It’s been just over a week since Swartz was driven to kill himself. He got prosecuted (persecuted?) for a ‘money-related’ crime that the ‘victim’ didn’t want to go further, while the bankers whose actions cost millions their homes and life savings got raises. Oh, sorry. I forgot. Aaron wasn’t wealthy and politically connected. My bad.

So what he actually intended the public cannot know. And if the public cannot know, the government certainly did not know. But that doesn’t matter under the law as it stands. All the government had to show to launch its witch hunt against this young activist was that he had violated JSTOR’s “terms of service” and taken (as in copied) something worth more than $5,000.

The “terms of service” (TOS) of any website are basically a contract. They constitute an agreement about what you can and can’t do, and what the provider can and can’t do. Not everything on a website is governed by contract alone: Copyright and privacy law can impose property-like obligations independent of a TOS. But the rules Aaron were said to have violated purported to limit the amount of JSTOR that any user was permitted to download. They were rules of contract. Aaron exceeded those limits, the government charged. He therefore breached the implied contract he had with JSTOR. And therefore, the government insists, he was a felon.

It’s that last step that is so odd within the tradition of American law. Contracts are important. Their breach must be remedied. But American law does not typically make the breach of a contract a felony. Instead, contract law typically requires the complaining party to prove that it was actually harmed. No harm, no foul. And in this case, JSTOR — the only plausible entity “harmed” by Aaron’s acts — pled “no foul.” JSTOR did not want Swartz prosecuted. It settled any possible civil claims against Swartz with the simple promise that he return what he had downloaded. Swartz did. JSTOR went away.

But the government did not. In the weeks before his death, the government reaffirmed what they had been insisting upon for the 18 months before: jail, a felony conviction, and a bankrupting fine, or else Swartz was going to face a bankrupting trial.

This rule of American law is absurd — especially in a world where prosecutors can’t be trusted to make reasoned and proportionate judgments about who should be labeled a felon and who should not. A breach of contract is a breach of contract. It is not an act of treason.

  1. moss says:

    Yup. Breaking and entering doesn’t count as a crime if committed by a geek who says doors and locks were in the way of his intellect.

    Just like grafitti isn’t vandalism if someone says you’re a budding artist practicing with what’s available.

  2. bobbo, are we Men of Science, or Devo says:

    I’ve been hearing this guy’s name for a week or two. Read the post, still can’t tell what he did. Have to google that before posting more…. cause I don’t want to be a felon and violate any tos that DU may have against me. Wild Ass Guess Here: my own tos don’t apply?

    Ha, ha. We are all goobers.

    • bobbo, are we Men of Science, or Devo says:

      Gives me enough. The issue is about knowledge, but as is always the case, also about: $MONEY$. Filthy Lucre.

      could use a little pop culture and why Aaron got depressed given he had spent his whole life doing pretty much the same thing. Julian Assange–tougher nut, doing tougher things.

      How thin a veneer civilized society is.

      • Hmeyers2 says:

        It isn’t clear if you discovered what he was doing which is poorly communicated.

        He was using MIT computers to download documents from a pay site and then distribute them for free.

        These documents were scientific research journal type of items. Research paid for by the government. Therefore by everyone.

        Yet the information sits behind a paywall.

        He did the same for public records.

        In both cases, he was essentially “stealing” documents and information that was SOLD to the public which by any reasonable line of thinking already belongs to the public.

        Then it seems the government went full-force after him.

  3. Captain Obvious says:

    The expert witness talks about Aaron Swartz’s crime.

    A nice HBR post about a sense of balance.

    This was a misdemeanour at worst. JSTOR had settled it as a civil matter a long time ago and had released all their materials to the public 4 days before his suicide.

    • noname says:

      Where is the sense of Shame in our officials?

      Aaron Swartz accomplished more significant things in his short 26 years than any if not all in “DU land” will manage in a their lifetime!

