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.