpose. Their head of network security admitted as much in an interview Aaron’s attorneys and I conducted in December. MIT is aware of the controls they could put in place to prevent what they consider abuse, such as downloading too many PDFs from one website or utilizing too much bandwidth, but they choose not to.
MIT also chooses not to prompt users of their wireless network with terms of use or a definition of abusive practices.
At the time of Aaron’s actions, the JSTOR website allowed an unlimited number of downloads by anybody on MIT’s 18.x Class-A network. The JSTOR application lacked even the most basic controls to prevent what they might consider abusive behavior, such as CAPTCHAs triggered on multiple downloads, requiring accounts for bulk downloads, or even the ability to pop a box and warn a repeat downloader.
Aaron did not “hack” the JSTOR website for all reasonable definitions of “hack”. Aaron wrote a handful of basic python scripts that first discovered the URLs of journal articles and then used curl to request them. Aaron did not use parameter tampering, break a CAPTCHA, or do anything more complicated than call a basic command line tool that downloads a file in the same manner as right-clicking and choosing “Save As” from your favorite browser.
Aaron did nothing to cover his tracks or hide his activity, as evidenced by his very verbose .bash_history, his uncleared browser history and lack of any encryption of the laptop he used to download these files. Changing one’s MAC address (which the government inaccurately identified as equivalent to a car’s VIN number) or putting a mailinator email address into a captured portal are not crimes. If they were, you could arrest half of the people who have ever used airport wifi.
The government provided no evidence that these downloads caused a negative effect on JSTOR or MIT, except due to silly overreactions such as turning off all of MIT’s JSTOR access due to downloads from a pretty easily identified user agent.
I cannot speak as to the criminal implications of accessing an unlocked closet on an open campus, one which was also used to store personal effects by a homeless man. I would note that trespassing charges were dropped against Aaron and were not part of the Federal case.
In short, Aaron Swartz was not the super hacker breathlessly described in the Government’s indictment and forensic reports, and his actions did not pose a real danger to JSTOR, MIT or the public. He was an intelligent young man who found a loophole that would allow him to download a lot of documents quickly. This loophole was created intentionally by MIT and JSTOR, and was codified contractually in the piles of paperwork turned over during discovery.
If I had taken the stand as planned and had been asked by the prosecutor whether Aaron’s actions were “wrong”, I would probably have replied that what Aaron did would better be described as “inconsiderate”. In the same way it is inconsiderate to write a check at the supermarket while a dozen people queue up behind you or to check out every book at the library needed for a History 101 paper. It is inconsiderate to download lots of files on shared wifi or to spider Wikipedia too quickly, but none of these actions should lead to a young person being hounded for years and haunted by the possibility of a 35 year sentence.
Professor Lessig will always write more eloquently than I can on prosecutorial discretion and responsibility, but I certainly agree that Aaron’s death demands a great deal of soul searching by the US Attorney who decided to massively overcharge this young man and the MIT administrators who decided to involve Federal law enforcement.
I cannot speak as to all of the problems that contributed to Aaron’s death, but I do strongly believe that he did not deserve the treatment he received while he was alive. It is incumbent on all of us to figure out how to create some positive change out of this unnecessary tragedy. I’ll write more on that later. First I need to spend some time hugging my kids.
Question by anonymously posted 1, January 15, 2013 at 8:34 am
First, he broke into a public building -mespo727272
If you could source that…
Response by mespo727272 1, January 15, 2013 at 9:07 am
Paragraphs 27-8 of the indictment:
27. On January 4, 2011, Aaron Swartz was observed entering the restricted basement network wiring closet to replace an external hard drive attached to his computer.
28. On January 6, 2011, Swartz returned to the wiring closet to remove his computer equipment. This time he attempted to evade identification at the entrance to the restricted area.
