GORUR-SHANDILYA: Penetrating the Swartz controversy

About one year ago, Aaron Swartz, who contributed to Reddit, RSS, Creative Commons and a host of smaller projects, killed himself. Two years before his death, Aaron downloaded articles from JSTOR, an online repository using MIT’s open network. For this, he was arrested by MIT police and the Secret Service, and was hounded by federal prosecutors who wanted to imprison the 24-year-old for 35 years.

We would do well to remember Swartz. In his death, programmers, civil libertarians and human rights activists lost a brave, intelligent and compassionate person. Aaron’s death has since been painted as a tragedy, in that his death was fated, and the circumstances of his death are too complex to assign blame.

Much of the controversy over his death revolves around MIT’s peculiar assertions of “neutrality” as part of its efforts to abdicate responsibility over his death. However, neutrality in the face of the stifling persecution Aaron faced is morally bankrupt. A systematic examination of the facts does not support MIT’s claims of neutrality.

First, MIT runs an extraordinarily open network. Unlike Yale, where netIDs and passwords are required to access the journals Yale subscribes to, MIT deliberately allowed anyone to connect to their network and access JSTOR and other academic sources. Far from federal prosecutors’ sensational allegations Aaron somehow “hacked” MIT and/or JSTOR, all he did was download articles from JSTOR using a service that MIT had deliberately left free for anyone to use. MIT failed to correct federal prosecutors’ mischaracterization of Aaron as a “hacker.”

Second, the majority of the charges against Aaron under the draconian Computer Fraud and Abuse Act (CFAA) cite Aaron’s alleged “unauthorized access” to MIT’s network. MIT claimed they were being neutral by neither confirming nor denying that Aaron’s use of the MIT network was unauthorized. However, MIT’s silence was used as a tacit endorsement of federal prosecutor’s claims of unauthorized access. Professor Lawrence Lessig at Harvard Law School pointed out that MIT’s neutrality does not justify not telling the prosecutor that his access was authorized, if it indeed was.

U.S. Attorney Carmen Ortiz held up Aaron’s indictment and said, “Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars”. However, Aaron stole nothing — he downloaded academic articles, often publicly funded, and often free to access anyway. Moreover, JSTOR reached a civil settlement with Aaron and publicly announced that they considered the case closed. This left MIT as the supposed victim of Aaron’s activities — a ludicrous suggestion — that MIT failed to quash by their silence on Aaron’s persecution.

MIT’s stance was not of “neutrality” but of an active collusion with the prosecution and the Secret Service. “Nicely done Steve and kudos! … it’s just a true relief and very refreshing to see your accuracy and precision,” said a MIT employee who worked closely with the Secret Service in an email to the prosecutor. More damningly, MIT volunteered troves of documents to the prosecution without a subpoena. When Aaron’s defense counsel asked for documents, MIT referred them to Ortiz’s Office.

Finally, MIT’s response to Aaron’s action has been adversarial rather than investigative. By involving the Secret Service, MIT presupposed Aaron’s guilt. Instead of instructing the police to arrest him, MIT could have simply removed his laptop, which they were monitoring, or locked the door to the closet where it was kept, or talked to him to determine if his actions were appropriate or not. MIT chose none of these non-violent, rational and proportionate responses, instead recklessly escalating the matter till Aaron Swartz was dead.

Aaron ran into the clutches of an impetuous arm of government intent on using blunt instruments such as the CFAA to bully and imprison anyone who uses a computer in a manner the government doesn’t like. Carmen Ortiz, the prosecutor who didn’t understand the difference between stealing a car and downloading an academic paper, wanted to cage Aaron for 35 years to “send a message,” i.e., to threaten and intimidate others. A petition to the White House to remove Ortiz from office for her lack of proportionality attracted nearly 60,000 signatures; however, no response was issued.

MIT’s callous indifference, the CFAA’s vague and draconian wording, and Ortiz’s overreach and extortion all played a role in Aaron’s death. However, this perfect storm of malevolence could not exist without the indifference and ignorance of University students for whose rights Aaron fought so hard. It was heartbreaking for me to see the majority of my friends at Yale completely unaware of his death, or even of his existence. In a final, sad irony, a few days before his death, JSTOR announced it would offer access to some of its journals free of charge, making the whole prosecution a pointless, Kafkaesque tragedy.

Srinivas Gorur-Shandilya is a fourth-year student in the Graduate School of Arts & Sciences. Contact him at srinivas.gs@yale.edu.

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