Family of Aaron Swartz: Pioneering Internet Activist's Suicide 'A Product Of Prosecutorial Overreach'
Family of Aaron Swartz: Pioneering Internet Activist's Suicide 'A Product Of Prosecutorial Overreach'
By Zach Carter / huffingtonpost.com
Jan 13, 2013

Open democracy advocate and internet pioneer Aaron Swartz was found dead Friday in an apparent suicide, flooding the digital spectrum with an outpouring of grief. He was 26 years old.

Swartz spent the last two years fighting federal hacking charges. In July 2011, prosecutor Scott Garland working under U.S. Attorney Carmen Ortiz, a politician with her eye on the governor's mansion, charged Swartz with four counts of felony misconduct -- charges that were deemed outrageous by internet experts who understood the case, and wholly unnecessary by the parties Swartz was accused of wronging.

Swartz repeatedly sought to reduce the charges to a level below felony status, but prosecutors pressed on, adding additional charges so that by September 2012 Swartz faced 13 felony counts and up to half a century in prison.

Swartz had long lived with depression and a host of physical ailments, which made his accomplishments that much more astonishing. Barely a teenager, he codeveloped the RSS feed, before becoming one of the earliest minds behind Reddit.

Ortiz's office declined to comment for this article. Late on Saturday, Swartz's family issued a statement mourning the loss of their loved one's "curiosity, creativity" and "commitment to social justice." They also put some of the blame for Swartz's death on federal prosecutors.

"Aaron’s death is not simply a personal tragedy," the statement reads. "It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. 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."

That sentiment was echoed by Harvard University Law School Professor Lawrence Lessig, a friend of Swartz, wrote a withering blog post attacking the Department of Justice for its misplaced zeal:

"We need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior," Lessig wrote. "[Aaron] was brilliant, and funny. A kid genius. A soul, a conscience, the source of a question I have asked myself a million times: What would Aaron think? That person is gone today, driven to the edge by what a decent society would only call bullying."

Swartz's friend Henry Farrell, a political scientist at George Washington University, also pointed at the DOJ. "His last two years were hard, thanks to the U.S. Department of Justice, which engaged in gross prosecutorial overreach on the basis of stretched interpretations of the law," he told HuffPost. "They sought felony convictions with decades of prison time for actions which, if they were illegal at all, were at most misdemeanors. Aaron struggled sometimes with depression, but it would have been hard not to be depressed in his circumstances. As Larry Lessig has rightly said, this should be a cause for great shame and anger."

In the fall of 2010, Swartz downloaded millions of academic journal articles from the nonprofit online database JSTOR, which provides such articles free of charge to students and researchers. As a faculty member at Harvard University, Swartz had a JSTOR account, and downloaded the documents over the course of a few weeks from a library at the Massachusetts Institute of Technology.

JSTOR typically limits users to a few downloads at a time. Swartz's activities ultimately shut down JSTOR's servers briefly, and eventually resulted in MIT's library being blocked by JSTOR for a few days.

This was inconvenient for JSTOR and MIT, and a violation of JSTOR's Terms of Service agreement. Had JSTOR wanted to pursue civil charges against Swartz for breach of contract, it could have. But JSTOR did not, and washed its hands of the whole affair. In 2013, JSTOR made several million academic journal articles available to anyone, free of charge. Academic research is designed to be publicly accessible and is distinct from the research of private corporations, which assert aggressive intellectual property rights over activities they fund. Last June, Swartz told HuffPost that both JSTOR and MIT had advised prosecutors they were not interested in pursuing criminal or civil charges.

But the government pressed on, interpreting Swartz's actions as a federal crime, alleging mass theft, damaged computers and wire fraud, and suggesting that Swartz stood to gain financially. Federal prosecutors describe Swartz's downloading too quickly from a database to which JSTOR granted him and millions of other scholars free access as:

"Aaron Swartz devised a scheme to defraud JSTOR of a substantial number of journal articles which they had invested in collecting, obtaining the rights to distribute and digitizing," the indictment reads. "He sought to defraud MIT and JSTOR of rights and property." The prosecutors seem unaware that if an article is downloaded, the original copy remains with the owner.

The indictment also says that, "Swartz intended to distribute these articles through one or more file-sharing sites." JSTOR has just released 4.5 million articles to public this week.

The indictment does briefly acknowledge that Swartz had legal access to JSTOR's database. "Although Harvard provided access to JSTOR's services and archive as needed for his research, Swartz used MIT's computer networks to steal millions of articles from JSTOR." But the indictment does not note that Harvard and MIT have an explicit library sharing arrangement, granting scholars at one school access to many of the works and titles at the other. JSTOR has no specific academic allegiance. Its titles are available to all students at all universities at all times.

