Family alleges Ortiz’ prosecutors drove Swartz to suicide

This is how political careers end before they even get started. HuffPo on the recent death of youthful genius and Internet pioneer Aaron Swartz:

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 …

The people they are pointing the finger at are U.S. Attorney Carmen Ortiz and prosecutor Scott Garland. The issue is their decision to charge Swartz with numerous felonies for his decision to download millions of scholarly articles from the non-profit database JSTOR using systems at MIT.

But Swartz returned all of the articles. JSTOR settled with him and objected to the prosecutions. “Aaron returned the data he had in his possession and JSTOR settled any civil claims we might have had against him in June 2011,” JSTOR said in a statement Saturday. HuffPo noted, “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.”

“Unlike JSTOR, MIT refused to stand up for Aaron and its own community’s most cherished principles,” the family said in its statement.

Frank Phillips wrote an article last month floating Ortiz’ name for Governor. Garland’s bio is here.



50 Comments . Leave a comment below.
  1. this is one of those cases

    where the bully was the prosecution. there was no need for any of this. whatever he did or didn’t do certainly didn’t warrant 20-30 years in prison, or even the threat of that.

    As I understand it, his prosecution was imminent. If Carmen Ortiz wanted to prove she was governor material, she would have practiced the supremely more difficult act of forgiveness and leniency over something that had no victims, not treating the kid like he was a terrorist.

    Anyone who enjoys a free and fair internet that we have now, ought to be very angry over what went on — because few people did more to stop the legislation that would have made our internet a lot look more like china’s than Aaron Swartz.

    RyansTake   @   Sun 13 Jan 1:55 PM
  2. Also

    Her office has done some questionable terrorism prosecutions that are pretty close to entrapment.

    I’m not sure why anyone (especially liberals) thinks that being a prosecutor is a good background for higher office. They so often take bad and aggressive actions, and regularly make irresponsible decisions regarding public funding (like when they use trial and seek the maximum penalty as a punishment for a defendant refusing to take a plea and instead pursue their constitutional rights). I’ll support the prosecutor who directs his or her office to not prosecute most non-violent drug offenses, but I that person probably doesn’t exist.

    • Generalize much?

      Because *some* prosecutors are over-aggressive doesn’t mean most of them are unsuitable for office compared to other lawyers. If some defense attorneys push the envelope to defend rapists and terrorists does that mean they’re soft on crime or pro-terrorism and so unsuitable to be elected to office? Andrew Cuomo is a former prosecutor, and if I was New York resident I would have gladly voted for him.

      If I’m left cold by conservatives who smear defense attorneys based on clients they defend, then I can’t justify smearing prosecutors for doing their jobs – as long as they use good judgment and integrity within the roles they need to play to make our justice system work. I do not think good judgment was used in the Swarz case as I posted below, but I don’t then jump to the conclusion that most prosecutors are bad.

      • Not really

        I think DAs are regularly over-aggressive on many things they shouldn’t be, and it’s a broad brush I use because it so often fits. I wish more prosecutors chose to not prosecute non-violent drug offenses, or at least sought minimum sentences, but I haven’t seen it. If there are any in MA, I would love to know.

        Cuomo was briefly an assistant DA and then worked in other government jobs before becoming Attorney General. Attorneys General have a very different mandate than DAs or US Attorneys, much more focused on consumer protection and economic crimes. They also have significant power to push a variety of domestic policies. DAs and USAs are mainly prosecuting smaller crimes, often spending the bulk of their actions on things like drug offenses. The jobs are quite different. I’d vote for Cuomo based on his record as DA, but I likely wouldn’t if he had only been a DA. Similarly, I didn’t support Coakley for AG based on her record as DA, and I also didn’t support her for Senate (in the primary), and won’t for Governor if she runs.

        I never said most were bad or unsuitable for office, I just don’t understand why DA or US Attorney is such a common and generally praised starting point for higher office. Prosecutors could be great in other roles, but I don’t think being a DA necessarily implies success in other areas, and it generally does not imply commitment to progressive principles. Most people want them to do things that demonstrate that they are “tough on crime” in the traditional sense, and I think that’s generally a bad approach to public policy.

        • Fair point, although I'm not sure how to know if

          prosecutors aren’t prosecuting non-violent drug offenses or they’re seeking minimum sentences. I don’t work in the criminal justice system, but maybe someone who does would have a sense of this.

