Techno-McCarthyism and the death of Aaron Swartz

Internet idealist fell victim to a misguided war over information

Aaron, age 14, with Larry Lessig

When I spoke to Aaron Swartz in 2009, he had just learned that he’d been investigated by the FBI for “stealing” public court documents from a library and sharing them on the Internet. They had a file on him. They had staked out his mom’s house. He thought it was hilarious.

“The whole thing strikes me as ridiculous,” he said of his FBI file, which he had obtained through a Freedom of Information request. “Suspect lives on a heavily wooded dead-end street,” he read in a super-serious Dragnet voice, “making continued surveillance difficult.”

“Who are you,” I asked, “Jason Bourne?”

Aaron laughed.

It was no joke. His brilliant PACER (Public Access to Court Electronic Records) hack put him on the FBI’s radar and likely contributed to the persecution he suffered when he struck again.

Who could have known it at the time? The hack was so playful, and Aaron so decent and clever. PACER was experimenting with waiving its user fees and opening its archive with a pilot project at a handful of public libraries. Aaron thought that was a great idea, but why constrain it to just a few locations? These were public documents, paid for by the public for the benefit of the public. He said this:

“I feel that it’s our job, those of us on the outside, to keep pushing further and further and showing them more things that can be open and showing them how important it is to get things on the web.”

Aaron liberated 20 per cent of PACER before they caught him and shut down their pilot program. They accused him of stealing  material worth $1.5 million, which is what it would have cost in user fees to obtain the 16 million documents. “I prefer to think that I saved the country $1.5 million dollars,” he told me.  ”How can you steal something that’s free?” I asked.

“Stealing is stealing,” said  U.S. Attorney Carmen Ortiz, when she charged Aaron Swartz with 13 felonies for downloading too many scholarly articles. “Stealing is stealing,” she said, “whether you use a computer command or a crowbar, and whether you take documents, data or dollars.”

But it’s not, is it?  When Aaron “stole,” nobody lost anything. When he “stole,” he didn’t gain anything.  Insisting he may as well have been a thief with a crowbar, heisting cash, is more than a lie—it’s a wilful act of ignorance, backed by the power of the state—it’s a lie that, based on accounts from those closest to him, led to the death of Aaron Swartz

During the Red Scare, American authorities made a decision to ignore the differences between harmless idealists and violent enemies of the state.  They crushed lives, smeared reputations and intimidated good people into killing themselves.  The parallels between the past and present did not escape Aaron himself.

Bradley Manning, Julian Assange, Kim Dotcom, Gottfrid Svartholm, Aaron Swartz: they have little in common. Hacking the military is different from hacking a library. Sharing music is different from sharing state secrets.  Authorities around the world, but particularly in the U.S., have decided to ignore these differences.  Shocked and scared by their loss of control over information, they are waging a dumb, mean war against anyone who seems to be standing on the wrong side of an imaginary line.  As Vic Toews said, you “either stand with us or with the child pornographers.”

Aaron Swartz would not be told where to stand. He was offered a settlement by Ortiz’s office, but it required him pleading guilty and living life as a felon. He refused, and killed himself two days later.

His suicide may or may not have been an act of desperation, but it was certainly an act of defiance.

Follow Jesse on Twitter @JesseBrown




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Techno-McCarthyism and the death of Aaron Swartz

  1. 1. This whole idea that stealing involves someone losing something is garbage. Stealing has always, until very recently when a number of pirates started seeking ways to rationalize their behaviour, been simply making use of something without rightful permission.

    2. That said, I fully agree that Aaron stole nothing, as the documents were available for free in specific locations. He did, however, break the licence agreement for using it in those locations. He should have been charged with, if anything, fraud, and sued in a civil proceeding.

    • Kinda. The deprivation of use is a big part of stealing. If I steal a car everyone will agree that is wrong, if I look really closely at a guys car then use what I observe to build a car for myself everyone would think that’s supercool.

      now there are good reasons to protect intellectual property and there should be penalties attached to violating it (hard to enforce as they can be). But there’s a fundamental difference between that and actual theft.

      • If you take someone’s car without their permission, you’ve stolen their car. Even if you fill it up with gas and return it later. You’ve still stolen their car.

        That they later regained the use of it doesn’t make you any less of a car thief.. it just means you have a conscience as well.

        • You’re right, but that’s not the difference I pointed out.

        • Okay, let’s take another shot at this. You have a very delicious-looking sandwich. I go to the store and buy the same ingredients to make one of my own. Did I steal your sandwich?

          Note that I didn’t take your sandwich, only to return it later. That would be gross. Nobody wants a returned sandwich. I left yours exactly where it was. Didn’t even touch it. You can have your sandwich. I just made a copy of it. Yes, it’s possible that I violated your intellectual property (and pastrami) rights. Maybe you didn’t want anyone copying your delicious sandwich, and perhaps you’d argue that I should have paid you to make a sandwich for me instead of rudely cloning it. But it’s ridiculous to argue that I stole your sandwich away from you.

