Hacktivists on Trial
When Aaron Swartz committed suicide at the age of 26 in January, the online world was stunned. He had been the golden boy of the Internet—a leader in the advocacy of online rights who had also made major programming contributions to some of the most important platforms on the Web.
Why did he kill himself? His friends and family are convinced it was because unrelenting federal prosecutors indicted him on thirteen felony counts, threatening to put him away for up to ninety-five years. There is certainly no disputing that Swartz found himself on the wrong side of prosecutors who were going to do everything in their power to incarcerate him, even though it is now clear that he committed no crime. But apart from the tragedy of his death, the worst thing is that his case is just the tip of a growing iceberg.
In the year since Swartz’s death, a number of other computer hacktivists and whistleblowers have become the targets of the wrath of prosecutors and judges, and they have either gone to jail or are facing decades in prison—in one case 105 years. In each instance, the general theme seems to be the same: these are people who were interested in freeing up knowledge for the social good. In Swartz’s case, the goal was to liberate publicly funded knowledge that had been captured and placed behind a paywall. In other cases, it was to gain and disseminate knowledge about the nefarious dealings between our government and unaccountable private intelligence contractors. And in still other cases, it was to expose the ways corporations and private intelligence firms run psychological operations against Americans.
Taken together, the lesson appears to be that computer hacking for social causes and computer hacking aimed at exposing the secrets of governing elites will not be tolerated. The state will come down on such people as hard as it can. “The same beast bit us both,” jailed hacktivist Jeremy Hammond told The Guardian, referring to himself and Swartz. In both cases, as in many others, the question is why?
The prosecution of Aaron Swartz was based on the premise that he had obtained unauthorized access to the computer network at the Massachusetts Institute of Technology and downloaded millions of pages of academic journal articles from JSTOR, an online library. According to prosecutors, this act amounted to a violation of the 1986 Computer Fraud and Abuse Act, which makes it a felony to use a computer network in an unauthorized manner.
The CFAA was inspired in part by Hollywood fantasy: after political leaders watched the Matthew Broderick movie WarGames, they became concerned that a computer hacker might hack into NORAD via a dial-up modem. (Representative Victor Fazio reported that Ronald Reagan thought the movie was nonfiction.) The law is antiquated to say the least, and it is fair to say that prosecutors use—and abuse—it in ways not intended when it was written in the era before the Internet. For example, the Justice Department has held that a person can violate the CFAA simply by breaching the terms of service on an online user agreement (i.e., by lying in your user profile on Match.com). The result is that just about everyone, at some point, has violated the CFAA, making it an ideal tool for overzealous prosecutors.
Swartz’s actions were undoubtedly intended to make a statement: academic research paid for by the public should not be kept behind a paywall. In Swartz’s view, the system amounted to “the private theft of public culture.” Indeed, it is arguable that the current system of distribution of academic research amounts to an extortion racket in which private companies seize control of publicly funded research and hold it hostage for money. Swartz found this deeply immoral; his way of protesting was to download pages of academic publications via MIT’s computer network.
But did this act of civil disobedience actually break any laws? This past summer, MIT answered the question when it released an internal report on Swartz’s actions and his subsequent prosecution. The report was stunning for several reasons, but one in particular stood out: MIT found no reason to think that Swartz engaged in an unauthorized access of MIT’s computer network; the entire premise of the prosecution was false. Lawrence Lessig, a Harvard law professor and close friend of Swartz, summed up the matter as follows:
The report says that MIT never told the prosecutor that Aaron’s access was “unauthorized.”… The whole predicate to the government’s case was that Aaron’s access to the network was “unauthorized,” yet apparently in the many many months during which the government was prosecuting, they were too busy to determine whether, indeed, access to the network was “authorized.”
Furthermore, MIT’s review panel reported that the prosecutor never even asked if Swartz had violated the MIT access rules, adding, “The Review Panel wonders why.”
Not only did prosecutors file unfounded charges that carried the threat of nearly a century in prison; the MIT report also revealed that prosecutors turned up the heat on Swartz once he showed the audacity to try to defend himself in public. According to Lessig, “The prosecutor said that the straw that broke the camel’s back was that when he indicted the case, and allowed Swartz to come to the courthouse as opposed to being arrested, Swartz used the time to post a ‘wild Internet campaign’ in an effort to drum up support.” By “wild Internet campaign,” the prosecutor apparently was referring to an online petition by Demand Progress, conducted in support of Swartz.
In other words, the prosecution acted in a retaliatory manner because Swartz had dared to exercise his First Amendment rights. But when can it be more important to exercise your First Amendment rights than when you or a friend is being falsely accused of a crime? And what theory of justice says it is appropriate for a prosecutor to retaliate against someone for exercising that constitutional right?
By the end, Swartz was financially and emotionally exhausted. He could not bring himself to plead guilty to a crime he did not commit, but he also could not afford to fight on. Others might have taken a plea, as so many defendants do. After all, 95 percent of felony prosecutions result in plea bargains. Despite our ideals about a fair trial by jury, going to court and defending oneself is just not economically feasible for most except the very richest Americans.
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