Computers, Privacy & the Constitution
About 3 months ago, Aaron Swartz, a 27 year old computer hacker committed suicide. Before his death, he was indicted on 13 felony counts of wire fraud and violations of the Computer Fraud and Abuse Act, which exposed him to 50 years in prison. What did Swartz do? According to reports, Swartz broke into a network closet at MIT to gain direct access and used a fake student account to log into MIT system to access JSTOR database, which is a collection of academic journals and publications storage.

In September 2010, Swartz began accessing and downloading the JSTOR files. However, he downloaded so many files, his rate of download prompted JSTOR to deny all MIT-identified computers access and raised the suspicions of JSTOR and MIT administration. Swartz was found out, and convinced to turn over the hard drives that stored the copied data. MIT decided not to proceed in charges once the material was returned and Swartz agreed to make no further efforts to distribute it, but The US Attorney General’s office chose to continue the prosecution and imposed 13 felony counts indictment with penalties of up to 50 years in prison and million dollar fines.

The First amendment guarantees the freedom of speech. Even if it is not an absolute right, people can express their ideas or beliefs through speech, actions and many kinds of ways. Swartz, an Internet freedom idealist, thought JSTOR files should be accessed by anyone, not only people with special authorization. He broke into the network and downloaded a great deal of files to manifest his beliefs of knowledge freedom. In my opinion, it is simply a way to realize his right of freedom of speech which is protected by the Constitution. Many reporters described his conduct as a hardcover over-borrower in the real world. They said his action is a digital version of someone who has a valid library card, but borrows more books than he should. However, a hardcover over-borrower denies books to other borrowers; Swartz did not deprive anyone of anything. What he downloaded remained on JSTOR to be accessed by anyone who wanted to read. However, this “harmless” speech expression was treated by the US attorney as a crime whose punishment could be as high as manslaughter, kidnapping, or other ferocious crimes.

Prosecutors indicted Swartz for violating Section 1030 of the Computer Frauds and Abuse Act, Title 18, 1030 provides that:


(2)intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—

(C)information from any protected computer[commits a felony].

Analyzing the elements of 1030 and Swartz’s conducts; the conclusion may be that Swartz violated the law by accessing the protected database without authorization. Nevertheless, it cannot be denied that Swartz acted in this way to practice his constitutional right of freedom speech. To force a plea of guilty, the USA general attorney inflicted a 50 years charge and million dollars fines on Swartz who had no prior criminal record. According to the news report, the US Attorney had offered Swartz a three month sentence. How can you pursue a felony criminal with an indictment of 50 years and then offer a three month sentence bargain instead? If a US prosecutor offers a 3 month sentence, he must think the accused conduct is misdemeanor itself. If so, how can the US attorney indict the trivial crime with 50 years sentence? This manipulation was thus called a clearly prosecutorial overkill.

Nowadays, we are living in a society where people request for openness. Even the USA government itself is promoting open government campaign. We can say that what Swartz did about liberating information and knowledge to some extend comports with the openness demand. Even though Swartz did violated the “law”, however, as a representatives of US open government and as a protector of people ‘s fundamental rights, a US attorney should exercise his “good use of prosecutorial discretion” in Swartz’s favor to deal with this “harmless” case. Apparently, this is not the case. The Ninth Circuit rules that a protected speech must have some evidence that the defendants’ speech was informational in a manner removed from immediate connection to the commission of a specific criminal act. Swartz’s conduct conveyed messages of knowledge freedom other than committing a “crime”, thus he should be protected. In fact, the prosecutor can be condemned for infringement of the constitutional right.

In our class, we talked about Internet surveillance and how what we do online can be overseen by the government. Prosecutors must have known Swartz’s sensitive character and great enthusiasm for freedom from the Internet. They can easily deduce that instead of pleading guilty, he may have suicide to carry out his principle.

I do not think that in this culture and society that is in any sense an easy deduction. I think most Americans would say the prosecutor should have made no such deduction. American society treats suicides of persons under social pressure as signs of weakness or illness, not principle.

I can imagine that before the US Attorney indicted Swartz, they must have surf the Internet to follow his twitter, all his published articles, and even the emails stored in 3rd ISP. They must have found that he was active in fighting against the Internet censorship bills, corrupting institutions and supporting the development of the nonprofit Open Library to collect information about every book ever published.

