Episode 84: Aaron Swartz, Internet Freedom and Prosecutorial Power

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Aaron Swartz wasn’t just a genius and public activist, he was also someone’s son and someone’s friend Alex Stamos reminded us

We’re back after a long sabbatical and ready to bring you a whole new year of stories, special guests and analysis. We start 2013 with the unfortunate story of Aaron Swartz, a talented 26 year old who took his own life last week. Aaron invented the RSS Web feed system when he was 14 years, he later co-founded Reddit.com and he actively campaigned for internet freedom and access to knowledge — part of this fight took him to the battle against SOPA and PIPA last year.

When he died, he was fighting federal charges for allegedly hacking the MIT computer system to gain access to millions of dollars worth of JSTOR articles, and as a result he faced 35 years in prison and a $1 million dollar fine. This is a story about prosecutorial zeal and what turned out to be too high a price for free information.

To help us understand the details, we invited Alex Stamos onto the show. Alex is the CTO of Artemis Internet, he blogs at Unhandled Exception and he was one of the expert witnesses who planned to testify for Aaron in US v Swartz. As background, here is Alex’s post about the case. Before diving into the interview, it’s interesting to note that Aaron was Alex’s first criminal defendant.

We spoke to Alex about what Aaron did, what charges he faced, why MIT continued to push the case (even after JSTOR dropped the charges), the Computer Fraud and Abuse Act (CFAA) and what Aaron’s death means for others fighting the same fight.

Starting with the basics: Alex confirmed that there was no evidence that Aaron was planning to distribute the downloaded content, he was not therefore charged with any copyright violations but instead they “went after him with both barrels on the hacking charges”. His real crime? Downloading too many files from a website using MIT’s guest network.

While Alex repeated that he does not agree with what Aaron did, he stressed that, contrary to the charges, nothing Aaron did was hacking. Hacking is when you make a computer do something it doesn’t want to do. The most Aaron was guilty of was being inconsiderate and discourteous. So how did that lead to a 35 year jail sentence? “I can’t square this circle” Alex said.

Carmen Ortiz, according to the online petition, is “a prosecutor who does not understand proportionality and who regularly uses the threat of unjust and overreaching charges to extort plea bargains from defendants regardless of their guilt”

So, we asked, did the problem lie in the fact that his prosecutors didn’t understand the technology, and failed to see difference between data theft for profit and Aaron’s more benign actions?

Yes and no, Alex explained. Prosecutor Steve Heymann is an established member of the cyber crime community, so ignorance of tech will not get him off. The same, however, cannot be said of Carmen Ortiz — anyone who says “stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away,” obviously hasn’t spent a lot of time understanding how computers and the internet works. We cannot continue to apply physical world legal metaphors to the computer space Alex argued.

Moving on to the CFAA (the Computer Fraud and Abuse Act), Alex spoke about how difficult it is to apply the term “authorized access” to the internet and that in charging Aaron with a felony, the prosecutors were guilty of a “spectacularly stupid reading of the law”.

We hope, collectively, that lawmakers and experts will discuss the CFAA (On Tuesday night California Congresswoman Zoe Lofgren posted a proposal on Reddit), and that prosecutors will also face scrutiny. In fact, a petition to remove Carmen Ortiz has reached 25,000 signatures — the threshold required for a White House response so watch this space.

Finally, we talk about the potential unwanted effects of Aaron’s death — suicide as a means to pursue this cause. Alex spoke firmly on this danger: suicide is not the answer to fighting an unjust indictment like this. If Aaron had won (and he had a great chance), he could have affected the same change as he might do now. What change that might be is yet to be seen.

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Posted in: Criminal, Culture, Internet, Law, Podcast, Technology