As Swartz entered the wiring closet, he held his bicycle helmet like a mask to shield his face, looking through ventilation holes in the helmet. Swartz then removed his computer equipment from the closet, put it in his backpack, and left, again masking his face with the bicycle helmet
before peering through a crack in the double doors and cautiously stepping out.
http://web.mit.edu/bitbucket/Swartz,%20Aaron%20Indictment.pdf
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mespo727272
You said “he broke into a public building.” I don’t see that in the indictment.
As I understand it, the wiring closet was unlocked.
ap:
One telling comment:
“I was the expert witness on Aaron’s side of US vs Swartz, engaged by his attorneys last year to help prepare a defense for his April trial.”
Sadly, Mr. Stamos will never get the chance to have his opinion tested. Right now he holds all the expert cards. I wonder how he would have held up in court. He may have carried the day and convinced the jury this was merely inconsiderate as opposed to criminal behavior. Then again he may have been seen as a mouth for hire. We’ll never know. That was Swartz’s call.
The Truth about Aaron Swartz’s “Crime”
http://unhandled.com/2013/01/12/the-truth-about-aaron-swartzs-crime/
ap:
“If you could source that…”
***********************
Paragraphs 27-8 of the indictment:
27. On January 4, 2011, Aaron Swartz was observed entering the restricted basement network wiring closet to replace an external hard drive attached to his computer.
28. On January 6, 2011, Swartz returned to the wiring closet to remove his computer equipment. This time he attempted to evade identification at the entrance to the restricted area.
As Swartz entered the wiring closet, he held his bicycle helmet like a mask to shield his face, looking through ventilation holes in the helmet. Swartz then removed his computer equipment from the closet, put it in his backpack, and left, again masking his face with the bicycle helmet
before peering through a crack in the double doors and cautiously stepping out.
http://web.mit.edu/bitbucket/Swartz,%20Aaron%20Indictment.pdf
http://bostonglobe.com/metro/2013/01/15/humanity-deficit/bj8oThPDwzgxBSHQt3tyKI/story.html
“Swartz and his lawyers were not looking for a free pass. They had offered to accept a deferred prosecution or probation, so that if Swartz pulled a stunt like that again, he would end up in prison.
Marty Weinberg, who took the case over from Good, said he nearly negotiated a plea bargain in which Swartz would not serve any time. He said JSTOR signed off on it, but MIT would not. ” Boston Globe
http://www.democracynow.org/2013/1/14/an_incredible_soul_lawrence_lessig_remembers
(Link for comment posted at 8:30 am.)
First, he broke into a public building -mespo727272
If you could source that…
“An Incredible Soul”: Larry Lessig Remembers Aaron Swartz After Cyberactivist’s Suicide Before Trial; Parents Blame Prosecutor
Two brief excerpts:
AMY GOODMAN: Can you explain what the case against Aaron was? Explain what happened.
LAWRENCE LESSIG: Well, I have to be very careful, because when Aaron was arrested, he came to me, and I—there was a period of time where I acted as his lawyer. So, I know more about the case than I’m able to talk about.
But here’s what was alleged. Aaron was stopped as he left MIT. He had a computer in his possession, which there was tape that indicated that he had connected the computer to a server—to a closet in MIT, and the allegation was he had downloaded a significant portion of JSTOR. Now, JSTOR is a nonprofit website that has been for—since about 1996, has been trying to build an archive of online—giving online access to academic journal articles, you know, like the Harvard Law Review or journal articles from geography from the 1900s. It’s an extraordinary library of information. And the claim was Aaron had downloaded a significant portion of that. And the question, the obvious question that was in everybody’s mind, was: Why? What was he doing this for? And so, the Cambridge police arrested Aaron.
JSTOR said, “We don’t want to prosecute. We don’t want to civilly prosecute. We don’t want you to criminally prosecute.” But MIT was not as clear. And the federal government—remember, at the time, there was the Bradley Manning and the WikiLeaks issue going on. The federal government thought it was really important to make—make an example. And so, they brought this incredibly ridiculous prosecution that had multiple—you know, I think it was something like more than—more than a dozen counts claiming felony violations against Aaron, threatening, you know, scores of years in prison. But, you know, it’s not the theoretical claims about what he might have gotten; it was the practical burden that for the last two years, you know, his wealth was bled dry as he had to negotiate to try to finally settle this matter, because the government was not going to stop before he admitted that he was a felon, which I think, you know, in a world where the architects of the financial crisis dine regularly at the White House, it’s ridiculous to think Aaron Swartz was a felon.
