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?