Wednesday, January 16th, 2013
18

The Questions Following Aaron Swartz's Death

The suicide of Aaron Swartz last week has brought attention to a lot of things in need of immediate and substantial change: the unchecked power of ambitious, self-serving federal prosecutors; the curious disconnect between the ferocity with which those prosecutors hunted down a 20-something political activist, and their respectful reluctance to disturb the potentates of Wall Street; the absurdity of our current copyright laws; ditto, the outmoded laws still on the books with respect to "hacking."

There's also an important point to reiterate. I've seen a number of angry commenters on Twitter and elsewhere claiming that JSTOR "has blood on its hands." This is false. JSTOR declined involvement in the prosecution from the outset, issuing an immediate statement to this effect on its website. JSTOR's attorney, Mary Jo White (herself a former federal prosecutor), called prosecutor Stephen Heymann and asked him to drop the case, according to Swartz's lawyer, Elliot Peters; JSTOR's Heidi McGregor confirmed this by phone.

The culpability of MIT, however, whose network Swartz accessed in order to conduct his maybe-somewhat-illegal-ish download, is a more complicated matter. MIT president L. Rafael Reif announced that the university would investigate its role in the Swartz affair. A number of observers have surmised that without MIT's eager handing over of evidence to the Feds, the prosecution against Swartz might well have stopped in its tracks; others point out that having once called the Feds in, it might not have been so easy to call them off again.

Many who looked into the case, myself included, simply didn't believe the government could possibly succeed in its prosecution of Aaron Swartz; learning of the details after his death, I am sorry I dismissed that possibility. Writing in the Daily Beast, Michael Moynihan shed light on Swartz's exact position:

Swartz’s lawyer said that his team rejected a plea deal which would have put his client behind bars for six months. The deeper issue, one largely ignored by his legion of online surrogates, is made cogently by [the crooked but unrepentant newspaper magnate Conrad] Black [who is in a position to know]: “[In the United States] prosecutors win 95 percent of their cases, 90 percent of those without a trial, and people who exercise their constitutionally guaranteed right to go to trial receive more than three times the sentence they receive if they cop a plea, as a penalty for exercising their rights.” In other words, if Swartz wanted to demonstrate his innocence—and potentially not be branded a convicted criminal—those 6 months could have quickly mushroomed into six years.

Beyond this, one must ask what additional pressures a government hell-bent on the prosecution of whistleblowers and hackers might have brought to bear on this fragile young man, who is known to have been a sufferer from depression. How would Swartz, a champion of openness and freedom of information, have stood up to such pressure? A 2011 investigation by the Guardian ("One in four US hackers 'is an FBI informer'") concluded that "[c]yber policing units have had such success in forcing online criminals to co-operate with their investigations through the threat of long prison sentences that they have managed to create an army of informants deep inside the hacking community." Both the FBI and the Secret Service are named in this piece. Marcy Wheeler, who blogs at emptywheel, noted the early involvement of the Secret Service in Swartz's prosecution in a recent post, raising a point that I hope will get a whole lot of traction in the days to come: "I want to know whether MIT—which is dependent on federal grants for much of its funding–brought in the Secret Service." I'd also like to know exactly what the Secret Service had to say to Aaron Swartz.


Related: Was Aaron Swartz Stealing?




Maria Bustillos is the author of Dorkismo and Act Like a Gentleman, Think Like a Woman. Photo by Jacob Applebaum.

18 Comments / Post A Comment

ubu (#232,549)

All great and necessary questions.

Werner Hedgehog (#11,170)

Didn't Swartz intend to make the documents available? What did he expect was going to happen then? There are questions I would like answers to about the motives and methods of Swartz.

barnhouse (#1,326)

@Werner Hedgehog nothing at all has been made public, so far, with respect to his ultimate intentions for the JSTOR download.

Werner Hedgehog (#11,170)

@barnhouse I hear all this high-minded talk about "information wanting to be free" and this and that. Wasn't he "liberating" a buncha mostly impenetrable papers from behind a (porous) paywall?

barnhouse (#1,326)

@Werner Hedgehog he never liberated anything whatsoever; that's just the thing. He just downloaded a lot of stuff that he had a perfect right to download (since he would have had a JSTOR account through Harvard.)

Honest Engine (#1,661)

@barnhouse I'm confused. Why did he break into a closet and access the server directly if he already had access?

barnhouse (#1,326)

@Honest Engine (There was no 'break-in', as the closet apparently wasn't locked; it's my understanding that trespassing charges could not be brought.) Swartz had a legit JSTOR account through his Harvard affiliation, but he apparently didn't want anyone to know that it was he who was taking nearly five million documents off the JSTOR servers. As I wrote earlier, this might have been out of a desire for anonymity, or just a practical matter of being able to automate a large download; that part isn't yet known.

TheRtHonPM (#10,481)

@barnhouse To clarify, he had a right to download *each* of the papers in JSTOR, but he did not have the right to download *all* of them, if JSTOR's terms of service are typical.

TheRtHonPM (#10,481)

@barnhouse Even if Swartz did not "break in" to the MIT wiring closet, it's clear that he used the closet to evade MIT's sysadmins, who knew that someone was trying to download the entire JSTOR archive and were trying to prevent him from doing so.

ubu (#232,549)

Sadly, the most wrongheaded and pervasive issue you raise is also the hardest to deal with. 30+ years of "tough on crime" legislation and propaganda has perverted the American justice system. Ridiculous sentences, mandatory minimums, the ability to parse out a single criminal act into 5 different criminal charges, prosecutors rewarded based on win/loss records irrespective of the facts of any given case all work together to create a system where one is essentially "innocent until indicted". Innocent people agree to a plea deal because the consequences of confessing to a crime they didn't commit is far less than risk of fighting the charges and losing.

lexalexander (#2,960)

ubu raises an excellent larger issue. But the involvement of the Secret Service is what puzzles me. So far as we know to date, the case involved neither a threat to the currency (let alone the larger financial system) nor a threat to the president or other top government officials. Anything else, to the best of my knowledge, would be an FBI or purely local matter.

Leon (#6,596)

@lexalexander – The Secret Service also investigates serious fraud and electronic crimes. While I disagree with the tactics of the prosecution (and the laws themselves, for that matter) I don't think bringing in the Secret Service is really a big deal.

This case and how it is handled are Very Very Important. Whether you think our government at large is made of benevolent people who do stupid and mean things as an outcome of bureaucratic process over-riding reason & compassion, or that it is malicious and conspiratorial (and I'm assuming most people here believe it, and the various actors in it, are in between, with different folks in different spots along that range) it is without a doubt in their best interest to have their most elite investigators and minds on electronic crime involved in any case or investigation regarding Swartz.

lexalexander (#2,960)

@Leon: I did not know that the SS had those things within its purview now. OK, that, at least, makes sense, then. Thanks.

yasdui (#244,930)

which is dependent on federal grants for much of its funding–brought in the Secret Service." I'd also like to know exactly what the Secret Service had to say to Aaron Swartz.
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john smith (#245,014)

Beyond this, one must ask what additional pressures a government hell-bent on the prosecution of whistleblowers and hackers might have brought to bear on this fragile young man, who is known to have been a sufferer from depression.
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johsn (#245,069)

want to know whether MIT—which is dependent on federal grants for much of its funding–brought in the Secret Service." I'd also like to know exactly what the Secret Service had to say to Aaron Swartz.
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