          • Well.. you took a shot.
            Missed by a mile, but you took it.

            Note: without rightful permission.

            You didn’t take anything that you didn’t have rightful permission to have. You made your own sandwich. You developed it on your own based on your observation. That’s perfectly fair.

            If you take *my* sandwich however, even if you make sure there’s no way I’ll notice because an exact replica is still there, you’ve stolen it.

          • You seem to still be missing the point. I didn’t touch your sandwich. You keep saying that something was displaced, something was moved. This wasn’t the case. I didn’t leave an exact replica of your sandwich in the place where your sandwich once was — your sandwich never moved. You can be cross, you can be angry, and you can stomp your feet as much as you want about how your sandwich was not, under any circumstances, supposed to be copied. But I never laid a finger on it.

            I admit, the analogy sounded better before lunch, but I still think it holds strong.

          • No, the analogy sucks. Because sandwich’s aren’t software or information and can’t be magically duplicated. So you’re essentially arguing about the mating cycles of unicorns. At best, it’s a wankfest.

            The reality of information or software is that they took energy, time, and resources to make. If you copy that without the permission of the one who originally made it, you are taking advantage of their energy, time, and resources — unless you want to argue that those have no value.

            To make it comparable to the sandwich, if, on the other hand, you saw what the software did, said, “Hey, that’s pretty cool” and then *programmed your own from scratch*.. that’s your sandwich equivalent.

          • FTW! “So you’re essentially arguing about the mating cycles of unicorns. At best, it’s a wankfest.”

          • If you copy that without the permission of the one who originally made it, you are taking advantage of their energy, time, and resources — unless you want to argue that those have no value.

            Then again, JSTOR didn’t make the sandwich either, nor did the publishers they work with. They just have permission to licence the eating of the sandwich to subscribers. The people who actually MAKE scholarly sandwiches don’t get paid for making them (nor do the people who review those sandwiches).

          • Again “without the permission of”. JSTOR had that. Presumably it did not force them to give permission at gunpoint, which meant they felt they had recieved sufficient value — ie, that some sort of work was being done by JSTOR which justified them allowing JSTOR to use their work.

            Had Aaron negotiated with the original article writers and similarly received permission (presuming that they didn’t forfeit the rights to provide that) it would have been en entirely different story.

          • Actually, JSTOR didn’t get permission form the authors either, they got permission from the publishers, but point taken.

            And no, the publishers didn’t hold a gun to the scholars heads, frankly, I’d be surprised if most scholars even understood the licensing agreements they’ve made. Most spend as much time reading the agreements they sign with publishers as you would spend reading the iTunes terms of service when you update the software. Which is evidenced by the fact that many publishers have gone after academic authors for “illegally distributing” their OWN WORK. Most academics will send you a copy of their article if you ask, and PLENTY have copies of their articles up on their own faculty profile websites, both of which are usually technically violations of the agreements the authors have signed, and in both cases profs are usually SHOCKED when you tell them they’re not actually allowed to distribute copies of their own works themselves.

          • Oh, I wholly agree that professors need to be more careful with what rights they give away — that, to me, is a symptom of the problem we have where most people are unwilling to treat the rights to a work as something valuable — whether that be the originators or people who feel no compunction in stealing it.

  2. One shouldn’t overlook that Swartz did have a history of mental illness, having suffered from depression since 2007. He had documented his mental health struggle in some detail.
    Surely, deciding whether or not Swartz’s actions qualified as “stealing” is the responsibility of the courts.
    The “red scare” was about slandering and blacklisting suspected communists OUTSIDE of the protection of the courts and WITHOUT the rule of law. Prosecutions of allegedly criminal acts ACCORDING to the rule of law does not qualify as “McCarthyism”.

    • He did not have a ‘history of mental illness’. He got depressed occasionally….so did Churchill.

  3. Martyrs in the Knowledge Age….insane. We really are making a concerted effort to return to the Dark Ages and the stake.

    • For once, we are agreed.

    • and you are at the forefront of the movement.

      • I’m one of the many in the forefront of the move to globalization and the knowledge society, yes.

  4. The issue is one of prosecutorial discretion. Laws are written in the abstract, but applied in the specific. For justice to prevail, it’s necessary to examine the circumstances of specific actions, and determine what action, if any, is necessary to uphold the rule of law and preserve civil society.

    While many would argue that is the job of the court, not the prosecutor, such an argument ignores the very real power prosecutors wield over people’s lives. Threats of prolonged prison terms, threats of dragging loved ones into the prosecution, & threats of financial ruin are often used to bully defendants, who are most often seriously outmatched in resources.

