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Report: DOJ ‘Elevated Its Charges’ Against Swartz Because Internet Community Rallied on His Behalf

Plus: Secret Service begins to release thousands of redacted pages kept on Reddit co-founder who committed suicide in face of DOJ prosecution.

by
Bridget Johnson

Bio

August 12, 2013 - 3:26 pm
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The report also suggests that the DOJ came down on Swartz harder because he went public with the case and his allies launched a petition drive on his behalf.

“The prosecutor said that the straw that broke the camel’s back was that when he indicted the case, and allowed Swartz to come to the courthouse as opposed to being arrested, Swartz used the time to post a ‘wild Internet campaign’ in an effort to drum up support. This was a ‘foolish’ move that moved the case ‘from a human one-on-one level to an institutional level.’ The lead prosecutor said that on the institutional level cases are harder to manage both internally and externally.”

The lengthy report also describes a meeting with Aaron’s father, Robert Swartz, in which he “accused MIT of violating wiretap laws and its internal policies in its collection of electronic communications of his son and providing them to the prosecution, and of violating his son’s privacy rights in doing so.”

In a letter to Holder on Wednesday, Issa noted that “despite the fact that the Justice Department was aware of the positions of the victims regarding Swartz’s prosecution, it proceeded to investigate and prosecute Swartz vigorously.”

The comparison to a rape trial noted in the MIT report “raises questions about the mindset of the prosecutors handling the case,” the chairman added.

“The report also indicates that the Department elevated its charges against Swartz in response to an Internet campaign conducted by Demand Progress in support of Swartz at the time of his arrest,” Issa continued. “…The suggestion that prosecutors did in fact seek to make an example out of Aaron Swartz because Demand Progress exercised its First Amendment rights in publicly supporting him raises new questions about the Department’s handling of the case.”

Issa asked Holder to arrange a meeting with committee staff on the Swartz case by Aug. 13. By the afternoon of Aug. 12, the DOJ had not reached out to arrange that briefing.

In response to a Freedom of Information Act lawsuit pursued by Wired investigations editor Kevin Poulsen, the Secret Service today released 104 pages of heavily redacted documents kept on Swartz.

The documents confirmed that the government’s interest in Swartz was piqued after a 2008 manifesto he wrote describing his beliefs that open access is a human right.

There are still 14,500 more pages of government documents on Swartz to be released by court order; Poulsen said he’s been given a processing time estimate of six months before all are released.

In June, Sen. Ron Wyden (D-Ore.) and Reps. Zoe Lofgren (D-Calif.) and Jim Sensenbrenner (R-Wis.) introduced Aaron’s Law Act of 2013. It would reform the quarter-century-old Computer Fraud and Abuse Act (CFAA) to establish that breaches of terms of service, employment agreements, or contracts are not automatic violations of the CFAA.

Lofgren’s office said “by establishing a clear line that is needed in the law, it distinguishes the difference between common online activities and harmful attacks.”

“Aaron worked closely with my office on a number of civil liberties issues,” Wyden said at a memorial for Swarz in February. “…Aaron was a hacker. He hacked to promote innovation through openness. Where Aaron saw injustice, he hacked for its remedy. Aaron Swartz hacked Washington. A poorly written law called him a criminal. Common sense and conscience knows better.”

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Bridget Johnson is a career 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 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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Top Rated Comments   
The fools here posting as "ForThe West", "Allstonian", and "buzzsawmonkey" show an abject ignorance of the case. Swartz had a valid account for the JSTOR archive--he had permission to get the whole thing, in theory--and nothing was released to the public. This means nothing was stolen, if you don't have the wit to see that. Additionally, nothing was released from the archive. Nothing was broken into, and nothing was damaged. The prosecution's charges are lies and fraud from stem to stern, the most substantial notion in them is that because the people granting Swartz access to JSTOR did not intend that he download the archive, and he certainly knew they did not intend he do so, he must have been hacking it in order to do so. In fact, there is not indication as yet they ever said, "Don't download the archive." there is no indication he hacked anything.

