Prosecution’s Case Against Swartz Draws Scrutiny

BOSTON — Internet prodigy, activist and accused computer hacker Aaron Swartz will be buried in a service outside Chicago on Tuesday. The 26-year-old, a former fellow at Harvard University, took his life on Friday.

In Greater Boston, where Swartz was facing stiff criminal charges and a federal trial, U.S. Attorney Carmen Ortiz and her office have become the target for criticism and anger over their prosecution of Swartz.

This Dec. 8, 2012 photo provided by ThoughtWorks shows Aaron Swartz (ThoughtWorks, Pernille Ironside/AP)

This Dec. 8, 2012 photo provided by ThoughtWorks shows Aaron Swartz (ThoughtWorks, Pernille Ironside/AP)

“Stealing is stealing,” Ortiz announced on the day two years ago that Swartz was indicted. “Whether you use a computer command or a crowbar, and whether you take documents, data or dollars, it is equally harmful to the victim whether you have stolen or give it away.”

For downloading four million documents from a fee-charging database of academic journals, Swartz was charged with multiple felonies exposing him to 35 years in prison, if convicted.

“They threw the book,” said Alex Stamos of iSEC Partners, a full-service computer security firm. “They found every possible interpretation of federal law that they thought he could have violated and charged him with it.

“I’ve never seen somebody prosecuted on such a wide scale so disproportionately to what their alleged crime is.”

At the time, Swartz was a fellow studying ethics at Harvard’s Berkman Center for Internet and Society. He was 24, twice his age when he applied as a 12-year-old genius and won an internship to a Web development company that was esteemed by elite geeks: ArsDigita, whose co-founder was Philip Greenspun.

“He might have been 4’10″ at the time,” Greenspun said Monday. “I can’t remember if we knew how old he was or not. I think a lot of people were shocked at how young he was.”

Soon he would be creating the vital technology called RSS. Then came Reddit, a website for social news and entertainment. He was best known for that and for his ethos that all information wants to be public, which made him an activist and a folk hero. And a potential target for prosecution.

“The government’s case, they didn’t pull it out of thin air, let’s say,” Greenspun said. “They had a previous run-in with Aaron.”

It involved a website called PACER. Believing that since federal court records are publicly paid for and should be available for free, Swartz devised a computer program to download 20 million pages. That time the Justice Department did not prosecute.

But in 2011, federal prosecutors charged him with hacking into and stealing four million documents from JSTOR, a database of older academic journals which activists also thought should be free for the downloading. Swartz had used a guest account at MIT. Suddenly, he was facing a million dollar fine and more time than second-degree murderers.

“The U.S. attorney embarked on an overkill campaign that wasn’t warranted,” said Jerry Cohen, an attorney with the Boston firm Burns & Levinson. He specializes in copyright law and says this was a case that should have ended up as a civil case or a minor criminal case.

“If JSTOR had lost significant revenue it would have been suing for damage rather than having this run riot with the criminal process to the embarrassment of MIT and JSTOR and their deep regret,” Cohen said.

Stamos, the computer expert, was going to be the key defense witness for Swartz. He studied the government’s forensic evidence.

“While Aaron did some things that were questionable and I can’t agree with,” Stamos said, “he did no hacking. I’ve seen hacking criminal attempts to bypass computer protection and do bad things. This was not hacking.”

In fact, MIT advertises that visitors and everyone on campus are welcome to use their network. It’s open, says Stamos, and anybody could open an unlimited number of files from JSTOR.

“Aaron is the only person apparently who’s ever being prosecuted for downloading too many academic journal articles from a website,” Stamos said.

Of course, it was four million articles.

Elliot Peters, of San Francisco, was the lead counsel for Swartz.

“JSTOR, the supposed victim, didn’t believe it should be a criminal case and they made that clear,” Peters said. “They were not a willing participant in this prosecution, so that tells you something.”

But MIT took a different position, says Greenspun and other critics.

“The crux of it is that MIT refused to disavow any kind of trespassing charge,” he said.

MIT has now called for “a thorough analysis of MIT’s involvement” in the case.

