While watching President Obama’s second inauguration, I was also reading the recent, brief, but quite thought-provoking essay written by University of Tennessee law professor Glenn Reynolds, “Ham Sandwich Nation: Due Process When Everything Is A Crime.” Reynolds’s piece was prompted by the tragic suicide of Aaron Swartz, the young computer-programming wizard, political organizer, and Internet activist who fell into the clutches of the Boston U.S. Attorney’s Office, which, at the time Swartz took his life, was planning to forever ruin him over an apparent act of civil disobedience, in order to make an example of him. (This is my characterization of the treatment of Swartz, not Reynolds’s.)
Appropriately hoping to encourage further debate, Glenn Reynolds has raised even broader due process questions posed by the work of federal prosecutors generally, given the fact that they have remarkable and largely unfettered powers to implement a federal criminal code that is so broad and extensive (when it is not strikingly vague) that it literally makes unwitting criminals of potentially almost everyone. Aaron Swartz learned these frightening realities about the federal code and prosecutorial powers too late.
It was ironic that I happened to be reading Reynolds’s essay while keeping an eye on the television coverage of the inaugural parade in Washington, DC. I finished reading the Swartz piece as President Obama got out of the White House limousine to walk down Pennsylvania Avenue with his wife, First Lady Michelle Obama, which, for me, brought to mind a long-forgotten incident about prosecutorial discretion.
Nixon’s 1972 Inaugural Parade Incident
During the Saturday, January 20, 1973, Nixon inauguration, I was working. (My wife enjoyed a VIP seat behind the President during the swearing in, and later, in the reviewing stand in front of the White House, while I was on duty.) As White House Counsel, I was the President’s staff link and liaison to the Secret Service, so I was in their command center.
On Sunday, January 21, the President held a worship service at the White House, followed by a reception for White House staff and important political friends (e.g., Ronald and Nancy Reagan; Nelson and Happy Rockefeller; Bebe Rebozo, etc., etc.) While I would have enjoyed a day off, I found myself in the reception line with my wife, saying hello to the President and First Lady. To my surprise, not to mention the surprise of everyone, when I greeted the President, he did not release the handshake. Rather, with his other hand on my arm, he pulled me through the reception line with him, as he took a few steps backward, because he wanted to have a very private exchange.
He asked if I had been aware of the incident during the parade. I told I was aware of it. Unlike “The Beast” that now transports the president, Nixon had used an open car, where he had stood and waved at the crowd lining Pennsylvania Avenue. During much of the 1.5 mile ride from the Capitol Building to the White House, First Lady Pat Nixon had stood beside him.
About three-quarters of the way back to the White House, they encountered a group of anti-Vietnam War protestors (there were an estimated total of 50,000 to 70,000 of them in Washington to actively protest the inauguration) who began throwing eggs and garbage at the President and First Lady. The Secret Service urged Mrs. Nixon to sit down. She refused, and an egg just missed her.
At one point, a demonstrator on the sidewalk broke through the police line, and rushed the President’s car. Two Secret Service agents tackled him almost instantly, and a uniformed D.C. Policeman had him in handcuffs and off the street in less than a minute. I was aware that the President was upset about this event, because I’d learned he had spoken with Secret Service Agent Bob Taylor, who was covering the Residence that evening, after the Inauguration and before the President was heading out to various balls.
When the President pulled me aside from the reception line, he was still angry. In a hushed but gruff tone, he told me he wanted me to call Assistant Attorney General Henry Petersen, because he wanted legal action taken against the demonstrator. When I asked the President if the demonstrator was throwing anything, he erupted, red-faced: “The little shit broke the police line. For all I know he was going to kill me. You tell Petersen to find a law he’s broken, and nail him.” Then, smacking a clenched right fist into his left hand, Nixon said, “Let’s make an example out of that goddamned jerk: prosecute his ass!”
While I did pass on the President’s request to Petersen, I also told Petersen that the Secret Service thought this to be a non-event, and that I felt the President was over-reacting, and focusing his general frustration toward the anti-war movement on this one kid, who undoubted wanted to get arrested to make his point. In addition, I told Petersen that I would take any heat that resulted from his doing nothing. But Petersen said that was not necessary, because he agreed with me. To the best of my knowledge, nothing ever happened to this demonstrator.
But this all came back to mind after reading Glenn Reynolds’s essay, and learning more about the debate over the planned prosecution of Aaron Swartz.
The Prosecution—Or Was It Persecution?—Of Aaron Swartz
Aaron’s Swartz’s suicide has raised the question of whether he was being rightfully prosecuted, or wrongfully persecuted, for his refusal to play by the rules. We have a general outline of what Swartz actually did, although it is less than clear why he did it, and we do not have a report from all the players involved in assembling the charges against him.
