Friday, March 8, 2013

Aaron Swartz: Was the DOJ Prosecution Political or Something More?

Aaron Swartz: Was the DOJ Prosecution Political or Something More?

Nomadic Poilitics Aaron Swartzby Nomad

In what might seem as "stating the obvious" Huffington Post has an article about the prosecution / persecution by the Justice Department of Aaron Swartz. 
In a past post, we looked at the case in which Swartz, who committed suicide in January, had been indicted and faced prison time for downloading millions of academic articles from an online archive. 
A Justice Department representative told congressional staffers during a recent briefing on the computer fraud prosecution of Internet activist Aaron Swartz that Swartz’s “Guerilla Open Access Manifesto” played a role in the prosecution.
The manifesto said sharing information was a “moral imperative” and advocated for “civil disobedience” against copyright laws pushed by corporations “blinded by greed” that led to the “privatization of knowledge.”
“We need to take information, wherever it is stored, make our copies and share them with the world,” Swartz wrote in the manifesto.
Let's look at the manifesto and see how dangerous it actually was. 
The Open Access Movement has fought valiantly to ensure that scientists do not sign their copyrights away but instead ensure their work is published on the Internet, under terms that allow anyone to access it.
Forcing academics to pay money to read the work of their colleagues? Scanning entire libraries but only allowing the folks at Google to read them? Providing scientific articles to those at elite universities in the First World, but not to children in the Global South? It's outrageous and unacceptable.
This was the source of Justice Department jitters? Seriously?
Admittedly he does write:
We need to take information, wherever it is stored, make our copies and share them with the world. 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.
But....revolutionary? Maybe but this is not an incitement to violence. Let's put that in perspective for a moment.

A Question of Politics?
We have seen far worse from a congresswoman (who repeatedly called for a revolution) and we have seen far more dangerous statements from representatives of the Tea Party. Yet the folks at the DOJ didn't pay too much attention then.
In fact, the manifesto was certainly no worse than anything one might hear on any popular right wing radio show with callers discussing the armed overthrow of the government. 
And yet, the Justice Department made the decision to use its might and all of its government attorneys against Aaron Swartz. 
The HuffPo article goes on:
The "Manifesto," Justice Department representatives told congressional staffers, demonstrated Swartz's malicious intent in downloading documents on a massive scale.
Reich [an associate deputy attorney general for the DOJ] told congressional staffers that the Justice Department believed federal prosecutors acted in a reasonable manner, according to the sources. He also made clear that prosecutors were in part influenced by wanting to deter others from committing similar offenses.
In other words, authorities decided to make an example of Swartz. The manifesto itself is simply an example of constitutionally-protected free speech. And the Justice Department's admission that Swartz was singled out for special attention because, in part, for his ideas, is extraordinarily revealing. As his partner Taren Stinebrickner-Kauffmantold reporters:
"I was surprised that the Department of Justice would be so bold, that their motivation was so political. That it wasn't just one prosecutor run amok, that it was about Aaron's political views."
Stinebrickner-Kaufmann also said:
"To them, somebody like Aaron was viewed in the same way as they viewed a suicide bomber. They want to be able to do anything. The Department of Justice has a long history of trying to suppress civil liberties and it has gotten worse since the war on terror started."
*    *    *    *
Legally, in determining a sentence, however, federal statutes offer five extenuating factors that should be taken into account:
  • criminal history
  • use violence or credible threats of violence (actual and not conjectural)
  • whether or not the offense led to a death or serious bodily injury 
  • whether or not the accused cooperated with the investigation of the crime
and finally, the last factor which appears to be the only one the Justice Department considered:
  • whether or not the accused was an organizer, leader, manager, or supervisor of others in the offense
Swartz was able to command attention (in some quarters) about an issue that certain people would prefer to remain off the radar. This made him a marked man.
Considering the amount of time and money spent in the prosecution of one non-violent individual, this alone shows a problem with priorities at the Justice Department.

In the end, this is a copyright issue of dry academic texts, it's not arm shipments to Marxist rebels or smuggling tons of cocaine into Los Angeles. This wasn't even maliciously breaking into the databases of credit card companies. 
But, here's what it was.
As one source explains, Swartz was attempting to rectify a long standing problem with great future implications:
To put it bluntly, the current state of academic publishing is the result of a series of strong-arm tactics enabling publishers to pry copyrights from authors, and then charge exorbitant fees to university libraries for access to that work. The publishers have inverted their role as disseminators of knowledge and become bottlers of knowledge, releasing it exclusively to the highest bidders. Swartz simply decided it was time to take action.
That, in his eyes, was unjust and just plain wrong. Nevertheless, the over-reaction of the DOJ seems, well, odd. But maybe we are just looking in the wrong direction. Maybe it wasn't really about Swartz's politics at all.

