Swartz Caught in a Closet (Update)

The foundation of the argument, as I’ve been told, is that content is perpetually replicable, so that taking a copy doesn’t deplete the stash. It’s not stealing, because the “owner,” to the extent anyone can own an idea, still has his content.  The idea has superficial appeal.

But it’s wrong.  And getting caught hacking into a system from a closet at MIT, where no one permitted you to go, ought to clarify, for those whose political views cloud their grasp of the problem, that Aaron Swartz went too far.

From the New York Times :

Aaron Swartz, a 24-year-old programmer and online political activist, has been indicted in Boston on charges that he stole more than four million documents from the Massachusetts Institute of Technology and JSTOR, an archive of scientific journals and academic papers. (Read the full indictment below.)

In a press release, Ms. Ortiz’s office said that Mr. Swartz broke into a restricted area of M.I.T. and entered a computer wiring closet. Mr. Swartz apparently then accessed the M.I.T. computer network and took millions of documents from JSTOR.

If Aaron Swartz could have gotten his hands on copies of JSTORs content without having to sneak into a closet, it would have been wrong.  It charges for its content.  It’s allowed to charge for its content.  The content isn’t free for the taking.

Swartz, apparently, thinks it should be.

Demand Progress said on its site that it appeared Mr. Swartz was “being charged with allegedly downloading too many scholarly journal articles from the Web.” It quoted the group’s executive director, David Segal, as saying, “It’s like trying to put someone in jail for allegedly checking too many books out of the library.”

According to the indictment, the plan was to download whatever he could get his hands on so that they could be offered free to the world.  Swartz would take what JSTOR had to sell and give it to all.  Robin Hood of the internet.

From the technical point of view, this is a classic, straightforward violation of the Computer Fraud and Abuse Act, 18 USC 1030, with the fact that he had to physically sneak into a closet to gain access to the wires.  Ordinarily, there’s no need to physically break in to manage to digitally break in, putting an IRL cherry on top of the prosecution’s case.

End of story?  Apparently not. From Wired :

“It’s even more strange because the alleged victim has settled any claims against Aaron, explained they’ve suffered no loss or damage, and asked the government not to prosecute,” [Demand Progress Executive Director David] Segal said.

JSTOR doesn’t go quite as far in its statement on the prosecution — though there are clear hints that they were not the ones who wanted a prosecution, and that they were subpoenaed to testify at the grand jury hearing by the federal government.

We stopped this downloading activity, and the individual responsible, Mr. Swartz, was identified. We secured from Mr. Swartz the content that was taken, and received confirmation that the content was not and would not be used, copied, transferred, or distributed.

The criminal investigation and today’s indictment of Mr. Swartz has been directed by the United States Attorney’s Office.

When asked about this, Christina Sterling, a spokeswoman for the U.S. Attorney’s office said, “I can’t speak specifically about this case, but fundamentally speaking, the U.S. Attorney’s Office makes own independent decisions regarding prosecution based on the merits of a case.”

It appears that Swartz, having gotten nailed during his attempt to steal the content of JSTOR,  had his hand smacked and, feet a’shuffling, promised not to do it again.  JSTOR was satisfied that the matter was resolved.  The Feds, on the other hand, were not.

While criminal prosecution does not personally belong to the aggrieved party, despite the wails of victims’ rights advocates who think they ought to do their own sentencing, they are usually shown a great deal of deference in the foundational determination of whether a prosecution is needed. 

Assuming the facts as related are accurate, there is little doubt that Swartz was a very bad boy, and that his conduct was precisely what the CFAA was intended to criminalize.  That some hold dear the belief that theft that doesn’t deprive someone of physical possession isn’t really theft can dispute the merit of the CFAA all they want, but had Swartz gotten away with it, he would have deprived JSTOR the revenue it would earn from its service.  That’s real.

So why would the Feds ignore JSTOR’s benign stance toward Swartz, having thwarted the plan and made the decision not to aggravate those who don’t think Swartz is such a bad guy?  The most likely motivation is that they’ve neither forgotten nor forgiven Swartz for the PACER caper :

The FBI ran Swartz through a full range of government databases starting in February, and drove by his home, after the U.S. court system told the feds he’d pilfered approximately 18 million pages of documents worth $1.5 million dollars. That’s how much the public records would have cost through the federal judiciary’s pay-walled PACER record system, which charges eight cents a page for most legal filings.

