The Prosecution of Aaron Swartz Paints Obama’s Justice Department as Needlessly Cruel and Capricious

A powerful indictment of our justice system, the Swartz case exemplifies the sick hypocrisy of persecuting information activists while corrupt corporations and bankers get off easy.

January 15, 2013  |  

Photo Credit: SVLuma/

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On Friday, January 11, 2013, 26-year-old visionary technologist and social activist Aaron Swartz hanged himself in New York City. A passionate advocate for making access to online information as widespread as possible, Swartz was grappling with the fallout from his efforts to do just that.

Two years before Swartz ended his life, he was arrested by police from the Massachusetts Institute of Technology and the City of Cambridge, Mass., police for breaking and entering into an MIT storage closet. In the closet, Swartz had stashed an Acer laptop  he had programmed to download in bulk millions of scholarly articles from JSTOR, a non-profit database that provides access to the articles for academic libraries. At the time, articles on JSTOR were locked behind a paywall for non-academics who wished to access them through their own computers. Swartz aimed to make them available, free of charge, to anyone who wanted to read them.

At the time of his arrest, an investigation of Swartz’s MIT/JSTOR action was already underway, and two days earlier, the Secret Service’s online crime division assumed control of the probe. The Secret Service routinely conducts complex computer crime investigations; its involvement signaled the treatment of this as a major crime, not a caper. Six months later, U.S. Attorney Carmen Ortiz charged Swartz with a four-count indictment.  

To those who knew Swartz’ ethic, that indictment already seemed like overkill, essentially labeling an effort to share information as wire and computer fraud. But then last year, Ortiz multiplied each of the main charges, turning the same underlying actions into a 13-count indictment that threatened Swartz with a 35-year sentence.

Swartz had long struggled with depression that may have contributed to his suicide. But his family and associates have also blamed the government’s conduct in prosecuting Swartz. A statement issued by the family the day after Swartz’s suicide charges that “the U.S. Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims.”

And therein lies the almost incomprehensible legal background to this tragedy. Both before and after his arrest, Swartz had dedicated much of his life to using the internet to making information freely accessible. His goal here — the government claims he intended to publish the journals online, but made no claim he wanted to profit off of them — would have put academic research, much of it funded by federal grants, in the hands of the people who paid for it.

The Free Exchange of Ideas

Academic inquiry is founded on the free exchange of ideas. And most of the journals’ authors do not get paid for the articles they wrote. Swartz’s “crime” here would have served to foster intellectual exchange, the entire point of publishing scholarly journals. In fact, since Swartz’s indictment, JSTOR has opened up access to its journals for individuals who register. To some extent, then, Swartz’ goal has been implemented by his alleged victim.

Moreover, as Alex Stamos, an expert witness who would have testified in Swartz’s defense, points out, both the alleged victims of this crime had built their systems to foster openness. MIT deliberately allows visitors to access their system. At the time of the alleged crimes, JSTOR permitted users at MIT an unlimited number of downloads. Both networks lacked very basic safeguards to prevent abuse.

And both alleged victims have expressed regret at what has happened. Before the federal government charged Swartz, JSTOR settled its complaint against him, though MIT did not. In response to his death, JSTOR reiterated that it “regretted being drawn into from the outset, since JSTOR’s mission is to foster widespread access to the world’s body of scholarly knowledge.” And in addition to also expressing sorrow, MIT President Rafael Reif promised an investigation into MIT’s role in his prosecution, raising questions about what alternatives MIT had to cooperating in Swartz’s prosecution.

While MIT’s remorse may be tragically belated, both the alleged victims in this case seem to recognize that the prosecution violated the ethics of openness that JSTOR and MIT claim to uphold.

In spite of all this, the government portrayed Swartz’s action as theft, painting him as a common criminal. “Stealing is stealing 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 sell what you have stolen or give it away,” said Ortiz at a press conference announcing the charges.