….
LAWRENCE LESSIG: Yeah, Aaron was depressed. He was rationally depressed. You know, he was losing everything, because his government was overreaching in the most ridiculous way to persecute him, not just because of this, but because of what he had done before, liberating government documents that were supposed to be in the public domain. Of course he was depressed. He wasn’t depressed because he had no loving parents—he did have loving parents who did everything they could for him—or because he didn’t have loving friends. Every time you saw Aaron, he was surrounded by five or 10 different people who loved and respected and worked with him. He was depressed because he was increasingly recognizing that the idealism he brought to this fight maybe wasn’t enough. When he saw all of his wealth gone, and he recognized his parents were going to have to mortgage their house so he could afford a lawyer to fight a government that treated him as if he were a 9/11 terrorist, as if what he was doing was threatening the infrastructure of the United States, when he saw that and he recognized how—how incredibly difficult that fight was going to be, of course he was depressed.
Now, you know, I’m not a psychiatrist. I don’t know whether there was something wrong with him because of—you know, beyond the rational reason he had to be depressed, but I don’t—I don’t—I don’t have patience for people who want to say, “Oh, this was just a crazy person; this was just a person with a psychological problem who killed himself.” No. This was somebody—this was somebody who was pushed to the edge by what I think of as a kind of bullying by our government. A bullying by our government. And just as we hold people responsible when their bullying leads to tragedy, I hope Carmen Ortiz does what MIT did and hold—
AMY GOODMAN: The U.S. attorney.
LAWRENCE LESSIG: The U.S. attorney—and lead an investigation, ask somebody independent to look at what happened here and explain to America: Is this what the United States government is?
http://www.thedailybeast.com/articles/2013/01/15/aaron-swartz-s-unbending-prosecutors-insisted-on-prison-time.html
““Stealing is stealing, whether you use a computer command or a crowbar, whether you take documents, data or dollars,” Ortiz said after Swartz’s arrest. “It is equally harmful to the victim whether you sell what you have stolen or give it away.”
That moral sense was joined by the righteousness of a legal eminence’s son. The younger Heymann had in recent years been taking half a step away from his father’s shadow, and making a bit of a name for himself as a prosecutor of cyber-crimes.
“They’re very serious and their job is very serious and they’re very serious about it and this is a very serious matter and this is how it is going to be,” Peters says of the prosecution in the Swartz case. “They made their position very clear. They believed they had to seek prison time and multiple felony convictions in this case.”
The best deal the prosecutors would offer was four months in prison with Swartz pleading guilty to 13 felonies. And they warned Peters that his client had better take it while he still could.
“They told me over and over again that the offer had been on the table,” Peters says. “And any future offer would be less attractive.” Daily Beast
They will go after people like Swartz–but they rarely bring criminal charges against the biggest banksters. The corrupt banksters get away with paying fines. Here’s one recent example:
HSBC to Pay $1.92 Billion to Settle Charges of Money Laundering
By BEN PROTESS and JESSICA SILVER-GREENBERG
http://dealbook.nytimes.com/2012/12/10/hsbc-said-to-near-1-9-billion-settlement-over-money-laundering/
Excerpt:
State and federal authorities decided against indicting HSBC in a money-laundering case over concerns that criminal charges could jeopardize one of the world’s largest banks and ultimately destabilize the global financial system.
Instead, HSBC announced on Tuesday that it had agreed to a record $1.92 billion settlement with authorities. The bank, which is based in Britain, faces accusations that it transferred billions of dollars for nations like Iran and enabled Mexican drug cartels to move money illegally through its American subsidiaries.