On July 14, 2011, Swartz was first charged based on a four count indictment, which alleged that he had improperly downloaded some four million academic journal articles from JSTOR, a data-based website that is available by subscription only. (Subscriptions are expensive and are typically purchased by academic institutions, rather than individuals.) On September 12, 2012, the prosecutor upped the stakes further, with the grand jury handing down a new and replacement thirteen-count indictment based on the same basic facts.
The indictments claim that, under false pretenses, Aaron had purchased and placed a new Acer computer with an external hard drive in a closet at Massachusetts Institute of Technology (MIT), while he was a fellow at Harvard’s Safra Center for Ethics (where he also had access to JSTOR). From a closet at MIT, Swartz connected to the MIT network, using a false name, and over a period of several weeks, while changing his computer addresses when the JSTOR site cut off his downloads, he obtained the 4.8 million JSTOR journal articles.
The debate about the appropriateness of criminally charging Swartz has been well- articulated: While not justifying or excusing his actions, Swartz’s friend (and sometimes attorney) who shared Swartz’s beliefs about the need for freedom of information on the Internet, Harvard Law Professor Larry Lessig, has written insightfully and critically of the prosecution by the Boston United States Attorney. On the other side, George Washington University Law School Professor Orin Kerr believes that the laws relied on by the prosecutors were appropriate, based on the known facts, and while Kerr does not find the tactics used by the Boston prosecutors unusual, he does not believe their aggressive tactics should been blamed for Aaron’s suicide.
Aaron Swartz’s girlfriend Taren Stinebrickner-Kauffman, however, has said she is “absolutely confident” that Swartz took his life because of the treatment he was getting from the Boston United States Attorney’s Office, a reaction shared by Swartz’s parents. Both Stinebrickner-Kauffman and the Swartz family also believe that MIT was at fault, so there remains some key information that is necessary to for us to understand what happened to Aaron Swartz, and that is the information being gathered by MIT. In a recent letter, MIT said that it is currently gathering the facts and has indicated that its report is forthcoming.
JSTOR told the Boston US Attorneys that JSTOR itself had no interest in prosecuting Aaron, after he returned the journals he had downloaded. From the indictment, however, it appears that MIT remained a complaining witness—or did the prosecutors entice MIT into making a complaint? We clearly need to hear from MIT on that issue. But regardless, it appears that this case was seriously, unnecessarily, and brutally overcharged.
The Overzealous Overcharging of Aaron Swartz
From the initial statements of Boston U.S. Attorney Carmen Ortiz, who made the highly debatable statement that “Stealing is stealing, whether you use a computer command or a crowbar,” to the upping of the charges from four counts in 2011 to thirteen counts in 2012, this was heavy-handed treatment for a 25-year-old information activist.
In fact, the backtracking defense mounted by the Boston U.S. Attorney’s Office of its own conduct in the Swartz case reveals that U.S. Attorney Carmen Ortiz now understands that they were using a sledgehammer for something that was merely worthy of a slap on the wrist, apparently along with her assistant, career federal prosecutor Stephen Heymann. For example, CNN reports that Ortiz’s office now says the prosecutors had no evidence that Swartz had acted for personal gain, and they apparently concede that calling for the harshest penalties available under the law was not appropriate, given his alleged offenses. Ortiz’s office now claims that had Swartz been convicted under her office’s draconian charges, they would have recommended that the judge sentence Aaron to six months in a low-security setting (They may have also offered him a six-month sentence in jail if he pled guilty to one of their charges.)
It appears that Aaron Swartz was looking at somewhere between 6 months and probably 6 years for downloading academic journals from MIT’s network. I am sorry, but this just does not compute. It strikes me as way overcharging, for no apparent reason.
I have a lot of friends who have worked as both Assistant United States Attorneys and United States Attorneys, and they have told me that there are some really heartless bastards who make careers out of working in those offices. It’s sad that Aaron Swartz, a genius who had much to offer us all, obviously was dealing with one or more of those heartless souls. These are not people who are conscientiously and fairly upholding our federal laws. Rather, they are typically authoritarian personalities who get their jollies from shamelessly beating up on unfortunate people like Aaron Swartz. Whoever was running Aaron’s case brings to my mind Richard Nixon in one of his darkest moods, striking out to make an example of the poor kid who was too exuberant in protesting the war in Vietnam. That instance did not lead to any punishment for the protester, fortunately. Tragically, Aaron was not as lucky.
We must all hope that the issues raised by Glenn Reynolds and others regarding the deeply flawed federal system of criminal justice do get attention, for there is nothing unusual about Aaron’s case.
TalkLeft, a pro-defense blog, recently examined this issue and suggested six months or less, not “six years,” was on the table. He did commit a crime. He might have been overcharged, as is usual, but six months for illegally accessing and downloading is not some grave injustice. His act of civil disobedience warranted some penalty but he didn’t want any jail time, likely since he didn’t believe he did anything wrong.