      Now “we” are robbed of his future contributions because of a greedy & dumb prosecutor unintended consequences from perusing their political ambitions using their unlimited prosecutor powers with little sense or care of justice!

      I fully agree with Harvard Law professor Larry Lessig, Aaron was driven to suicide by prosecutional bullying.

      We all understand what he did was wrong; ordinary & “just people” don’t get the arbitrary justice and abuse of this case!

      Our DOJ ignores if not facilitates architects of the financial crisis who regularly dine at the White House — and where even those brought to “justice” never even have to admit any wrongdoing, let alone be labeled “felons.”

      Given that, the question is why it was so necessary that Aaron Swartz be labeled a “felon” and potentially face Fifty years in jail??

      We need to get beyond the black and white, “I’m right so I’m right to nuke you” legal & financial arbitrage ethics that dominates our government & business.

      What is surprising is how a supposedly learnate institution, MIT participated and facilitated this travesty.

      • jpfitz says:

        “Our DOJ ignores if not facilitates architects of the financial crisis”

        We need people angry, and incensed at the DoJ not just about how they put the fear of a big cock shoved up a puny 26 year old ass. But that we or they now consider BANKS and the like to big to prosecute. Let’s prosecute the DoJ then get to work on the money handlers.

        • CC says:

          If they were going to put him in a cell, it had better have been also populated by the entirety of Goldman Sachs management. Anything less would be uncivilized.

  4. dusanmal says:

    Ok, enough hype on this misguided soul. Facts. Facts as presented by Aaron in interview, himself:
    1) He did not deny, actually he explained in detail how he have used social engineering, deceit and slight of hand to gain access to protected server room he knew he had no right to access. Equivalent of what Mitnick have done and served severe time. Equal prosecution and punishment for equal crimes.
    2) Not only did he gain access to the said room but, again with full knowledge that he is not allowed to do so – installed his own PC to intercept networked communication in such a way that he can do part (3), which he wouldn’t be able to do otherwise.
    3) The least of his crimes and the one dismissed by the affected party – JSTOR, he knowingly violated TOS with JSTOR and abused his account to bulk download their material.

    Everyone pretends as the whole case is just the part (3) when in the real life, that is the part that was dismissed!

    What he did is equivalent of bank employee without right to access bank server room who used deceit to gain access there and intercept banking communications. Anyone who does equivalent, be it at library or DOD is violating so basic need for trust in communications these days that he must be prosecuted and punished severely.

    Example – horse thieves were executed in the times of Wild West. Because everyone needed horses and their work and transportation while there was not much ability to protect them without great needless cost. Hence, until morality and order in the society reached level of trust needed – punishment was the guideline making most to forgo stealing horses. Not all, most… But because of that we can now have cars on the street protected by trivially deflatable mechanisms. Order and morality is such that most will not try to steal them despite the ease of doing so. Not even to steal them to give to the needy . In electronic communications we are at that precipice.

    In functional society laws are applied by “blind justice”. In corrupt society (which author seems to want), laws are applied according to ideology of the people in power. Hey, we like redistribution, this guy stole to redistribute, let’s ignore stealing. Such society must fail and spiral in ever growing corruption and justice is dealt by personal favor and opinion not known set of rules.

    Also, mental condition of Aaron was questioned. Another red herring. He appeared very well in control of his facilities. Real problem was his upbringing where he apparently was not thought elementary morals but “new age” philosophy of Robin Hoodism that it is fine to violate law if for good cause. Sorry, if stealing from supermarket was allowed to feed starving children, soon there would be no supermarkets… Nor jobs. Nor community… And the starving children number would soon skyrocket. Some order is required for functioning. Now, ideology and philosophy of Utopia he apparently was brought up in collided with the real world and he did not have mechanisms to cope with latter. Society glorifying actions like his and his parents are to blame. No one else.

    • Captain Obvious says:

      That was the stupidest I’ve read lately. Keep going.

    • bobbo, are we Men of Science, or Devo says:

      Oh,,,Captain Obvious stole my Thunder.