Despite the FBI’s best efforts, they weren’t able to figure out a way to nail Swartz for doing what he was allowed to do, just so much better than anyone thought it could be done.  Despite some very real and very serious efforts to get him, the investigation busted and nothing came of it.  Until now.

By no stretch of the imagination do I believe that Swartz’s attempt to download the JSTOR content was acceptable or lawful.  He’s no Robin Hood, and the ideologue’s belief that digital content should be free for the taking is nothing more than religious pap, a belief that fails to bear out under rational scrutiny.

At the same time, this prosecution seems to be nothing more than a vindictive act by the government, given JSTOR’s agnostic, at worst, stance toward Swartz.  They worked it out and the story should have been over.  It’s just that the government can’t let it go, given that they finally have a case against a targeted individual.  Vindictive prosecution, no matter what the underlying wrong, is a due process violation.

Amazingly, the government has managed to turn the bad guy into the victim, and itself into the bad guy.  As for Swartz, he should stay out of closets.

Update:  On January 11, 2013, Aaron Swartz, still under prosecution by the United States of America, committed suicide at the age of 26.  This eulogy by Cory Doctorow speaks volumes. A very sad loss.

8 comments on “Swartz Caught in a Closet (Update)

  1. Shawn McManus

    I realize that it’s only a side topic but have to say that for the Swartz / Robin Hood analogy to be accurate, he and his brethren would have to had produced the content on JSTOR and MIT would have to have taken it from them without compensation.

  2. Anthony DeRobertis

    Not sure how important it is legally, but JSTOR charges for their content in two different ways. The first is they will sell access to a single article to anyone who visits their site. The second way is they sell access to the collection to an institution for a (much larger) fee.

    In particular, they sold access to the collection to MIT. Apparently, MIT has their network set up so that the general public can use it, when physically present at the campus, and that includes access to JSTOR as part of MIT’s institution access.

    So, I don’t think that accessing a article for “free” (not really free, as MIT pays for access to the collection) on MIT’s public WiFi wouldn’t be wrong at all.

    Taking steps to evade the security, breaking into wiring closets, etc., that’s quite different of course.

  3. Lurker

    Have you thought that there might also be underlying national security concerns? The primacy of the United States is largely dependent on her technological superiority. This, in turn, is reinforced by the control of scientific databases. Although JSTOR is open, it is useful for the US security and intelligence agencies to be able to monitor its use and to have the possibility to control the flow of this kind of open information.

    From this point of view, Swartz’s actions were a (rather low-level) national security risk. So, it is logical for the federal government to send a strong message: don’t mess with the American scientific databases.

    For Swartz, this makes no difference however. The colour of the bars in the windows doesn’t change.

  4. SHG

    While conceivable, it would seem the government would have raised it had it thought the claim viable.

  5. TF

    Just a note– in the “PACER caper,” no legal action was taken because the legal documents had been made available, free of charge, to a certain number of libraries (through which Swartz allegedly accessed them).

    He is also not being charged with breaking and entering, nor was he without any right to access JSTOR– using the MIT guest network, he could access JSTOR through MIT.

  6. SHG

    The feds can’t charge him with breaking and entering as that’s a state offense without a federal equivalent, but his breaking and entering goes to his intent.  As for the MIT guest network access, I suspect it’s not quite that simple, and in fact quite a bit more complicated.  The desire to over-simplify in order to make arguments more palatable is strong, but not terribly useful and often gives the appearance of being disingenuous.

  7. Felix

    JSTOR are one of the good guys of the academic publishing world, not like Elsevier or Thomson Reuters who will screw libraries and universities out of any money they can. JSTOR are not for profit, and although they do charge, their fees are reasonable. They also put a lot of money into digitising old journals that are difficult to get and probably don’t make them any money.
    Also, in relation to US National Security issues raised by Lurker, anybody in the world can subscribe to JSTOR, most University Libraries will have access to it, and in general it is more useful in the humanities and social sciences than anything that might have direct military applications.

  8. Andromedus

    Thanks for adding the update, Scott. When I heard the news I came back to read this post. A sad loss indeed.

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