Death of Activist Aaron Swartz Raises Questions Surrounding CFAA & Prosecutorial Overreach : LXBN Roundtable

By | LXBN | January 23, 2013

When Aaron Swartz was 14, he was contributing to the development of RSS 1.0, one of the early precursors to the now ubiquitous RSS feeds used by individuals and companies around the globe.  By 19, Swartz was joining forces with the creators of Reddit to create an internet juggernaut that was eventually bought by Condé Nast Publications and continues to be one of the world’s most popular sites.    A volunteer editor for Wikipedia, key opponent of the Stop Online Privacy Act (SOPA), Swartz was a child and pioneer of the internet.

So when the 26 year-old was found dead in his apartment, an apparent victim of his own hand, internet denizens and supporters of an open webPhoto Credit: Prachatia, Flickr.com grieved.  For 18 months, Swartz had been the subject of a federal  prosecution arising from the nearly 5 million articles he had downloaded from JSTOR, the massive digital library of academic papers and journals.  Following an investigation, Swartz was charged with wire fraud and a number of counts stemming from transgressions against the Computer Fraud and Abuse Act (CFAA).

Jessica Mendelson, an associate with Seyfarth Shaw and contributor to the firm’s Trading Secrets blog, has more on the rationale behind Swartz’s actions and the charges filed against him:

“Mr. Swartz allegedly wanted to “liberate” the journals in the database and make them publicly accessible. According to various reports, Mr. Swartz allegedly initially downloaded articles from JSTOR through a guest account on the Massachusetts Institute of Technology (“MIT”) network. Through the use of a program called “keepgrabbing,” Mr. Swartz allegedly was able to circumvent JSTOR’s limits on the number of articles a single person could download. However, after MIT and JSTOR caught on and disabled his access multiple times, Mr. Swartz allegedly broke into a utility closet on MIT’s campus where he was able to connect his computer directly to the university network. In total, Mr. Swartz allegedly downloaded around 4.8 million articles from JSTOR. In July 2011, Mr. Swartz was indicted on federal charges, including wire fraud and thirteen separate violations of the CFAA. For these crimes, Mr. Swartz faced up to thirty-five years in prison, as well as millions of dollars worth of fines.”

While it remains unclear as to exact reasons why Swartz chose to take his own life, his friends and family have unanimously pointed to the government’s case against him as the root cause.  That same case is now the subject of intense scrutiny as phrases like “prosecutorial overreach” are being bandied about.  A petition to the White House supporting the removal of United States District Attorney Carmen Ortiz has garnered over 45,000 votes. All of this, over documents that college freshmen all over the country have access to.

When the charges were first made public in July 2011, the reaction was conflicted.  One of Swartz’s biggest supporters, Harvard Law Professor Lawrence Lessig,  in response to a blog post on Media Freedom, wrote:

“Nonetheless, if the facts are true, even if the law is not clear, I, of course, believe the behavior is ethically wrong. I am a big supporter of changing the law. As my repeated injunctions against illegal file sharing attest, however, I am not a believer in breaking bad laws. I am not even convinced that laws that protect entities like JSTOR are bad. And even if sometimes civil disobedience is appropriate, even then the disobedient disobeys the law and accepts the punishment.”

That Swartz had crossed an ethical line and broken a variety of laws was unquestionable, but the extent of the prosecution and potential consequences became the focal point of the story.  In writing his first post on the case, Max Kennerly drew comparisons between Swartz’s actions at MIT and Mark Zuckerberg’s exploits as a Harvard student.  The difference now of course being that Zuckerberg’s considerable fortune would render him impervious to a similar lawsuit:

“Worse, there’s more at stake here than the possibility that Swartz might go to jail and the certainty that he’ll have one of the most stressful and expensive experiences of his life. Recall the scene in The Social Network when a jilted Mark Zuckerberg first starts building Facebook by writing scripts to pull pictures from the Harvard houses’ online directories. That’s not much different in sum and substance from what Swartz did: he was permitted to obtain the information, but he did so in excessive volume. Under the Massachusetts’ U.S. Attorney’s theories against Swartz, Zuckerberg committed several felonies.

Zuckerberg, though, has ample funds and protection against a suit like that. What about the next Zuckerberg? This prosecution will give every “hacker” — and I use that term in a complimentary fashion, like the UNIX hackers of old, the people who built the Internet and its tools through creativity and determination — pause before they do anything outside of a bona fide API. The chilling effects will make us all worse off.”

