Boston U.S. Attorney Carmen Ortiz defended the hacking case her office brought against entrepreneur and Internet activist Aaron Swartz amid ongoing criticism since Swartz committed suicide on Jan. 10. Late Wednesday evening, Ortiz released a formal statement regarding the case.
Meanwhile, a petition on the White House’s website seeking her removal for overreach passed the 25,000-signature mark that is supposed to trigger a response from the Obama administration.
In addition, Representative Zoe Lofgren, D-San Jose, on Wednesday announced on the Reddit website that she plans to introduce “Aaron’s Law,” an amendment to the Computer Fraud and Abuse Act to decriminalize violating a website’s terms of service.
Swartz was charged in July 2011 in the District of Massachusetts for unauthorized use of Massachusetts Institute of Technology networks to download millions of articles from JSTOR, a nonprofit online archive of scholarly literature.
Swartz did not steal anyone’s personal information, and JSTOR did not bring a civil case against him.
The formal charges included wire fraud, computer fraud, unlawfully obtaining information from a protected computer and recklessly damaging a protected computer.
Swartz, 26, was known as a co-creator of RSS, a system that allows users to get web feeds of particular types of information. He also was very public about his long battle with depression.
Swartz was scheduled to go to trial in April. He faced the possibility of more than 30 years in prison, but prosecutors offered a deal of six months in prison.
Ortiz released a three-paragraph statement that began by expressing “heartfelt sympathy to everyone who knew and loved this young man.”
But she defended her office’s conduct in the case and insisted the deal offered to Swartz was appropriate. “The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct while a violation of the law did not warrant the severe punishments authorized by Congress and called for by the sentencing guidelines in appropriate cases,” she wrote. “That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct a sentence that we would recommend to the judge of six months in a low-security setting. While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge. At no time did this office seek or even tell Mr. Swartz’s attorneys that it intended to seek maximum penalties under the law.”
“Once again, she completely misses the boat,” said Elliot Peters of San Francisco’s Keker & Van Nest, one of Swartz’s lawyers. “An insistence on seeking federal prison time was completely inappropriate and way too heavy-handed.”
Peters added that the idea that Swartz engaged in hacking is wrong, because it’s possible to walk on the MIT campus, log on as a guest and gain access to JSTOR.
“Then it gets into this question of whether the violation of the terms of service of JSTOR or MIT can be prosecutable as a felony. The law is pretty strong that it can’t,” Peters said.
Peters said that prosecutors made it clear “there was no deal they would ever consider” that would not include prison time.
As of Thursday, the online petition supporting Ortiz’s removal bore more than 41,000 signatures. “A prosecutor who does not understand proportionality and who regularly uses the threat of unjust and overreaching charges to extort plea bargains from defendants regardless of their guilt is a danger to the life and liberty of anyone who might cross her path,” the petition says.
Lofgren’s draft amendment, which she posted on her website, calls for decriminalizing “certain violations of agreements or contractual obligations, relating to Internet service.” Lofgren did not respond to a request for comment.
Peters said Lofgren has started an important dialogue. The case law has also been evolving, with recent rulings rejecting the idea that a violation of terms of service could violate the Computer Fraud and Abuse Act.
“The law as interpreted by the courts has been evolving in the direction of the proposed amendments to the statute,” he said.
The legislation can be improved, but like so many laws “you have to rely on prosecutors being sensible. Legislative reform is only going to go so far,” Peters said.
Sheri Qualters is the Boston bureau chief at The National Law Journal, a Recorder affiliate.
