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Did Holder’s Department Drive an Internet Pioneer to His Death?

Cornyn has questions — lots of them — for the attorney general. Issa is investigating. And one Dem warns it could happen to someone else.

by
Bridget Johnson

Bio

January 18, 2013 - 6:10 pm

In January 2011, Reddit co-founder, RSS creator, and Internet-freedom activist Aaron Swartz was arrested for downloading millions of academic articles from JSTOR in protest of the weighty fees charged for accessing articles, and those dollars going to publishers instead of writers.

“We need to take information, wherever it is stored, make our copies and share them with the world,” Swartz wrote in 2008. “We need to take stuff that’s out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks.”

JSTOR declined to pursue any civil action against Swartz, and even eventually made millions of its articles accessible to the public free of charge. MIT, whose archive was hacked while Swartz was a fellow at Harvard (which gave him access to JSTOR), was less forgiving.

The Justice Department, though, slapped Swartz with charges including wire fraud and computer fraud, altogether carrying the possibility of 35 years behind bars and up to a $1 million fine. Prosecutors eventually offered Swartz a deal to avoid trial in which he’d have to plead guilty to all 13 charges and spend six months behind bars.

Two days later, on Jan. 11, 2013, Swartz hung himself in his Brooklyn apartment. He was 26 years old.

His grieving father, Bob Swartz, told the Los Angeles Times that people should know “the evidence showed clearly that Aaron did not break the law, that the network was open, that access was not unauthorized by MIT, and that he was not guilty of any crime.”

“He was killed by the government,” he declared at his son’s funeral.

Now allies of Internet freedom on Capitol Hill are going after Attorney General Eric Holder for the prosecution of Swartz.

“I’m not condoning his hacking, but he’s certainly someone who worked very hard,” House Oversight and Government Reform Chairman Darrell Issa (R-Calif.) told the Huffington Post. “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.”

Issa said he’s assigned an investigator to the case to gather the facts before proceeding further.

Swartz and Issa were allies in opposition to the Stop Online Piracy Act (SOPA), and Issa praised Swartz’s work toward “open government and free access to the people” — including in the defeat of SOPA, which would have given the government broad powers to block Internet content, in the last Congress.

The GOP Senate whip took the case straight to Holder today.

John Cornyn (R-Texas) said he was “saddened” to learn of Swartz’s death.

“Mr. Swartz was, among other things, a brilliant technologist and a committed activist for the causes in which he believed – including, notably, the freedom of information. His death, at the young age of twenty-six, was tragic,” Cornyn wrote to Holder.

“As you are doubtless aware, Mr. Swartz was facing an aggressive prosecution by the Department of Justice when he took his own life. The U.S. Attorney’s Office for the District of Massachusetts accused him of breaking into the computer networks of the Massachusetts Institute of Technology and downloading without authorization thousands of academic articles from a subscription service. While the subscription service did not support a prosecution, in July 2011 the U.S. Attorney’s office indicted him on four counts of fraud and computer crimes, charges that reportedly could have resulted in up to 35 years imprisonment and a $1 million dollar fine. This past September, the U.S. Attorney’s office filed a superseding indictment charging Mr. Swartz with thirteen felony counts and the prospect of even longer imprisonment and greater fines,” he continued.

Cornyn said the case raises critical questions:

First, on what basis did the U.S. Attorney for the District of Massachusetts conclude that her office’s conduct was “appropriate?” Did that office, or any office within the Department, conduct a review? If so, please identify that review and supply its contents.

Second, was the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General.

Third, what role, if any, did the Department’s prior investigations of Mr. Swartz play in the decision of with which crimes to charge him? Please explain the basis for your answer.

Fourth, why did the U.S. Attorney’s office file the superseding indictment?

Fifth, when the U.S. Attorney’s office drafted the indictment and the superseding indictment, what consideration was given to whether the counts charged and the associated penalties were proportional to Mr. Swartz’s alleged conduct and its impact upon victims?

Sixth, was it the intention of the U.S. Attorney and/or her subordinates to “make an example” of Mr. Swartz? Please explain.

Finally, the U.S. Attorney has blamed the “severe punishments authorized by Congress” for the apparent harshness of the charges Mr. Swartz faced. Does the Department of Justice give U.S. Attorneys discretion to charge defendants (or not charge them) with crimes consistent with their view of the gravity of the wrongdoing in a specific case?

Cornyn asked the attorney general to respond. Holder has not publicly commented on Swartz’s death.

At least two House Democrats have joined the GOP outcry over the prosecution, though, with Reps. Zoe Lofgren (D-Calif.) and Jared Polis (D-Colo.) telling The Hill they thought the DoJ was out of line.

“The charges were ridiculous and trumped-up. It’s absurd that he was made a scapegoat,” Polis said. “I would hope that this doesn’t happen to anyone else.”

Swartz’s case has also made it to the White House petition site, where more than 43,000 signatures have triggered a mandatory response to their request that U.S. Attorney Carmen Ortiz be fired for prosecutorial overreach.

“A prosecutor who does not understand proportionality and who regularly uses the threat of unjust and overreaching charges to extort plea bargains from defendants regardless of their guilt is a danger to the life and liberty of anyone who might cross her path,” the petition states.

Ortiz released a statement Wednesday defending her office’s conduct in the case.

“I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life,” Ortiz said.

According to documents from her office, Swartz was due in court for a pretrial motion hearing on Jan. 25 and his trial was set to begin April 1.

“The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases,” Ortiz said. “That is why in the discussions with his counsel about a resolution of the 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.”

“As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible. We strive to do our best to fulfill this mission every day.”

Bridget Johnson is a veteran journalist whose news articles and opinion columns have run in dozens of news outlets across the globe. Bridget first came to Washington to be online editor at The Hill, where she wrote The World from The Hill column on foreign policy. Previously she was an opinion writer and editorial board member at the Rocky Mountain News and nation/world news columnist at the Los Angeles Daily News. She is an NPR contributor and has contributed to USA Today, The Wall Street Journal, National Review Online, Politico and more, and has myriad television and radio credits as a commentator. Bridget is Washington Editor for PJ Media.
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