Home opinion-and-analysis Whiskey Tango Foxtrot Blood on their hands: how the US Attorneys hounded Aaron Swartz to his death

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Legal experts agree that nothing Swartz was charged with was likely to be proven. It probably wasn't even a crime.

My colleague Graeme Philipson has already spoken glowingly of Aaron Swartz and expressed the iTWire team's sadness at his passing, seemingly by his own hand this past weekend.

Allow me to repeat the statement from his family:

"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 US 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."

"Tim Berners-Lee tweeted "Aaron dead. World wanderers, we have lost a wise elder. Hackers for right, we are one down. Parents all, we have lost a child. Let us weep."

Worse, many legal minds have questioned the basis of the charges, which centred around two incidents.

In 2008, Swartz wrote a script that could legally download US Government court documents (available via PACER) from public libraries. The Government typically charged a few cents per page and terminated all library-based access after Swartz had obtained around 20% of the entire repository.

The second incident was, according to prosecutors, even more dubious. He secreted a laptop in a wiring closet at MIT and proceeded to download close to 5 million scientific papers from JSTOR. Unfortunately (for the prosecutors) he authenticated with a validly obtain identity for which no download restrictions applied.  

There is a brief obituary on the JSTOR site: "We are deeply saddened to hear the news about Aaron Swartz. We extend our heartfelt condolences to Aaron’s family, friends, and everyone who loved, knew, and admired him. He was a truly gifted person who made important contributions to the development of the internet and the web from which we all benefit."  

Hardly the words of an aggrieved party.

One might summarise the accusations as using valid access to download too much!

More importantly, JSTOR had settled all claims against Swartz, "they've suffered no loss or damage, and asked the government not to prosecute," according to Demand Progress Executive Director, David Segal. Demand Progress is a non-profit founded by Aaron Swartz.

But not prosecuting did nothing to further the aspirations of US Attorney Carmen Ortiz and lead Assistant Attorney Stephen Heymann. It seemed they need a win, at any cost.

Any number of summaries (here for instance) make it very clear that the action would struggle on pretty-well every count cited in the indictment. In fact the only accusation that might hold sway (breaking into a wiring closet) could not even be considered a federal offence - it would be a state crime.

Alex Stamos, who would have been an expert witness for Swartz when the case came to trial, made this observation, "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."

As commenter 'Paul' adds to Stamos' blog post, "The lack of perspective on the part of the prosecution truly concerns me. It is either the result of a lack of competent intellect require to grasp the situation at-hand. Or it is the result of a malicious disregard for the truth."

Many competent / expert people said very publicly that the charges amounted to nothing, yet the prosecution pressed ahead.  JSTOR said there was no complaint to answer, yet they pressed ahead.  We await the thoughts of both Ortiz and Heymann who have suddenly found themselves switched from prosecutors to defendants.

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David Heath

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David Heath has over 25 years experience in the IT industry, specializing particularly in customer support, security and computer networking. Heath has worked previously as head of IT for The Television Shopping Network, as the network and desktop manager for Armstrong Jones (a major funds management organization) and has consulted into various Australian federal government agencies (including the Department of Immigration and the Australian Bureau of Criminal Intelligence). He has also served on various state, national and international committees for Novell Users International; he was also the organising chairman for the 1994 Novell Users' Conference in Brisbane. Heath is currently employed as an Instructional Designer, building technical training courses for industrial process control systems.

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