          There certainly are plenty of non-violent offenders in prison, but I’ve got no idea if even more cases are dropped, or if those in jail are in for minimum sentence based on prosecutor request.

  3. Remove Carmen Ortiz from office: Sign the petition

    There’s a petition on the White House’s site to remove DA Carmen Ortiz from office. 25,000 signatures forces a White House response.

    As EB3 has been pointing out for a long time now, this person is a menace to society and a ruiner of lives. She MUST go.

    Please sign.

    RyansTake   @   Sun 13 Jan 2:53 PM
  4. Lawrence Lessig weighs in

    On his Tumblr here. As Lessig notes, if the charges were true, what Swartz did was wrong. However, there was no sense of proportion in the prosecutor’s response, and that raises troubling questions of judgment and abuse of power.

  5. In Hampshire County, we were stuck with

    DA Elizabeth Scheibel constantly overcharged people. Most famous was her overcharging of the kids in the Phoebe Prince case. I’m not saying the kids weren’t wrong, just that the charges didn’t fit their behavior. The victim’s mother didn’t want them going to jail and things were settled w/o trial. Scheibel also claimed to know about all sorts of malfeasance by the school system, nothing much emerged from the investigation.

    Scheibel also overcharged a guy who ran over a guy in a Belchertown tavern (he was black, the other guy was a loudmouth who was saying racist stuff and pursued him into the parking lot). It was also her office who screwed up the interrogation of (alleged) arsonist Anthony Baye who is accused of killing two people in one of his fires.

    The fact is that we reward these people for acting like hardasses rather than pursuing justice. Ortiz was trying to establish the reach of the law with her case against Swartz. It’s careerist over-reaching.

    • I was saying last night to a friend

      when she mentioned the Middlesex DA decided to get out of politics completely, that I wish more DA’s would do that.

      She thought I meant leave the DA office. I had to correct her and say that I meant, “not pursue higher office.”

      Then she heartily agreed.

      DA’s, in my view, make terrible lawmakers and executives. Their priorities as a DA simply shouldn’t be the priorities of lawmakers or executives, unless their prosecutions were always tempered by thoughtfulness, proportionality — and certainly forgiveness for victimless crimes, particularly first offenses.

      If a DA likes to make a career by getting the harshest sentences possible, then they’re wrong for higher office and even wrong for the DA.

      RyansTake   @   Sun 13 Jan 3:35 PM
      • Curious, do you feel the same about defense attorneys?

        Should they stay out of politics too?

        • Sorry, I'm not taking that bait.

          Feel free to address any of the serious issues I mentioned with *some* DA’s.

          RyansTake   @   Sun 13 Jan 4:14 PM
          • Some?

            “DA’s, in my view, make terrible lawmakers and executives.” I don’t see any “some” in there. I think that’s a pretty “serious” charge to be leveling at an entire class of public servants. You of course may disagree, but I think it’s a fair question: Just DA’s or both sides the advocacy system?

            • Reading comp for the win

              If a DA likes to make a career by getting the harshest sentences possible, then they’re wrong for higher office and even wrong for the DA.

              Note the “if.”

              But, if you actually bothered to look at my entire post, you wouldn’t have been able to pick and choose something to nitpick as a straw man.

              I don’t know what your problem is, but enough. If you aren’t interested in answering the one basic question I asked before unleashing more accusatory BS, then I’m not interested in extending this dialog.

              RyansTake   @   Sun 13 Jan 8:59 PM
              • Then I'd like to suggest you be more careful with all your words

                If you don’t want a post to be taken as a general smear on a group of public servants, I’d suggest you be more careful with all your sentences, not just some of them. Replace “DA” with any occupational group you admire in every case in your post above == “teacher” maybe? “Public defender”? — and then decide if more care might have been warranted. Of course we want people who are thoughtful and use good judgment in public office. Your post clearly implies that most prosecutors don’t have those characteristics. I’m not sure how that’s not an insulting generalization.

                My “problem” is that if you would decry prejudicial statements about most groups then it shouldn’t be OK with being careless with words when you’re talking about a group of people who tend to have a different point of view than you do.

