Commentary: I spent much of Saturday trying to reconcile two very different approaches to justice meted out by the Obama Administration.

The first is old (mid-December) news: British bank HSBC launders money for at least a decade and is fined four weeks earnings. I learned about it Friday from The Daily Show.

Blatant laundering, moving “tainted money from Mexican drug cartels and Saudi banks with ties to terrorist groups.” $15bn in unexplained “bulk cash”.

No indictments.

How can anyone other than a banking executive look at this action on the part of the U.S. government and say, “There is justice here; this is fair and reasonable.”

They can’t. Because it’s not.

Aaron SwartzThe other case is about Aaron Swartz, a talented and extraordinary young man, a technologist and activist. At age 14, he helped develop RSS, the technology that underpins the web’s information subscription system.

Cory Doctorow called him “a full-time, uncompromising, reckless and delightful shit-disturber.”

In 2011, the DOJ charged Aaron with being a devious hacker out to defraud JSTOR (publisher of academic journals). His trial was slated for April.

At age 26, he killed himself this weekend.

We should all weep.

In its obituary, the NY Times notes his sense of public good, reporting that in 2008 he joined forces with Carl Malamud, the founder of public.resource.org, to make legal records freely accessible. Aaron legally obtained about 20 million pages of documents from PACER (Public Access to Court Electronic Records), the repository for federal judicial documents.

The government shut down the free library program, and Mr. Malamud feared that legal trouble might follow even though he felt they had violated no laws. As he recalled in a newspaper account, “I immediately saw the potential for overreaction by the courts.” He recalled telling Mr. Swartz: “You need to talk to a lawyer. I need to talk to a lawyer.”

Mr. Swartz recalled in a 2009 interview, “I had this vision of the feds crashing down the door, taking everything away.” He said he locked the deadbolt on his door, lay down on the bed for a while and then called his mother.

The federal government investigated but did not prosecute.

Also in 2008, Aaron issued a Guerrilla Open Access Manifesto, calling for scholarly work to be released online in the “grand tradition of civil disobedience.” Research demonstrates that openly accessible publications are cited by others more often than research blocked by digital lock-and-key. This spread of knowledge is good for society as a whole.

In the MIT case, Aaron returned the files; JSTOR did not press charges.

Yet the DOJ, in the person of Carmen M. Ortiz, U.S. Attorney for the District of Massachusetts, indicted Aaron, charging him with stealing 4 million documents from MIT and JSTOR.

If convicted, Aaron faced up to 35 years in prison and $1 million in fines.

For a first offense, a victimless crime where more than half of the information was in the public domain and where the “stolen property” had been returned. Where there was no harm and no theft according to one expert witness, only a Minority Report-like “pre-crime” presumption.

His expert witness clearly articulates the weakness of the DOJ case.

I know a criminal hack when I see it, and Aaron’s downloading of journal articles from an unlocked closet is not an offense worth 35 years in jail.

[...]

MIT also chooses not to prompt users of their wireless network with terms of use or a definition of abusive practices.

At the time of Aaron’s actions, the JSTOR website allowed an unlimited number of downloads by anybody on MIT’s 18.x Class-A network.

[...]

Aaron Swartz … was an intelligent young man who found a loophole that would allow him to download a lot of documents quickly. This loophole was created intentionally by MIT and JSTOR, and was codified contractually in the piles of paperwork turned over during discovery.

If I had taken the stand as planned and had been asked by the prosecutor whether Aaron’s actions were “wrong”, I would probably have replied that what Aaron did would better be described as “inconsiderate”. In the same way it is inconsiderate to write a check at the supermarket while a dozen people queue up behind you or to check out every book at the library needed for a History 101 paper. It is inconsiderate to download lots of files on shared wifi or to spider Wikipedia too quickly, but none of these actions should lead to a young person being hounded for years and haunted by the possibility of a 35 year sentence.

You have to ask yourself: who in the Department of Justice did Aaron embarrass so badly back in 2008? Or which academic journal publisher has an “in” with the U.S. government?

Let me close with this observation from lawyer Lawrence Lessig:

Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its. MIT, to its great shame, was not as clear, and so the prosecutor had the excuse he needed to continue his war against the “criminal” who we who loved him knew as Aaron.

[...]

He was brilliant, and funny. A kid genius. A soul, a conscience, the source of a question I have asked myself a million times: What would Aaron think? That person is gone today, driven to the edge by what a decent society would only call bullying. I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.

