March 30, 2017

Creating A Lasting Legacy For Aaron Swartz

A lot has been written recently about the Aaron Swartz and his potential legacy, most of it, unfortunately, filled with legal or factual errors, and not helpful in understanding a number of important issues that his prosecution and death raise. As a former federal computer crime prosecutor and who now represents defendants in this area and truly understands the system, I hope to shed some light on issues that may have been overlooked and to offer a suggestion as to how Congress may truly create a lasting legacy for Aaron Swartz.

As has been widely reported, Swartz, a co-founder of reddit, who committed suicide at 26, while under federal indictment for downloading research materials from an academic website and was facing the real possibility of prison time. Since his death, Swartz’s influential friends and his high powered lawyers have mounted a PR campaign claiming that he was the victim of abuse of prosecutorial discretion and should not have even been charged in the first place. His parents have blamed the prosecutors for their son’s death. Congress has reacted by introducing “Aaron’s Law” that would amend the CFAA and by asking the Department of Justice for further information about his prosecution. Congress should not stop there, however, it should use this as an opportunity to explore the failings of our criminal justice system and how it can be improved. This would create a true lasting legacy for him.

The government indicted Swartz for violating the CFAA and the wire tapping statute. The CFAA has been on the books since 1986 and its intent is to protect the confidentiality, integrity and availability of data and systems. The law contains a number of provisions, most of which are not open to debate. For example, few would argue that the knowing access of a government computer to obtain classified information or obtaining information from financial institutions should not be a crime.

What has been the subject of intense scrutiny since Swartz’s death is the provision in the CFAA that allows the government to charge individuals, who have allegedly done nothing more than violate the terms of use of a computer or computer system. As Judge Kosinski of the Ninth Circuit has noted, “Minds have wandered since the beginning of time and the computer gives employees new ways to procrastinate, by g-chatting with friends, playing games, shopping or watching sports highlights. Such activities are routinely prohibited by many-computer use policies, although employees are seldom disciplined for occasional sue of work computers for personal purposes. Nevertheless, under the broad interpretation of the CFAA, such minor dalliances would become federal crimes”

In Swartz’s instance, the government charged that he had obtained illegal access to the JSTOR database with the intent to “liberate” the academic journals stored there and to allow everyone to have access to the journals in the database. JSTOR is an organization that sells universities, libraries, and publishers access to a database of over 1,000 academic journals. However, while his backers have emphasized that Swartz never publicly disclosed the journals he liberated and never sought financial gain, they fail to mention that his conduct is consistent with someone who understood that he was committing a crime and, moreover, it is very different from an employee who simply uses his computer for personal business in violation of his employer’s policy.

Swartz was a fellow at Harvard and had legitimate access to the JSTOR database using Harvard’s network. Instead of using this network, he used MIT’s network and attempted to cover the tracks of what he was doing. Swartz took steps to circumvent MIT and JSTOR’s attempts to block his access to the database. Eventually, Swartz broke into a closet in the basement of building at MIT and connected his computer directly to the network. Before being caught, he succeeded in downloading a major portion of JSTOR’s database.

Based on this understanding of the facts, it is likely that Swartz violated several provisions of the CFAA. At the simplest level, he exceeded his authorized access of the JSTOR database. JSTOR had a password protected database and each time JSTOR attempted to block his access, Swartz circumvented identification restrictions by, for example, connecting to the MIT network directly from a basement closet. Much of the press has been remiss in failing to report this part of the story and suggesting that the case was simply about Swartz breaching a written use policy. The case is also very different from allegations involving simple breach of a user agreement.

The facts suggest that some type of punishment was warranted. Indeed, Swartz had announced his intent to violate the law as a demonstration against laws limiting access to information and he apparently knew that what he was doing was against the law. This does not mean, however, that the government acted appropriately in charging him with 13 felonies and seeking a prison term. The government overstated the seriousness of the case by comparing his acts to most brazen thefts involving tangible goods. That being said, the prosecutors did not act any differently in this matter than how federal prosecutors all over the United States act on a daily basis in handling all types of crime.

There seems to be little doubt that the Swartz prosecutors did everything using their immense power to increase the likelihood that he would plead guilty to a felony. The government gave him the choice of pleading guilty to a lesser number of felonies and going to prison for “only” four months or risk going to trial and face the possibility of being imprisoned for a much longer time. Critics of this prosecution have seized on this as establishing that the prosecutors were overzealous in their pursuit of him. However, this criticism is unwarranted. Congress primarily through the enactment of sentencing laws has given federal prosecutors immense discretionary powers. Indeed, the biggest complaint of the Sentencing Guidelines is that sentencing authority now rests with prosecutors rather than with courts.

The underlying issue that Congress should consider is whether it has given federal prosecutors too much power and has unfairly tilted the federal criminal justice system in favor of the government. Congress would be doing a disservice to the legacy of Aaron Swartz if it simply focused on the CFAA and the conduct of the prosecutors in this case, rather than using this as an opportunity to evaluate the entire federal criminal system. Whether and to what extent the Swartz prosecutors acted improperly should not depend on the underlying facts of this case – an extremely talented human being, who counted many high powered and influential individuals as friends, and represented by one of the top litigation firms in the United States was the victim of prosecutorial abuse.

Rather, the issue for Congress is whether prosecutors also abuse their power in cases where the defendant is the opposite of Swartz – not accomplished, without access to influential individuals and unable to hire the best and brightest as lawyers.

To just focus on Mr. Swartz would further perpetuate a common understanding that our legal system treats the rich and powerful differently from the poor and defenseless. Congress now has opportunity to reform the criminal justice system and to truly create a lasting legacy for Aaron Swartz.

Speak Your Mind