Whenever an avoidable tragedy occurs, it’s common for there to be an intense spate of anger in its immediate aftermath which quickly dissipates as people move on to the next outrage. That’s a key dynamic that enables people in positions of authority to evade consequences for their bad acts. But as more facts emerge regarding the conduct of the federal prosecutors in the case of Aaron Swartz – Massachusetts’ US attorney Carmen Ortiz and assistant US attorney Stephen Heymann – the opposite seems to be taking place: there is greater and greater momentum for real investigations, accountability and reform. It is urgent that this opportunity not be squandered, that this interest be sustained.
The Wall Street Journal reported this week that – two days before the 26-year-old activist killed himself on Friday – federal prosecutors again rejected a plea bargain offer from Swartz’s lawyers that would have kept him out of prison. They instead demanded that he “would need to plead guilty to every count” and made clear that “the government would insist on prison time”. That made a trial on all 15 felony counts – with the threat of a lengthy prison sentence if convicted – a virtual inevitability.
Just three months ago, Ortiz’s office, as TechDirt reported, severely escalated the already-excessive four-felony-count indictment by adding nine new felony counts, each of which “carrie[d] the possibility of a fine and imprisonment of up to 10-20 years per felony”, meaning “the sentence could conceivably total 50+ years and [a] fine in the area of $4 million.” That meant, as Think Progress documented, that Swartz faced “a more severe prison term than killers, slave dealers and bank robbers”.
Swartz’s girlfriend, Taren Stinebrickner-Kauffman, told the WSJ that the case had drained all of his money and he could not afford to pay for a trial. At Swartz’s funeral in Chicago on Tuesday, his father flatly stated that his son “was killed by the government”.
Ortiz and Heymann continue to refuse to speak publicly about what they did in this case – at least officially. Yesterday, Ortiz’s husband, IBM Corp executive Thomas J. Dolan, took to Twitter and – without identifying himself as the US Attorney’s husband – defended the prosecutors’ actions in response to prominent critics, and even harshly criticized the Swartz family for assigning blame to prosecutors: “Truly incredible in their own son’s obit they blame others for his death”, Ortiz’s husband wrote. Once Dolan’s identity was discovered, he received assertive criticism and then sheepishly deleted his Twitter account.
Clearly, the politically ambitious Ortiz – who was touted just last month by the Boston Globe as a possible Democratic candidate for governor – is feeling serious heat as a result of rising fury over her office’s wildly overzealous pursuit of Swartz. The same is true of Heymann, whose father was Deputy Attorney General in the Clinton administration and who has tried to forge his own reputation as a tough-guy prosecutor who takes particular aim at hackers.
Yesterday, the GOP’s House Oversight Committee Chairman, Darrell Issa, announced a formal investigation into the Justice Department’s conduct in this case. Separately, two Democratic members of the House Judiciary Committee issued stinging denunciations, with Democratic Rep. Jared Polis proclaiming that “the charges were ridiculous and trumped-up” and labeling Swartz a “martyr” for the evils of minimum sentencing guidelines, while Rep. Zoe Lofgren denounced the prosecutors’ behavior as “pretty outrageous” and “way out of line”.
A petition on the White House’s website to fire Ortiz quickly exceeded the 25,000 signatures needed to compel a reply, and a similar petition aimed at Heymann has also attracted thousands of signatures, and is likely to gather steam in the wake of revelations that another young hacker committed suicide in 2008 in response to Heymann’s pursuit of him (You can [and I hope will] sign both petitions by clicking on those links; the Heymann petition in particular needs more signatures).
In sum, as CNET’s Declan McCullagh detailed in a comprehensive article this morning, it is Ortiz who “has now found herself in an unusual – and uncomfortable – position: as the target of an investigation instead of the initiator of one.” And that’s exactly as it should be given that, as he documents, there is little question that her office sought to make an example out of Swartz for improper and careerist benefits. Swartz “was enhancing the careers of a group of career prosecutors and a very ambitious – politically-ambitious – U.S. attorney who loves to have her name in lights,” the Cambridge criminal lawyer Harvey Silverglate told McCullagh. Swartz’s lawyer said that Heymann “was going to receive press and he was going to be a tough guy and read his name in the newspaper.” Writes McCullagh:
“If Swartz had stolen a $100 hard drive with the JSTOR articles, it would have been a misdemeanor offense that would have yielded probation or community service. But the sweeping nature of federal computer crime laws allowed Ortiz and Heymann, who wanted a high-profile computer crime conviction, to pursue felony charges. Heymann threatened the diminutive free culture activist with over 30 years in prison as recently as last week.”