                My “problem” is that I think a DA doing his or her job properly is helping the victims of violent crime, and that’s a valuable point of view in our political as well as judicial process. And if liberals want to simply diss that, you’ end up with people like Rudy Giuliani getting elected (someone who would be an argument against the wisdom of prosecutors in higher office, but I certainly don’t blame every district attorney for Giuliani).

                I think it’s a fair question if DAs and attorneys general make great candidates for higher statewide office. But the question could be framed in a less derogatory manner, perhaps asking whether the characteristics that help you excel in those jobs (such as having the most logical, well-thought-out argument win a case instead of understanding the emotional side of politics, or being rewarded for harshness instead of common sense) are or aren’t characteristics that help you excel as a governor or senator.

                And if prosecutors are rewarded with career advancement by overreaching, I’d say we have a much greater problem in our society than if they should run for higher office. If that’s an issue, it needs to be fixed period, whether or not DAs run for governor.

              • Not sure what your point is

                Are you saying that you didn’t actually mean it when you made the blanket statement “DA’s, in my view, make terrible lawmakers and executives”? I think that is pretty clear and unequivocal. You shouldn’t be scolding people for reading what you wrote. I think you are being too thin skinned over this.

                • my point is that

                  If I write something below a statement — in the very same post, no less — to clarify, you don’t get to ignore it.

                  I wasn’t scolding anyone for “reading what [I] wrote.” I was scolding them for ignoring what I wrote, in favor of taking a small snippet so they could quote me out of the full context of my (relatively short) post.

                  RyansTake   @   Tue 15 Jan 1:45 PM
    • Governor? Gross

      Can’t believe Patrick would want someone like this as his replacement. We don’t need an outsider, from outta state, who abuses her office as a ‘fresh face’. We either need experienced and dynamic Mass pols like Murray or Grossman or if it is an outsider one of the young turks in the legislature (Chang-Diaz, Brownsberger, Eldridge, Sciortino or Downing). Or a Mayor like Warren or Curtatone. NOT another hack prosecutor.

      If its Ortiz v. Baker Im voting for Baker.

      • Ortiz

        has no shot at governor. Is she even a Democrat? Does the Party want her? Who’s her base? Cops are still going to vote Republican. Ortiz has never been elected to office. All she has is a cozy relationship with the Boston Globe, which has a hard enough time keeping readers, never mind attracting voters.

        Frank Phillips is just playing at being a Very Serious Person, not unlike the people who floated Deval Patrick’s name for SCOTUS.

      • We don't need an outsider from out of state?

        You do know that Deval Patrick isn’t originally from Massachusetts, yes? And that Scott Brown supporters would yell at Elizabeth Warren to go back to Oklahoma because she wasn’t “local” enough?

        What we “need” is the best possible person for the job, minus the prejudice toward anyone who can’t trace their family roots back multiple generations in Massachusetts. Yes I’d like someone who’s been here awhile and knows Massachusetts. But no, that doesn’t mean they need to have been born here. Ortiz has worked for the Middlesex DA’s office, at Harvard, and at a law firm in Braintree in the 80s. I wouldn’t support her for governor, but not because she’s only been here for 25 or 30 years.

  6. Thank you, Aaron.

    This story is really troubling. I am infuriated with Carmen Ortiz, and I am mystified by MIT’s role.

    Right now, I just want to express my condolences to Aaron’s family and friends. He was a brilliant individual who had huge potential. He was 26 years old, and he accomplished so many things. He was a leader.

    Thank you, Aaron Swartz, for the time that we had with you.

  7. Somewhat different take on Swartz

    I have no philosophical position to defend here, but there is an illuminating and even-handed piece today in the Wall Street Journal (non-editorial so the reporting is going to be neutral.) I think it is behind a subscription wall but can be found on Page B1 in the print edition.

    Couple of points:

    (1) This isn’t the first time Swartz has committed a major hack. From today’s WSJ article:

    A few years ago, Mr. Swartz caused a stir by downloading some 20 million pages of court documents from the fee-charging Pacer website by exploiting free access given to libraries. No charges were ever brought, and no crime was committed, his lawyer said. But his efforts to make online content available for free ultimately brought him into conflict with federal prosecutors.

    Operative phrase: “fee-charging.” I don’t know the lost dollar value of those 20 million pages, but it’s certainly enough for grand larceny charges, like stealing a car.