In any event, the U.S. Attorney’s office went ahead, not with a civil action, not with a trespassing case, not with a deferred prosecution that might suspend the case if Swartz committed no further crimes in, let’s say, the next two years. They went ahead with 13 felony charges.

“Thirteen felonies made absolutely no sense either particularly since I didn’t believe they could prove a single one of them,” Peters said.

Peters said that all those charges were designed to squeeze his client into a plea deal. And after talking about a conviction involving upwards of 35 years, the government offered a recommendation of a four-month prison sentence — if and only if Swartz agreed to plead guilty to every felony count.

Why the huge discrepancy? Civil libertarian Harvey Silverglate says it’s a government tactic to push defendants into plea deals, thereby avoiding going to trial and losing.

“If the case didn’t deserve decades in prison, they should have brought a misdemeanor charge or even a civil charge,” Silverglate said. “They should not have terrorized this young man.”

There was another demand from the U.S. Attorney’s office, says Peters. Swartz would have to agree not to use his computer for some specified time after he got out of prison.

“What they’re really doing here is disabling him from dealing with computers,” Silverglate said. “This is one of our young geniuses. This is a national resource and a national treasure.”

Peters says it made no sense.

“I didn’t believe Aaron Swartz belonged in federal prison,” he said. “And I didn’t want him to go to federal prison. I didn’t believe he was a felon. I didn’t want him to be stripped of the right to vote and be branded as a felon for the rest of his life.”

Last week, Peters says, it was clear the U.S. Attorney’s office was not going to change its offer. Swartz was facing prison, uncertainty and at least $1.5 million to defend himself.

“For Aaron, he was looking at a guaranteed loss of his entire life’s earnings,” Greenspun said. “That would be pretty daunting prospect for anyone.”

Swartz was a difficult person, Greenspun says, and he had a long history of depression. “You feel as if streaks of pain are running through your head, you thrash your body, you search for some escape but find none,” Swartz had written on his blog a few years ago. “And that’s not the worst of it.”

The worst of it ended on Friday. There was no suicide note.

Ortiz has signed a document dismissing the charges. “We want to respect the privacy of the family,” Ortiz said in a statement this weekend, “and do not feel it is appropriate to comment on the case at this time.”

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  • 80Charlie Griffith331

    Wioth a name like “Carmen Ortiz” she has lifetime tenure at just about anything she wants.

    • http://www.facebook.com/people/Chris-Harlos/782349392 Chris Harlos


  • Kathy

    He was offered a plea deal of 6 months in prison, not 30 or 35 years. He knew what he was doing was against the law. Should he not have been prosecuted just because he was an Internet genius?

    • grammy97

      Can you name the law he broke?

    • http://www.facebook.com/people/Chris-Harlos/782349392 Chris Harlos

      Side with power. That’s smart.

      • Kathy C.

        What’s the alternative? Anarchy? Download and distribute everything you want? He knew what he was doing was against the law.

        • rod

          Anarchy? That’s an absurdly big leap. Perhaps you should consider reading Thoreau on civil disobedience, then reconsider your position.

        • jefe68

          Oh please, MIT wanted to drop the case. People of your ilk are really something else. The holier than thou crowd.

    • Neena

      The law he actually broke was violating the use agreement when he signed on to the system. Prison time for that?
      He never broke into any property. The storage area was not locked. He played a some computer cat and mouse with the MIT computer dept. and disrupted the JSTOR system. At worst, he should have been charged in a civil suit and ordered to pay damages for slowing the system for several days.

    • maraith

      Kathy, as the article states, the plea deal was that Swartz admit to 13 felonies. That would have ruined his life and livelihood. The government had a weak case and was playing hardball, figuring he’d take the deal rather than go to jail and pay a huge fine. They went too far. They could have offered something less onerous and it might have been accepted. Or actually charged what the “crime” called for. Instead they found every possible related crime and stuck that in the charges. This is clearly government power run amuck. There is only shame in this for both Ortiz and MIT.

