Aaron Swartz suicide has U.S. lawmakers scrutinizing prosecutors

U.S. Attorney Carmen Ortiz during a news conference in Boston on Thursday. Ortiz, who has been sharply criticized following Swartz's suicide, appeared to fight back tears as she defended her office's handling of the hacking case against him.

By Matt Pearce

Jan. 18, 2013 12 AM PT

Congressional criticism is mounting against U.S. prosecutors for pursuing prison time for a popular hacker in a case that’s morphed into a posthumous cause celebre.

Aaron Swartz, 26, a cofounder of Reddit and an open-Internet advocate, committed suicide in New York on Jan. 11 as a trial loomed involving charges that he had allegedly illegally hacked into a network at MIT to download scholarly articles hidden behind an expensive subscription paywall. He had previously said the knowledge belonged to the world.

In a Friday letter sent to U.S. Attorney General Eric Holder that lamented Swartz’s “tragic” death, Sen. John Cornyn (R-Texas) asked for transparency about how the case was handled and questioned whether Swartz had been targeted inappropriately.

“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?” Cornyn wrote. “If so, I recommend that you refer the matter immediately to the Inspector General.”

Swartz’s father, in an interview Thursday with the Los Angeles Times, has blamed his son’s suicide on overaggressive prosecutors. Swartz’s supporters thought he hadn’t broken the law at all, and some members of Congress have now turned their questions toward the U.S. Attorney’s office in Boston and its chief prosecutor, Carmen Ortiz.

Ortiz’s spokeswoman did not respond to a request for comment in response to Cornyn’s letter Friday. In a statement this week, Ortiz called her prosecutors’ actions appropriate.

In a July 2011 statement announcing the case -- and the possibility of 35 years in prison for Swartz -- Ortiz had said, “Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars.”

Swartz was a prolific open-records requester, at points filing for access for photos and video of the raid that killed Al Qaeda leader Osama bin Laden, and also for records of federal investigations of himself.

One of those requests turned up a Federal Bureau of Investigation inquiry into whether Swartz had broken any laws by mass-downloading records from PACER, the federal government’s court-records service, which has a fee-based access for public filings. Critics of PACER contend that such fees deter rightful public access; over the past five years, the service reportedly made five times the revenue it costs to run the site.

Swartz thrived on such discrepancies between purpose and practice, which apparently led him to begin the alleged 2010 hack for millions of academic articles held by the nonprofit service JSTOR. He’d previously argued against the “privatization” of public knowledge and called it a “moral imperative” to tear down the walls around it.

“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.”

That egalitarianism earned Swartz powerful allies on the Web and in life but also the ire of federal prosecutors in Massachusetts who believed he had violated the Computer Fraud and Abuse Act and deserved prison time.

House Oversight Committee Chairman Darrell Issa (R-Calif.), who supported Swartz’s opposition to the Stop Online Piracy Act in early 2012, said this week that he’d assigned an investigator to look into Swartz’s case. He questioned the bargaining tactics commonly used by federal prosecutors to resolve cases before they reach trial.

“I’ll make a risky statement here: Over-prosecution is a tool often used to get people to plead guilty rather than risk sentencing,” Issa told the Huffington Post. “It is a tool of question. If someone is genuinely guilty of something and you bring them up on charges, that’s fine. But throw the book at them and find all kinds of charges and cobble them together so that they’ll plea to a ‘lesser included’ is a technique that I think can sometimes be inappropriately used.”

Rep. Zoe Lofgren (D-San Jose) told The Hill that she thought prosecutors’ handling of the case was “pretty outrageous,” adding, “Based on what I know, I think the Department of Justice was way out of line on the case.”

Rep. Jared Polis (D-Colo.), who sits on the House Judiciary Committee with Lofgren and Issa, also told The Hill, “The charges were ridiculous and trumped-up. It’s absurd that he was made a scapegoat. I would hope that this doesn’t happen to anyone else.”

Lofgren has proposed legislation called “Aaron’s Law” that would modify the Computer Fraud and Abuse Act -- which prohibits “having knowingly accessed a computer without authorization or exceeding authorized access” -- to modify what some have seen as the law’s draconian punishments.

“The government was able to bring such disproportionate charges against Aaron because of the broad scope of the Computer Fraud and Abuse Act (CFAA) and the wire fraud statute,” Lofgren wrote in a thread on Reddit in which she introduced the legislation. “It looks like the government used the vague wording of those laws to claim that violating an online service’s user agreement or terms of service is a violation of the CFAA and the wire fraud statute.”

But George Washington University law professor Orin Kerr, a computer crimes expert who has been extensively analyzing Swartz’s case, wrote in a Wednesday blog post that Lofgren’s legislation was “weirdly disconnected from the Swartz case. Swartz would still have faced exactly the same criminal liability under ‘Aaron’s Law’ that he did without it.”

Kerr has been a notable voice among the clamor surrounding Swartz’s suicide, arguing that the problem with Swartz’s case was much broader and much more systemic than any action within Ortiz’s office in Boston: Federal prosecutors deployed widely used tactics to enforce a poorly written law, whose reform he supports.

“The law needs to draw a distinction between low-level crimes and more serious crimes, and current law does so poorly,” he wrote.

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