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United States v. Aaron Swartz

 == Background == 

On January 6, 2011, Swartz was arrested by MIT police on state breaking-and-entering charges, in connection with the systematic downloading of academic journal articles from JSTOR. Federal prosecutors eventually charged him with two counts of wire fraud and 11 violations of the Computer Fraud and Abuse Act, charges carrying a cumulative maximum penalty of $1 million in fines plus 35 years in prison, asset forfeiture, restitution and supervised release.

On January 11, 2013, two years after his initial arrest, Swartz was found dead in his Crown Heights, Brooklyn apartment, where he had hanged himself.

JSTOR is a digital repository that archives content from journal articles, manuscripts, GIS systems, and scanned plant specimens and disseminates it online. Swartz was a research fellow at Harvard University, which provided him with a JSTOR account. Visitors to MIT’s "open campus" were authorized to access JSTOR through its network.

According to state and federal authorities, over the course of a few weeks in late 2010 and early 2011 Swartz downloaded a large number of academic journal articles from JSTOR through MIT’s computer network. The authorities say Swartz downloaded the documents through a laptop connected to a networking switch in a controlled-access wiring closet. According to press reports, the door to the closet was kept unlocked.

 == Arrest, charges and indictments == 

On January 6, 2011, Swartz was arrested near the Harvard campus by two MIT police officers and a U.S. Secret Service agent. He was arraigned in Cambridge District Court on two state charges of breaking and entering with intent to commit a felony.

On July 11, 2011, Swartz was indicted in Federal District Court on four felony counts: wire fraud, computer fraud, unlawfully obtaining information from a protected computer and recklessly damaging a protected computer.

On November 17, 2011, Swartz was indicted by a Middlesex County Superior Court grand jury on state charges of breaking and entering with intent, grand larceny and unauthorized access to a computer network.

On December 16, 2011, the district attorney’s office filed a nolle prosequi declaration in the case generated by Swartz's initial January 6, 2011 arrest. The state charges against Swartz stemming from the November 17, 2011 indictment were dropped on March 8, 2012. According to a spokesperson for the Middlesex County prosecutor, the state charges were dropped in order to permit federal prosecution to proceed, unimpeded.

Writing in Massachusetts Lawyers’ Weekly, Harvey Silverglate reported that lawyers familiar with the original case told him they had expected it to be dismissed after a "'continuance without a finding'.... The charge [would be] held in abeyance ... without any verdict ... for a period of a few months up to maybe a couple of years." After the publication of his Massachusetts Lawyers' Weekly piece, Silverglate explained to CNET's Declan McCullagh that if the defendant manages to stay out of further legal trouble after such a continuance, the case is typically dismissed. "Tragedy intervened," Silverglate had written, "when [U.S. Attorney Carmen] Ortiz’s office took over the case to 'send a message.'"

According to Verge reporter Jeff Blagdon and the Huffington Post, federal rather than local prosecutors had been "calling the shots" on the prosecution of the case since Swartz’s arrest. Both cited a letter from Swartz's attorneys to the Department of Justice. "The lead prosecutor in Mr. Swartz’s [federal] case, AUSA Stephen Heymann ... and [Secret Service] Agent Pickett directed and controlled the investigation of Mr. Swartz from the time of [his] arrest on January 6.... Heymann’s involvement in the case had commenced very early in the investigation."

 == Federal prosecution == 

On April 13, 2011, as part of their investigation, federal authorities interviewed Swartz’s former partner, Wired journalist Quinn Norton; she penned an article, "Life Inside the Aaron Swartz Investigation," detailing her experiences in the case. I mentioned ... a two-year-old public post on ... Aaron's blog. It had been fairly widely picked up by other blogs. I couldn't imagine that these people who had just claimed to have read everything I'd ever written had never looked at their target's blog, which appeared in his FBI file, or searched for what he thought about "open access." They hadn't. So this is where I was profoundly foolish. I told them about the Guerrilla Open Access Manifesto. And in doing so, Aaron would explain to me later (and reporters would confirm), I made everything worse.

On July 19, 2011, the July 11th federal indictment  was unsealed, charging Swartz with two counts of fraud and two counts related to accessing and damaging a protected computer. According to the indictment, Swartz surreptitiously attached a laptop to MIT’s computer network, which ran a script named "keepgrabbing.py", allowing him to "rapidly download an extraordinary volume of articles from JSTOR." Prosecutors in the case said Swartz acted with the intention of making the papers available on P2P file-sharing sites.

Swartz surrendered to authorities, pleading not guilty on all counts, and was released on $100,000 unsecured bail. After his arrest, JSTOR released a statement saying that though it considered Swartz’s access to be a "significant misuse" committed in an "unauthorized fashion," it would not pursue civil litigation against him; MIT did not comment on the proceedings.