    (2) This is not just the US DA’s office against Swartz. Cambridge PD, MIT PD, and the US Secret Service were investigating this, and MIT and JSTORS tried to stop the theft. But Swartz found other means to continue the intrusion. See the DOJ release here. He knew he’d been observed and ID’d, yet he continued.

    (3) This isn’t some guy in his pajamas hacking into JSTORs from his parents’ basement. Swartz physically broke into an MIT data hub/server closet to attach laptops to the JSTORs network. The have him on camera, on multiple occasions.

    (4) According the WSJ, the DA’s office was negotiating a deal:

    The government indicated it might only seek seven years at trial, and was willing to bargain that down to six to eight months in exchange for a guilty plea, a person familiar with the matter said. But Mr. Swartz didn’t want to do jail time.

    I’m at the head of the line warning against heavy-handed prosecutors and intrusive government, but Swartz’s actions cannot be described as innocent or even trivial. There were serious crimes he committed.

    Perhaps Swartz’s clinical depression, as reported by the WSJ, should have been taken into account by Ortiz’s office in modulating their draconian threat of imprisonment, but this is not a story of an electronic Robin Hood.

    Very very sad and tragic nonetheless.

    • Serious crimes?


      It’s not like stealing a car. If I steal your car, you no longer have a car. If he had pulled all instances of the files from the JSTOR servers so that JSTOR no longer had the files, that would be like stealing a car. He didn’t. There’s no evidence that JSTOR lost a dime in revenue anyway — for two reasons. Firstly, the vast majority of their users work in research either at a uni or another institution — and those institutions almost all have blanket memberships to all or to subsets of the JSTOR journals. Secondly, in a matter of months after the incident, JSTOR voluntarily put millions of the formerly paywalled articles online for free. JSTOR was also not interested in any case against Mr. Swartz.

      Somehow it became the case that intellectual property is deemed more valuable than equally “valued” physical property, and that intellectual property is allowed to use ridiculously inflated values. The disproportionate nature is a real problem.

      The kid made a bad decision. Not an evil one, and not necessarily a harmful one. A bad one. In my view, he deserved zero days of jail time.

      • Intellectual property rights

        First, the articles contained in JSTORs were private property. JSTORs is a repository of that private property. The fact that authors of that property and JSTORs had a distribution agreement which gave free access to certain parties does not put that private property into the public domain.

        Secondly, it sounds like JSTORs was not entirely revenue free. If I steal the formulation for a patented drug, and publicize that formulation, I create an economic loss. The law recognizes that. It’s a crime no matter. Even if the economic value is free, it’s still private property…hey, you stole my worthless jalopy. Still theft.

        Thirdly, JSTOR’s subsequent decision to make all those files accessible for free is a circumstance after-the-fact to the commission of the crime. Hey, you stole my car, and later I admit it’s worthless. Still theft.

        I did not see the report that JSTOR was uninterested in a case against Swartz. But I suspect the crime was prosecutable as a matter of federal law…somewhere in the charges of “wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer.” I’m not a lawyer so I’m guessing.

        You have a great point about the disproportionate nature of IP versus physical property. But I think the courts have made much progress in understanding how a proprietary DNA sequence on paper has tremendous economic value. In the age of emailable computer code, a single hack can destroy hundreds of millions, maybe billions of dollars of value. In the case of JSTORs, perhaps the law is still too one-size-fits-all. Beats me.

        Was this a 35+ year crime? I certainly don’t think so. But it isn’t shoplifting a sandwich, either. Swartz has done this before, he physically broke into MIT, and he caused physical harm to JSTOR’s servers.

        Hey, I think the breaking and entering deserves something, like 6 to 12 months in jail.

        Our disagreement over proposed punishment — zero versus 12 months — is almost trivial compared to the show-trial suggestion of Ortiz’s office.

        • I still disagree

          you keep linking this to stealing a car or stealing a sandwich, but you are ignoring a fundamental difference: if I steal your car or your sandwich, you can no longer drive it or eat it. Pirating intellectual property is fundamentally different because you taking it from me doesn’t preclude me using it too. The world where making perfect copies is fundamentally cost-free requires using a different metaphor.

          You’ve also claimed that he caused “physical harm to JSTOR’s servers” — is that true? I haven’t read that anywhere. I’d love to read up on that bit.