How can anyone other than a publishing executive look at this action on the part of the U.S. government and say “that’s fair and reasonable.”

They can’t. Because it’s not.

***

The mission of the Department of Justice is, in part, “to seek just punishment for those guilty of unlawful behavior, and to ensure fair and impartial administration of justice for all Americans.”

They failed on both counts here.

Our public legal system — the one that is supposed to be looking out for us, the citizens of the United States — kowtowed to a British corporation while grinding its heel into a 26-year-old idealist.

We should be ashamed.

We live in a democracy. Tell your friends but just as importantly, tell your Congressmen and our President.

The DOJ was wrong, not once, but twice.

Only we can make sure it doesn’t happen again.

First published at The Moderate Voice; edited for typo.

Update: 9:45 pm Sunday
Anonymous hacks MIT.edu (the site was down earlier tonight), calls for reform of computer crime law as well as copyright and intellectual property law, “returning it to the proper principles of common good to the many, rather than private gain to the few.”

PDF of the entire page:
https://dl.dropbox.com/u/9050702/anonymous-mit-hack.pdf

Kathy Gill (@kegill)has 20 years experience in digital media—both development and instruction. Since 2003, she has taught at the University of Washington and currently manages the website for King County Elections. A political junkie, her consulting work includes four years writing about U.S. politics for about.com, one of the top 10 visited Web content sites on the Internet, and she has worked with Boeing, AT&T Wireless, SAFECO, and Microsoft on intranet projects.

Comments

  • http://womeninbusinessradio.com Michele Price

    Thanks Kathy, this was a great way to pint out the obvious. I agree, our government has gotten a little big for their britches when they forget they are there FOR us.

  • http://WiredPen.com/ kegill

    Thanks, Michele.

    I just discovered this:

    (1) A fitting tribute to Aaron might be a mass protest uploading of copyright-protected research articles. Dump them on Gdocs, tweet the link. Think of the great blu-ray encoding protest but on a bigger scale for research articles.

    Edit: someone took the initiative- it’s happening!! Post your papers to hashtag #pdftribute

    http://www.reddit.com/r/TrueReddit/comments/16fj9d/aaron_swartz_commits_suicide/c7vl4dw

    (2) Researchers begin posting article PDFs to twitter in #pdftribute to Aaron Swartz
    http://neuroconscience.com/2013/01/13/researchers-begin-posting-article-pdfs-to-twitter-in-pdftribute-to-aaron-swartz/

  • http://WiredPen.com/ kegill

    Greenwald is a very good read.
    http://www.guardian.co.uk/commentisfree/2013/jan/12/aaron-swartz-heroism-suicide1

    I was not aware of this from Tim-Berners Lee in 2011 on why, if charged with anything, Aaron should be charged with trespassing (not a felony).
    http://arstechnica.com/tech-policy/2012/09/feds-go-overboard-in-prosecuting-information-activist/

  • Guest

    Great synopsis. I especially appreciate the direct comparison to the money laundering case. This country isn’t half as free as we’d all like to believe it is.

  • amidyousef

    We went DARK at TVSHOWHOW for Aaron and I urge everyone to consider the same, wether a Banner or the complete site I have a couple of graphics on the page to consider using or make your own. http://www.TVSHOWHOW.com

  • http://WiredPen.com/ kegill

    I have a followup at The Moderate Voice with information about his involvement with SOPA (and how that might have made more people angry than PACER). http://themoderatevoice.com/173349/anonymous-hacks-mit-edu-tributes-to-aaron-swartz-continue/

  • Alok

    I don’t know much about this case; but if there was little reason to prosecute and the Attorney was just doing it for brownie points – a ‘fitting tribute’ would probably be to stymie his political aspirations. Though that would require a longer term memory of what happened beyond the next few days.

    Can’t agree with suicide just for being driven into a corner though, its not even like he was actually convicted yet. All the articles seem to jump to the conclusion its a result of legal bullying, might just be unrelated personal problems for all I know.

    • http://WiredPen.com/ kegill

      Hi, Alok – According to Lessig, Aaron’s financial resources were gone. There are lots of examples of how federal cases can wipe out an individual’s resources. And the DOJ was unwilling to bend on any of their (IMO trumped up) charges or on prison time. Or being branded a felon for the rest of his life.

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