Why would some secret searching have been necessary for anyone, including the Government, to learn those things about Aaron? He was a well-known young person with a short but very public life, a deeply charming personality, with friends throughout the world of new media, free culture, and free software. Anyone who wanted to know about Aaron's life and engagements could have found it all in five minutes by web searching.

They can easily grab his personality as an idealist of freedom. Without search warrant, the government still could have obtained all private information of Swartz from internet. I think Swartz never thought about his free speech on Internet would become records assisting the government to make strategy to indict him.

It didn't. I think you're making assumptions that are factually wrong. I don't think you've explained how or why the prosecution happened, or why the strategy of charging so heavily was chosen by the US Attorney's office. I think you are imagining that the prosecution was accompanied by significant post-indictment investigation, which is not the way our criminal justice system works. I do not think you have given yourself a solid grasp of the chronology of the investigation and prosecution, which would help to explain what did happen between prosecution and defense counsel, and what didn't.

I expect that the MIT internal report on MIT's actions will soon be published, and that it will contribute to a more detailed picture. If I were you, I wouldn't jump to conclusions about how things happened.

It seems to me that the result of his right to speech was used by the government as a weapon to indict and convict him.

If this means what he said and did other than downloading JSTOR articles, I don't think you have any reason to believe that happened. You seem elsewhere to half-express the idea that he has a First Amendment right to acquire those files in the manner in which he acquired them. I don't think that position can be successfully argued. I think there were significant legal defenses available in response to the indictment, and in particular in response to the CAA charges. But I don't think anyone would propose seriously that the conduct involved was constitutionally privileged to the extent that otherwise-valid criminal statutes could not be applied to it.

We can easily perceive that without complete protection of the Fourth amendment, we would lose protection from the First amendment as well. Once government can collect data from 3rd party without our consent or court order or a warrant, we cannot freely express our opinion online in that whatever we said would become evidence against us. Giving up speech through the Internet may be the best way to protect ourselves. I wonder whether the result would be different, if Swartz left few traces for government to track. I think I can never get the answer.

This simply makes no sense as a conclusion. You are hypothesizing something about the conduct of an investigation for which you have no evidence. Aaron was ably represented—in the early phases of the investigation and subsequent prosecution by the man I and many others considered the best possible counsel for Aaron. You are assuming that the US Attorney made efforts to acquire evidence in unlawful ways, which you give us no specific reason whatever to believe. You are assuming that Aaron's counsel missed the use of such evidence, which I must say I consider more than somewhat unlikely, and again for which you give no evidence.

The circumstances of Aaron's prosecution and death were tragic. A leading citizen involved in trying to deal with the aftermath said to me, I think rightly, that "there's lots of people on every side around here with PTSD." I won't tell you that I think everyone on all sides behaved rightly, or that someone is responsible, because I don't think we have anywhere near all the facts yet. A very complex situation involving many human beings needs substantial reconstruction, at the end of which is not the suicide, which is Aaron's personal fate, not a statement or an act of principle, but rather the condition in which he and everyone else was at the moment when despair overwhelmed him. Because few if any would say that the condition in which everyone was at that point was a good one, or that only his death made it a condition we would want next time to avoid.

I think we will see lessons to learn from this experience, and that some things will indeed be learned. But I don't think the narrative you are imagining is true, or will be what we'll learn.

So the history's not yet written, which doesn't mean your essay can't be. Let's just not assume we know more facts about the prosecution of Swartz than the bare minimum. Let's write as though that's all that at this stage can be known: the publicly-recorded ascertainable facts. Let's also assume that Aaron was a person, with a personal psychic life we don't have access to, for whom suicide was a possible outcome for reasons we can't share.

So on that basis, what ideas can we take from the situation? We could look more closely at Aaron's actual free culture ideas. We could try to understand what he was, or might have been, planning to do with the data: hosting a competitor to JSTOR that gave those particular bits away seems not very likely. It's odd that we would let the prosecutor define the behavior by charging it. Why don't you want to understand what it meant to the person who wound up ending his quite extraordinary life over it? Picking holes in the government's case over whether it was illegal is sort of irrelevant if it was an act of civil disobedience, anyway.

-- YuwenHuang - 01 May 2013



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r2 - 12 May 2013 - 19:25:23 - EbenMoglen
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