Sunday evening, Anonymous posted a tribute (pdf) to Aaron Swartz on the MIT.edu website. It was hours after the university president had announced an internal investigation of MIT’s involvement with the events leading up to his death and, in tone, represented many of the tributes flooding the web.
Whether or not the government contributed to his suicide, the government’s prosecution of Swartz was a grotesque miscarriage of justice, a distorted and perverse shadow of the justice that Aaron died fighting for — freeing the publicly-funded scientific literature from a publishing system that makes it inaccessible to most of those who paid for it — enabling the collective betterment of the world through the facilitation of sharing — an ideal that we should all support.
There has been an outpouring of frustration and anger at the apparent abuse of power from the Department of Justice. First, pursuing the case appears questionable based on JSTOR’s position as well as one of the charges:
- AP reports that JSTOR’s attorney, a former federal prosecutor in Manhattan, had phoned the lead Boston prosecutor and “asked that they not pursue the case.”
- Two circuit courts have ruled that violating terms of service is not a violation of the 1984 Computer Fraud and Abuse Act, calling this DOJ claim into question.
- Despite expert legal analysis suggesting the case was questionable, the DOJ refused to budget one iota on the charges.
Second, what is the overarching societal interest in the case? What harm has come to society? Certainly nothing like the collapse of the economy, and no Wall Street CEO has been put behind bars or in the box.
In 2011 after Aaron’s indictment, attorney Max Kennerly hypothesized that the 1984 Computer Fraud and Abuse Act might be interpreted by the DOJ and the courts like the RICO Act (Racketeer Influenced and Corrupt Organizations Act).
In that essay he quoted Robert Jackson, former Attorney General, Supreme Court Justice, and the Chief Nuremberg Prosecutor: “The prosecutor has more control over life, liberty, and reputation than any other person in America.” Kennerly continued:
I don’t see what societal interest Carmen Ortiz think she’s vindicating with the Swartz indictment… Prosecuting Swartz criminally makes less sense than prosecuting telecommunications companies for violating their consumer agreements, and we all know that’s not going to happen any time soon.
There’s a reason Kennerly worried about RICO. From the Minnesota Law Review (2012, pdf):
[T]he Computer Fraud and Abuse Act (CFAA) … originally designed to criminalize only important federal interest computer crimes, potentially regulates every use of every computer in the United States and even many millions of computers abroad… The CFAA has become so broad, and computers so common, that expansive or uncertain interpretations of unauthorized access will render it unconstitutional…Congress has given the Executive remarkably broad discretion to charge cases that the Executive thinks should be charged. The core legislative question of what conduct should be criminalized has been all but abandoned.
Third, there is a perception that Obama’s DOJ was using Aaron as an example. From
When the federal government went after him – and MIT sheepishly played along – they weren’t treating him as a person who may or may not have done something stupid. He was an example. And the reason they threw the book at him wasn’t to teach him a lesson, but to make a point to the entire Cambridge hacker community that they were p0wned. It was a threat that had nothing to do with justice and everything to do with a broader battle over systemic power.
Many people asked why people didn’t speak up before. I can only explain my reasoning. I was too scared to speak publicly for fear of how my words might be used against him. And I was too scared to get embroiled in the witch hunt that I’ve watched happen over the last three years. Because it hasn’t been about justice or national security. It’s been about power. And it’s at the heart and soul of why the Obama administration has been a soul crushing disappointment to me.
Swartz’s activism, I argued, was waged as part of one of the most vigorously contested battles – namely, the war over how the internet is used and who controls the information that flows on it – and that was his real crime in the eyes of the US government: challenging its authority and those of corporate factions to maintain a stranglehold on that information.
Writing about Aaron’s case in 2011, Greenwald warned:
The free flow of information and communications enabled by new technologies — as protest movements in the Middle East and a wave of serious leaks over the last year have demonstrated — is a uniquely potent weapon in challenging entrenched government power and other powerful factions.
It’s no wonder, then, that Anonymous coupled its tribute to Aaron with calls for reform:
- We call for this tragedy to be a basis for reform of computer crime laws, and the overzealous prosecutors who use them.
- We call for this tragedy to be a basis for reform of copyright and intellectual property law, returning it to the proper principles of common good to the many, rather than private gain to the few.
- We call for this tragedy to be a basis for greater recognition of the oppression and injustices heaped daily by certain persons and institutions of authority upon anyone who dares to stand up and be counted for their beliefs, and for greater solidarity and mutual aid in response.
- We call for this tragedy to be a basis for a renewed and unwavering commitment to a free and unfettered internet, spared from censorship with equality of access and franchise for all.
They also apologized to MIT “for this temporary use of their websites.”
The family – as well as friends like Lawrence Lessig – have made it clear that they believe MIT is culpable in the court case.
Late Sunday afternoon, MIT President L. Rafael Reif released a statement that included this:
Now is a time for everyone involved to reflect on their actions, and that includes all of us at MIT. I have asked Professor Hal Abelson to lead a thorough analysis of MIT’s involvement from the time that we first perceived unusual activity on our network in fall 2010 up to the present. I have asked that this analysis describe the options MIT had and the decisions MIT made, in order to understand and to learn from the actions MIT took. I will share the report with the MIT community when I receive it.
Introspection may be good for the soul, but an internal investigation will not bring Aaron back.