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    In the Public Fury Against Aaron Swartz's Prosecutors, Calls for Reform

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    Adam Clark Estes

    In the days since Aaron Swart'z suicide last Friday, increasingly unsettling details have emerged about the federal prosecution team that aggresively pursued felony charges against him. Those that are familiar with the case say that that the government not only threw the book at Swartz; they did it for attention and glory. They'd also been warned that Swartz was suicidal. What's more, this also isn't the first time something like this has happened at the hands of these prosecutors. Now I'm mad, and so is much of the Internet. "Swartz was a passionate eccentric who could have been one of the great innovators and creators of our future," the law professor Tim Wu wrote yesterday. "Now we will never know."

    As to whether the case led him to suicide, Swartz's family quickly cleared up any doubt. "Aaron's death is not simply a personal tragedy," the family said in a statement on Saturday. "It is the product of a criminal justice system rife with intimidation and prosecutorial overreach." 

    To put that statement into perspective, consider that Swartz faced 35 years in prison and up to $1 million in fines for using MIT's network to download about 5 million academic articles from JSTOR. He may have planned to distribute the material to the public for free, and neither JSTOR nor MIT chose to press charges. When the charges were announced in 2011, U.S. Attorney Carmen Ortiz said, "Stealing is stealing, whether you use a computer command or a crowbar." A few months later, the prosecution team jacked up the original charges to include 13 additional charges.

    So the federal prosecutors clearly wanted to make a point about computer crimes. It also seems increasingly apparent that they wanted this to be a landmark case, and they were willing to get aggressive. Swartz's attorney, Elliot Peters, told The Huffington Post on Monday that Massachusetts assistant U.S. attorney Stephen Heymann, who oversaw the government's arguments against Swartz, wanted a "juicy" case that would capture the attention of the press.

    Swartz was a good candidate, too. Here was a young celebrity of sorts amongst the digital rights advocates who hacks into MIT's network like some sort of hacker Robin Hood — the story has it all. Peters said that Heymann was "very, very difficult to deal with" and believed Swartz's case "was going to receive press and he was going to be a tough guy and read his name in the newspaper."

    Heymann's a prominent computer crime prosecutor. In 1996 he oversaw the "first use of a court-ordered wiretap on a computer network" and brought the first federal prosecution of a juvenile computer hacker who disabled a regional airport’s control tower computer in 1998. While pursuing an Argentinian hacker who used Harvard computers to attack Navy databases in the '90s, Heymann lobbied Harvard to implement a system to monitor users of its intranet without a court order. The school declined.

    It gets worse. Heymann has been here before. In 2008, he was the lead prosecutor on the case against Jonathan James, a 24-year-old hacker who was implicated in a massive identity theft case. James's alleged crime and Swartz's alleged crime are very different, but sadly, the outcome was brutally similar. Just a few days after Secret Service agents raided his home, James shot and killed himself.

    In a five-page suicide note, he pointed his finger at bullying from the federal prosecution team.

    "I have no faith in the 'justice' system. Perhaps my actions today, and this letter, will send a stronger message to the public. Either way, I have lost control over this situation, and this is my only way to regain control. … Remember, it's not whether you win or lose, it's whether I win or lose, and sitting in jail for 20, 10, or even 5 years for a crime I didn't commit is not me winning. I die free."

    Aaron Swartz didn't leave a suicide note, but his family had little doubt about what pushed him over the edge. More evidence for the ties between Swartz's legal troubles and his suicide came out this week, when we learned that prosecutors had doubled down on their mission to send him to jail. In the weeks leading up to his suicide, Swartz had failed to reach a plea bargain with the prosecution, who insisted that he would go to jail for at least seven years. A guilty plea on all counts could have reduced that sentence to six to eight months but would still brand Swartz as a criminal for life.

    "I think Aaron was frightened and bewildered that they'd taken this incredibly hard line against him," Peters said this week. "He didn't want to go to jail. He didn't want to be a felon." Swartz's girlfriend says that she's been worrying about him more and more in the days leading up to his suicide. She's the one who found him on Friday morning, hanging from the window by a belt in a Crown Heights apartment.

    U.S. Attorney Carmen Ortiz

    The options Swartz faced “never really changed” during the two years the case went on, the Globe reports:

    Swartz could plead guilty to all 13 felony charges and the government would argue for a six-month prison term while Swartz’s lawyers argued for less time; or Swartz could plead guilty to all 13 felonies and accept a sentence of four months. A fine was never specifically discussed as part of the plea agreement.

    Last week, attempts by Swartz's lawyer to resolve the case in a way that wouldn't "destroy his life" were rejected by the government.

    Not everyone thinks the charges against him were unfair. Orin Kerr, a law professor at George Washington University who represented the MySpace "cyber bullying" pioneer Lori Drew, defended the prosecution's case in a lengthy essay on Monday. “None of the charges involved aggressive readings of the law or any apparent prosecutorial overreach,” Kerr wrote. “All of the charges were based on established case law... pretty much what any good federal prosecutor would have charged.”

    But Kerr pointed out that "there may have been reasons not to charge Swartz even though he had violated these statutes or to offer him a lenient plea." It is "hard to know if the prosecution abused its discretion in terms of a plea offer,” he told the Globe.

    There is a light at the end of the tunnel here. As more than a couple of folks close to Swartz have argued, this tragedy provides a chance to fix the computer crime laws that they say have long been out of sync with reality. Marcia Hofman at the Electronic Frontier Foundation presents a convincing case for reforming the 1986 Computer Fraud and Abuse Act which, she says, is "too broad and too vague" — in effect, prosecutors can manipulate the law to fit the "crime" — and also has "far too heavy-handed penalties" — including life in prison, in some cases.

    Jennifer Granick from the Center for Internet and Society at Stanford Law School goes into even more specific detail about where the laws stand and past failed efforts to reform them. A new White House petition calling for the Obama administration to "reform the Computer Fraud and Abuse Act to reflect the realities of computing and networks in 2013." It needs 25,000 signatures by February 13 to be seen by the White House. As of this writing, it had 1,267.

    But before we get to reform, we have to get past the rage. That will take a little bit of time, and the Internet researcher Danah Boyd, a friend of Swartz, explains why:

    So here we are today, the world lacking a prodigious child whose intellect scared the shit out of everyone who knew him. He became a toy for a government set on showing their strength. And they bullied him and preyed on his weaknesses and sought to break him. And they did. All for the performance of justice. All before he was even tried in a society that prides itself on innocent until proven guilty.

    A more immediate kind of reform is brewing: already a White House petition to remove Ortiz has received the necessary 25,000 signatures. Will that matter? While the White House just responded to a recent petition to build a real-life Death Star, a petition with 50,000 signatures to provide open access to scholarly articles remains unanswered, seven months after it was proposed.

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