  • Chuck


  • GoodGrief

    A brilliant, well-written report, David. It covers all the important points, and your reading of it is rightly impassioned. I’m leaving this site for a moment to sign the “Fire Carmen Ortiz” petition. Government terrorism—most especially in the so-called “Justice” Department—must stop or be stopped.

  • http://twitter.com/Boothie68 Boothie68

    You do know the prosecutor was told by the journal owner not to proceed? Why is this publication omitting that? Tell the story let the readers decide. Not parrot press releases.

    • Neena

      The WBUR story does note that JSTOR did not want to prosecute.

  • http://www.facebook.com/people/Chris-Harlos/782349392 Chris Harlos

    The message is clear: if you pose a genuine threat to government control of the internet, or to the interests of wealthy property-owners, you will be subject to the full force of state power. Commit a war crime, authorize torture, commit financial fraud costing trillions, you get dinner at the White House and bigger-than-ever pay packets.

    Fuck the USA.

  • TheGrouch

    Ortiz is from the government and here to help… I’m thinking she gave Aaron about five minutes of her personal time to reflect on his demise and then went back to work. She has more people, and the world, to help stay safe against downloaders and the world wide web.

  • oxtail

    Thank You, David. Ortiz is a misfit in the office and should not be allowed to do any more senseless bullying like this. It took a very valuable life away, so young.

    A terrible loss to our nation and our values.

    • Fred217

      I hope the family sues Ortiz, et al for $$millions & the govt SHOULD NOT provide funds for their defense. Let them stare at the abyss of financial ruin & having their names dragged through the mud. Bet they get a bit “depressed”, too.

      • snarvid

        FYI: It is insanely difficult to sue prosecutors.

  • http://www.facebook.com/rich.paul.freeman Rich Paul Freeman

    Your government is an evil institution run by evil people. This sort of thing is to be expected if you keep things like viscious dogs and governments around.

  • go2goal

    Protect the hinterland……MIT answers to its big money donors (The Koch Brothers) and of course their big research piggy banks (The CIA and the Defense Department and Defense Industry Establishment).

    The DoJ has taken on a completely new role since the creation of the Dept of Homeland Security (The Nazi Hinterland would be an excellent historical reference point) and especially the so called Patriot Act!

    Protecting Freedom and spreading Democracy….or is that complete BS. If this was about freedom, democracy, and public safety….maybe we’d do something about gun violence and the fact that 85% of the children in the world killed by guns were killed right here in the US of A!

  • J__o__h__n

    Ortiz should resign. The prosecution was over zealous. Society hasn’t finished the discussion on intellectual property rights in the digital age. He obviously wasn’t doing this for financial gain. What is the market for these papers? None. The disparity between the threatened sentence and the plea was obscenely vast. What benefit would there be to society to keep this genius away from a computer as part of a sentence (now even worse due to his death)? How many bankers has she put in jail?

  • Al Dorman28

    The mistake here by the creature Carmen Ortiz was treating a white guy the same as the AG regularly treats powerless Muslims.

  • jefe68

    So U.S. Attorney Carmen Ortiz went after an easy target instead of the wall street and bankers who took down the world economy. Stealing is stealing Ms. Ortiz?

  • AndrewS.

    David thanks for this piece. I find myself informed, upset by and relieved a little after reading your articles or hearing your reports. The relief comes from knowing that there are still good journalists who will absolutely hammer (thoroughly and factually) those who abuse their power.

  • rod

    I just want to add my voice to the chorus of those who feel that Ms. Ortiz and her ilk, including MIT, did the wrong thing, shameful, and yet who is better at rationalizing their guilt than those who have power?

  • rod

    Who is better at rationalizing their guilt than those with power?

  • Jesse

    Swartz believed that research knowledge garnered from public funds, such as the academic works JSTOR holds, should be available to all. The government’s reaction to that was overblown and completely unnecessary. Funnily enough, the taxpayer dollars that would have been spent on the trail could have gone into more research instead, something Swartz would have definitely supported.

  • benhar

    Where is the petition?

  • Killswitch
  • Neena

    Looks like Mr. Swartz took Ortiz’ rising political career to the grave with him.

