The Lack Of A Legal Or Moral Basis For The Aaron Swartz Indictment Is Quite Troubling

from the what-are-the-feds-up-to? dept

There have been a lot of interesting discussions about the Aaron Swartz indictment, but I wanted to highlight a few key points on this, starting with an analysis of the actual legal points by Max Kennerly, who points out that the actual charges don't seem to hold up:

I'm not going to take the wire fraud claim under 18 U.S.C. § 1343 seriously. They’re going to have a lot of trouble proving Swartz “devised or intending to devise any scheme or artifice to defraud” by evading the IP restrictions imposed by JSTOR. As the Department of Justice’s Attorney Manual (USAM) notes, most courts interpret “defraud” as meaning “a scheme to defraud another out of money.” More from the USAM about the “specific intent” to defraud here.

The 18 U.S.C. § 1030(a)(4) claim requires the prosecutor show Swartz “knowingly and with intent to defraud, accesse[d] a protected computer without authorization, or exceed[ed] authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value.” The indictment claims the papers were “things of value,” but they’ve got the same problem: no intent to defraud. Bear in mind we’re talking about a computer hacking statute; the statutes don’t all just create liability for improper access, they create liability for specific “hacking” scenarios. Section (a)(4) was meant to prosecutor individuals who stole information for the purpose of fraud. Swartz, a long-time information activist, certainly didn’t download millions of research papers from JSTOR with the intent of defrauding people about Group Theory. That claim is likely going to lose.

That's just a taste. He goes through the full list of claims and basically finds all of them wanting from a legal basis.

But what I thought was more interesting was the way Kennerly opened his analysis, more by highlighting the moral question in the indictment. He starts out by quoting the famous speech by former Supreme Court Justice (and Chief Nuremberg Prosecutor) Robert Jackson about the importance of discretion from prosecutors, noting how a prosecutor can effectively destroy someone's life just by investigating them, and how important it is that prosecutors use that power judiciously, and only for the benefit of society. And then Kennerly notes:

I don’t see what societal interest Carmen Ortiz think he’s vindicating with the Swartz indictment. According to Demand Progress, JSTOR already settled their claims with him. What more needs to be done here? The “criminal violation” here arises not from any social duty — like, you know, our society’s communal prohibition on murder — but rather from Swartz “exceeding the authorization” imposed by JSTOR on its servers. Prosecuting Swartz criminally makes no more sense than prosecuting banks or telecommunications companies for violating their consumer agreements, and we all know that’s not going to happen any time soon.

Along those lines, there are two other discussions going on that are worth highlighting. Kevin Webb points out that pretty much anyone doing serious academic research these days almost certainly has to violate some sort of federal laws to do so, mainly because of the ridiculous setup of academic journals which basically lock up all kinds of research -- especially government-funded research, that other researchers need to build on:

I’ve lost count of how many hours I’ve spent sitting in basements of academic buildings, breaking federal laws in the pursuit of answers. And I was reminded of my colleagues who still spend their days painstakingly scraping data off the web–sometimes legally sometimes not–the name of academic inquiry.

None of us want to break the law. It’s simply that we don’t have a choice.

The mechanisms for sharing academic discourse are broken. They barely even function as systems for connecting interested parties within existing disciplines. Ask just anyone who spends their career writing and consuming scholarly work and you will hear a litany of complaints about how poorly suited the academic publishing industry is to modern day collaboration.

Of course, Webb's main point is in talking about copyright law and, as we've noted, the feds have carefully avoided using copyright law in its claims against Aaron, in large part because those claims are even weaker than the claims they're already using.

Separately, there's a slightly different, but important view from Tim Lee, who points out that Aaron Swartz's form of activism is reckless, and tarnishes the good work of others advocating for open research.

But the more lasting cost of Aaron’s actions will likely be to the reputation of the open access movement. Open access advocates have the natural high ground and are gradually winning the debate over the future of academic publishing. Change comes slowly, but things have been changing. Aaron’s actions are likely to slow that progress by allowing the bad guys to lump open access advocates in with malicious clowns like LulzSec. The incident makes JSTOR look like an injured, even magnanimous, party and gives them an excuse to make their policies more restrictive.

I actually think the lasting impact could be even more far reaching. Thanks to Aaron's role in founding Demand Progress, this move is unfortunately being used to tar and feather all of Demand Progress' efforts. We've already seen indications that supporters of PROTECT IP are now using the indictment to suggest that the approximately 60,000 letters sent via Demand Progress' website in opposition to PROTECT IP should be discounted. Never mind the fact (again) that Swartz isn't even being charged with copyright infringement, and the issue is totally unrelated to PROTECT IP, the lobbyists are using the whole situation to paint the entire protests against PROTECT IP as being in support of "piracy." This is unfortunate and inaccurate, but it's how politics works.

That being said, I'm not sure I completely agree with Tim on whether or not Swartz's actions were quite as "counterproductive" as he makes them out to be. I've already explained (earlier today in fact!) how counterproductive hacktivism can be in many cases, but I'm not sure I see it in Swartz's case. Now, to be clear, this is based on the belief that Swartz wasn't actually planning to release all the works he downloaded. If, however, evidence shows that he really did intend to distribute all these works, as alleged by the government, then I'm more inclined to agree with Tim. But, if as others have suggested, Swartz was using this to do additional research on open access/corruption issues, it's much more difficult to see why this is so problematic.

Activism works because it pushes boundaries. Swartz may have a natural inclination to stick his middle finger up at authority when it gets in the way of things he believes should be more open, but that's kind of how activism works sometimes. I don't agree with the DDOS attacks of Anonymous, because they don't seem to have much of a point beyond "hey, we don't like these guys/these policies." But Swartz's activism always had a direct purpose and a clear statement and basis. And I don't consider that, by itself, to be reckless. At best, in this case, I can see how there might be a (physical) trespassing charge for Swartz for sneaking into a building in which he did not belong. But that's a minor issue. All the rest of the stuff seems like a more vindictive attack by the government for not liking Swartz and the way he goes about his activism.