“What the Aaron Swartz case says about our justice system”

by Walter Olson on January 14, 2013

Programmer Aaron Swartz, a founder of RSS syndication and Reddit, committed a series of trespasses and hacks at MIT so as to download millions of papers from the JSTOR academic database, possibly with the plan of making them freely available through file sharing. When caught he returned the files and JSTOR did not recommend prosecution. In September Timothy Lee wrote in Ars Technica that while there was no excuse for Swartz’s actions, it was also mystifying that federal prosecutors were going to such lengths to stack up felony counts and legal theories under the CFAA (Computer Fraud and Abuse Act) that could send the popular techie to prison for life. Now Swartz, who is known to have been afflicted by depression, is dead, a suicide at age 26. [Jonathan Blanks, Lawrence Lessig, Glenn Greenwald, Patterico interview with Swartz lawyer Elliot Peters, Scott Greenfield, Orin Kerr (disputing premise that prosecutors overcharged), Timothy Lee/WaPo]

{ 2 trackbacks }

PointOfLaw Forum
01.14.13 at 11:41 am
Orin Kerr on the Aaron Swartz case - Overlawyered
01.17.13 at 2:30 pm

{ 16 comments }

1 smart dude 01.14.13 at 12:39 am

Guilty pleas resolve 97% of all federal cases that the Justice Department prosecutes to a conclusion. This indicates, in my opinion, the end of civil justice.

Who is to blame? Congress, which has so overcriminalized human activity that prosecutors drown defendents in a tsunami of indictments such that defence becomes impossible in almost all cases.

reference: http://online.wsj.com/article/SB10000872396390443589304577637610097206808.html

2 aaaa 01.14.13 at 5:54 am

Maybe I understand it wrong, but calling what he did a hack is also a bit of stretch. What he did was basically editing URL (just like the one on top of browser) to automatically download a lot of articles.

Accessing any individual article required no hack, those urls have been available to him. There was no security measures he needed to overcome.

Writing a script to automate something on itself is hardly a hack. For something to be a hack, I would expect some security system to be broken.

3 Robert 01.14.13 at 9:45 am

All I know is, he physically broke into a closet to connect to a computer. And now it’s everyone’s fault except his own.

It’s truly awful when someone takes his on life, but it’s also not right to blame others for it.

4 aaaa 01.14.13 at 10:35 am

@Robert That closet was unlocked, located on open campus and used only by homeless man to store possessions. The entrance to that closet was not part of the federal charges and could not possibly cause 35 years worth of charges.

5 peter 01.14.13 at 1:04 pm

@Robert

What he did was go to the cabinet which had a notice saying ‘books available, copyright free, please copy one at a time’ and instead of that set up a system to automatically copy all of them. And for that faced federal criminal charges. Oh yeh. All his fault!

Overlawyered indeed.

6 Robert 01.14.13 at 10:19 pm

@aaaa so you’re saying that going into an unlocked house and taking things isn’t breaking and entering? The fact that you say it was ‘unlocked’ makes no difference.

7 Hugo S. Cunningham 01.15.13 at 1:16 am

The prosecution tell the press that they would have settled for jail time of 5-7 months if Aaron Swartz had agreed to plead guilty to all of the charges. If so, it is a pity there was no high-calibre lawyer he trusted (from MIT?) to take him by the hand and explain to him that 5-7 months (especially in a Club Fed) would not be the ruin of his life, any more than it was for Martha Stewart. Such a lawyer could also have guaranteed him that the 5-7 month *maximum* was real and final, that there would be no double-cross of additional charges and/or penalties.

But no authoritative person did speak up for this vulnerable kid.

Maybe he thought he was entitled to his day in court. The prosecution didn’t want to be bothered with him, and terrorized him with 35 years in jail. For your garden-variety embezzler, that might be a reasonable and cost-effective way to force the plea-bargain that such a case deserves. But this non-criminal apparently froze like a deer staring into the light of an oncoming train. If 5-7 months was considered proper for a plea, he should have been allowed to raise the serious issues of his defense at a risk of no more than three years in prison.

A Congressional committee should rake the prosecutor in this case over the coals. If that should have a “chilling effect” on other overzealous prosecutors, that would be precisely the point.

8 aaaa 01.15.13 at 5:07 am

@Robert That analogy does not work. Unlocked house is not an open campus. It was trepassing at best and not a part of federal charges under the question. If we are talking about the closet he entered, then he took nothing out of it and destroyed anything.

Say I invite you to my house and tell you that you are not allowed to go to garage. You will go to garage anyway. What is the punishment you deserve and what is the maximum punishment you can get? That is the appropriate analogy – closet entrance deserve exactly the same punishment.

If we are talking about articles he downloaded, he was legally allowed to download any single of them. JSTOR and MIT knowingly setted up their network to allow such downloads.