      Better than most of the crap you post Dusanmal “but” you missed the most important element. While money and horses are valuable to their owners, the issue at hand here is that the material “stolen” has a claim that it should not/or even was not actually owned by the entity that was maintaining possession of it.

      Its what the Public Commons cases are all about.

      Your guns and violence fantasy life is clouding the relevant issues in your life from view. Now, clean up, start over…. and do better.

    • jpfitz says:

      Go back to whatever eastern bloc Country you emigrated from.

      Sorry for sounding so un-American, but you have your experiences only to draw from. This nation WAS great until 2001.

    • xyz says:

      @enturio – You are obvious heartless and stupid since you do not see that the real felons are the cold-heated prosecutors who determined to destroy this young man’s life by forcing him to admit 13 felony charges for a small misdemeanor that did not cause any real harm and without any victim. He was simply trying to download some academic papers from Jstor. That dose not harm anyone. Even Jstore did not want the pursue the case. Yet why did the government agents insisted to spent taxpayers money to prosecute such an innocent kid? Obviously because of his activist role in stopping Internet censorship bill such as SOPA. They were use this occasion to crush individuals who opposed the tyranny of the big powers.

    • D Rant says:

      One serious platitude from one ignorant blowhard.

  5. No More Oh's! (Just X's!) says:

    One thing struck me when reading the article. It said, … Trust me on this (which should have raised a red flag on anyone’s radar whenever the phrase “trust me” is used): However much academics love articles from the Harvard Law Review, that love does not translate into money. And this was from the author of that article, Lawrence Lessig who apparently never heard of Wiki Leaks!

    You’d think that Mr. Lessig, more than most, would know about such things. After all, (from the by-line): Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School, director of the Edmond J. Safra Center for Ethics at Harvard University, and founder of Rootstrikers, an activist network opposed to corruption in government.

    Apparently, lawyers are now ECONOMIC EXPERTS as well as SECULAR PROFESSIONALS which would explain quite a bit whenever we look at Washington. But are you fucking kidding me? A LAWYER talking about ETHICS?! That’s a bit like Adolf Hitler talking about humanitarian causes. These Harvard assholes only have courses in “ethics” so that any up and coming lawyers can learn how NOT TO GET CAUGHT!

    Otherwise, I really like the idea of wanting to stop corruption in government. But you know what they say, “if you’re not part of the solution…”

    • Captain Obvious says:

      So you’re arguing that we shouldn’t encourage or expect lawyers to be ethical? You’ll get what you ask for.

    • noname says:

      I wish you would take your own advice “if you’re not part of the solution…” and practice it.

      What again is your part in the solution?

    • D Rant says:

      Lessig is a kook. His cult of personality are blithering idiots.

  6. J. Edgar Littleblackdress says:

    By reading this, not reading it, or being completely unaware that it exists, you nevertheless hereby agree to buzzmumblecough, inherent vaguity of the preceding terms notwithstanding. Oh, by the way, you’re busted.

  7. Kyusoath says:

    this is one of the scum that created reddit. glad hes dead, but he should have been hanged along with anyone that has a reddit account.

  8. MikeN says:

    He could have just used his Harvard access, but they do not have unlimited downloads available, so he went to MIT. They blocked his IP address, his Mac address, and Swartz kept finding ways to get around it to access and download from JStor. JStor disabled access for all of MIT for a few days to stop this guy. Then he went into a cabinet to try and get a more direct wired access rather than the wireless. To say he was innocent is excessive.

    • Captain Obvious says:

      He certainly deserves more time than rapists, murderers, and drug money launderers.

    • Cap'nKangaroo says:

      I didn’t notice anywhere in the excerpt of the article any claim to innocence. Rather it offered that violation of “terms of service” should not result in a felony.

      Exceed your bandwidth caps on Charter or Comcast and have the Feds swoop in charging you with a felony with serious jail time or (if you plead) a year or less Federal time and a bankrupting fine.

