In the Wake of Aaron Swartz, New Awareness Over Internet Rights
Aaron Swartz's death shined a spotlight on the overall questions concerning the use and value of data, and the public's rights when it comes to that data.
I did not know Aaron personally but I am acquainted with lawyer and Internet activist Lawrence Lessig and writer/science fiction author Cory Doctorow; both were close to Swartz and spoke eloquently about him following the news of his death, as did Internet pioneer Tim Berners-Lee and many others. (You can check out Doctorow’s tribute on BoingBoing; Lessig wrote about Swartz on CreativeCommons.org. You can check out other tributes to Aaron Swartz at The Guardian.) Berners-Lee even wrote a poem about Swartz.
"Aaron is dead.
Wanderers in this crazy world, we have lost a mentor, a wise elder.
Hackers for right, we are one down, we have lost one of our own.
Nurturers, carers, listeners, feeders, parents all, we have lost a child.
Let us all weep."
-Sir Tim Berners Lee, January 11, 2013
So here’s what’s perfectly clear: Swartz was extremely bright, technically gifted, depressed, an activist in the area of public access and well respected by those who knew him. What else is clear is that he was arrested January 6, 2011, and was under a 2011 indictment on charges of wire fraud and computer fraud. He was facing a potential sentence of up to 30 years. He was also alleged to have set up a server in an MIT closet and downloaded about 4 million academic documents from the J-STOR library.
This was not the first time that Swartz had gotten involved with obtaining documents for release to the public. In 2009, he accessed 19,856,160 pages of federal court records through a free trial program called the Public Access to Court Electronic Records, and then stored them in the RECALL system, making them available to all at no charge. The Government Printing Office terminated the free access when Swartz’s actions were discovered and a few weeks later. No action was taken against Swartz.
For his actions at MIT, however, the weight of federal prosecution came down on Swartz. Even after JSTOR declined to sue Swartz and asked the government to drop the charges (MIT did not do the same), the prosecution went on. Lessig took a strong position on the government action. On January 12, 2012, he posted the following on this blog:
"From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The 'property’ Aaron had 'stolen,’ we were told, was worth 'millions of dollars’ - with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed."
What is not clear and can never be totally clear is what role the ongoing litigation had in leading Swartz to take his own life. Robert Swartz, Aaron’s father, is adamant in blaming the prosecution for his son’s death, telling mourners at his son’s funeral on January 15th that "he was killed by the government, and MIT betrayed all of its basic principles."
Lessig was not as blunt, but his description of the toll the ordeal took on Swartz draws a similar conclusion. In a January 12th blog post, Lessig wrote:
"For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million dollar trial in April - his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge. And so as wrong and misguided and fucking sad as this is, I get how the prospect of this fight, defenseless, made it make sense to this brilliant but troubled boy to end it."
Since Swartz’s death, a petition relating to the actions of U.S. Attorney Carmen Ortiz, the prosecutor in the case, has been placed before the White House petition system. It has since reached the threshold of 25,000 signatures, a minimum President Obama has said requires a response from the president’s office. The petition urges the administration to "remove United States District Attorney Carmen Ortiz from office for overreach in the case of Aaron Swartz." Ortiz withheld comment.
On January 17th, she broke her silence and issued the following statement:
"As a parent and a sister, I can only imagine the pain felt by the family and friends of Aaron Swartz, and I want to extend my heartfelt sympathy to everyone who knew and loved this young man. I know that there is little I can say to abate the anger felt by those who believe that this office's prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life.
I must, however, make clear that this office's conduct was appropriate in bringing and handling this case. The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably. The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct - while a violation of the law - did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases. That is why in the discussions with his counsel about a resolution of the case, this office sought an appropriate sentence that matched the alleged conduct - a sentence that we would recommend to the judge of six months in a low security setting. While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge. At no time did this office ever seek - or ever tell Mr. Swartz's attorneys that it intended to seek - maximum penalties under the law.
As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible. We strive to do our best to fulfill this mission every day."
Andrew Leonard, writing on Salon.com, had a different understanding of the plea negotiation and of Ortiz’s role.
"Facing a maximum possible prison sentence of 35 years and a fine of as much as a million dollars, Swartz killed himself … just two days after prosecutors rejected a plea bargain deal that would have allowed him to avoid jail time," Leonard wrote.
"Previously, U.S. District Attorney Carmen Ortiz had sweepingly dismissed the notion that 'morality’ had a role in Swartz’s actions: 'Stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars.’"
This side of the story was given additional credibility by U.S. Representative Darrell Issa (R-Calif.), who heads the House Oversight Committee, and is looking into the handling of the case, when he said he wasn’t "condoning" Swartz’s hacking, "but he’s certainly someone who worked very hard. Had he been a journalist and taken that same material that he gained from MIT, he would have been praised for it. It would have been like the Pentagon Papers."
On the policy side, one thing has already emerged from the tragedy. U.S Representative Zoe Lofgren (D-Calif.) announced on Reddit that she will create legislation to honor Swartz by introducing a bill to correct vague wording in the Computer Fraud Abuse Act (CFAA) and the wire fraud statute.
"The government was able to bring such disproportionate charges against Aaron because of the broad scope of the Computer Fraud and Abuse Act (CFAA) and the wire fraud statute. It looks like the government used the vague wording of those laws to claim that violating an online service’s user agreement or terms of service is a violation of the CFAA and the wire fraud statute," Lofgren wrote on Reddit.
"A simple way to correct this dangerous legal interpretation is to change the CFAA and the wire fraud statutes to exclude terms of service violations. I will introduce a bill that does exactly that."
But here’s one more thing Aaron Swartz’s death made clear: The tragedy has put renewed focus on the overall questions concerning the use and value of data, and the public's rights when it comes to that data. That may not be a cause worth dying for, but it certainly gives new meaning to Adam Swartz’s life and struggles.
Of course, no matter what good comes of actions by Lofgren and others, nothing can reverse the tragedy of a brilliant young man’s death, whether it occurred as a result of his battle with depression, or was precipitated by something more sinister. No one knows that better than Aaron's friends, who spoke so eloquently for him online this past week. And it's no small irony that the reason we're all thinking about it is because we had access to that information.