  • MaxEntropy

    This Federal prosecutor is the same Carmen Ortiz who put the young Tarek Merhanna of Sudbury in Federal prison for 18 years on trumped-up charges of terrorism. Like Merhanna, Schwartz held dissident beliefs, in this case on intellectual property rather than religion. Schwartz did nor hack any more than Merhanna shot or bombed. Ortiz is a disgrace to the principles of justice and should be forced to resign. She is a present danger to civil liberties in this country. We have had enough of her brand of law enforcement and the homeland security fetishism that is casting unconstitutional dragnets and bent on making dissidence a crime.

  • Isabella

    Carmen Ortiz is a dangerous embarrassment to the U.S. Justice Dept. and a deadly threat to the American public.
    She should not be in this position for another minute.
    She should be criminally prosecuted herself for malicious abuse of process.
    How did this disgusting dimwit ever become our U.S. Attorney?

  • bob f

    I’m not a Bulger fan but isn’t this kind of prosecutive legal overreach similar to Grieg, Whitey’s girlfriend, recently sentenced for harboring? Further, shouldn’t the judiciary and prosecution remain separate and apart for ‘balance’ in these cases? Wasn’t that the problem back when Whitey was ‘becoming’ the regional crime czar in Boston? And, isn’t this the problem with USDC Judge Stearns involvement in the perspective Bulger trial?

  • Jane

    There was no suicide note. Doesnt anyone think it strange that he would take his life over this. There are people wiped out all the time and their deaths appear…. to be suicides.

  • AMBoston

    Such a disgrace. It should also be pointed out that the US Attorney working directly on this case, under Ortiz, was Stephen Heymann. And this was not the first time his target committed suicide. There is a petition to have him removed as well as Ortiz: https://petitions.whitehouse.gov/petition/fire-assistant-us-attorney-steve-heymann/RJKSY2nb?utm_source=wh.gov&utm_medium=shorturl&utm_campaign=shorturl

  • http://profiles.google.com/barry.kort Barry Kort

    We need a national dialogue on the practice of piling on charges to coerce defendants into accepting unjust plea bargains.

    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.

    In the field of Medicine, every proposed treatment or cure has to be carefully studied and reviewed to ensure that it has demonstrated therapeutic value, and does not inadvertently spread, exacerbate, or even cause the malady it sets out to treat. In the medical literature, a treatment is called “iatrogenic” if it is counter-productive to the primary objective of curing disease.

    The field of Law does not employ such safeguards, and as a result a substantial fraction of our public policies and practices, operating under the color of law, turn out to be iatrogenic — ineffective at best and counter-productive at worst.

    Alan Simpson, the retired Senator from Wyoming, spent some three decades in Congress, during which time he helped craft and enact a great deal of legislation. But after he retired, he remarked that during his tenure in Washington politics, he discovered a law, the way a scientist would discover a natural law. Simpson said he discovered the Law of Unintended Consequences, meaning that the actual outcome of legislation, passed in good faith with an expectation of curing one of society’s ills, frequently turned out to have unanticipated, unexpected, and undesirable consequences. In science, if one is relying on a theoretical model, and the actual outcome of an experiment does not jibe with that predicted by the model, one is obliged to discard the model as unreliable.

    Our governmental systems are rife with unreliable models which give rise to unwise practices, many of which are ineffective at best and counter-productive at worst. We have built governmental systems that lack viable safeguards against iatrogenic treatments of many of our most problematic social ills.

    Here is an example of the kind of scholarly article one might find on JSTOR (which recently relaxed its policies to make many more of them freely available without a costly institutional subscription).

    “Punishment and Violence: Is the Criminal Law Based on One Huge Mistake?” by James Gilligan, Harvard University; published in the Journal of Social Research, Fall 2000.


  • gorilla monsoon

    Where can I get the petition to sign “Fire Carmen Ortiz” ? She deserves a severe punishmenty. May she enjoy her forced retirement in silence and despair.

  • gorilla monsoon

    The more I think about Carmen Ortiz, the more I would wish her to disappear. Her harassment of Swartz was indecent. Yet I see no apology from this vicious witch for her pushing him to suicide.

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