Editorial: The tragedy of Aaron Swartz and computer crime law

Weeks before his trial for accusations of data theft, Aaron Swartz, a co-founder of Reddit and advocate for open-access online information, committed suicide in his New York home on Jan. 11. Swartz, who was completing a fellowship in ethics at Harvard’s Berkman Center for Internet and Society, pleaded not guilty to charges that included stealing five million articles from the digital academic library JSTOR with intent to distribute them publicly for free. JSTOR dropped the charges against Swartz in June 2011 upon the return of their content, but the U.S. Attorney’s office pursued the charges in a trial that was due to start next month.

The 26-year-old helped create Really Simple Syndication (RSS) when he was a teenager and co-founded a group against SOPA/PIPA and other Internet censorship. The group was called Demand Progress. The death of this young and brilliant man — and the end of the progress he was making — is a tragedy that even those in charge of JSTOR have recognized. But it is also a serious wake-up call for the information age and is not receiving nearly as much press as it should.

We will never know exactly what drove Swartz to suicide. But the fact that he faced decades in prison and millions of dollars in fines if found guilty couldn’t have weighed easily on him. His plan to make millions of scholarly articles available for free may have been on a grand scale, and it represented a serious potential loss of revenue for others, but the potential sentence does not seem commensurate with the scope of the crime. How could the U.S. Attorney consider prescribing such a debilitating punishment?

The answer is the Computer Fraud and Abuse Act, signed by U.S. Congress in 1986. Over 25 years of technological progress has made the language in the act woefully obsolete, yet the act still allows for incredibly draconian sentencing. This would be more acceptable if the act only targeted hard-core hackers who intend to deal damage or steal for profit, but the wording is so vague that prosecutors can aim the gun at almost anyone. Marcia Hofmann from Slate Magazine used the example of United States v. Drew, where the prosecutors claimed that since a fake MySpace profile violated the terms of service, Drew had gained “unauthorized” access to the MySpace website. This might come as a surprise to those of us who have seen or operated a Facebook page for a cat.

Canada has its own share of prosecutions in computer crime cases, including the indictment of the infamous Mafiaboy, but has overall been more lenient with the sentences for these crimes. However, the language in Section 342.1 of the Criminal Code of Canada is equally vague — and given that so many of the websites Canadians enjoy are based in the United States (Facebook, Twitter and many academic sites included), the American law is nearly as relevant to us as it is to our neighbours to the south.

Carmen Ortiz, the U.S. Attorney for Massachusetts who was in charge of the case against Swartz, recently released a statement defending her office’s conduct in the matter. Part of the responsibility of being a lawyer is to make the strongest argument possible in favour of what you are representing, and the U.S. Attorney’s office doesn’t deserve to be criticized for that. In fact, Ortiz said that in discussions with Swartz’s council, the prosecutors were only looking for six months in a low-security penitentiary, despite what may have been called for under the sentencing guidelines. But the point is that not all prosecutors, especially in private cases, may be so level-headed. And to prevent judges from giving overly severe sentences, it’s important that the law be revised.

The U.S. District Court in Massachusetts has dismissed the case against Swartz, and an outpouring of support has flooded Reddit and other Internet forums. Through his contributions to online resources such as Wikipedia and the Open Library, Aaron Swartz’s passion for making information freely available to anyone is commendable.

We can only hope that the fallout from the case and the questions being asked will result in even more free access to information.

Leave a Reply