Black Shards Press – Electronic Gumbo is Our Specialty

Thoughts About Aaron Swartz, “Hacking”, and the Law

13.01.2013 (9:00 pm) – Filed under: Law,Technology ::

Although I did not know Aaron Swartz, as a technologist I am deeply intrigued – and alarmed – by the circumstances surrounding the well-known programmer’s recent suicide, weeks before he was scheduled to be tried in a high-profile hacking case.  Swartz’s crime?  He was charged with downloading electronic reams of documents from a marginally-secured network at MIT, an action that left him facing a possible 50 years in prison if convicted.

According Alex Stamos, the defense’s expert witness in the now-defunct case, Swartz did nothing legally wrong, nor was he guilty of anything except using more than his share of bandwidth.

Aaron wrote a handful of basic python scripts that first discovered the URLs of journal articles and then used curl to request them. Aaron did not use parameter tampering, break a CAPTCHA, or do anything more complicated than call a basic command line tool that downloads a file in the same manner as right-clicking and choosing “Save As” from your favorite browser.

So, if MIT’s network was open and no download limits were placed on the files, then why was the Swartz even charged? Indeed, that is the question and one that will probably never be answered. How does anything happen in the massive machine that is our legal system?

Obviously someone in the Department of Justice blew Aaron’s case out of proportion.  One person who might be able to answer this question – or be the answer – is Carmen Ortiz, the United States Attorney for the District of Massachusetts. Despite the trivial nature of the case, Ortiz’s team went after Swartz with everything they had.  Given the outcome, I don’t think it’s asking to much for Ortiz to explain herself.  Even if Aaron had not done what he did, Ortiz’s pursuit of the insignificant document downloading case cost taxpayers thousands and thousand of dollars. And for what? Nothing.

Professor Lawrence Lessig, Roy L. Furman Professor of Law and Leadership at Harvard Law school, has his own take: The DoJ overreacted to the case and, despite knowing the trivial nature of the alleged damages, charged ahead like a bully beating the tar out of a helpless victim on a school playground.  It’s hard to disagree.

In fact, the charges themselves are the crime in this case – a crime of stupidity on the part of the DoJ and Ms. Ortiz.

Was brain-dead overzealousness is the only reason the DoJ hounded Aaron Swartz into taking his own life?  Swartz, who was part of the RSS 1.0 and Reddit teams, was a central figure in the online rebellion against the Obama administration’s Internet security bill commonly known as SOPA.  SOPA was defeated in Congress after massive grassroots opposition was organized against it, in part by Demand Progress, in which Swartz was highly involved.  Could revenge have been a motive in the DoJ’s dogged pursuit of Swartz?  Another question we will probably never learn the answer to.

Aaron’s suicide will have the government officials involved distancing themselves from the case, almost as if nothing had happened.  But the facts of the case still demand answers.  If Aaron Swartz could be arrested, charged, threatened with decades of jail time, and put on trial – all because he inconvenienced a few network administrators at MIT – then the same thing could happen to any one of us.  And for what?

The purpose of the law is to protect the nation’s citizens from attack and exploitation.  The facts of this case indicate that it was Aaron Swartz who needed to be protected from the keepers of the law, not the other way around.

Not convinced?  Consider that a pair of hackers who were actually engaged in the illegal distribution of copyrighted materials were recently convicted of their crime.  Their punishment?  100 hours of community service.  The punishment fit the crime, in other words, an outcome that should be the goal of every criminal case the government decides to pursue.

As Professor Lessig says:

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.

For remember, we live in a world where the architects of the financial crisis regularly dine at the White House — and where even those brought to “justice” never even have to admit any wrongdoing, let alone be labeled “felons.”

In that world, the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.”

Why indeed, Ms. Ortiz?