Justice Dept. Still Under Pressure for Answers About Swartz Prosecution

Influential lawmakers on Capitol Hill aren’t letting the Justice Department rest after the January suicide of an Internet activist.

Earlier this month, friends and supporters of Reddit co-founder Aaron Swartz gathered in Washington to eulogize his life and to call for changes to legislation that federal officials used to prosecute him – two years after the beginning of an ordeal that ended with a tragic loss.

Aaron Swartz, a 26-year-old computer programmer and cyber activist, faced up to 50 years in prison and a $1 million fine for gaining entry into a closet at the Massachusetts Technology Institute and connecting a laptop to the university’s network to download millions of articles provided by the nonprofit JSTOR – a subscription-only service for distributing academic and literary journals.

On July 4, 2011, federal prosecutors charged Swartz with four felony counts: wire fraud, computer fraud, theft of information from a computer, and recklessly damaging a computer. A superseding indictment filed last year would increase the number of felony counts from four to 13.

Swartz turned over hard drives containing millions of documents to federal enforcement officials, and JSTOR declined to pursue any civil litigation against him.

Nevertheless, the U.S. attorney for Massachusetts, Carmen M. Ortiz, refused to drop the charges, saying “stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data, or dollars.”

The case was brought under the Computer Fraud and Abuse Act (CFAA), a federal law passed in 1984 to enhance the government’s ability to prosecute hackers. The law makes any unauthorized access into a protected network or computer a federal crime and permits harsh penalties for those convicted. In addition, failure to adhere to the terms of service that websites, applications, and Internet service providers ask their users to accept is considered a form of computer fraud that can be prosecuted as a felony.

The Wall Street Journal reported that prosecutors offered a plea bargain to Swartz. If he pled guilty to the charges, he would receive a sentence of 7-8 months in jail, but if the case went to trial and Swartz was convicted, prosecutors would seek a prison sentence of at least 7 years.

For a year and a half, Swartz had been under indictment, which according to his girlfriend had brought mental and emotional exhaustion upon him.

Taren Stinebrickner-Kauffman, girlfriend of the late Swartz, made clear in a blog post her belief that Swartz did not take his life because of depression.

“I believe Aaron’s death was caused by exhaustion, by fear, and by uncertainty. I believe that Aaron’s death was caused by a persecution and a prosecution that had already wound on for 2 years (what happened to our right to a speedy trial?) and had already drained all of his financial resources,” wrote Stinebrickner-Kauffman in a recent post on her Tumblr.

Stinebrickner-Kauffman began a White House petition to fire Assistant U.S. Attorney Stephen Heymann, one of the leading prosecutors involved in Swartz’s case. The petition has already cleared 25,000 signatures, but it will need at least 100,000 to elicit a response from the White House. A similar petition started on Jan. 13 to remove Carmen M. Ortiz has over 50,000 signatures, which meets the previous threshold of 25,000 signatures – changed by the administration on Jan. 15 to the higher minimum.

Swartz’s death has not only prompted responses from progressive and activist groups, such as Anonymous, but also from libertarians and conservatives alike.

It was evident during his memorial that Swartz’s legacy is a point of dispute among his supporters. When Berin Szoka, president of the libertarian-leaning nonprofit TechFreedom, remarked that he does not condone what Swartz did, even though he believes the law that punished Swartz is unjust, many in the crowd repeatedly interrupted Szoka during his speech until Stinebrickner-Kauffman intervened and asked the audience to be quiet.

Several journalists, influential activists, and members of Congress attended the event in the Cannon House Office Building on Feb. 4. Among the lawmakers were Reps. Zoe Lofgren (D-Calif.) and Darrell Issa (R-Calif,), and Sen. Ron Wyden (D-Ore.), who all support a bill that would amend the CFAA.

Issa, chairman of the House Oversight and Government Reform Committee, mentioned at the memorial how he and Swartz would have found themselves at odds with many decisions, yet they would still find common ground on their belief that information is a human right.

“’Stick it to the man,’ something from my generation, resonates with everyone here tonight,” Issa said. “Ultimately, trusting a government is inconsistent with our founding words, ‘We the people.’ Aaron understood that. … Our copyright laws were created for the purpose of promoting useful works, not hiding them. Our government, and every asset of the government, belongs to the American people. Not one piece of federal land is off your ability to walk through at your pleasure, unless there’s a valid reason to prohibit that. That principle, I think Aaron and I would always agree on. The principle that we own our government, we own all the rights and privileges that God gave us.”

“Product after product and innovation after innovation will be stifled unless we assume what Aaron assumed – that curiosity is about you get to anywhere, anytime and look at anything unless there is a valid reason to stop you; and if you go over the line it is appropriate to be told you went over the line…but the crime and the punishment have to fit,” said Issa – the only Republican lawmaker to speak at the memorial.

Many government officials have voiced their indignation with the Department of Justice for the way that it handled Swartz’s prosecution.

Two days after Swartz’s death, Senate GOP Whip John Cornyn (Texas) wrote to Attorney General Eric Holder asking some pointed questions about the prosecution by the Department of Justice against Swartz.

In another letter to Holder dated Jan. 28, Issa and Maryland Rep. Elijah Cummings, the Oversight Committee’s top Democrat, asked Holder to explain the factors that figured in the decision by the U.S. Attorney’s office in Massachusetts to charge Swartz.

Among the questions raised in the letter was specific information on what pleas were offered, whether Swartz’s opposition to SOPA was one of the factors considered, and why was a superseding indictment was necessary. The panel also requested a briefing by federal prosecutors to address all the questions about Swartz’s prosecution.

“It appears that prosecutors increased the felony counts by providing specific dates for each action, turning each marked date into its own felony charge, and significantly increasing Mr. Swartz’s maximum criminal exposure to up to 50 years imprisonment and $1 million in fines,” wrote the lawmakers.

The Department of Justice declined to comment on the case.

Shortly after Swartz’s death, Ortiz released a statement disputing accusations of “prosecutorial overreach.”

“As a parent and a sister, I can only imagine the pain felt by the family and friends of Aaron Swartz, and I want to extend my heartfelt sympathy to everyone who knew and loved this young man. 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,” said Ortiz.

She, however, made clear that her office’s conduct was “appropriate in bringing and handling the case.”

But Issa suspects that Ortiz was motivated, at least in part, by ambition. The congressman joined Swartz’s supporters during the memorial in condemning the prosecutor’s abuse of power, reported the Boston Herald.

The Department of Justice agreed to give a closed briefing to Oversight staffers and potentially members on its decision to prosecute Swartz. That reportedly took place Friday.