Wednesday, February 06, 2013

P.S., Aaron Swartz

Readers will recall Aaron Swartz's suicide, in apparent reaction to his ongoing prosecution for downloading huge numbers of files from JStor illegally at MIT.  Swartz was an Internet activist who downloaded the files, not for personal gain, but as a stunt to draw attention to his argument that the articles and materials in the files had already been paid for by the universities, in that their faculty created the materials.  He felt that the materials should not be behind pay walls.  But after the prosecution began, Swartz returned the files and JStor dropped civil charges.  MIT to ask the prosecutors to press criminal charges, and the federal prosecutors in Boston did so with great creativity and effort.  Swartz originally faced 4 charges, but finally had 13 felony charges against him, up to 35 years in prison and a million dollars in fines.  The extra charges were derived by creating a separate charge for each date.  Many of the charges were not simply based on violation of copyright, but were under the Computer Fraud and Abuse Act, 18 USC § 1030 (CFAA).

The CFAA is extremely broad, and allows great latitude to prosecutors. Through the original law and amendments since, it essentially prohibits both the acts and attempts of seven offenses:

1. obtaining national security information,

2. compromising confidentiality,

3. trespassing in a government computer,

4. accessing to defraud and obtain value,

5. damaging a computer or information,

6. trafficking in passwords, and

7. threatening to damage a computer.

The House Committee on Oversight and Government Reform is holding a hearing, asking the prosecutors for more information on this prosecution. Here is a link to the letter the Committee has sent to Attorney General Eric Holder requesting more information on the decisions made by the prosecutors in the case. Among other questions, the Committee asks why they made a superseding indictment adding the extra felony counts. The Committee asks whether Swartz's opposition to SOPA or other activism was a factor in the decisions in the case.

Shortly before the Committee issued this request, a Boston Globe columnist, Kevin Cullen, wrote a column about a similar case in Boston 19 years ago, where the same prosecutor, Steve Heymann, brought charges against an MIT student, David LaMacchia, for similar computer hacking. LaMacchia had downloaded $1 million worth of software which he posted to a bulletinboard for anyone to download and use. In that case, however, federal District Judge Richard Stearns dismissed the case just before it went to trial. Judge Stearns ruled: "One might at best describe his actions as heedlessly irresponsible, and at worst as nihilistic, self-indulgent, and lacking in any fundamental sense of values." With that stern dressing-down, the judge sent the sophomore LaMacchia back to his dorm, probably embarrassed, but with his life and future intact. The Globe columnist tells his readers that LaMacchia had contacted Aaron Swartz with an offer to talk when he heard about the prosecution. Swartz never called him back.

It is sad that the judge in Swartz's case did not feel he or she could dismiss the matter. It is also sad that Swartz did not, for whatever reason, feel he could or wanted to, reach out to LaMacchia. I am very grateful that the House Committee is asking some hard questions about the prosecutors' decisions in the Swartz case. And I am also glad that the community is continuing to pressure all those who felt that this case needed to be made into an example. It has been appalling to watch the copyright-holding community make examples of little people time and again in their efforts to secure rights that they feel slipping in an electronic world. We need to keep some sense of proportion, and perhaps this case is the one that will be a wake up call. How sad.

The image is an often-reproduced photo of Aaron Swartz that appeared in the Globe.

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