Of course, he was not allowed or expected to download that many of them at the same time. Neither JSTOR nor MIT wanted or meant to act as free world wide distributors nor build their network to be able to handle such load.

Neither JSTOR, nor MIT, not Swartz could ever make the money prosecution claim to be stolen out of that articles. That idea is crazy. Which I guess is why JSTOR did not wanted goverment to prosecute Swartz and MIT kept silence instead of openly supporting prosecution.

Does it mean that any punishment at all would be inappropriate? Nope. If he would have to pay fine, have to do some community service, have been denied access to that campus or something similar, few would objected.

Charging him as if he would break into the pentagon, bypassed actual security devices and stole super secret materials with the intention to sell them to terrorist is what the outrage is about. Neither was it bank robbery nor manslaughter.

9 gitarcarver 01.15.13 at 1:42 pm

aaaa,

The JSTOR business model was that they sold licenses to people so others could download papers at a certain rate.

If Swartz released all of the papers, he would have killed the business model of JSTOR.

Furthermore, Swartz did not simply “download” articles, he put a tap on a data line. When MIT noticed his activities, they banned him from the network. He returned. When they killed his MAC address, he spoofed that to get past that security measure.

The bottom line here seems to be that despite Swartz knowing his actions were illegal, he continued to do them. When caught, he was faced with jail time. We can argue whether the jail time was excessive, but according to the WSJ, Swartz didn’t want to spend ANY time in jail at all. Therefore the length of time he would have served is somewhat of a misdirection as even 15 days in jail was too much for him in his mind.

The question is whether Swartz broke any laws. It seems clear he did. He wanted a pat on the head and instead was looking at silver bracelets.

I am sorry the guy took his life, but for those who are trying to pin his reaction on prosecutors for knowingly committing a crime, and getting caught seems misplaced to me.

10 Bored Lawyer 01.15.13 at 2:49 pm

Agree with Gitacarver. Petty theft is still theft.

The part about 35 years (or even life!) is wildly exaggerated. You only get there if you are convicted on and then the judge sentences you to the the maximum for every single count. First of all, the maximum is rarely given out. Second, in a case like this, the different counts are simply different theories for the same basic wrong, and the Sentencing Guidelines and judges treat them that way. Had he been tried and convicted, he probably would have gotten 2 to 3 years, maybe less.

11 Vern Dennis 01.15.13 at 11:03 pm

The case says NOTHING about our justice system. Aaron’s suicide tells us that he was either depressed or unbalanced and lacked the courage to face the consequences of his actions (which would likely have amounted to little more than a slap on the wrist). I feel bad that he committed suicide, but ultimately we all our responsible for our own actions

12 Steve 01.16.13 at 8:00 am

The US economy overwhelmingly and increasingly depends on its intellectual and creative outputs. China, Russia, South America, India, and other places have quite literally become rich largely on top of America’s unwillingness or inability to credibly defend its intellectual property. Of course, on an intellectual stage it is to some degree hard, despite the existence of TRIPS and the like for a variety of reasons. Nevertheless, it stands to note that Japan, for whom intellectual output is equally important, HAS managed to create a culture and practice of enforcing and prosecuting intellectual property crimes. I fully support any and all efforts by the US government to start treating such crimes seriously as, taken as a whole, they do far more damage to the US economy than do petty physical crimes. It is a sad state of affairs when we have to try to prosecute this guy (in internet forums) by discussing the relatively inconsequential matter of his breaking into a closet as a wedge to get into the far more serious issue of his criminal copyright infringement with intent to distribute. The culture of “because it’s technologically possible, it should be legal, especially if it means free stuff for me” is disgusting and, more importantly, utterly destructive.

13 William Nuesslein 01.16.13 at 10:09 am

I just don’t understand why our brightest joung people can not understand the need to finance common goods like research papers, recorded music or drug research. In Westchester county we have an award winning science program at our high school and Robert Kennedy Jr.

14 DensityDuck 01.16.13 at 1:18 pm

Everyone always forgets the part of Gandhi’s story where he gets beat up and put in jail.

15 Criminals in Ma 01.16.13 at 11:02 pm

There are lots of real criminals in MA who are much more of a threat to the common good. This was political assassination to demonstrate federal power and the risks of defying domination by a sadistic force which exists for itself alone.

16 Hugo S. Cunningham 01.17.13 at 1:22 pm

William Nuesslein wrote:
>I just don’t understand why our brightest joung people can not understand the need to finance common goods like research papers, recorded music or drug research.

Though rather long in the tooth myself, I suspect part of the problem is overreach by the “intellectual property” community. Government hysteria about marijuana has deafened young ears to accurate warnings about more dangerous drugs. Similarly, abuses of copyright (de-facto perpetual extension of copyright terms) and patent (“trolling” in a field [software development] not suited for the patent model) have deafened young ears to meritorious claims.

Comments on this entry are closed.