Analysis: Activist Swartz’s Suicide Could Shake MIT to Its Core

1/17/13Follow @curtwoodward

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he did some things that could get him into trouble: repeatedly hooking into MIT’s network, trying several times to evade attempts by the university and JSTOR to shut him down, and downloading more articles than JSTOR intended any one visitor to possess.

JSTOR declined to pursue a case against Swartz once it got its files back. One mitigating factor may have been his intentions with the journal articles—Swartz had written online about the need to unlock information, particularly scholarly research, from restrictions preventing it from being freely shared.

“We need to take information, wherever it is stored, make our copies and share them with the world,” he wrote in an article titled “Guerilla Open Access Manifesto.”

His lawyers argued that the mass downloads shouldn’t necessarily amount to a federal crime anyway. “The number of articles downloaded by Swartz may have exceeded JSTOR’s terms of service, but the wire fraud statute does not exist to police violations of private contracts,” Swartz’s legal team wrote.

At this point, we’re left with two big questions:

—Now that we know Swartz may have gotten off with a pretty light sentence, does it seem less wrong for prosecutors to have pursued such an array of charges against him?

One issue to consider, illustrated in an excellent piece by The Wall Street Journal, is the apparent breadth of a key federal computer-crime law. The law was written in the mid-1980s, and made broad to keep up with the rapid change of technology.

But in such situations, it’s also possible to wind up roping in establishment-tweaking, relatively harmless hacker-activists like Swartz along with honest-to-goodness hardened criminals.

It looks like Swartz did some things that could be charged as federal crimes—his defense team’s court filings had so far focused on technical reasons why some charges didn’t apply to his actions, and questions about whether police searches were conducted properly.

If you’re going to play in that territory, even as an activist, you should be prepared for some consequences.

—Why didn’t MIT stop pursuing the case?

The case’s two victims were JSTOR and MIT. It’s been widely reported that JSTOR officials stopped pressing the authorities to go after Swartz. But MIT appears to have remained an active part of the case.

Lawrence Lessig, a Harvard law professor who was a friend of Swartz’s and says he gave advice about the case, wrote on his blog that JSTOR requested that the government drop its case and didn’t pursue its own civil lawsuit. “MIT, to its great shame, was not as clear, and so the prosecutor had the excuse” necessary to pursue its case, Lessig wrote.

One of Swartz’s lawyers also told the Boston Globe that he’d gotten close to negotiating a deal for Swartz not to serve any prison time, but couldn’t get approval from MIT. The Huffington Post quotes an anonymous source at MIT saying the case “snowballed” out of the school’s hands.

The university’s president, meanwhile, has launched an internal investigation into the school’s involvement. “It pains me to think that MIT played any role in a series of events that have ended in tragedy,” president L. Rafael Reif wrote.

Federal prosecutors could always say they were just doing their jobs, and as harsh as the charges seem, there’d be some truth behind that explanation. But the university had its own choice to make, just like JSTOR—and if MIT had stepped away from the case, the authorities would have been left to pursue an essentially victimless crime.

Especially in light of the university’s professed culture of openness, the school’s answers could have serious consequences for its leadership. This one isn’t going away.

Curt Woodward is a senior editor for Xconomy based in Boston. Email: cwoodward@xconomy.com Follow @curtwoodward

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  • http://www.facebook.com/profile.php?id=1398076739 Kay Sieverding

    Someone in DOJ is lying about the duty to prosecute. DOJ assistant U.S. Attorney David C. Rybicki filed in my Privacy Act lawsuit against DOJ that “While the FBI “may investigate” alleged violations of Title 18, the FBI is not obligated to do so with respect to every allegation of wrongdoing it receives. 28 U.S.C. § 535. “The decision to allocate limited governmental resources to investigate a reported crime, like the decision to allocate limited resources to prosecute a crime, is a discretionary function.” Martinez v. United States, 587 F. Supp. 2d 245, 248 (D.D.C. 2008); Moses v. Kennedy, 219 F. Supp. 762, 765 (D.D.C. 1965) (observing that initiation of a criminal investigation by the FBI is discretionary). “Th[e] power to decide when to investigate, and when to prosecute lies at the core of the Executive’s duty to seek the faithful execution of the laws[.]” Community for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986).” DDC 09-0562 doc 8-1 p 19

    DOJ is just a terrible organization. I don’t have a criminal record and was never charged with a federal offense but DOJ basically kidnapped me. I was held by DOJ for 5 months without a bail hearing, a complaint that I broke a federal law, or an evidentiary hearing. I was told in Federal Court that I didn’t have a right to an attorney or an evidentiary hearing before being on indefinite detention. I went to Canada for a few months and a U.S. Deputy Marshal Paul Sever called me there to threaten me with arrest if I returned to the country even though international fugitive investigations are supposed to go through Interpol. DOJ sent a fax to the Dane County sheriff saying I was wanted for a felony and should be held without bail as a high security prisoner even though there was no grand jury proceeding and I wasn’t even charged with a felony. The USMS also entered non existent criminal charges against me into the NCIC and then they lied about that until the FBI sent a letter confirming. Then when I sued them DOJ claimed “All aspects of the USMS’s investigations and detention of Mrs. Sieverding were lawful.”

    If you are held as a pre trial prisoner there is supposed to be a court order acknowledging your right to an attorney — see 18 USC section 1346 The Bail Reform Act of 1984. I was denied my requests for an attorney and I was also held without access to information about habeas corpus and without access to the U.S. laws. This was for over 4 months during which no trial of me was scheduled.

    One of the reasons why DOJ is so screwed up is that the DOJ Data Integrity Board never ever has meetings.