          And, to be clear, he didn’t “break into MIT” — an imperfect sentence. He did break into a closet at MIT. I’m not diminishing that — just clarifying.

          Finally, I think that there is a world of difference between “0 days jail time” and “1 or more days jail time.” It’s never trivial. I’m glad we agree that the idea of years of jail time is inappropriate. I wonder: maybe the real problem is in the plea bargain — it gives the prosecutor far too much leeway in influencing the severity of crimes, something which should be reserved for judges and legislators. Financial crimes involving far more money seem to result in no jail time and no admission of guilt, but crimes committed by citizens who aren’t in the executive class — crimes of lower subjective and objective severity — come with felony convictions or admissions and jail time. From that perspective, it’s just really hard for me to think that Swartz deserved anything more than a severe scolding, a giant chunk of community service, a suspended sentence, and so forth.

          • sorry...

            … as someone who makes his living creating software, just because someone can walk in and make a copy of my code and still leave me my copy does not give them the right to do that. Taking my code, an artists music or documents from the JSTOR library is still stealing and should be punished.

            Personally, I believe that stealing digital intellectual property should be dealt with harsher than stealing a car. If I spend a year building the next wizz-bang application and someone breaks in and steals my source code and posts it on the net, I am done, all my work gone and I have lost a years worth of work because everyone else has the benefit of my work and I no longer have advantage. If someone steals a car and they get caught you can get your car back, when they steal IP and posts it on the darknet you can never get control back.

            By your theory I should be able to grab every word you have written on BMG and post it where ever I like without any consequence.

            • I didn't write that it shouldn't be a crime

              nor did I write that it shouldn’t have consequences.

              I take issue with the word steal. It’s the wrong word. It’s a word that implies that the item which has been taken (a) is no longer in the possession and use of its owner and, just as importantly (b) can be returned with no future implications for its initial owner.

              Neither is true with intellectual property, and that’s why the word “steal” is the wrong one.

              • Then what is the right word?

                When you have something that is worth money, or enables you to make money, and I take a copy, leaving with something that is no longer worth money, and has no ability to make money, then what can that be other than “stealing”?

                “Thieving” maybe, or “larceny.”

                • Utterly incorrect

                  You grossly overstate the impact of what Mr. Swartz was being prosecuted for. The website in question still offered those papers, many people still paid. JSTOR itself declined to pursue civil action against Mr. Swartz.

                  Bits want to be copied. The enormous success of the web in general and sites like Google and youtube in particular demonstrates that broadly publishing information increases, rather than decreases, value.

                  Yes, there are copyright and “useright” issues that remain unresolved because our society and economic system evolved before technology created the problem. Attempting to crowbar behavior like Mr. Swartz’s into boxes that it manifestly doesn’t fit only makes matters worse.

                  In this case, it killed a gifted and promising contributor to society.

                  • I don't know the details of how JSTOR works....

                    .. it sounds to me that JSTOR takes a bunch of academic free articles that are widely dispersed, and puts them into one centrally located searchable database. The act of getting them together in one place is of value and that is what they were selling. The same thing applies to dictionaries and encyclopedias. Just because a newspaper allows you to read three articles a day without a subscription does not allow you to copy all their content and post it to the web.

                    Bits do not want to be copied, people want to copy bits. Whether or not someone made a profit by putting their legally owned content on the web does not justify taking someone elses.

                    Prosecuting Mr Swartz did not kill him, he decided to kill himself. It is a sad and very unfortunate incident, but it was his decision to take his own life. I wish he did not do it, he was a brilliant and talented mind.

                    • JSTOR is evolving

                      so there’s a bit of grey area, but loosely speaking:

                      JSTOR works like Netflix. You pay a membership, and you get access to (nearly!) everything, but not the newest releases. How much you pay [and the details of what you have access] may vary; I have no idea how much [legal] price discrimination JSTOR engages.