He couldn’t handle things, including because of previous mental health issues by some reports, and it was not the fault of the prosecutors he committed suicide. This is so particularly if they were willing to offer him a few months in jail. I think we can find more abuses out there than this, tragic as his death might be.
I’m sorry, but 4 million documents is not civil disobedience, it’s not even a test case. A hundred to a thousand documents would have been enough. His subterfuge in planting his camouflaged laptop in a wiring closet could be easily construed as prima facie evidence of mens rea, and not civil disobedience or a test case. People looking to make a statement and get arrested do things in the open .He downloaded all the JSTOR content he could get his hands on. Regardless of his intended use, if that is not a wanton and gross violation to the terms of service (at an institution where he was not even entitled to use JSTOR) nor misappropriation of Intellectual property, what is? If you don’t prosecute him, then why would you ever prosecute anyone? After all, information wants to be free!
Look, he was brilliant, and he probably could have built upon a lot of that data to add to our knowledge in some area or other. However,that doesn’t entitle him to just take all the information without asking.
Since as a member of the Safra Institute the defendant had permission to download articles from this database, can you point out exactly what crime he committed by doing so?
There is no evidence he had motives of personal gain, and no evidence that anyone was harmed by his actions.
There are some indications that he was planning on doing statistical analyses of these documents.
You are committing more of a crime by accusing him of having done so than he ever did.
What the prosecutors did should be (and I hope will be) a crime. It is scandalous that misbehavior by prosecutors of this kind is never punished. Disbarment, loss of government pensions should be possibilities in the minds of prosecutors, particularly if they know that their victims are subject to depressions.
The US Attorneys have a tendency to overcharge and press for harsh sentences. When I was practicing I generally avoided federal felonies because, even after there were some changes to the sentencing guidelines, the US Attorneys, egged on by the FBI and the DEA ,were so disproportionately punitive. I feel for Aaron and his family. I worked for an attorney in the early 70’s who represented a young man who had destroyed his draft card. The feds were seeking the maximum penalty and this kid was terrified. He committed suicide as well. I never forgot it and it broke my heart.
The missing bit of context here is that JSTOR is charging for articles that have been created off of public funds and locked up by an antiquated academic journal system that is patently not in the public interest. Scholars are required to transfer copyright in order to get published and since most often it is the public that funded the research, the public is the one that is shafted the most.
Swartz was looking to replicate his success with freeing PACER documents, which put a paywall in front of public domain court documents and charges $0.10 a page for the privilege of downloading them.
In a very real way, Swartz was doing with copyright what JSG Boggs does with money, explore the boundaries between the licit and the illicit.
“Richard Nixon … That instance did not lead to any punishment for the protester, fortunately. Tragically, Aaron was not as lucky.”
Worse than Nixon!
“using a sledgehammer”
When you possess the biggest hammer in town, everything looks like a nail.
The “stealing is stealing” comment is laughable. How many of those precious research articles were funded by taxpayers? And why are they sitting behind paywalls when it costs virtually nothing to publish them on the Internet? How can someone steal an article for which the general public has already paid? Paywalls are anathema to public science. They inhibit the transfer of information that the public already owns. The research that the public pays for ought to be free at some point. Give the trolls say 60 days to profit from the initial publishing but then mandate that they be made freely available to everyone after a reasonable grace period. If I have misunderstood the crux of the issue, and I doubt that I have, then accept my apologies. Seriously, wasn’t the Swartz incident all about civil disobedience in the name of a decent and noble cause?
JWD, I wish more protestors who break laws had been arrested and prosecuted over the years. Maybe they’d realize the rules apply to them too. Or did you like the OWS crowd recently fouling our cities and nothing being done as they prevented law abiding citizens from going about their daily business
In a world where almost everybody is a criminal, the legal system needs to look to new techniques and technologies to ensure that justice continues to be done in an efficient and cost effective manner. Fortunately, technology affords us powerful tools to automate the collection of evidence and reduce the costs associated with the machinery of law enforcement so that we may bring justice to perpetrators in a fair and uniform manner. We are faced with a task that is not insignificant, but we must not shirk from our duty to uphold the rule of law.
The real question is why journals make it so hard and expensive for people to read them.
I am now retired, but as a rural Physician in the US, there were ways for me to get the full article via snail mail only after our clinic signed on to a program with the National Library of medicine, but it was clumsy and slow. (I don’t know if it has improved).
So if there was an article in the NEJM or JAMA, I usually relied on abstracts and secondary articles to get information.
So maybe someone needs to ask who was he downloading these articles for? Rich college students who already had access to it in the college library, or people in the field who wanted to read such information but couldn’t access it easily?