PACER and Conflict of Interest
The real question is in the whole Swartz story is why the Department of Justice cared so much about the release of dry academic documents. Even with the prohibitions and the alleged damage done to academic publishing corporations, it doesn't make a lot of sense.However, FBI documents suggest that it might have more to do with public transparency to the Justice Department itself.

The US court implemented a pilot project offering "free access" to federal court records through the PACER system at 17 federal depository libraries. By 2013, the system held more than 500 million documents.
The PACER allows users to obtain case and docket information from the United States district courts, United States courts of appeals, and United States bankruptcy courts. The system is managed by the Administrative Office of the United States Courts in accordance with the policies of the Judicial Conference, headed by the Chief Justice of the United States.
In effect the entire Justice system was on display. All parties and participants, attorney and judges, court opinions and, in some cases, scanned copies of the documents. 
Despite the fact that the documents are classified as public domain, access to the web-based PACER system cost agencies and individuals 10 cents per page. (The authorities decided users would be charged at this rate after $10 worth of charges per year.)

Many critics complained about the system's clumsiness and the fact that it was not free. In 2009, The New York Times wrote an article about the problem, which mentioned Aaron Swartz, by name, as a leader of a group attempting to make access to court documents free to all.  
Swartz was not alone. 
I was shocked that the system was charging for every single search I performed. With the type of research I was trying to do, it was inevitable that I would have to do countless searches to find what I was looking for. What’s more, the search functionality provided by PACER turned out to be nearly useless for the task at hand — there was no way to search for keywords, or within documents at all....
This led to the inevitable conclusion that there is simply no way to know federal case law without going through a lawyer, doing laborious research using print legal resources, or paying for a high-priced database service.
Other voices agreed. The PACER system, they claimed, was not about open access. Quite the contrary. It was actually about limiting the power of the individual to view court documents. Corporate law firms would have little problem with the fees since it passed on the cost to people who could afford it. For individuals, however, it was another story. And that's what Swartz protested against.

Carl Malamud, the leader of the effort and founder of a nonprofit group, is a  technologist and author. Malamud has worked tirelessly to make public domain documents more accessible to the public. The New York Times writes:  
"..Pacer takes information that he believes should be free — government-produced documents are not covered by copyright — and charges 8 cents a page. Most of the private services that make searching easier, like Westlaw and Lexis-Nexis, charge far more, while relative newcomers like, and, offer some records cheaply or even free. But even the seemingly cheap cost of Pacer adds up, when court records can run to thousands of pages. Fees get plowed back to the courts to finance technology, but the system runs a budget surplus of some $150 million, according to recent court reports.
That's quite a surplus and a source of income worth guarding. 
It was Malamud who, according to the NYT piece, that "urged fellow activists to go to those libraries, download as many court documents as they could, and send them to him for republication on the Web, where Google could get to them."  

These are nearly exactly the same words used by Swartz in his Manifesto which, as noted, helped to target him for special attention by DOJ attorneys. If, as the DOJ has just admitted, the Manifesto was a factor in the decision to prosecute Swartz, then why not go after the real ideological leader of the movement, Malamud? Why single out Swartz and not Malamud- since public statement by Malamud and Swartz's manifesto were essentially the identical?

Was it because Swartz made an easier target? It was, of course, more convenient to paint Swartz as a malicious hacker. Malamud was, after all, visiting professor at the MIT Media Laboratory and was the former chairman of the Internet Software Consortium
In fact, Swartz was a hacker, though hardly malicious. 

According to the FBI investigation, Swartz was able to obtain library login passwords and, through the use of special software, to download about 1% of the entire database. (This number is debatable.) He soon realized that there was no way one person alone could download all of the files. So, Swartz took it one step forward by installing his tweaked software on a thumbnail drive and passing along to others, thus creating a formidable team of hackers. 

As soon as the officials detected a breach in the system, all access to the PACER was shut down. Interestingly, the FBI investigation of Swartz, which included surveillance of his home, was dropped in April 2009. 

But, whether Swartz was a hacker or not, it's important to remember that this case- which in fact had a lot of merit -was NOT the case that the Department of Justice brought against Swartz. The case that the DOJ chose was the compromise of the JSTOR system- a database of academic articles- and not court documents. 

That makes good sense from the DOJ's point of view. If attorneys had brought Swartz up on charges regarding the PACER breach, then questions would have been asked about the PACER policy and the legitimacy of public domain documents being used as a source of funding for the department.

Ultimately the question is: Was the case against Swartz really just pay-back by the DOJ for this earlier episode? 

This is NOT a question that the House Oversight Committee, investigating the DOJ handling of the case, will be asking. 
The outcome of that investigation is a foregone conclusion. 

(The full story about the Swartz and the PACER system can be found HERE. The New Yorker Magazine also has an fine article by Larissa MacFarquhar about Aaron Swartz called "REQUIEM FOR A DREAM")