                      Historically, research libraries purchased physical copies of 100s (1000s?) of journals, released monthly or over some other time interval. They just took up too much space, and it was annoying for researchers to have to go back and forth to the library. Electronic copies solved both of these problems, in a very efficient way. Without JSTOR membership, an individual would have to pay $1s or $10s to read a single article. I have no idea how much revenue journals were taking in this way, but I doubt it was very much because, generally speaking, folks who want to read academic journal articles either (a) work at an institution who has JSTOR membership, or (b) have a friend who does, and who would kindly look up the article, download the pdf, and send it along, or (c) simply email the author and ask that he or she email you the pdf. Oh the humanity! Academia has a long tradition of *sharing* information, and attributing that sharing. As a publisher of more than zero academic papers, I *want* people to download them any way they can, read them, learn from them, and cite them. That’s the academic culture. For the record, both (b) and (c) would seem to be violations of copyright, and the very reason why there is a movement in academia to flee the pay-journals and move to entirely free (as in beer) collections of peer-reviewed articles.

                      So, no, JSTOR doesn’t work quite the way you describe, because the articles aren’t otherwise sold for $0.00 by the publisher.

                      The question is: did JSTOR suffer any economic or other harm? It’s not at all obvious that they did. That leaves the B&E at MIT’s campus. How long do you put a kid in jail for entering an *unlocked* closet? My answer: zero days.

                    • Yeesh

                      This seems a lot like the Napster defense: I want it, and don’t want to pay for it, so information wants to be free and corporations suck!

                      In other words, stealing, but for a juvenile political cause, rather than for personal benefit, so its okay then.

                    • X X X

                      Three Xs for you.

                      1. It isn’t stealing. It’s copyright infringement. A different part of the law, and a different concept entirely.

                      2. Nobody has argued that Mr. Swartz shouldn’t have been punished. Not a single person on this thread. Not a single talking head. Nobody.

                      3. Wait, corporations? That word wasn’t even used in this thread. I don’t think folks would think of JSTOR as a corporation in the traditional sense anyway. JSTOR is “owned” by Ithaka, a not-for-profit organization, founded by and large to manage JSTOR.

                      Setting up strawmen and knocking them down. Three strikes gets you a turkey. Gobble gobble indeed.

                    • I don't see a meaningful distinction

                      between “copyright infringement” in this context and “stealing.” That is why it is called “piracy.”

                      The man was a thief, who stole. Whether he was overzealously charged for these criminal offenses may be a legitimate question, but the general sense here that “copyright infringement” is something less than larceny is absurd.

                    • Words have meanings

                      Technical words have specific meaning. It’s called “copyright infringement” precisely because, laypeople’s sloppy use notwithstanding, it’s *not* stealing. His downloading [and making available] the JSTOR articles did not remove those articles from JSTOR’s possession, nor inhibit JSTOR from using those articles. He didn’t take any thing from their possession — therefore, it isn’t stealing.

                      Likewise, he didn’t don the Jolly Roger, or point a grenade launcher at a container ship near Ethiopia. He didn’t engage in piracy.

                      He committed copyright infringement (allegedly, of course). That’s it. That’s the word. The phrase has a specific meaning, *exactly* for matters like this. Copyright infringement is *different* than larceny. This isn’t ambiguous. Whether the punishment should be more or less severe is a different matter entirely, so I don’t know what “less than” or “more than” means. It ain’t theft, it ain’t larceny, it ain’t stealing, and he didn’t engage in piracy.

                    • Missing the point

                      Perhaps you should learn more details of how JSTOR works, and why Mr. Swarz (and others) are so adamantly opposed to it. I remind you, as I reminded CMD, that JSTOR chose not to pursue civil damages after Mr. Swarz’s initial arrest. Civil damages have a lower standard of proof than criminal charges, JSTOR is surely better able to judge any economic harm they suffered than the prosecutor’s office.

                      The point I am making (along with stomv) is that the comment you and I are responding to distorts, through egregious exaggeration, the impact of what Mr. Swartz did.

                      To use your example, copying content from a newspaper website DOES NOT leave that website “no longer worth money” with “no ability to make money”. A great many newspapers have, in fact, learned the hard way that such copying increases the value of their website (through increased visibility, increased traffic, and increased credibility) and enhances their ability to make money.

                      Obviously inanimate entities do not have desires, I use the phrase “want to be copied” to emphasize the difference (that CMD’s comment attempts to ignore) between “bits” and “atoms”. Physical things, like books and papers, require effort and technology to be copied. The effects of copying bits are fundamentally different from copying atoms.

                      Hence, your use of the verb “to take” has fundamentally and drastically different meanings and implication when bits (information) are “taken” as opposed to physical “atoms”. Taking a physical object denies its rightful owner the ability to use it. “Taking” a copy of an already-published piece does not. Copyright violation is DIFFERENT from theft.

