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Why did the Massachusetts US Attorney's office persecute Aaron Swartz?

Posted by Carol Rose, On Liberty  January 14, 2013 04:22 PM

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Kade Crockford, director of the ACLU of Massachusetts Technology for Liberty project, co-wrote this blog.

Losing Internet and social justice activist Aaron Swartz feels like a punch to the solar plexus for those of us who care about freedom. The world has lost a young man of rare genius, compassion, courage and an unwavering commitment to social justice.

His death by suicide last week was "the product of a criminal justice system rife with intimidation and prosecutorial overreach," said a statement released by his family.

Swartz, age 26, was facing a maximum sentence of decades in prison after federal prosecutors in Boston last week reportedly rejected a plea deal that would have have required him to plead guilty to multiple felonies and spend six months in prison. The charges were based on allegations that Swartz broke into a utility closet at MIT and hid a computer to download articles from an academic database called JSTOR.

JSTOR's attorney--former prosecutor Mary Jo White--reportedly called the lead Boston prosecutor in the case and asked him to drop it--to no avail. JSTOR has since made its entire database of scholarly articles publicly available.

Compare the persecution of Swartz to prosecutors' discretionary decision not to prosecute HBSC, the major bank accused of "laundering billions of dollars for Mexican drug cartels and groups linked to al-Qaeda." Compare the zealous persecution of Swartz to the federal government's treatment of the financial institutions that arguably engineered the collapse of the global economy.

The message seems clear: there is no limit to the things you can get away with if you are powerful. That has also been the case with our own government.

Indeed, there have been no prosecutions when the government illegally spies on its own citizens or tortures in the name of freedom. No one has served or even been threatened with jail time for the most heinous abuses of the rule of law over the past twelve years. It appears that every criminal spying scheme--every human rights violation--is too big to fail in the 21st century USA.

Why, then, did U.S. Attorney Carmen Ortiz and other prosecutors go after Aaron Swartz?

One possible reason is that Aaron Swartz was famous. He was a wunderkind who helped create the Creative Commons, the website Reddit, and RSS, the technology behind blogs, podcasts, and other subscription based services. By going after Swartz, prosecutors were sending a message to the entire Internet freedom community that anyone who challenges secrecy will be punished to the full extent of the law.

Another reason is that Aaron Swartz was far more than an internet freedom activist. Swartz believed in transparency not merely as a good, in itself, but because it is necessary to shed sunlight on social injustice. His colleague and friend Matthew Stoler writes that Swartz "had a much broader agenda than the information freedom fights for which he had become known." He was "a political activist interested in health care, financial corruption, and the drug war," writes Stoler. He wanted to make the world a better place for everyone in it.

By prosecuting Swartz to the full extent of the law, possibly actually hounding him to death, the government hasn't done society any favors. We lost a leader, a thinker, and above all a human being committed to working for justice for all.

In his eloquent remembrance of Swartz, Glenn Greenwald asks what we are all asking, as we look at a federal government that lets the most powerful institutions walk even when charged with the most serious of crimes, while it obsessively harasses whistleblowers and political activists: why?

Nobody knows for sure why federal prosecutors decided to pursue Swartz so vindictively, as though he had committed some sort of major crime that deserved many years in prison and financial ruin. Some theorized that the DOJ hated him for his serial activism and civil disobedience. Others speculated that, as Doctorow put it, "the feds were chasing down all the Cambridge hackers who had any connection to Bradley Manning in the hopes of turning one of them."

I believe it has more to do with what I told the New York Times' Noam Cohen for an article he wrote on Swartz's case. Swartz's activism, I argued, was waged as part of one of the most vigorously contested battles - namely, the war over how the internet is used and who controls the information that flows on it - and that was his real crime in the eyes of the US government: challenging its authority and those of corporate factions to maintain a stranglehold on that information.

Given the federal government's troubling obsession with secrecy, we may never know why prosecutors spent so much energy targeting Aaron Swartz like it did. The Harvard law professor Lawrence Lessig wants to know, however, and he has urged Massachusetts US Attorney Carmen Ortiz to open an independent investigation into her office's prosecution. We support Professor Lessig's call.

But the investigation shouldn't end with the role the Massachusetts US Attorney's office played in this prosecution. Apparently records indicate that the Secret Service had been involved in the investigation directed against Swartz since two days before his arrest in July 2011. Attorney General Eric Holder and President Obama should also examine their roles in this tragedy.

Aaron Swartz's case illustrates what we've known for a while now: the federal government doesn't have its priorities straight. If it did, the people who tortured helpless detainees and the people who authorized that torture would be facing federal prison sentences, not the person who blew the whistle on the torture.

In Aaron's memory, let's redouble our efforts to reverse that trend.

This blog is not written or edited by or the Boston Globe.
The author is solely responsible for the content.

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About the author

Carol Rose is executive director of the American Civil Liberties Union of Massachusetts. A lawyer and journalist, Carol has spent her career working for and writing about human rights and civil liberties, both in the United States and abroad. More »

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