      • MikeN says:

        I’ve seen the claims of innocence elsewhere. That all he did was access an unlocked closet where a homeless guy was keeping his stuff, accessed a wireless network that was open, and downloaded things which were legally downloadable.

      • MikeN says:

        The Wire Fraud statute, 18 U.S.C. 1343, prohibits a scheme to gain “property” by false pretenses.

        unauthorized access to a computer to obtain information valued more than $5,000, in violation of 18 U.S.C. 1030(a)(2)(C) and 18 U.S.C. 1030(c)(2)(B)(iii).

        The guy was engaged in civil disobedience against what he thinks is unfair restrictions on intellectual property. The point of civil disobedience is you should be willing to go to jail. He was offered a 6 month plea deal but instead tried to get his friends to whine about the unfair prosecution.

  9. deowll says:

    This is not a free country. Somebody always ends up paying for everything. In this case Aaron ended up paying for information that the tax payers had already paid for with his life.

    But that is how our Congress and WH works. Always willing to sell everybody out while cheating everyone one way or the other.

  10. Captain Obvious says:

    Not a lot of techies in these discussions I see. This was a classic MIT hack – and not even an imaginative one. In that world this type of behaviour is encouraged. That’s why MIT and JSTOR really didn’t care. That’s why they changed their policies so this material was more freely available.

    Homework: learn the curl command. Use it in a python script.

    • MikeN says:

      JSTOR saw the access and banned his IP address. He used a different IP address. JSTOR saw it and blocked a range of IP addresses and complained to MIT. MIT cancelled his wireless account and banned his MAC address. Swartz got a new laptop and spoofed his MAC address on his old one. JSTOR then blocked all of MIT for a few days. Then Swartz wired himself directly into the network by hiding his computer in a closet.

    • MikeN says:

      This was not a classic MIT hack. MIT students would know better, and this guy was not affiliated with MIT.

      • Captain Obvious says:

        “When I was at M.I.T., if someone went to hack the system, say by downloading databases to play with them, might be called a hero, get a degree, and start a company. But they called the cops on him. Cops.”

        Brewster Kahle, an M.I.T. graduate and founder of the digital library Internet Archive

        • MikeN says:

          Read the hackers handbook at MIT. All the caveats and cautions. Once JSTOR was on to them, they would have stopped, not continuously trying workarounds for criminal activity. Or to put it simply, do or do not, there is no try.

  11. AXL says:

    Focus the anger on U.S. Attorney Carmen Ortiz. She is the root cause of this out of proportion crap. Douchebag of The Year.
    And this is not over. Aaron Schwarts will be remembered – for a long time.

    • MikeN says:

      Focus the anger on those who lionize hackers. He was raised in a culture that says hack away, and had to face the consequences.

  12. jpfitz says:

    Here we go again. I say flog her, 20 lashes with the cats tail.


    • MikeN says:

      Why remove her? Swartz was facing 7 years in jail and probably much less, not the the 35 years being repeated by those not knowledgeable about federal sentencing guidelines. His lawyers thought probation was possible.
      The plea deals offered by this attorney was 4 months in jail, or 6 months in jail and he can argue to judge for less, so again perhaps just probation.

  13. MikeN says:

    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.

    So he was a fake hero unwilling to serve six months in jail for his cause, and then committing suicide rather than face life.

  14. MikeN says:

    What punishment do people here think was appropriate in this case?

  15. Captain Obvious says:

    “…Aaron returned the data he had in his possession and JSTOR settled any civil claims we might have had against him in June 2011. ”

    JSTOR statement

  16. Captain Obvious says:

    John Cornyn is on it. Put MikeN and pedro into the pro-SOPA camp.

  17. Guyver says:

    O’Reilly Open Government book now a free download, in honor of Aaron Swartz:

  18. Captain Obvious says:

    Swartz didn’t face prosecution until the Feds took over the case.


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