A few months later, Kennerly found an e-mail from Swartz in his inbox:

“In September 2011, a few months after my post went up, I received an email from Aaron thanking me for my post, and asking, “If you have any time, I’d love to get your thoughts on a few things. Would it be possible to have a phone call at some point?” Much has been written about his brilliance and his extraordinary curiosity — which he himself said was all that distinguished him from everyone else — and about his uncompromising stances. I quote his introduction here to note that, when sending an email to a stranger, he was charming and unassuming, and when we spoke he was unfailingly polite.”

Unfortunately, that same curiosity and passion would be his undoing.  As family and friends search for answers, other supporters are targeting their anger at the US District Attorney’s office and the CFAA.  Calls for an investigation into the government’s case against Swartz are already echoing through the Capitol building, and one Representative is leading the charge to amend the CFAA.  Once more, here’s Mendelson’s take:

“Mr. Swartz’s death has resulted in a call for change by some, as they express a need for “a public conversation about what the laws should prohibit and how severe they should be.” In the wake of Mr. Swartz’s death, some legislators, advocates and media have come out in support of a change to the CFAA. Darrell Issa (R-California), the head of the House Oversight Committee recently announced plans to launch an investigation into the charges Mr. Swartz faced. “I’m not condoning his hacking, but . . . had he been a journalist and taken that same material that he gained from MIT, he would have been praised for it. It would have been like the Pentagon Papers,” Mr. Issa told The Huffington Post.

Zoe Lofgren (D-California), a member of the House of Representatives, has already proposed an amendment to the CFAA. In a recent public statement on Reddit, she discusses the “inappropriate efforts undertaken by the U.S. government” and the importance of preventing “a repeat of the abuses of power he experienced.””

In her interview with LXBN TV, Mendelson believed that the government was acting within the letter of the law during it’s prosecution of Swartz, but the debate will undoubtedly continue.

The CFAA has been at the center of a few high-profile disputes, including a battle over the ownership of a LinkedIn account, and a case that was just dismissed by the U.S. Supreme Court, WEC Carolina Energy Solutions LLC v. Miller.  In a post discussing Miller, Robert Milligan broke down the two “theories of liability” under the CFAA:

“Under the agency theory, when an employee accesses a computer to further interests adverse to the employer, such actions terminate his or her agency relationship and, thus the employee loses any authority to access the computer. Under the computer usage theory, a violation of a computer usage policy can serve as a basis for holding an employee liable under the CFAA, Thus, an employee who is authorized to access a company computer, but uses that access to steal or damage valuable company data in violation of a computer usage policy, would be liable for his or her wrongful conduct under the CFAA.”

While legal scholars and lawyers will argue over what laws Swartz broke, and the extent of his liability, no amount of litigation or reparations will bring back the young programmer.

After Swartz’s passing, Kennerly returned to his blog to write about their brief interactions.  As Swartz was preparing his defense, Kennerly suggested he read Franz Kafka’s The Trial.  Upon reading it, Swartz posted a review to his website, and the following e-mail exchange between the two was captured in another blog post on Kennerly’s Litigation & Trial:

“I wrote to him, “I’m not surprised you found The Trial a compelling read. I’d assume the movie Brazil is on your list, too.” He responded: “Nice to hear from you! Indeed, _Brazil_ is my favorite film. The insight it has on so many levels is just tremendous.”

When I left a comment on his post about perfect institutions discussing the “swiss cheese” model of accident causation, he shot me an email: “Hadn’t seen this before; fascinating.” He probably sent out a dozen other emails to people that day thanking them for this or that idea. He was forever curious and always grateful to learn and to share a new idea, and now he’s gone.”

It’s stories like this that are both endearing and heartbreaking.  No matter where you stand on the validity of the government’s case against Swartz, the world is a little darker after his passing.  Not just for the brilliant mind that it has lost, but also for the kind and gentle soul that wanted to make the world a better place.  The CFAA may be amended, and heads may roll at the U.S. District Attorney’s office, but Swartz’s legacy will extend beyond this case.  A strong advocate for a free, open web and the creative commons, Swartz will live on in the spirit  of those that continue his fight.

To read more LXBN coverage on Aaron Swartz, be sure to drop by our tagged page here.  If you’re interested in more CFAA coverage, you can find that here.

Photo Credit: Prachatai, Flickr.com