In United States of America v. Aaron Swartz, 945 F. Supp. 2d 216 (D. Mass. 2013), Aaron Swartz, an American computer programmer, writer, political organizer and Internet activist, was prosecuted for multiple violations of the Computer Fraud and Abuse Act of 1986 (CFAA), after downloading academic journal articles through the MIT computer network from a source (JSTOR) for which he had an account as a Harvard research fellow. In September 2012, federal prosecutors charged him with two counts of wire fraud and eleven violations of the Computer Fraud and Abuse Act, charges carrying a cumulative maximum penalty of $1 million in fines plus 35 years in prison, asset forfeiture, restitution and supervised release. Facing trial and the possibility of imprisonment, Swartz died by suicide in January 2013, and the case was consequently dismissed.July 2011 Initial Federal Indictment of Aaron Swartz. Posted by New York Times, 19 July 2011. Retrieved 20 May 2013.
Background JSTOR is a digital repository that archives – and disseminates online – manuscripts, GIS systems, scanned plant specimens and content from academic journal articles. Swartz was a research fellow at Harvard University, which provided him with a JSTOR account. Visitors to MIT's "open campus" were authorized to access JSTOR through its network.Granick, Jennifer, Towards Learning from Losing Aaron Swartz: Part 2, The Center for Internet and Society at Stanford Law School blog, 15 January 2013. Retrieved 26 January 2013.
According to state and federal authorities, Swartz downloaded a large number of academic journal articles from JSTOR through MIT's computer network, over the course of a few weeks in late 2010 and early 2011. They said Swartz downloaded the documents to a laptop computer connected to a networking switch in a controlled-access wiring closet. According to press reports, the door to the closet was kept unlocked.
A complete analysis and reconstruction of the script which Swartz used for his rapid downloading, keepgrabbing.py, including translations into other languages, was published by the historian Camille Akmut in a series of papers released throughout 2019–2020.https://osf.io/preprints/osf/bnd2h (uploaded 12/30/2009); https://osf.io/preprints/osf/aj75w (01/13/2020); https://osf.io/preprints/osf/gwfqy (01/14/2020); https://osf.io/preprints/osf/6cmku (01/14/2020)
Arrest, charges and indictments On January 6, 2011, Swartz was arrested near the Harvard campus by two MIT Police officers and a U.S. Secret Service agent. He was arraigned in Cambridge District Court on two state charges of breaking and entering with intent to commit a felony. The door Swartz had used was never locked; in Massachusetts as in most jurisdictions, "breaking" means exerting physical force to remove an obstruction to entry, including by opening an unlocked door.
On July 11, 2011, Swartz was indicted in federal District Court on four felony counts: wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer.Kao, Joanna The Tech’s coverage of Aaron Swartz The Tech, 12 January 2013. Retrieved 18 May 2013
On November 17, 2011, Swartz was indicted by a Middlesex County Superior Court grand jury on state charges of breaking and entering with intent, grand larceny, and unauthorized access to a computer network.
On December 16, 2011, the district attorney's office filed a nolle prosequi declaration in the case generated by Swartz's initial January 6, 2011, arrest. The state charges against Swartz stemming from the November 17, 2011, indictment were dropped on March 8, 2012.Hawkinson, John State drops charges against Swartz; federal charges remain The Tech, 16 March 2012. Retrieved 14 May 2013. The state charges were dropped due to a deal being reached in which the data was returned by Swartz. A report later submitted to the president of MIT about the Swartz case suggests, however, that Massachusetts state law required the Middlesex district attorney to dismiss the charges after the Boston U.S. Attorneys' Office and the Secret Service failed to promptly hand over evidence requested by Swartz's attorney during the Massachusetts case's discovery process.
Writing in Massachusetts Lawyers' Weekly, Harvey Silverglate reported that lawyers familiar with the original case told him they had expected it to be dismissed after a "'continuance without a finding' ... The charge [would be] held in abeyance ... without any verdict ... for a period of a few months up to maybe a couple of years." After the publication of his Massachusetts Lawyers' Weekly piece, Silverglate explained to CNET's Declan McCullagh that if the defendant manages to stay out of further legal trouble after such a continuance, the case is typically dismissed.McCullagh, Declan, Swartz didn't face prison until feds took over case, report says, cnet, 25 January 2013. Retrieved 7 February 2013. "Tragedy intervened," Silverglate had written, "when [U.S. Attorney Carmen] Ortiz's office took over the case to 'send a message.'"
According to Verge reporter Jeff Blagdon and the Huffington Post, federal rather than local prosecutors had been "calling the shots" on the prosecution of the case since Swartz's arrest. Both cited a letter from Swartz's attorneys to the Department of Justice.The lead prosecutor in Mr. Swartz's [federal] case, AUSA Stephen Heymann ... and [Secret Service] Agent Pickett directed and controlled the investigation of Mr. Swartz from the time of [his] arrest on January 6 ... Heymann's involvement in the case had commenced very early in the investigation.