While the settlement with HSBC is a major victory for the government, the case raises questions about whether certain financial institutions, having grown so large and interconnected, are too big to indict. Four years after the failure of Lehman Brothers nearly toppled the financial system, regulators are still wary that a single institution could undermine the recovery of the industry and the economy.
But the threat of criminal prosecution acts as a powerful deterrent. If authorities signal such actions are remote for big banks, the threat could lose its sting.
Behind the scenes, authorities debated for months the advantages and perils of a criminal indictment against HSBC.
Some prosecutors at the Justice Department’s criminal division and the Manhattan district attorney’s office wanted the bank to plead guilty to violations of the federal Bank Secrecy Act, according to the officials with direct knowledge of the matter, who spoke on the condition of anonymity. The law requires financial institutions to report any cash transaction of $10,000 or more and to bring any dubious activity to the attention of regulators.
Given the extent of the evidence against HSBC, some prosecutors saw the charge as a healthy compromise between a settlement and a harsher money-laundering indictment. While the charge would most likely tarnish the bank’s reputation, some officials argued that it would not set off a series of devastating consequences.
james in la:
then why invent anything? some people, I would say most, invent something so they can make money which improves their lives and other’s lives. why would anyone spend years developing a product for which there was no protection of their equity whether it be sweat or money?
I do agree with you that any number of people may have an idea, in fact I have had a couple but I did not take them to market, someone else did. They deserve the reward; they took the risk and spent the time to develop the idea into something marketable.
I for one hope patents, copyrights and intellectual property protections stay in force.
A federal prosecutor who engages in this kind of human rights violation should not have “prosecutorial immunity”. She and her bosses need to be charged with human rights violations. They are directly stifling the right of a person to petition his government for redress of grievances which is protected under the First Amendment. We know that they will go to Hell when their time comes but it is time to subject them to a trial for their human rights violations. God will punish them but Man has an obligation to do something to them while they are still on Earth.
Serious typo above. It was JSTOR that declined to press charges. If MIT had also declined to press charges Aaron would still be alive.
I’m no fan of show trials and I think most anyone could handle prosecutorial discretion better than the law and order, hall monitor-types that flock to the prosecutor’s office for jobs. Even so, I think our young Mr. Swartz had a lot to answer for. First, he broke into a public building and installed a hidden computer on a network over which he had no authority. He then proceeded to download millions of files. Being electronically stopped by JSTOR, he bought a second computer and again began automated downloading which caused MIT’s server to crash for several days. He damaged other computers and caused additional damages exceeding $5,000.00. While all of us here sympathize with his motivations, can we excuse outright violations of law in the name of activism? This is not Ghandi or Martin Luther King, Jr. we’re discussing. This is a 24 year-old prodigy hell-bent to get his way and, in the process, deprive JSTOR of its property. It is theft whether you agree with the law or not, and overcharging is the stock-in-trade of the prosecutor’s office as deplorable as the practice is. Did anyone really expected significant jail time? The principled thing to do after committing the act was to challenge the charges on the grounds he espoused. He took the less than courageous path to avoid proving his point and I, for one, have little sympathy for someone anxious to checkout before the fight. I reserve my admiration for folks who care to fight the long,hard battles within the system to make things better. Circumventing or breaking the law in service to one’s own sense of right and wrong is the battle cry of both the virtuous and the vile. It is justified in the rarest and most extreme of circumstances and, in my judgment, this is certainly not one of them.
http://www.huffingtonpost.com/2013/01/14/aaron-swartz-stephen-heymann_n_2473278.html Aaron Swartz’s lawyer said Stephen Heymann, the prosecuting attorney, was very very difficult to deal with. Swartz is not the first young man that Heymann was prosecuting to kill himself. Another young man killed himself in 2008.
https://www.eff.org/deeplinks/2013/01/aaron-swartz-fix-draconian-computer-crime-law (January 14, 2013 | By Marcia Hofmann
In the Wake of Aaron Swartz’s Death, Let’s Fix Draconian Computer Crime Law)