This was entirely a political prosecution, one filled with dread on the government's part that it might ever be forced to open it's bulldog jaws and admit it was wrong, the doubling down on the already ridiculously inflated charges when people rallied to Swartz's cause should tell you it was all a corrupt attempt to get a scalp by forcing a plea.

It was nothing more, and no great principles of law or justice were being upheld by the government.
50 weeks ago
50 weeks ago Link To Comment
Nobody but Scwartz killed Scwartz.

Don't expect me to sympathize with an "information-is-free-thief". Distribute the wealth - distribute the information. Holder is the worst kind of person to hold his job, but Scwartz is the worst sort of person to take as an example for a case against Holder.

There's lots of honest victims around. Drop the tears for the radical, socialist, thief. He was no victim.

What a bunch of fools.
50 weeks ago
50 weeks ago Link To Comment
So, basically, anyone who stands up to this administration, or who receives support from the people, can expect to be "hammered flat".
50 weeks ago
50 weeks ago Link To Comment
All Comments   (51)
All Comments   (51)
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I've always been torn between admiration for those who are the cat burglars of computers and the law....until I got a terrible virus in my computer which deleted my address book after it had sent crazy messages in my name. That wasn't a worthy use of skill. However I have no admiration for our DOJ.. It appears that they "hound" people who don't agree with the form of justice they mete out..
50 weeks ago
50 weeks ago Link To Comment
Seems to be an awful lot of death among journalists since 9/11.
50 weeks ago
50 weeks ago Link To Comment
Aaron Swartz received Social Justice. Anglo-Saxon jurisprudence is dead. Get used to it.
50 weeks ago
50 weeks ago Link To Comment
Few seem to bring it up but "Why did he off himself over this? It would seem he had some support. This suicide makes no seance at all.
50 weeks ago
50 weeks ago Link To Comment
Names, Bridget, names. If Justice is so proud of this work, let them put names of the prosecutors out where we can see them. These upper level thugs deserve to be called out in public.
50 weeks ago
50 weeks ago Link To Comment
Name names at the DOJ or just can the story. It is boring. We at least need to record their names for posterity so that we can find them on the Internet and add the case to their resumes when they come looking for jobs.
50 weeks ago
50 weeks ago Link To Comment
I see this as an attack on freedom of information for all of us, not just an unjust prosecution of Aaron Swartz.
50 weeks ago
50 weeks ago Link To Comment
Don't let your personal feelings about the current administration cloud your judgement. Read the actual indictment:
http://www.documentcloud.org/documents/217117-united-states-of-america-v-aaron-swartz

It even says in the article that Swartz was offered a 6 moth plea deal and he turned it down.

Look, I despise everything about this current administration but this is a very petty game of gotcha that Issa is playing. This is more about taking a chance to poke Holder in the eye than justice for Swartz IMO.
50 weeks ago
50 weeks ago Link To Comment
This is the same Holder who asserts that prosecutors should not go after non-violent criminals, addicts, common thieves, older thieves and addicts, black addicts, Hispanic addicts, whores...the panthers intimidating voters...lessee...so what did this guy do again?
50 weeks ago
50 weeks ago Link To Comment
The fools here posting as "ForThe West", "Allstonian", and "buzzsawmonkey" show an abject ignorance of the case. Swartz had a valid account for the JSTOR archive--he had permission to get the whole thing, in theory--and nothing was released to the public. This means nothing was stolen, if you don't have the wit to see that. Additionally, nothing was released from the archive. Nothing was broken into, and nothing was damaged. The prosecution's charges are lies and fraud from stem to stern, the most substantial notion in them is that because the people granting Swartz access to JSTOR did not intend that he download the archive, and he certainly knew they did not intend he do so, he must have been hacking it in order to do so. In fact, there is not indication as yet they ever said, "Don't download the archive." there is no indication he hacked anything.