The New York Times wrote of the case: "a respected Harvard researcher who also is an Internet folk hero has been arrested in Boston on charges related to computer hacking, which are based on allegations that he downloaded articles that he was entitled to get free."

Assistant U.S. Attorneys Stephen Heymann and Scott Garland were the lead prosecutors, working under the supervision of U.S. Attorney Carmen Ortiz. The case was brought under the Computer Fraud and Abuse Act, which was passed in 1986 to enhance the government’s ability to prosecute hackers who accessed computers to steal information or to disrupt or destroy computer functionality. "If convicted on these charges," said Ortiz, "Swartz faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million."

On September 12, 2012, the prosecution filed a superseding indictment adding nine more felony counts. George Washington University Law School Professor Orin Kerr, writing on the legal blog Volokh Conspiracy, opined that the risk of a maximum sentence in Swartz’s case was not high. In an interview with Boston's WBUR, retired federal judge Nancy Gertner said a sentence of 35 years for a case like Swartz's "never occurs." She questioned the propriety of pressing these charges at all. Referring to decision-making by Ortiz's office, she said "this is the example of bad judgment I saw too often," suggesting that a two-year diversion program leading to expunged charges would have been more fitting.

 === Plea negotiations === 

Swartz’s attorney, Elliot Peters, said prosecutors told him, two days before Swartz’s death, that “Swartz would have to spend six months in prison and plead guilty to 13 charges if he wanted to avoid going to trial.” Peters later filed a complaint with the DOJ's Office of Professional Responsibility, stating that if Swartz didn't plead guilty, Heymann "threatened that he would seek for Mr. Swartz to serve seven years in prison," a difference in duration Peters asserts went "far beyond" the disparity encouraged by the plea-bargain portion of the Federal Sentencing Guidelines.

Andy Good, Swartz’s initial lawyer, told The Boston Globe: “I told Heymann the kid was a suicide risk. His reaction was a standard reaction in that office, not unique to Steve. He said, ‘Fine, we’ll lock him up.’ I’m not saying they made Aaron kill himself. Aaron might have done this anyway. I’m saying they were aware of the risk, and they were heedless.”

Marty Weinberg, who took the case over from Good, said he nearly negotiated a plea bargain in which Swartz would not serve any time. "JSTOR signed off on it," he said, "but MIT would not."

Shortly before Swartz’s death, JSTOR announced that it would make "more than 4.5 million articles" available to the public for free. The service was capped at three articles every two weeks, readable online only, with some downloadable for a fee.

After his death, Ortiz’s office dismissed the charges against Swartz. She said, "This office’s conduct was appropriate in bringing and handling this case.... This office sought an appropriate sentence that matched the alleged conduct—a sentence that we would recommend to the judge of six months in a low security setting.... At no time did this office ever seek—or ever tell Mr. Swartz’s attorneys that it intended to seek—maximum penalties under the law."

On January 12, 2013, Alex Stamos, a computer forensics investigator employed by the Swartz legal defense team, posted an online summary of the expert testimony he had been prepared to present in the JSTOR case, had Swartz lived to see trial. He wrote:"If I had taken the stand as planned and had been asked by the prosecutor whether Aaron’s actions were 'wrong,' I would probably have replied that what Aaron did would better be described as 'inconsiderate.' In the same way it is inconsiderate ... to check out every book at the library needed for a History 101 paper. It is inconsiderate to download lots of files on shared wifi..."

 === Federal prosecutory rationale and responses === 

U.S. Attorney Ortiz asserted after the 2011 indictment that “stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars.”

 ==== About the prosecution ==== 

At a 2013 memorial for Swartz at the Internet Archive, his collaborator Carl Malamud recalled their work with PACER. He noted that they had brought millions of U.S. District Court records out from behind PACER's "pay wall" and found them full of privacy violations including people's medical records and the names of minor children and confidential informants. We sent our results to the Chief Judges of 31 District Courts.... They redacted those documents and they yelled at the lawyers that filed them... The Judicial Conference changed their privacy rules. ... [To] the bureaucrats who ran the Administrative Office of the United States Courts ... we were thieves that took $1.6 million of their property. So they called the FBI.... [The FBI] found nothing wrong.... "Was the overly aggressive posture of the Department of Justice prosecutors and law enforcement officials," he asked, "revenge because they were embarrassed that — in their view at least — we somehow got away with something in the PACER incident? Was the merciless JSTOR prosecution the revenge of embarrassed bureaucrats because they looked stupid in the New York Times, because the U.S. Senate called them on the carpet?"

Former Nixon White House counsel John Dean wrote an article on the legal blog justia.com entitled Dealing With Aaron Swartz in the Nixonian Tradition: Overzealous Overcharging Leads to a Tragic Result, saying "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."