We live in a world where new movies are available via enterprising pirates in our rural Philippine community the week before the film opens in Manila, but if I want the latest medical information, if I can’t google it, I can’t read it. Sigh.
Hell must have frozen over – I’m agreeing with John Dean. A 25 year old dealing with the full force of the US government being brought to bear on him? These prosecutors will answer to a Higher Judge.
Remember in the old West when nobody cared much for the sheriff? One day he just wouldn’t show up, and nobody seemed to complain too much. Made the next guy very nervous.
One time I was working for a company where my boss asked me to see if I could get some calendar and task data from an outside contractor who I had helped setup their systems remotely. They were providing some very basic web-based scheduling/task management apps for us for the project we were working on with them. The relationship was on the skids – lots of money thrown at them, no results – and she wanted to see if I could get the data. There was no implication I should “hack” the system just hey see if you can get the data. I still had privileges to logon to the servers and had root access so indeed I started poking around to see if I could find the data. Never could but I made the big mistake of trying to hide my tracks then lied to the owner of the outside contractor when he called me as I was covering my tracks and bluntly asked me if I had logged on to the server. Anyway, long way around to tell the story but they ended up suing my employer for $10M and threatened to give the case to the local district attorney for criminal prosecution. Nothing ever came of the criminal case thankfully but even my relatively small deed really scared the crap out of me and probably allowed the contractor a whole lot more leverage in the settlement of the lawsuit, which was north of $300k, none of which they really owed them. I had to do a deposition and my employer (who was actually my EX employer by that point since I had moved on) paid completely for an attorney to represent me.
In my own very small and meager way I can understand the fear he must have felt. The thought that you could go to prison for any length of time is completely overwhelming for a “normal” person who wouldn’t dream of ever committing a crime. It’s one thing when it’s your lifestyle and you almost expect to get caught but when you’re just a normal and reasonably intelligent person trying to live your life and you get caught up in something you weren’t imagining would ever be a big deal the thought that you could be locked in a cell with hardened criminals is very very hard to comprehend.
Still, suicide is a choice. Smart hackers like Kevin Mitnick got tossed in prison too and he’s made a very good life for himself after prison. It’s highly probable many people and organizations would have made sure Swartz mounted a proper defense. Though we’ll never know at the end of the day he could have seen the process through. Yea it sucks when a prosecutor has nothing better to do than attack a guy like him and seemingly forced him into suicide, but as tragic as the situation is, it was still his choice to kill himself. We absolutely should criticize the U.S. Attorney’s office for their overzealousness and they really need to check their egos at the door but ultimately we can’t blame them for Swartz killing himself.
My knowledge of inappropriate charging and prosecution by those in the federal judicial system comes at a price, 8 years of my life. After state officals examined the evidence gathered by one of their own on the insistence of my ex-wife it was determined that I had not comitted a crime, however, when the DEA came into the picture I was indicted on false testimony (proven at trial) and later convicted on one count of conspiracy to manufacture.
The Feds had used my then 17 year old son as a co-conspirator in order to obtain the conviction and I was facing 28 years in federal prison for what should have been a misdemenor with a 12 month maximum sentence, had I committed a crime in the first place.
Had I not convinced the Judge that the Government had failed to support its argument for the 28 year sentence I would still have 10 years left to serve. As it turned out I received 37 months and 5 years probation/parole. But here is the kicker, at the time I was sentenced I made a plea for a reduction in my sons sentence because it was almost twice that of mine and he had been made to plead guilty to something he hadn’t done for fear of receiving 10 years.
The Judge was agreeable to my request but it wasn’t until the following day after I had agreed to the prosecutors demand that I not seek an appeal in my case that the government agreed to a 50% reduction in the time my son had been given.
I have no regrets with the agreement, I would have taken on my sons time if I could have but the prosecution was a farce from the very begining and the entire investigation was started on the accusations of a women scorned who the trial judge called a women with an addiction who was not to believed and whom he never again wanted to see in his court.
These people do not care for the people before them, if they see them at all, prosecutions are just another step upon the road to wherever it is these people are headed and Aaron was disgarded along with so many others who’s stories are never told.
God rest his soul……………..
The prosecution was apparently in the business of annihilation. Swartz faced spiritual annihilation and financial annihilation, with no viable means of escape. To my mind, our justice system is out of control. The prosecution took leave of their senses. Unfortunately, this kind of tragedy is all too commonplace, and most of the time goes unreported.
The suicide of Aaron Swartz in the face of the appalling over-reach of unchecked discretionary prosecutorial power highlights a much larger problem that pervades our legal system.
The entire US legal system (including criminal, civil, and family court divisions) is routinely used in an outrageously abusive manner.
Those who are traumatized, stigmatized, or victimized by such shenanigans within the legal system may suffer what has come to be called Legal Abuse Syndrome.
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