JSTOR issued a statement late on Saturday expressing regret at Swartz's passing, criticizing his prosecution.

"The case is one that we ourselves had regretted being drawn into from the outset, since JSTOR’s mission is to foster widespread access to the world’s body of scholarly knowledge," the statement reads. "At the same time, as one of the largest archives of scholarly literature in the world, we must be careful stewards of the information entrusted to us by the owners and creators of that content. To that end, Aaron returned the data he had in his possession and JSTOR settled any civil claims we might have had against him in June 2011."

All 13 counts against Swartz rest on the idea that he stole or damaged JSTOR and MIT property.

The final count alleges that Swartz caused "reckless damage" to computer systems owned by JSTOR and MIT. While both JSTOR and MIT suffered interrupted service to JSTOR's archive as a result of Swartz's downloads, there was no permanent technical dysfunction.

The prosecution's case ultimately depended on whether or not breaking a Terms of Service agreement can be deemed a violation of the 1984 Computer Fraud and Abuse Act -- the principal federal anti-hacking statute. While the law was designed to ban hackers from spreading viruses and stealing property, the Seventh Circuit Court of Appeals ruled that such activity includes violating Terms of Service agreements.

The Seventh Circuit's decision was widely mocked by internet experts, who noted that nearly anyone could become criminally liable for reading blogs if a blog owner simply set up an outrageous terms of service agreement.

In addition, a more recent decision by the Ninth Circuit rejected the Seventh Circuit's reasoning in 2010, and the Obama administration chose not to appeal the decision to the Supreme Court.

Although JSTOR opposed prosecuting Swartz, MIT did not speak out against the prosecution's case as aggressively as JSTOR did. Swartz's family criticized the school on Saturday for failing to intervene.

"Unlike JSTOR, MIT refused to stand up for Aaron and its own community’s most cherished principles," the statement reads.

The FBI had investigated Swartz prior to the JSTOR incident in 2009, when Swartz wrote a script mass-downloading many U.S. court documents held in the pricey PACER database. Although court documents are in the public domain, PACER charges a premium for collecting the documents and making them searchable. Swartz paid PACER for mass downloads, then sent the documents to another free database.

The FBI monitored Swartz and then concluded that because the documents were in the public domain, no charges could be filed. After receiving several phone calls from the FBI, Swartz submitted a Freedom of Information Act request for his own FBI file. The agency was legally compelled to comply with the request, and Swartz published the file on his own blog in 2009.

On Saturday, WikiLeaks tweeted about Swartz: "The brilliant Aaron Swartz (@aaronsw), long time WikiLeaks friend, age 26, is dead after two years of harrassment by US prosecutors."

Swartz was found dead in his New York apartment Friday after apparently hanging himself.

In addition to earning the ire of PACER, the FBI and the office of U.S. Attorney Carmen Ortiz, Swartz wrote the programming for RSS 1.0, an extremely common and useful computer tool. He helped start Reddit and also helped launch Creative Commons -- a special intellectual property license allowing anyone to use creative work, provided it is not sold for profit.

He was the founder of the progressive political advocacy group Demand Progress, which was extremely active during the legislative battle over the Stop Online Piracy Act. He co-founded the Progressive Change Campaign Committee, though he has not worked with the organization in some time. More recently, he was working with Matt Stoller, a writer and former aide to Rep. Alan Grayson (D-Fla.), on a longterm project aimed at ending the drug war.

"What people saw in public was a fearless advocate of open information, who was nonetheless realistic about the limits to what open information could do without radical political reform," Farrell said.

He added: "He shared the urgent concern of his friend, [MSNBC host] Chris Hayes, to address what economic inequality was doing to this country. What many, many people saw in private was his extraordinary generosity with both time and resources. He had made enough money from the sale of Reddit to Conde Nast to live without working for several years, as long as he was reasonably frugal. So what he did, was to spend his life trying to figure out ways in which he could be helpful to people and causes he liked. Since his death, I've heard an outpouring of stories from people whom he helped set up websites for, read and critiqued work and so on. He combined technological brilliance with enormous amounts of energy, and a real understanding of politics."

This story was updated to include comments from a statement from Swartz's family and a statement from JSTOR.

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Family of Aaron Swartz: Pioneering Internet Activist's Suicide 'A Product Of Prosecutorial Overreach'