Assume nobody else has any idea what they’re doing either. A lot of people refuse to try something because they feel they don’t know enough about it or they assume other people must have already tried everything they could have thought of. Well, few people really have any idea how to do things right and even fewer are to try new things, so usually if you give your best shot at something you’ll do pretty well.
-Aaron Swartz, notes from Tathva 2007 Computer Conference, “How to Get a Job Like Mine”, last change on site dated August 18 2008, site last visited January 15 2013
I’ve read a bit about the case of Aaron Swartz, enough to know that it does appear like a human tragedy occurred, courtesy of a prosecutor’s office who crossed from prosecution to harassment even after the alleged perpetrator had settled and made peace with the original wronged parties, one of whom even asked the government to drop their case.
Unfortunately, I haven’t read enough to feel comfortable posting my own summary here. So I’ll post some links that hopefully will be able to read the reader to other links.
(Note: I know of a Montana family who got crossways with a U.S. attorney and spent the next ten years in a legal hell. Even though they had been found “not guilty” when the case went to trial, the attorney spent years running them through hell in various federal and state administrative actions. So, the quotes I have below about prosecutorial overreach and vindictiveness below are not exaggerations, but something that really happens when you have too many bureaucrats too interested in getting flashy cases and good yearly reviews and not interested enough in considering the actual consequences and ethics of what they are doing.)
http://boingboing.net/tag/aaronsw, compendium of articles about Aaron Swartz’s death and the case against him, with links and brief excerpts. Not comprehensive, but a good place to start.
I have strong opinions about how to improve this world, but I’ve never acted to bring them to pass. I have thoughts every day that I would share with the world, but I allow my fears to convince me to keep them to myself. If I were able to stop being afraid of what the world would think of me, I could see myself making every decision that Aaron made that ultimately led to his untimely death. This upsets me immensely. I am upset that we have a justice system that would persecute me the way it did Aaron.
Aaron accomplished some incredible things in his life. He was one of the early builders of Reddit (someone always turns up to point out that he was technically not a co-founder, but he was close enough as makes no damn) . . .
. . . At one point, he singlehandedly liberated 20 percent of US law. PACER, the system that gives Americans access to their own (public domain) case-law, charged a fee for each such access. After activists built RECAP (which allowed its users to put any caselaw they paid for into a free/public repository), Aaron spent a small fortune fetching a titanic amount of data and putting it into the public domain. The feds hated this. They smeared him, the FBI investigated him, and for a while, it looked like he’d be on the pointy end of some bad legal stuff, but he escaped it all, and emerged triumphant.
He also founded a group called DemandProgress, which used his technological savvy, money and passion to leverage victories in huge public policy fights. DemandProgress’s work was one of the decisive factors in last year’s victory over SOPA/PIPA
As a former criminal defense lawyer, the Computer Fraud and Abuse Act (CFAA), the law under which Aaron was charged, is one of my biggest concerns. The statute basically outlaws accessing a computer without authorization, or in excess of authorization. In a networked environment, the boundaries between machines are porous and appropriate uses are cultural, subtle, subject to interpretation. . . .
. . .
Harvey Silverglate, a renowned criminal defense attorney who works in the District of Massachusetts, where Aaron was being prosecuted, can plausably claim in his book “Three Felonies A Day” that “citizens from all walks of life — doctors, accountants, businessmen, political activists, and others — have found themselves the targets of federal prosecutions, despite sensibly believing that they did nothing wrong.” Silverglate identifies particular statutes succeptable to such overreaching, but his book also shows via war stories the ways that the progress of criminal cases can push even innocent defendants towards prison, bankruptcy, career ending guilty pleas, or emotional ruin. A short list includes pretrial incarceration, indicting or involving family members or friends in the case, the risk of draconian sentences, and superceding indictments in response to refusals to plead. Some of these tools were used in Aaron’s prosecution. Perhaps his case is a window through which this digital community can understand better how broadly broken the criminal justice system is.
Jennifer Granick, “Towards Learning from Losing Aaron Swartz: Part 2”, Cyberlaw blog, Center for Internet and Society, Stanford Law School, dated January 15 2013
Many people feel that Aaron’s prosecution was disproportionate to the offense, if any, committed. The government filed multiple, duplicative charges, hung 35 years, then 50, over Aaron’s head and insisted that Aaron plead to multiple felonies and be incarcerated.
Certainly, most federal cases I defended went much the same way: The government overcharges the case. There are so many ways to lose and only one way, total acquittal, to win. The maximum potential sentence is terrifying. . . .
. . .
There’s a more systemic problem here. Plea bargaining in the face of potentially heavy sentences incentivizes guilty pleas even (or especially) where the case is weak, or the defendant is factually innocent. People plead guilty all the time to things they did not do, because they couldn’t afford the right lawyer, because they are scared, because they think no one will believe them, because they are simply playing the odds. Especially when you have a case involving network policies, academic culture, technological infrastructure, and information of questionable economic value, asking a jury to decide what’s “authorized” at the risk of prison is scary.
Lest we mistake plea bargaining for justice, ask yourself, why is a seven-year sentence just for a person who goes to trial, while one who pleads guilty should only be incarcerated for six months? Why should Aaron have received two additional months of incarceration in order to argue to the judge that his sentence should be lower? This is not justice, this is horse trading. It is typical, it happens every day, but it is also wrong.
Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its. MIT, to its great shame, was not as clear, and so the prosecutor had the excuse he needed to continue his war against the “criminal” who we who loved him knew as Aaron.
Here is where 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. 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.
. . .
I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.
For remember, we live in a world where the architects of the financial crisis regularly dine at the White House — and where even those brought to “justice” never even have to admit any wrongdoing, let alone be labeled “felons.”
. . .
Fifty years in jail, charges our government. Somehow, we need to get beyond the “I’m right so I’m right to nuke you” ethics that dominates our time. That begins with one word: Shame.
One word, and endless tears.
Yesterday’s suicide of Aaron Swartz, 26, one of the founders of Reddit and a passionate activist for Internet causes, has shaken the tech world. By all accounts a brilliant and fiercely idealistic (if somewhat troubled) young man, Swartz had his fingerprints on many of the things we take for granted online today, from the RSS standard (which he helped author at the age of 14), to the Creative Commons, to the first Internet public library, archive.org. In recent times he’d turned his sights on bigger issues, most consequentially spearheading the ultimately successful efforts against the SOPA/PIPA bills in Congress.
He also had a Robin Hood-like passion for ‘liberating’ data that he deemed was being unfairly locked down, which had won him passionate allies and determined opponents. In 2008, he participated in an effort to download a large portion of the PACER database (a federal registry of electronic court documents) through ultimately legal means. In 2010, he went further, breaking onto MIT premises to download almost the entire JSTOR academic journal database. But though he’d amicably settled with JSTOR by 2011 and had returned the documents in question, the federal prosecutors decided to press on with the charges. He was facing decades in prison and up to a $1 million fine for his caper.
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.
U.S. White House petition, “Remove United States District Attorney Carmen Ortiz from office for overreach in the case of Aaron Swartz”, created January 12 2013, at 34 275 digital signatures at the time of writing this post on January 15 2013. (Petition open until February 11 2013, has already surpassed the 25 000 signatures needed to get