In Les Misérables, an obsessed French police officer, Javert, relentlessly pursues Jean Valjean, a man who represents no danger to society but whose minor infraction brought down the wrath of the brutal government, including 19 years of hard labor and a lifetime of parole.
America, too, has its Javerts. Zealous and ruthless federal prosecutors have the power to torment people for trivial or imagined offenses, threatening them with decades of barbaric confinement. The consequences can be tragic even when case is not seen through to completion. Take the example of Aaron Swartz.
Swartz faced 13 counts under the 1984 Computer Fraud and Abuse Act and, if convicted, could have faced 35 years in federal prison and a million-dollar fine. Earlier this month the U.S. attorney in Massachusetts, Carmen Ortiz, and assistants Stephen P. Heymann and Scott L. Garland refused a plea bargain with no jail time.
On Jan. 11 Swartz hanged himself. He was 26.
"He was killed by the government," the Chicago Sun-Times quoted Robert Swartz, father of Aaron, as saying after the funeral. (Aaron publicly spoke of being depressed.) A family statement added, "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."
What did this young man do to prompt this relentless pursuit? Using the MIT computer network, he downloaded too many published scholarly articles (over four million) from JSTOR, a nonprofit database of academic journals, which charges nonacademics for access. Among his methods, Swartz planted a laptop in a closet at MIT without permission.
For this he was threatened with decades of imprisonment and the life-long stigma of being a felon. Perpetrators of financially significant crimes with victims are not treated so harshly. Why did this happen?
"He was being made into a highly visible lesson," civil-liberties attorney Harvey Silverglate told Declan McCullagh of CNET.com. "He was enhancing the careers of a group of career prosecutors and a very ambitious - politically-ambitious - U.S. attorney who loves to have her name in lights."
Even though Swartz was charged under an anti-hacking statute, he was not accused of hacking anyone's computer. With unauthorized software, he simply used his own computer to download more published articles than allowed. According to Wired's David Kravets, "The government ... has interpreted the anti-hacking provisions to include activities such as violating a website's terms of service or a company's computer usage policy... The 9th U.S. Circuit Court of Appeals, in limiting reach of the CFAA, said that violations of employee contract agreements and websites' terms of service were better left to civil lawsuits."
Unfortunately, that ruling applies only in the ninth circuit. "The Obama administration has declined to appeal the ruling to the Supreme Court," Kravets writes, where it could be affirmed and applied nationwide.
Had that happened, there might have been no case against Swartz, because JSTOR did not want to sue him, even though he crashed its servers, and he agreed not to distribute the material. (MIT had not declined to prosecute.) Subsequently, JSTOR opened its database to the nonacademic public.
So why make an example of Swartz? He was a highly public figure in the movement to safeguard the free flow of information on the Internet. Among his accomplishments was his help in defeating bills in Congress that would have given the executive branch broad authority to shut down websites accused of containing copyrighted material. The Stop Online Piracy Act and the Protect Intellectual Property Act had the backing of powerful industries, such as Hollywood, but a grassroots effort led by Swartz and others forced withdrawal of the bills - a big setback for those who use "intellectual-property" laws to impede the sharing of information.
Swartz previously ran afoul of the government when he provided free access to records in a public federal court database. (The government requires payment by the page.) But no charges were filed.
Swartz was a passionate champion of technology's power to liberate and democratize. He vowed to fight anything which threatened that potential. This offended powerful vested interests.
A few days after Swartz took his own life, Javert - I mean Ortiz - dropped the charges.
Sheldon Richman is vice president and editor at The Future of Freedom Foundation. www.fff.org.
Reader Comments
Posted: Tuesday, February 05, 2013
Article comment by:
MJHR
Our only complaint with Richman is that he isn't yet afraid of the seriousness of such evil government bureaucrats as his chosen Ortiz. And those behind her.
We share his appreciation for Aaron Swartz's accomplishments, only omitting that Aaron was a computer prodigy whose contributions to the development of internet technology were legend. So in addition to his following online by those who took down the government's attempted laws that would have denied us the right to 'connect' as they call it, the basic Right of Assembly as enshrined by our Founders, he was well liked, very much so.
In the SOPA/PIPA contests with the powerful backing from forces around Hollywood, which Aaron's leadership had broken, the government wanted a kill-switch to shut us down on the 'net, like some foreign countries (China for example) do, when they are 'disappointed'. With such a network of devoted believers in internet freedom as Aaron had from his development work and from his leadership against the kill-switch concepts, do you seriously believe that any jury of his peers would have convicted Aaron under Ortiz's trumped up charges and unjust interpretations.
That other court decision that made a mockery of the Ortiz prosecution may not have applied outside the 9th district, but the ideas that spawned that decision are legendarily supported by all those online freedom supporters and they were legion and backed Adam's work. Such arguments as were used in that decision would have swayed the jury to throw away Ortiz's case. The government had to have realized it. That's why they dropped the ball and didn't appeal the 9th district judgement. THEY KNEW THEY WOULD LOSE going up the appeal process.
And they knew they would lose in Aaron's case as well. They were dragging it out so that they might get Aaron to plea-bargain-away his power under the extreme bullying they were engaging in. He didn't give an inch on their demands for felony admissions. He was strong. He may have been depressed, but depression is not suicidal.
You may cower before the threat of such charges as Ortiz was making but Aaron would have won and the government, and the backers of the kill-switch idea, could not allow that. Hence the past history of 'unfortunate' incidents was their only remaining option. Accidents (like for the inventor of the cheat-proof voting system, Athan Gibbs, just as his TruVote system was gaining favorable national recognition) was not an option for Aaron. Leaving 'suiciding' him. We do not intend to ignore the ramifications of such a realization and try to sweep that obvious reason aside and just mourn. There is more to do. Napolitano and her Homeland Security have already announced another kill-switch bill attempt is near readiness. Now you should be afraid.
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