The Internet's Own Boy: The Story of Aaron Swartz Page #12

The internet has done both, and both are kind of amazing and astonishing

and which one will win out in the long run is up to us.

It doesn't make sense to say, "Oh, one is doing better than the other." You know, they're both true.

And it's up to us which ones we emphasize and which ones we take advantage of

because they're both there, and they're both always going to be there.

On September 12, 2012, federal prosecutors filed a superseding indictment against Swartz,

adding additional counts of wire fraud, unauthorized access to a computer, and computer fraud.

Now, instead of four felony counts, Swartz was facing thirteen.

The prosecution's leverage had dramatically increased,

as did Swartz's potential jail time and fines.

They filed a separate indictment to add more charges,

and they had a theory about why this conduct constituted a number of federal crimes,

and that a very significant sentence could attach to it under the law.

That theory, and much of the prosecution's case against Swartz

involved a law created originally in 1986.

It is called the "Computer Fraud and Abuse Act".

The Computer Fraud and Abuse Act

was inspired by the movie "War Games" with Matthew Broderick--great movie.

[Broderick] I have you now.

In this movie, a kid gets the ability, through the magic of computer networks

to launch a nuclear attack.

[missiles firing up]

You know, that's not actually possible, and it certainly wasn't possible in the '80s

but apparently this movie scared Congress enough to

pass the original Computer Fraud and Abuse Act.

This is a law that's just behind the times, for example, it penalizes

a terms of service kind of arrangement. You can have something like

eHarmony or Match.com, and somebody sort of inflates their own personal characteristics,

and all of a sudden, depending on the jurisdiction and the prosecutors,

they could be in a whole host of troubles.

We all know what "Terms of Use" are.

Most people don't read them, but not abiding by their terms could mean

you are committing a felony.

The website Terms of Service often say things like:

"Be nice to each other", or "Don't do anything that's improper."

The idea that the Criminal Law has anything to say about these kinds of violations,

I think strikes most people as crazy.

The examples get even more "crazy":

Until it was changed in March of 2013, the Terms of Use on the website of Hearst's Seventeen magazine

said you had to be eighteen in order to read it.

I would say that the way the CFAA has been interpreted by the Justice Department,

we are probably all breaking the law.

Vague and prone to misuse, the CFAA has become a one-size-fits-all hammer

for a wide range of computer-related disputes.

Though not the only factor in his case,

eleven of the thirteen charges against Swartz involved the Computer Fraud and Abuse Act.

The question "Why?" hangs over much of the story of Aaron Swartz.

Just what was motivating the government, and what would their case have been?

The Department of Justice declined requests for answers,

but Professor Orin Kerr is a former prosecutor who has studied the case.

So, I think I come about this case from a different direction than other people on a number of reasons:

I was a federal prosecutor at the Justice Department for three years

before I started teaching. The government came forward

with an indictment based on what crimes they thought were committed,

just as a purely lawyer's matter, looking at the precedents, looking at the statute,

looking at the history, looking at the cases that are out there so far,

I think it was a fair indictment based on that.

You can debate whether they should have charged this case.

There's just a lot of disagreement. Some people are on the Open Access side, some people are not.

I think the government took Swartz's "Guerilla Open Access Manifesto" very seriously,

and I think they saw him as somebody who was committed, as a moral imperative,

to breaking the law, to overcome a law that Swartz saw as unjust,

and in a democracy, if you think a law is unjust, there are ways of changing that law.

There's going to Congress as Swartz did so masterfully with SOPA,

or you can violate that law in a way to try to nullify that law,

and I think what was driving the prosecution was the sense that Swartz was committed,

not just to breaking the law, but to really making sure that law was nullified.

That everyone would have access to the database in a way that

you couldn't put the toothpaste back into the tube.

It would be done, and Swartz's side would win.

There's a big disagreement in society as to whether that is an unjust law,

and ultimately, that is a decision for the American people to make, working through Congress.

And then the second problem is, I think, we're still trying to figure out:

What's the line between less serious offences and more serious offences?

We're now entering this different environment of computers and computer misuse,

and we don't yet have a really strong sense of exactly what these lines are

because we're just working that out.

This is a poor use of prosecutorial discretion.

The hammer that the Justice Department has to scare people with

just gets bigger and bigger and bigger,

and so most people just--you know, you can't roll the dice with your life like that.

Should we tap somebody's phone? Should we film them?

Should we turn somebody and get them to testify against these other people?

That's how federal agents and prosecutors think.

They build cases. They make cases.

Swartz was caught in the gears of a brutal criminal justice system that could not turn back,

a machine that has made America the country with the highest rate of incarceration in the world.

We have, in this country, allowed ourselves to be captured by the politics of fear and anger,

and anything we're afraid of, like the future of the internet and access,

and anything we're angry about, instinctively creates a criminal justice intervention,

and we've used jail, prison, and punishment to resolve a whole host of problems

that, historically, were never seen as criminal justice problems.

The impulse to threaten, indict, prosecute, which is part of what

has created this debate and controversy over online access and information on the internet,

is very consistent with what we've seen in other areas.

The one difference is that the people who are usually targeted and victimized

by these kinds of criminal and carceral responses are typically poor and minority.

Swartz's isolation from friends and family increased.

He had basically stopped working on anything else,

and the case was, in fact, taking over sort of his whole life.

One of Aaron's lawyers apparently told the prosecutors that he was emotionally vulnerable,

and that that was something they really needed to keep in mind so that they knew that.

It was weighing on him very heavily.

He did not like having his actions and his movements restricted in any way,

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