                      Saying that prosecuting Mr. Swartz did not kill him is an ingenious distortion, akin to saying “guns don’t kill people”. Had the government not pursued such an egregiously over-zealous prosecution of Mr. Swartz, he would still be alive. When a bank teller dies of a heart attack during a bank robbery, a defendant’s claim that “I didn’t kill him, the heart attack attack did” is not a viable defense.

                • Except that's never quite true

                  That I can go online and download a movie or an album doesn’t mean that the 20th century supply chain (creatives, technicians, marketers, distributors, financiers) aren’t making money from those very same electronic media products.

                  Does copyright violation [the right words!] mean that the copyright holders make less? Sometimes no, sometimes yes, mostly very hard to know for sure. There are plenty of examples on both sides which pass scrutiny, and most of the time there’s just very little way to know.

                  Copyright violation is the right phrase. Larceny is the unlawful taking of personal property (at least traditionally) — and intellectual property is distinctly different from personal property.

                  • Agreed

                    I think motive is also important when judging whether (and how) to prosecute. Mr. Swartz was trying to spread knowledge and was planning to make no money on it. If he was dispersing the articles to make a profit, then I think he should be punished – but money damages would handle that (this would likely also be a civil remedy, which would be preferable in many circumstances akin to this).

              • fat finger mistake,

                Meant to agree

            • Not all IP is the same

              He didn’t steal and publish source code, and whatever harm his acts might have caused is completely different from your example.

              He copied papers that were already published, because he objected to forcing interested readers to pay for published academic content (payments that went to the publishers, by the way, and not the authors).

              A number of other industries, including the porno industry, have learned that such publication increases, rather than decreases, value. Such IP, like art, only has value when it has an audience — art that is locked in a cabinet has no value, until it is again displayed. The strikingly similar prosecutions mounted by music publishers against (mostly) teenagers did far more harm than good to the economics of the music business.

              Like stomv, I’m not arguing (at least in this thread) that his acts shouldn’t be against the law. The prosecution was beyond unreasonable — we don’t summarily execute car thieves by firing squad.

    • Court documents

      The federal courts get ten cents a page, each time documents are accessed.

      I don’t know if the money goes to the courts or to a private vendor.

      At least the argument can be made that the court documents were a public record, rather than private property like the JSTOR data was.

    • What?!?

      “Grand larceny?” As the FBI discovered, he *broke no laws* in the PACER case. Apparently, you haven’t read the constitution lately. You don’t get to make laws afterwards to convict someone for doing something before they were written.

      He knew he’d been observed and ID’d, yet he continued.

      So, clearly he should have been locked up for the 35-50 years the US Government was pursuing!! Never mind the fact that he gave the files back and JSTOR asked the files to be dropped.

      According the WSJ, the DA’s office was negotiating a deal

      Very convenient that we hear these things now, when the DA’s office is facing a Godzilla sized PR nightmare, Carmen Ortiz’s job and ambitions are on the line and Swartz isn’t able to defend himself.

      Furthermore, as Larry Lessig commented, it wasn’t that Swartz was unwilling to plea bargain, it was that he was unwilling to be marked as a felon for the rest of his life — and he shouldn’t have been. This was slap-on-the-wrist territory, not treat-him-like-a-terrorist territory.

      RyansTake   @   Tue 15 Jan 1:54 PM
      • *JSTOR asked the charges to be dropped

        Charges, not files.

        That edit goes just above the last quote. Iguess I had files on my mind.

        RyansTake   @   Tue 15 Jan 2:12 PM
  8. Why was the Secret Service even involved?

    Some very good questions from emptywheel.

    • US Secret Service

      investigates counterfeiting, and was mandated in 2001 to establish the Electronic Crimes Task Forces under the Patriot Act. It has authority in pursuing electronic crimes. (sounds redundant…doesn’t the FBI do this?)

      I would imagine that MIT and CPD have no jurisdiction unless MA law covers cyber-theft (sorry stomv/) I don’t know.

      This story in Wired seems to suggest that the US Attorney’s office in Boston wanted the case while JSTORs was content to let it drop. No clue to MIT or CPD’s role in the referral.

      Who referred it to Ortiz’s office?