    Even where there is no reasonable probability of conviction, a prosecutor can pursue a charge, and in the process bankrupt a defendant, destroy his/her reputation, wreak havoc with his/her personal relationships, & destroy careers. All of this can be done with very little personal risk to the prosecutor – rarely do such unreasonable positions result in demotions, & in the very rare case where a defendant has the means & ability to prove malicious prosecution, civil damages are paid by the state, not the individual prosecutors involved.

    In Aaron’s case, what he deserved was, at most, a stern talking to. What he got was the threat of 30 years in prison. He hadn’t yet reached trial, and it had cost him a fortune.

    I’m sure there were other issues which contributed to his death, but that is beside the point. He was under tremendous pressure, brought about by an unreasonable zealousness. The consequences in criminal trials, especially in non-violent cases, are drastically asymmetrical. Aaron’s entire life was at stake, the prosecutor risked only a checkmark in his win/loss ledger.

    Ideology, ego, careerism, & a sense of moral superiority are, unfortunately, all too present in those attracted to the role of prosecutor. And those traits, combined with the power they wield, backed by the full force of the state, can have disastrous consequences for those caught up in the criminal justice system. Proportionality, understanding, and some mercy, are as required in the prosecutors’ office as they are in the judge’s chambers. Unfortunately, all too often those things are absent. And in Aaron’s case, a brilliant life was cut short as a result. We’re all poorer for it.

  5. This case involves somebody taking something of value without paying for it. Information, writing, or musical recordings are the product of someone’s effort. They offer these works to others for a price. If it were worthless, nobody would want it, and nobody would try to take it without paying for it. If people don’t want to pay the price being asked, the proper mechanism is negotiation. Simply taking it without paying for it is stealing.

    • The articles were free. He didn’t take something of value without paying for it. He copied freely available data by a means that wasn’t authorized. That’s not necessarily harmless, but it’s not stealing in any traditional sense.

    • In the case of journal articles, neither the authors or the editors make a dime from them. The only benefit is another line on their CV. The people who profit are the owners of the journal and the organizations like JSTOR who license them out to institutions. So taking articles and making them publicly available does not harm the actual producers of those works in any way. In fact, if anything, they might get cited more.

      • Somebody’s got to pay for publishing those journals. The library will have paid for a subscription, which allows a user to read a copy at the library. If the authors only care about sharing their work, there’s other ways that via that journal. However, they also want the benefits of the profile and status that comes from being accepted and reviewed by that journal. The value is there, else you wouldn’t see libraries, institutions, and individuals subscribing to the journals. Noting that the authors and editors aren’t paid fails to recognize the value embedded in the journal model.

        • they also want the benefits of the profile and status that comes from being accepted and reviewed by that journal

          Sure, but the people doing the accepting and reviewing aren’t paid either, and the profile and status of the journal is a reflection of their work, not the publishers. In theory, in 2013, the people doing the actual academic work could all abandon the publishers en masse at this point and start doing all of that unpaid scholarly work for a free open access publication, but the problem is that the professors would need to do so EN MASSE. In the 21st Century the publishers really aren’t surviving on “value added”, they’re surviving on inertia and the apathy of the people doing the actual work.

          The publishers are on a countdown any way with more and more funding agencies and institutions (such as Harvard) making the open access publishing of publicly funded research a requirement for funding.

          • I’m certain there’s opportunity for changes in the publishing of academic articles. Still, isn’t this all post-hoc rationalization for illegally copying and distributing something? It’s not unlike justifying stealing a muffin from a cafeteria by saying “Hey, it was nearly the end of the day, they hadn’t sold it, it was just going stale and they were going to throw it out anyway.”

          • Point taken.

            That said, if we want to stick to the analogy, the muffin wasn’t made by the store selling it, it was baked by someone else, using ingredients that said someone else collected. What’s more, it’s more than likely that the baker baked the muffin using taxpayer money, and furthermore, that the baker would be SHOCKED to discover that the fine print in the agreement they signed with the muffin store actually prevents the baker from giving you the muffin they baked for free, even though they baked it using taxpayer money, gave it to the muffin store for free, and THEY’RE THE BAKER.

  6. His mistake was not becoming a banker before committing the crime! -) Obama doesn’t prosecute bankers for their crimes. Not a single one. Trillions in mortgage and derivative fraud, and not a single banker prosecuted.

    And many in fact bailed out.

    • Obama doesn’t prosecute bankers for their crimes.

      Which is exactly why the Americans should have elected Mitt Romney and the Republicans. There’s a group that’ll go after those no good bankers!

  7. The video clip of ‘little Aaron’ as a young man shows a callow youth saying, “who cares about copyright, I’m not into that, so what?” etc. It would never occur to the little genius that people went unpaid for years creating intellectual property, only to have it stolen by callow youth. It would have been especially fruitful for Aaron, a creator of i.p., to have had one of his clever programming patents stolen. The tragedy is there, of course, but it’s mostly about our culture encouraging thoughtless and callow youthdom. Good on the FBI for doing their jobs.

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