For numerous reasons, it is imperative that there be serious investigations about what took place here and meaningful consequences for this prosecutorial abuse, at least including firing. It is equally crucial that there be reform of the criminal laws and practices that enable this to take place in so many other cases and contexts.
To begin with, there has been a serious injustice in the Swartz case, and that alone compels accountability. Prosecutors are vested with the extraordinary power to investigate, prosecute, bankrupt, and use the power of the state to imprison people for decades. They have the corresponding obligation to exercise judgment and restraint in how that power is used. When they fail to do so, lives are ruined – or ended.
The US has become a society in which political and financial elites systematically evade accountability for their bad acts, no matter how destructive. Those who torture, illegally eavesdrop, commit systemic financial fraud, even launder money for designated terrorists and drug dealers are all protected from criminal liability, while those who are powerless – or especially, as in Swartz’s case, those who challenge power – are mercilessly punished for trivial transgressions. All one has to do to see that this is true is to contrast the incredible leniency given by Ortiz’s office to large companies and executives accused of serious crimes with the indescribably excessive pursuit of Swartz.
This immunity for people with power needs to stop. The power of prosecutors is particularly potent, and abuse of that power is consequently devastating. Prosecutorial abuse is widespread in the US, and it’s vital that a strong message be sent that it is not acceptable. Swartz’s family strongly believes – with convincing rationale – that the abuse of this power by Ortiz and Heymann played a key role in the death of their 26-year-old son. It would be unconscionable to decide that this should be simply forgotten.
Beyond this specific case, the US government – as part of its war to vest control over the internet in itself and in corporate factions – has been wildly excessive, almost hysterical, in punishing even trivial and harmless activists who are perceived as “hackers”. The 1984 Computer Fraud and Abuse Act (CFAA) – enacted in the midst of that decade’s hysteria over hackers – is so broad and extreme that it permits federal prosecutors to treat minor, victimless computer pranks – or even violations of a website’s “terms of service” – as major felonies, which is why Rep. Lofgren just announced her proposed “Aaron’s Law” to curb some of its abuses.
But the abuses here extend far beyond the statutes in question. There is, as I wrote about on Saturday when news of Swartz’s suicide spread, a general effort to punish with particular harshness anyone who challenges the authority of government and corporations to maintain strict control over the internet and the information that flows on it. Swartz’s persecution was clearly waged by the government as a battle in the broader war for control over the internet. As Swartz’s friend, the NYU professor and Harvard researcher Danah Boyd, described in her superb analysis:
“When the federal government went after him — and MIT sheepishly played along — they weren’t treating him as a person who may or may not have done something stupid. He was an example. And the reason they threw the book at him wasn’t to teach him a lesson, but to make a point to the entire Cambridge hacker community that they were p0wned. It was a threat that had nothing to do with justice and everything to do with a broader battle over systemic power.
“In recent years, hackers have challenged the status quo and called into question the legitimacy of countless political actions. Their means may have been questionable, but their intentions have been valiant. The whole point of a functioning democracy is to always question the uses and abuses of power in order to prevent tyranny from emerging. Over the last few years, we’ve seen hackers demonized as anti-democratic even though so many of them see themselves as contemporary freedom fighters. And those in power used Aaron, reframing his information liberation project as a story of vicious hackers whose terroristic acts are meant to destroy democracy . . . .
“So much public effort has been put into controlling and harmonizing geek resistance, squashing the rebellion, and punishing whoever authorities can get their hands on. But most geeks operate in gray zones, making it hard for them to be pinned down and charged. It’s in this context that Aaron’s stunt gave federal agents enough evidence to bring him to trial to use him as an example. They used their power to silence him and publicly condemn him even before the trial even began.”