This was entirely a political prosecution, one filled with dread on the government's part that it might ever be forced to open it's bulldog jaws and admit it was wrong, the doubling down on the already ridiculously inflated charges when people rallied to Swartz's cause should tell you it was all a corrupt attempt to get a scalp by forcing a plea.

It was nothing more, and no great principles of law or justice were being upheld by the government.
50 weeks ago
50 weeks ago Link To Comment
Yes, Swartz had an account, which permitted him to access the material in question---for his own use, and under the appropriate licensing restrictions.

He did not use that account for his acts of theft, but instead installed a device in a closet for the purpose of surreptitious downloading. That IS stealing.

Poor little Swartzie, the entitled wunderkind, was certain that he could get away with this because of his money, friends, and reputation. He wanted to be Ted Kennedy, and walk away from the consequences of his copyright Chappaquiddick.
50 weeks ago
50 weeks ago Link To Comment
You say nothing was broken into. OK, he trespassed on property that was not his in order to take what was not his. This sordid criminal behaviour takes his act far beyond the petty, everyday theft of music files, etc., over the internet.

It is outrageous that fools who liked his work and feel some kind of community bond with him defend him as a "victim" of the justice department. He was offered a few months in the crowbar hotel, which seems entirely appropriate to me. He is a victim only of his own criminality. He is dead at his own hand.
50 weeks ago
50 weeks ago Link To Comment
I can cite reports that he had a valid logon. Perhaps a mutual statement of facts by Swartz an the feds could clear it up, if you can cite such.
As for trespassing he had permission to be there and only went into unsecured areas.
As for the notion he should have taken the first plea, no, there should have been no charge in the first place. The offended party wanted the matter dropped.

This was solely a case of an trainwreck of a prosecutor wanting a scalp.
50 weeks ago
50 weeks ago Link To Comment
Yes he had a valid logon. What's your point?
I have a valid logon for Gmail but that doesn't mean I get to hack into your home network to access it when you take steps to keep me out (even if you permitted me access at one point in time).

"As for trespassing he had permission to be there..."
No, he didn't. Why do you think this was an issue inthe first place?

"...and only went into unsecured areas."
Again, using my Gmail analogy: Your rationale suggests that I can enter your home if you leave it unsecured, hack into your network that you are trying to keep me out of and use my google account...because information should be free!

That's some impressive ethical gymnastics you are doing to try and let Swartz off the hook!
50 weeks ago
50 weeks ago Link To Comment
In this case "trespass" does not mean the illegal physical presence of his body on private property. It means the surreptitious attachment of the snooping device to the server that belonged to someone else. That is what raised his crime beyond the ordinary.

He needed to be prosecuted and punished because it needs to be clear that you cannot do what he did. I do not want you, TomDPerkins, thinking that it is OK, should I license you to access, in a defined and limited way, material on a server I own, to secretly attach a device to it and go to town taking what you want.

That a certain community "rallied" to his defense made it clear that this particular community does not clearly understand the boundary between legal and criminal behaviour, wonderful though its members think each other. You did, indeed, necessitate a more severe punishment than might have otherwise been necessary.

Yes, that community that "rallied" to help him did him no good at all. Part of the purpose of punishment is to teach the community that the punished behaviour is not acceptable, so that the DOJ upped the charges in the face of the outrageous community defense of his trespass and theft was not unreasonable.

An errant individual is one thing. A gang of pirates is another. You cannot do what he did.

Do you not understand that what he did was wrong?
50 weeks ago
50 weeks ago Link To Comment
I can tell you one thing. If this young man had been black using the same words (making a civil rights case) Holder would have backed him every step of the way.