      BTW, the Wired story makes it sound like similar past prosecutions were a total flop.

  9. some clarifications.

    The claims of the grieving family notwithstanding, we do not know why Aaron Swartz took his own life. We may never know.

    Someone mentioned that this wasn’t the “first time Swartz had perpetrated a major hack’. This is incorrect. Swartz took a portion of his own money, paid for a percentage of the content on PACER (a database of court cases that is public information and is fee driven only because Republicans won’t let us pay for it via taxation) and then made that content freely available. It is no different than if I legally purchased 100,000 copies of the latest issue of The New Yorker and stood on a street corner handing them out.

    There is a distinct difference in the MIT case: He did not simply ‘break into’ a closet at MIT. He broke into a network closet, potentially giving himself access to all of MIT’s networks. He also did this in building 16, which houses, among other things bio labs focused on bio-engineering, including, if memory serves, at least one BL2 level lab. Building 16 also also connects directly with building 24 (nuclear science) and building 56 (also bio-engineering) I doubt very much he chose bldg 16 for any reason other than opportunistic, but that remains to be determined.

    I don’t know why the Secret Service became involved but I suspect it has little or nothing to to with JStor and more to do with the location of the breach and/or the relationship MIT has with the Defense Department: no classified work is done on campus, instead the classified work is done at Lincoln Labs; however, people doing classified work move freely back and forth between campus and LL and a breach of the campus network would certainly merit an investigation as a potential vector to LL. FWIW, the Secret Service is no longer under Treasury but reports to DHS. In the early 00′s an admin in the economics department at MIT had been serving pirated bits from the econ servers: when this was found out some six different federal government agencies, including the FBI and the commerce dept, in concert with the Mass State Police participated in the raid that secured the servers and helped to bring down a global piracy ring. Long story short: the federales take network security very seriously and would (and I think should) investigate any breaches at MIT.

    MITs new president, Rafael Reif, has appointed Hal Abelson to lead MITs internal investigation. This is a good choice. Prof Abelson is somewhere between Steve Martin and Galileo on the list of smartest people ever, is fundamentally sympathetic to arguments in favor of freedom of information and and free software, was an integral part of the team that moved MITs opencourseware into reality and yet understands the realities of privacy, security and network effects. I do not expect anything resembling a whitewash here but instead expect thoughtful and comprehensive investigation.

    Between megaupload/Kim Dot Com, Bradley Manning and a host of other often very muddled (legally, speaking) events, the Justice Dept is very hungry for a definitive victory on copyright law and data crimes. It’s quite possible that they are guilty of ‘arrogance’ and ‘overreach’. But since I think suicide is, itself, selfish and overreaching, I’m not sure it’s something thats a distinction with much value in this sad sad story.

  10. Suicide

    Prosecutorial overreach is one of those things that presses my liberal buttons. And that may well have been at work here.

    Blaming the suicide on that prosecution is, I think, also overreach. Swartz could have done time, though it almost certainly would not have been 35 years or anything close to that. He was offered a plea deal of 6 months, which is tough time but isn’t a lifetime, either.

    Swartz took his own life. That’s tragic. The prosecution may have stressed him, and he may have been vulnerable; but he didn’t *have* to do it.

    • Lessig

      says that it was the label “felon” that Swartz was fighting. The plea bargain of 6 months obviously would have forced him to still take that title, and it shouldn’t. He probably would have taken 6 months without being forced to plea to a felony.

      There is no reason why he should have been a ‘felon’ for “breaking” into an unlocked closet.

      Also, don’t forget that Ortiz was demanding fines upward of $1 million dollars. Lessig makes it clear that Swartz’s financial resources were exhausted, or close to it. Particularly after being convicted of a felony, it’s not exactly easy to pay back $1 million.

      RyansTake   @   Tue 15 Jan 2:25 PM
    • Re suicide,

      the prosecution was aware that Swartz was a suicide risk, and didn’t seem too bothered.

      Andy Good, Swartz’s initial lawyer, is ­alternately sad and furious.

      “The thing that galls me is that I told Heymann the kid was a suicide risk,” Good told me. “His reaction was a standard reaction in that office, not unique to Steve. He said, ‘Fine, we’ll lock him up.’ I’m not saying they made Aaron kill himself. Aaron might have done this anyway. I’m saying they were aware of the risk, and they were heedless.”

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