Friday, January 18, 2013

Left Side of the Aisle #91 - Part 2

RIP: Aaron Swartz, victim of prosecutorial abuse

Aaron Swartz is dead. He hung himself in his apartment on January 11. He was 26.

Here's what you should know about Aaron Swartz. He was something of an internet wunderkind. At the age of 14 he co-developed something called Really Simple Syndication, or RSS - and if you're online and you have a blog and you distribute it or if you use a newsreader or if you any of a number of related things you likely use RSS to do it.

He helped to create Reddit, one of the most widely read news aggregating sites in the world. He developed the technical architecture for the Creative Commons license, which enables people to allow free distribution of their work under the requirement they be given credit for its creation. Among his social and political activities was founding the site Demand Progress, which became instrumental in defeating the so-called Stop Online Privacy Act, or SOPA, which would have given a handful of corporations control over most all information distribution on the Web and government the power to shut down whole domains based merely on a corporate accusation that something on some site somewhere within that domain violated a copyright.

And, most importantly for now, and I'm going to quote Chris Hayes here,
at the time of his death Aaron was being prosecuted by the federal government and threatened with up to 35 years in prison and $1 million in fines for the crime of - and I’m not exaggerating here - downloading too many free articles from the online database of scholarly work [called] JSTOR.
Here's how it works. JSTOR contracts to digitize articles from around 1400 scholarly journals. It then sells these articles, often at a high price, to subscribers. That offends free-data activists - of who Swartz was one - both because it essentially denies access to that information to large swaths of people and because the license fees JSTOR pays go to the publishers, with nothing going to the original authors.

Some people, because of their academic connections, have access to that database for free. Aaron Swartz, as a Harvard fellow, was one. So he wrote a simple computer script to download nearly five million articles. In effect, he automated the process of right-click-save-as at computer speeds.

The government's indictment alleges that his activity at JSTOR was detected and his access was blocked, so he went to MIT, which has a notoriously and deliberately open structure to its network and whose members also have free access to JSTOR. There he trespassed into an MIT computer-wiring closet in order to physically download the data directly onto his laptop.

Remember, that as a Harvard fellow Swartz had legal access to those articles. So the only actual crime found so far is at worst misdemeanor trespassing.

Nonetheless, the federal government claimed he intended to distribute those articles for free - even though he never did - and charged him with 13 felonies, including wire fraud and computer fraud, under the 1986 Computer Fraud and Abuse Act, a law so infamously vague and broad that prosecutors can stretch it to charge people with felonies for acts that would otherwise barely qualify as illegal.

As a result, Swartz faced up to, again, 35 years in jail and a $1 million fine. That this was massive, unconscionable, prosecutorial overreach becomes even clearer when you realize that JSTOR, the supposed victim in the case, declined to press charges. Instead, two days before Swartz was arrested, the Secret Service took over the case. And when his attorneys tried to work out a plea bargain, the government's "offer" was for him to plead guilty to all 13 charges and go to prison for at least 6 months.

Something else you should know right now is that Aaron Swartz suffered from depression. His lawyers told the prosecutors he was a suicide risk. Their answer was, according to his lawyers, "Fine, we'll lock him up."

We'll never know for absolutely sure if the financial and emotional pressure of this persecution - the word is chosen deliberately - contributed to Swartz's suicide. But if it didn't, it was one hell of a coincidence.

There are three reasons why this case is worthy of note beyond the obvious personal tragedy. One is the question of why the Secret Service got involved: What was the grave threat to the nation involved? Many are answering that there wasn't one, that the case was pursued because the government wanted to make an example of Swartz, to make him their scarecrow in the attempt to frighten other hackers - I shouldn't say "other" because he didn't actually hack anything here - but to frighten hackers into not challenging corporate and government control of information.

Another is the question of the Computer Fraud and Abuse Act, because any law which can be used to turn what Swartz did into 13 felonies desperately needs a massive re-write.

The third is the issue of prosecutorial abuse, of, in the words of Swartz's family, "a criminal justice system rife with intimidation and prosecutorial overreach." The issue is the power of prosecutors to bring in effect the whole weight on the federal government down on someone in pursuit of some other agenda, something other than justice but more about power or revenge or just proving who's boss.

And actually there is one more thing, one more reason, and it is the real reason I spent this much time telling you about this. The federal prosecutor, the US Attorney for the District of Massachusetts, is one Carmen Ortiz and the word is she's thinking of running for governor. And if she does, I want you to remember this case. I want you to remember how Carmen Ortiz was prepared to throw aside proportionality, to throw aside humanity, to throw aside justice, in favor of raw government power.

RIP, Aaron Swartz.


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