George Washington University law professor Orin Kerr wrote on January 15, 2013 that "the charges brought here were pretty much what any good federal prosecutor would have charged." Duke University law professor James Boyle replied in The Huffington Post: "I think that in [Kerr’s] descriptions of the facts [and of] the issues surrounding prosecutorial discretion ... he tends ... to minimize or ignore facts that might put [Swartz] in a more favorable light."

 ==== About the law ==== 

After Boyle's Huffington Post column, Kerr returned to the topic, advocating reform of the Computer Fraud and Abuse Act (CFAA) under which Swartz was prosecuted. "The problem raised by the Swartz case is ... [that] felony liability under the statute is triggered much too easily. The law needs to draw a distinction between low-level crimes and more serious crimes, and current law does so poorly...."

Chris Soghoian, a technology policy analyst at the American Civil Liberties Union, argued similarly, "Existing laws don’t recognise the distinction between two types of computer crimes: malicious crimes committed for profit ... and cases where hackers break into systems to prove their skillfulness or spread information that they think should be available to the public." Jennifer Granick, Director of Civil Liberties at the Stanford Center for Internet and Society, both defended Swartz and challenged the scope of the law under which he was prosecuted.

 === Post-dismissal motions and complaint === 

On January 28, 2013, the lawyers for Swartz’s estate sent a letter to the Justice Department accusing Assistant U.S. Attorney Stephen Heymann of professional misconduct. They said Heymann "may have misrepresented to the Court the extent of the federal government’s [early] involvement in the investigation." "Emails and reports further illustrated ... that AUSA Heymann was himself involved in the investigation even before Mr. Swartz was arrested on January 6, 2011." The lawyers also said Heymann "abused his discretion when he attempted to coerce" Swartz into pleading guilty: "Swartz ... naturally felt extreme pressure to waive his rights.... The difference between an offer of four months and a threat of seven years went far beyond the minimal reduction ... that should properly have applied for [a defendant’s] 'acceptance of responsibility' under the Sentencing Guidelines." On March 15, the lawyers asked the federal court to modify the protective order on Swartz’s file to permit public disclosure of the discovery materials, including the names and titles of MIT, JSTOR and law enforcement employees. The lawyers said that withholding the names would make the documents "less intelligible and thus far less useful to Congress." The First Assistant U.S. Attorney for Massachusetts, Jack Pirozzolo, said he was taking a role in the discussions and would be asking the court to give the affected employees an opportunity to be heard on the proposed disclosures.

The Department of Justice sought to hide the names of the prosecutors involved in the case. A U.S. Attorney’s Office spokesperson said, "Our argument against it is that not only does it have an effect on the people involved in the case, but there’s also sometimes a residual effect."

On May 13, 2013, the court granted the estate's motion in part, permitting public disclosure of much of the material the estate's lawyers had sought to have unsealed, provided that the names of MIT and government employees were first redacted. The estate's argument for disclosure of these names was "substantially outweighed by the interest of the government and the victims in shielding their employees from potential retaliation," wrote Judge Nathaniel Gorton. The judge also ruled that information disclosing details of computer network security at MIT should not be made public. The prosecutors and Swartz's lawyers were ordered to propose the terms of the disclosures and redactions by May 27, 2013.

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Aaron Swartz

 == JSTOR == 

According to state and federal authorities, Swartz used JSTOR, a digital repository, to download a large number of academic journal articles through MIT's computer network over the course of a few weeks in late 2010 and early 2011. At the time, Swartz was a research fellow at Harvard University, which provided him with a JSTOR account. Visitors to MIT's "open campus" were authorized to access JSTOR through its network. The authorities said Swartz downloaded the documents through a laptop connected to a networking switch in a controlled-access wiring closet at MIT.

 === Arrest and prosecution === 

On January 6, 2011, Swartz was arrested near the Harvard campus by MIT police and a U.S. Secret Service agent. He was arraigned in Cambridge District Court on two state charges of breaking and entering with intent to commit a felony.

On July 11, 2011, Swartz was indicted by a federal grand jury on charges of wire fraud, computer fraud, unlawfully obtaining information from a protected computer and recklessly damaging a protected computer.

On November 17, 2011, Swartz was indicted by a Middlesex County Superior Court grand jury on state charges of breaking and entering with intent, grand larceny and unauthorized access to a computer network. On December 16, 2011, state prosecutors filed a notice that they were dropping the two original charges; the charges listed in the November 17, 2011 indictment were dropped on March 8, 2012. According to a spokesperson for the Middlesex County prosecutor, the state charges were dropped in order to permit the federal prosecution to proceed unimpeded.

On September 12, 2012, federal prosecutors filed a superseding indictment adding nine more felony counts, which increased Swartz's maximum criminal exposure to 50 years of imprisonment and $1 million in fines.

After his death, federal prosecutors dropped the charges.

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