Holder only goes after crackers.
50 weeks ago
50 weeks ago Link To Comment
This was actually a reply to nonkjo below.
50 weeks ago
50 weeks ago Link To Comment
Sorry, no. Swartz had an account as a Fellow through Harvard. After his 30 day guest account expired at MIT, Swartz took steps to intentionally circumvent MITs attempts to block him from their system, even going so far as to illegally enter a network closet and hardwire into the MIT network. They have video of him going in and out of the network closet and he tried using his bike helmet to hide his face.

Sounds like he knew what he was doing wasn't exactly legal so lets stop being so ideologically opposed to Obama that we're willing to give Swartz a pass!
Let's not open ourselves to hypocrisy. If you want to have a discussion about prosecutors overcharging to get a plea, that's an entirely different issue (and I promise, I already have an example of a dispicable individual you would have no problem "overprosecuting").
50 weeks ago
50 weeks ago Link To Comment
They "granted" him access, you say, and "he knew", you say, that "they did not intend", you say, that he download the archive. If it was his property, he would not have needed to have access "granted". Since he took what "he knew" they did not intend him to take when they "granted" him access, he took what was not his knowing that "they did not intend" him to take it.

Sounds like stealing to me.

Secretly installing a device on property that was not his to take what was not his property and which taking "he knew" was not in the nature of the granted access - sorry, I don't want the message from the courts to be that someone like that can ever "grant himself" access I never intended by subverting my property to his purpose.

Funny he killed himself, being so innocent and all.

You'd think Eric Holder killed him.
50 weeks ago
50 weeks ago Link To Comment
If you can help it, don't be obtuse. He had a valid logon that gave him permission to download. He downloaded. It can not have theft. It can not have been hacking. It can not have been tresspassing, he went solely into publicly accessible areas.

Even the supposed aggrieved party wanted the matter dropped.
50 weeks ago
50 weeks ago Link To Comment
Being accessable does not make it a public area!
Also, who cares if JSTOR and MIT dropped the matter. So now your rationale is that if the aggreived won't charge we just forget about the law?

You'd make a fantastic battered woman but a lousy lawyer!
50 weeks ago
50 weeks ago Link To Comment
He had a valid logon that he DID NOT USE, and instead SURREPTITIOUSLY downloaded vast quantities of material from a concealed device.

That IS hacking. That IS theft---no matter whether the areas he accessed were "publicly accessible" or not.

And it is immaterial, once again, whether or not the licensee wanted the matter dropped, because the licensee was not the owner of the copyrights.
50 weeks ago
50 weeks ago Link To Comment
Hacking is not the best term to use but works in a very general sense.
Here is the indictment:
http://www.documentcloud.org/documents/217117-united-states-of-america-v-aaron-swartz

See page 3, overview of the offenses.
Swartz illegally accessedthe MIT network to scrape the JSTOR databases. JSTOR servers are not located in Mass., therefore, Swartz used an illegally accessed network across state lines. That federal wire fraud and it doesn't matter if he used his own account.
50 weeks ago
50 weeks ago Link To Comment
I take it then, that if I knock on your door some evening for some plausible purpose and you do not conduct me off your property when we are done talking and I take a detour through your property, entering doorways that are not locked ("nothing was broken into") and proceed to examine and photograph what I will, that that would be OK by you.

It isn't by me. It is you who is being "obtuse", trying to rhetorically reduce plain wrongdoing, by someone evidently a hero of yours, into nothing.
50 weeks ago
50 weeks ago Link To Comment
>> The fools here posting as "ForThe West", "Allstonian", and "buzzsawmonkey" show an abject ignorance of the case. Swartz had a valid account for the JSTOR archive--he had permission to get the whole thing, in theory--and nothing was released to the public.

Which also means they very likely don't know what JSTOR is. I've used it and that alone told me the charges against Swartz as Justice stated it could not be taken at face value. "ForThe West", "Allstonian", and "buzzsawmonkey" think it was the equivalent of downloading copyrighted music and not paying of it. But that is entirely and completely wrong.
50 weeks ago
50 weeks ago Link To Comment
Oh, by all means DO explain why poor little Swartzie's theft of other people's work was just ginger-peachy.
50 weeks ago
50 weeks ago Link To Comment
Buzzsawmonkey do you know what JSTOR is? I doubt it. I'm a student so I use it at least once a week. Just in virtue of being a student, I have rights to download anything on it. I think you're just embarrassed to admit you don't know what it is and didn't take the trouble to find out.