Federal prosecution On April 13, 2011, as part of their investigation, federal authorities interviewed Swartz's former partner, Wired journalist Quinn Norton; she penned an article, "Life Inside the Aaron Swartz Investigation," detailing her experiences in the case.
I mentioned ... a two-year-old public post on ... Aaron's blog. It had been fairly widely picked up by other blogs. I couldn't imagine that these people who had just claimed to have read everything I'd ever written had never looked at their target's blog, which appeared in his FBI file, or searched for what he thought about "open access." They hadn't.So this is where I was profoundly foolish. I told them about the Guerilla Open Access Manifesto. And in doing so, Aaron would explain to me later (and reporters would confirm), I made everything worse.
On July 19, 2011, the July 11 federal indictment was unsealed, charging Swartz with two counts of fraud and two counts related to accessing and damaging a protected computer. According to the indictment, Swartz surreptitiously attached a laptop to MIT's computer network, which ran a script named "keepgrabbing.py", allowing him to "rapidly download an extraordinary volume of articles from JSTOR." Prosecutors in the case said Swartz acted with the intention of making the papers available on P2P file-sharing sites.
Swartz surrendered to authorities, pleading not guilty on all counts, and was released on $100,000 unsecured bail. After his arrest, JSTOR released a statement saying that though it considered Swartz's access to be a "significant misuse" committed in an "unauthorized fashion," it would not pursue civil litigation against him; MIT did not comment on the proceedings.
The New York Times wrote of the case: "a respected Harvard researcher who also is an Internet folk hero has been arrested in Boston on charges related to computer hacking, which are based on allegations that he downloaded articles that he was entitled to get free." The Awl similarly commented that "Swartz is being charged with hacker crimes, not copyright-infringement crimes, because he didn't actually distribute any documents, plus JSTOR didn't even want him prosecuted."
Assistant U.S. Attorneys Stephen Heymann and Scott Garland were the lead prosecutors, working under the supervision of U.S. Attorney Carmen Ortiz. The case was brought under the Computer Fraud and Abuse Act, which was passed in 1986 to enhance the government's ability to prosecute hackers who accessed computers to steal information or to disrupt or destroy computer functionality. "If convicted on these charges," said Ortiz, "Swartz faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million."
On September 12, 2012, the prosecution filed a superseding indictment adding nine more felony counts. George Washington University Law School Professor Orin Kerr, writing on the legal blog Volokh Conspiracy, opined that the risk of a maximum sentence in Swartz's case was not high. In an interview with Boston's WBUR, retired federal judge Nancy Gertner said a sentence of 35 years for a case like Swartz's "never occurs." She questioned the propriety of pressing these charges at all. Referring to decision-making by Ortiz's office, she said "this is the example of bad judgment I saw too often," suggesting that a two-year diversion program leading to expunged charges would have been more fitting.
Plea negotiations Swartz's attorney, Elliot Peters, stated that prosecutors at one point offered a plea deal of four months in prison and pleading guilty to 13 charges, and warned that if Swartz rejected the deal, future deals would be less attractive; and that two days before Swartz's death, that "Swartz would have to spend six months in prison and plead guilty to 13 charges if he wanted to avoid going to trial." Under the six-month deal, after Swartz pleaded guilty to the 13 charges, the government would have argued for a six-month sentence, and Swartz would have argued for a lesser sentence; the judge would then be free to assign whatever sentence the judge thought appropriate, up to six months. Peters later filed a complaint with the DOJ's Office of Professional Responsibility, stating that if Swartz didn't plead guilty, Heymann "threatened that he would seek for Mr. Swartz to serve seven years in prison," a difference in duration Peters asserts went "far beyond" the disparity encouraged by the plea-bargain portion of the Federal Sentencing Guidelines.
Andy Good, Swartz's initial lawyer, told The Boston Globe: "I told Heymann the kid was a suicide risk. His reaction was a standard reaction in that office, not unique to Steve. He said, 'Fine, we'll lock him up.' I'm not saying they made Aaron kill himself. Aaron might have done this anyway. I'm saying they were aware of the risk, and they were heedless."
Marty Weinberg, who took the case over from Good, said he nearly negotiated a plea bargain in which Swartz would not serve any time. "JSTOR signed off on it," he said, "but MIT would not."
Two days before his death, JSTOR announced on January 9, 2013, that it would make "more than 4.5 million articles" available to the public free of charge. The "Register & Read" service, in beta for the previous 10 months, was capped at three articles every two weeks (78 per year), readable online only, with some downloadable for a fee.
After his death, Ortiz's office dismissed the charges against Swartz. She said, "This office's conduct was appropriate in bringing and handling this 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 ... At no time did this office ever seek—or ever tell Mr. Swartz's attorneys that it intended to seek—maximum penalties under the law."