Connecticut Lawyers Practicing Civil Rights, Criminal Defense & Damage Claims on Behalf of Individual Citizens
860 • 728 • 4900 860 • 728 • 4900
Cool Justice: A 'Don Bolles Project'

for fallen Internet activist Aaron Swartz

By Andy Thibault
@cooljustice on Twitter
Published: Tuesday, January 22, 2013

Did federal prosecutors and MIT play a role in the death of prodigy and Internet freedom activist Aaron Swartz? Without a doubt, they tightened the noose – again and again and again.

Prosecutors knew Swartz was suicidal as they continued to misapply the law for their own career enhancement. They piled on felony charges for a case that, at best, might – emphasis on might – have justified a misdemeanor trespass arrest.

Who was Aaron Swartz? He was a 14-year-old whiz kid,, who helped develop the RSS feed, which allows readers to get timely updates from websites. A few years later, his company Infogami merged with Reddit, leading to the growth of the wildly popular social news site. Swartz was a key figure last year in halting SOPA – the Stop Online Piracy bill – which would have given the government ridiculous censorship power.

Swartz also embarrassed the federal judiciary in 2008, putting the spotlight on the ripoff known as PACER. The so-called "Public Access to Court Electronic Records" gouges citizens, charging them 10 cents a page for documents they already own. The government charges five times the cost of producing the documents. Using a free trial offer, Swartz downloaded about 20 million documents and forwarded them to a public site. Swartz was investigated and surveilled by the FBI. He chided the FBI for its "lack of sense of humor" and probably became a marked man at age 22.

The government was forced to close the PACER case because there was no evidence of a crime.

If only Massachusetts U.S. Attorney Carmen Ortiz and her minions Stephen Heymann and Scott Garland had upheld that standard, Swartz might still be fighting for Internet freedom today. Instead, as Robert Swartz said at his son's funeral last week, Aaron was "hounded" and "killed" by the government. As extreme as that conclusion sounds, it pales by comparison with the stack of unfounded and unjustified charges Ortiz, Heymann and Garland piled on Swartz.

Swartz did what many students and visitors at MIT do with JSTOR, a digital library containing back issues of academic journals. He downloaded mass quantities. Swartz just did it better and at far greater volumes than others. Friends said he embarked on this project to analyze the role funding plays in academic research. As with most of his other ventures, Swartz didn't do it for profit.

For this, Ortiz and Heymann charged Swartz with 13 felony counts. Swartz faced 35-50 years in prison and several million dollars in fines, depending on how the redundant charges are calculated.

"Stealing is stealing, whether you use a computer command or a crowbar," said in a 2011 statement that has been ridiculed by legal and tech experts alike.

Swartz's friend and colleague, Harvard law professor Lawrence Lessig, wrote in The Atlantic that Ortiz demonstrated "she knows nothing about computers, and apparently nothing about crowbars." In other words, downloading documents from a system designed to be wide open is not in the same universe as busting open a car window with a crowbar and stealing a radio, CD player or any other material object.

"Aaron Swartz was not the super hacker breathlessly described in the Government's indictment and forensic reports, and his actions did not pose a real danger to JSTOR, MIT or the public," said Alex Stamos, chief technology officer of Artemis Internet and an expert witness in Swartz's defense. "He was an intelligent young man who found a loophole that would allow him to download a lot of documents quickly. This loophole was created intentionally by MIT and JSTOR, and was codified contractually in the piles of paperwork turned over during discovery."

Hartford attorney Paul Spinella, author of the textbook "Connecticut Criminal Procedure," called the Swartz case "a very grave abuse of discretion."

"The case never should have been filed, never mind driving the kid to his grave," Spinella said. "It criminalizes non-criminal conduct. It's an example of over-reaching that frequently takes place across the country."

Two days before the 26-year-old Swartz hanged himself on Jan. 12, Heymann rejected a plea deal with no prison time.

Swartz's legacy includes the development of "8 Principles of Open Government Data." Trying to enact these principles made him an enemy of the government. The Justice Department's actions against Swartz personify the government as an enemy of the people.

Another way to honor Swartz would be to organize an "Aaron Swartz Project," similar to the "Don Bolles Project" or "Arizona Project" of the 1970s. Bolles, a reporter for the Arizona Republic and a founding member of Investigative Reporters and Editors, was blown up in his car while investigating mobsters, corrupt businessmen and dog and horse racing tracks. His last words: "They finally got me …" Over 10 days, doctors amputated both of Bolles' legs and an arm before he died. Scores of reporters and editors flocked to Arizona from around the country, generating a 23-part series of corruption stories.

An "Aaron Swartz Project" could support efforts including legislative changes already under way. "Aaron's Law," proposed by U.S. Rep. Zoe Lofgren of California, could begin to narrow the ludicrously broad application of the 1986 Computer Fraud and Abuse Act. More importantly, given the intense talents of today's Internet pioneers and writers, an "Aaron Swartz Project" would certainly document new revelations about the widespread abuse of power and perhaps develop a counterweight to powerful forces against the free flow of information.

Andy Thibault is a contributing editor for Journal Register Co.'s Connecticut publications and the author of Law & Justice In Everyday Life. He formerly served as a commissioner for Connecticut's Freedom of Information Commission. Reach Thibault by email at Follow him on Twitter @cooljustice.