Prosecution's Case Against Swartz Draws Scrutiny

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.

"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."