The Internet is on fire today with the news that programming wunderkind and open access activist Aaron Swartz is dead, at the age of 26, and by his own hand.
I (Sprigman) met Aaron back in the mid-2000s at Stanford University. I was a fellow at Stanford’s Center for Internet and Society, and Aaron was doing important work helping to create the architecture for Creative Commons, which was housed right next door to me in Stanford Law School’s basement. I spent some time hanging out with Aaron, and enjoyed it immensely. He wasn’t a friend, but he was someone I liked and respected. And of course we had a lot of interests in common and Aaron loved to talk . . .
A lot of people have already written lovely, moving tributes to Aaron, including Larry Lessig and Brewster Kahle, two friends that Aaron and I have in common. But I have something to add. (What I’m about to say is my words alone, not Kal Raustiala’s (with whom I share this blog)).
Aaron’s death is a tragedy. But his death is also a great injustice, for which a specific person must be held accountable. Let me explain . . .
Take a look at Aaron Swartz’s Guerilla Open Access Manifesto. In it, he decries the locking up of academic works in expensive academic journals. He calls on academics to make their work available to the public, not just to elites and universities. And he adds this proviso:
“We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that’s out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access.”
Aaron acted on his convictions. One of his actions involved using MIT’s network to download a huge amount of data from academic repository JSTOR. It is unclear exactly what he planned to do with this material. I suspect he intended to sort out the public domain stuff in the JSTOR archive and release it to the public.
The government’s response was, in a word, insane. Carmen Ortiz (pictured left), currently the U.S. Attorney in Boston, indicted Aaron for violations of the Computer Fraud and Abuse Act, and threatened him with up to 50 years in jail (the original indictment contained charges with a possible maximum totaling about 35 years; a superseding indictment issued in September upped the number of felony counts, and increased the possible maximum penalty). Even though it was clear that Aaron did not intend to profit. Even though JSTOR itself said it had no beef with Aaron and would not pursue a civil suit against him.
The DOJ claims that Aaron “stole” the documents. But that’s complete crap — the documents are available for download to anyone with the proper university credentials. Aaron didn’t steal anything. He used MIT’s network to violate JSTOR’s terms of service — in effect, he checked too many books out of the (electronic) library. So now people go to jail for 50 years for violating online terms of service to download a bunch of academic articles? Are you fucking kidding me?
I strongly suspect that Aaron would have beaten the DOJ in court. I’m sorry we won’t see that day. U.S. Attorney Carmen Ortiz is out of control. She should face some serious consequences for what’s happened here. Starting with removal from her job.
I’m not saying that what Aaron did in the MIT episode was right. I would not have done it (even if I had the hacking skills to get the massive amount of data from JSTOR, which I definitely don’t). I don’t think that Aaron’s more forceful strategies for realizing open access are, on balance, good for the public in the long term. But of course Aaron’s agenda was much broader, and he spent most of his time not hacking into databases, but helping to build the infrastructure and norms that support open access. And in that, I believe that Aaron was right in both theory and practice.
In any event, I would understand if Aaron had been found guilty of trespassing and fined. Or even if he received some sort of minimal jail time . . . although frankly that should have been days, at most. But the government’s indictment was an absolutely bottom-barrel scummy move. Labeling Aaron a felon, and threatening to put him in jail for (in effect) the rest of his life is a move that only a prosecutor with extremely poor judgment and no real knowledge of the issues at stake could contemplate.
Finally, it’s worth noting that the DOJ had some history with Aaron that suggests impure motives. A couple of years ago, Aaron accessed the federal government’s PACER database, which charges very stiff fees for access to public court documents, and he downloaded a huge tranche of data and posted it publicly. Although he violated no laws, the DOJ and FBI gave Aaron a thorough going over. I strongly suspect that when they saw the chance to get even with him, they took it.
Shame on Carmen Ortiz. Shame.
If Ortiz has a conscience she will resign. If not, then President Obama should remove her.