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14-01-03 How the Deadly Prosecution of Aaron Swartz Represents the Extreme Security-State Tendencies of Obama's Justice Department

14-01-03 How the Deadly Prosecution of Aaron Swartz Represents the Extreme Security-State Tendencies of Obama's Justice Department

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Published by William J Greenberg

A statement issued by the family the day after Swartz’s suicide charges that “the U.S. 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.” And therein lies the almost incomprehensible legal background to this tragedy. Both before and after his arrest, Swartz had dedicated much of his life to using the internet to making information freely accessible. His goal here -- the government claims he intended to publish the journals online, but made no claim he wanted to profit off of them -- would have put academic research, much of it funded by federal grants, in the hands of the people who paid for it.

A statement issued by the family the day after Swartz’s suicide charges that “the U.S. 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.” And therein lies the almost incomprehensible legal background to this tragedy. Both before and after his arrest, Swartz had dedicated much of his life to using the internet to making information freely accessible. His goal here -- the government claims he intended to publish the journals online, but made no claim he wanted to profit off of them -- would have put academic research, much of it funded by federal grants, in the hands of the people who paid for it.

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Published by: William J Greenberg on Jan 15, 2013
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Home> How the Deadly Prosecution of Aaron Swartz Represents the Extreme Security-StateTendencies of Obama's Justice Department
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How the Deadly Prosecution of AaronSwartz Represents the ExtremeSecurity-State Tendencies of Obama'sJustice Department
January 15, 2013
|On Friday, January 11, 2013, 26-year-old visionary technologist and socialactivist Aaron Swartz hanged himself in New York City. A passionateadvocate for making access to online information as widespread as possible,Swartz was grappling with the fallout from his efforts to do just that.Two years before Swartz ended his life, he wasarrested 
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by police from theMassachusetts Institute of Technology and the City of Cambridge, Mass.,police for breaking and entering into an MIT storage closet. In the closet,Swartz had stashed an Acer laptop he had programmed to download in bulkmillions of scholarly articles from JSTOR, a non-profit database that providesaccess to the articles for academic libraries. At the time, articles on JSTORwere locked behind a paywall for non-academics who wished to access themthrough their own computers. Swartz aimed to make them available, free of charge, to anyone who wanted to read them. At the time of his arrest, an investigation of Swartz’s MIT/JSTOR action wasalready underway, and two days earlier, the Secret Service’s online crimedivisionassumed control 
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of the probe. The Secret Service routinelyconducts complex computer crime investigations; its involvement signaled thetreatment of this as a major crime, not a caper. Six months later, U.S. Attorney
 
Carmen Ortiz charged Swartz with afour-count indictment 
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.To those who knew Swartz’ ethic, that indictment already seemed like overkill,essentially labeling an effort to share information as wire and computer fraud.But then last year, Ortiz multiplied each of the main charges, turning the sameunderlying actions into a13-count indictment 
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that threatened Swartz with a35-year sentence.Swartz had longstruggled with depression 
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that may have contributed to hissuicide. Buthis family 
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have also blamed the government’sconduct in prosecuting Swartz. A statement issued by the family the day after Swartz’s suicide charges that “the U.S. Attorney’s office pursued anexceptionally harsh array of charges, carrying potentially over 30 years inprison, to punish an alleged crime that had no victims.” And therein lies the almost incomprehensible legal background to this tragedy.Both before and after his arrest, Swartz had dedicated much of his life tousing the internet to making information freely accessible. His goal here -- thegovernment claims he intended to publish the journals online, but made noclaim he wanted to profit off of them -- would have put academic research,much of it funded by federal grants, in the hands of the people who paid for it.
The Free Exchange of Ideas
 Academic inquiry is founded on the free exchange of ideas. And most of the journals’ authors do not get paid for the articles they wrote. Swartz’s “crime”here would have served to foster intellectual exchange, the entire point of publishing scholarly journals. In fact, since Swartz’s indictment, JSTORhasopened up access 
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to its journals for individuals who register. To someextent, then, Swartz’ goal has been implemented by his alleged victim.Moreover, as Alex Stamos, an expert witness who would have testified inSwartz’s defense,points out 
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, both the alleged victims of this crime had builttheir systems to foster openness. MIT deliberately allows visitors to accesstheir system. At the time of the alleged crimes, JSTOR permitted users at MITan unlimited number of downloads. Both networks lacked very basicsafeguards to prevent abuse. And both alleged victims have expressed regret at what has happened.Before the federal government charged Swartz, JSTOR settled its complaintagainst him, though MIT did not. In response to his death,
 
JSTORreiterated 
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that it “regretted being drawn into from the outset, sinceJSTOR’s mission is to foster widespread access to the world’s body of scholarly knowledge.” And in addition to also expressing sorrow, MITPresident Rafael Reif promised an investigation 
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into MIT’s role in hisprosecution, raising questions about what alternatives MIT had to cooperatingin Swartz’s prosecution.While MIT’s remorse may be tragically belated, both the alleged victims in thiscase seem to recognize that the prosecution violated the ethics of opennessthat JSTOR and MIT claim to uphold.In spite of all this, the governmentportrayed Swartz’s action 
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as theft,painting him as a common criminal. “Stealing is stealing whether you use acomputer command or a crowbar, and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you havestolen or give it away,” said Ortiz at a press conference announcing thecharges.
An Example to All Who Might Follow
It seems clear that someone was keen to make an example of Swartz. In pleanegotiationsdescribed by the
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, the government insistedSwartz plead guilty to all 13 charges and serve prison time. As Harvard LawProfessor Lawrence Lessig, -- who advised Swartz in the days after his firstarrest -- emphasizes,they insisted 
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that Swartz be branded a felon.Government attorneys reiterated this hard-nosed stance just last Wednesday,two days before Swartz took his own life.In some ways, what was happening to Swartz was not all that unusual.George Washington University Law Professor Orin Kerr -- a leading expert oncomputer crime law who is sympathetic to the issues Swartz championed--explains 
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that the government’s charges fall within the norm for computer crimes. Moreover, the tactics used in this case are normal for the Departmentof Justice. The government oftenmultiplies charges 
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in order to coercedefendants to plead guilty without a trial.Nor is Swartz’s the only case prosecuted by Ortiz, the U.S. Attorney for theDistrict of Massachusetts, that has raised concerns nationally about her exercise of prosecutorial discretion. Last year, pharmacist Tarek Mehannawas sentenced to more than 17 years in prison after Ortiz successfully wonhis conviction for conspiracy to support terrorism, in a decision thatthreatens

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