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The Milton Measure

Aaron Swartz’s and Internet Freedom

by The Milton Measure on Tuesday, February 12th, 2013

On January 11, 2013, Aaron Swartz, a brilliant young computer programmer and internet activist, hanged himself after a protracted fight with federal prosecutors over downloading millions of articles from JSTOR, a subscription-based digital library that contains academic journals, books, and primary source materials. JSTOR did not file a lawsuit, instead settling on having him relinquish all the downloaded content. However, federal prosecutors charged him with thirteen charges of different kinds of data theft, leaving him facing up to 35 years in prison, and a $1 million fine. In the face of all this and more, Swartz, already heavily depressed, committed suicide.

Legally, this entire case stands on shaky grounds. Numerous lawyers and law professors have questioned the validity and constitutionality of the federal charges, some calling for reform of the Computer Fraud and Abuse Act (CFAA), written in 1984 before the advent of the Internet and the age of information. So, while Swartz’s parents’ accusation that his suicide was “the product of a criminal justice system rife with intimidation and prosecutorial overreach” is probably an intense emotional reaction, their point still stands: these outdated and overextending laws must be reformed—and soon.

So what is the CFAA, anyways? Passed in 1984, it has been revised a number of times, most recently in 2008, and is meant to prosecute anybody who “intentionally accesses a computer without authorization or exceeds authorized access,” and then proceeds to gain information from “any protected computer.” A massive issue with this law in this case is that the government has no clear definition of “without authorization,” perhaps believing the definition to be self-evident. However, in this case, Swartz actually had permission to access these documents and download as many as he wanted. Sure, downloading 4.5 million documents as quickly as he could grab them with a program called “” was probably a bit excessive, but in this case he did nothing wrong. He relinquished the files when he was asked to. He did not share them. As Demand Progress executive director Jason Segal put it, “it was like trying to put someone in jail for allegedly checking too many books out of the library.” Any violation of a Terms of Service agreement, as Swartz committed, should not be dealt with criminally; it should be handled by the company and the perpetrator alone. The CFAA can easily overstep in trying to handle these cases.

Another issue is the justification for the law to be applied. The law criminalizes data breaches “committed for purposes of commercial advantage or private financial gain.” Okay, that makes sense; stealing data for one’s own gain technically constitutes theft. But the other two felony provisions are much, much broader and vague: as internet law expert Orin Kerr puts it, in one of the provisions, “unauthorized access in furtherance of any conduct that is any crime or tort under the state or federal system makes the low-level offense a felony.” And the criminal act doesn’t even have to be in furtherance of it! According to one of the more recent revisions of the law, even conspiracy to do so would be a crime. The final provision criminalizes the theft if “the value of the information obtained exceeds $5,000.” There is no currently clear way to define the value of information, especially if it can be copied – a trait common to almost all types of data. Therefore, the theft of data might not necessarily have cost the company over $5,000, no matter how expensive the data was to collect. This law reaches too far and is incredibly outdated in the new, increasingly open and fluid age of the Internet.

In the end, many things went awry in Aaron Swartz’s case. Accusations of prosecutorial intimidation in order to force a guilty plea have been hurled from many sides. Outrage over the disproportionate punishment to the crime has swirled throughout the internet and media. What is clear, however, is that the law needs to change. Certainly, many things went wrong with the individuals in the situation, but their actions fit the status quo. Dealing with the clarity of the law would force future cases to be more rooted in reason; Aaron Swartz, outside of his intent to share information with the world, did nothing wrong, and was punished for it. Swartz’s case was a tragedy, but for internet activists who want to follow in his footsteps and jumpstart the age of information, it could preserve their right to freedom.

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Posted by The Milton Measure on Feb 12 2013. Filed under More Opinion, Opinion, Recent Opinion. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

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