An analogy is if you had a CD and copied it to tape for use in your car's tape player for your own use. Nowadays people rip their old CDs onto MP3 and such. Until recently that was violating the terms of service even though you paid for it and didn't distribute it. That is stealing in NO way, and so many people ignored the terms of service and made copies of what they bought and paid for in violation of the law that media companies finally gave in and said it was ok instead of trying to force people to buy as many songs as media devices they used. It was an unreasonable law that people didn't feel bound to because of its unreasonableness. So the whole thing collapsed. JSTOR was willing to drop the matter because they knew full well it was simply a terms of use violation, and that happens all the time. You've violated terms of use before Buzzsawmonkey. I guarantee that you have. If you don't think so you're dreaming.

It isn't theft, and the federal law the justice department is using is so flawed that it really doesn't matter if you stole anything or not. That law should be changed. You violate terms of use, no matter how unreasonable and they can throw you in jail as if you committed a much more serious offense.
50 weeks ago
50 weeks ago Link To Comment
The key phrase in your post is, "just by virtue of being a student." That means that you have certain privileges of use because of your student status that permits you to do things other people, who are not subscribers, are not permitted to do. Wide latitude is granted to students in the use of copyrighted material, in the interest of furthering education---unfortunately, youngsters such as yourself have grown up in a school system which teaches them to expect unearned entitlement. Because you have not yet produced anything, but have had the work of others handed to you for you to use, you do not understand either the work that goes into producing something or the concept of ownership, and instead believe that you have some sort of unearned "right" to the work product of others. You do not; your special status as a student has given you a temporary privilege which you do not understand.

Swartz, alas, never escaped the swamp of the privilege mindset---indeed, he was groomed by his mentors to remain in it. He abused the system by a) surreptitiously (i.e., not through his legitimate account) downloading massive amounts of material, which b) were not for his personal use, but c) for the purpose of general re-distribution to the world at large, d) in intentional violation of the terms of use. He had no shadow of a right to do any of this---but he did it because, like yourself, he was looking at what he saw as the Big Meanie Institution. He was behaving like a teenager shoplifting from the five and dime who pretends he is Fighting Capitalism instead of merely cheating the store owner.
50 weeks ago
50 weeks ago Link To Comment
bzzzt... item (c) is your supposition; item (d) is contestable.
50 weeks ago
50 weeks ago Link To Comment
Nope. Neither nor.
50 weeks ago
50 weeks ago Link To Comment
Yes, difference between 'the download and distribution of music' and this case is a good start for understanding here. A familiarity with the twisted current condition of copyright law (and CC/copyleft) help too.

One of the better explainations of what happened at the start of the Swartz case is:
http://www.theawl.com/2011/08/was-aaron-swartz-stealing
50 weeks ago
50 weeks ago Link To Comment
to quote Mr. T "I pity the fool".
50 weeks ago
50 weeks ago Link To Comment
The fact that this is a DOJ which is a criminal entity itself, well, speaks volumes. This is not the case where laws are applied in an equal manner, but it is the case where leftist radicals decide who is guilty, and needs punishment, and that is that.
The very fact that the Black Panthers -http://adinakutnicki.com/2012/08/01/will-barack-hussein-obamas-lawless-justice-department-under-the-aegis-of-ag-holder-finally-fall-commentary-by-adina-kutnicki/ after crimes they committed over 5 years ago are not only free, but guests of the Obama White House, tells us all we need. As to the Zimmerman prosecution/persecution....
Adina Kutnicki, Israel http://adinakutnicki.com/about/
50 weeks ago
50 weeks ago Link To Comment
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