Aaron Swartz and the Two Faces of Power
- BY RYAN SINGEL
- 6:30 AM
Photo: Wikimedia Commons
Aaron Swartz called me in early May 2011 — I was an editor at Wired then covering privacy, crime, and security – asking if he could give me some information under embargo.
“The feds might come knocking,” he said. “Someone went to a library and downloaded things and they claim it exceeded authorized access.” Aaron, whom I’d written about before, was being careful — which meant cagey, evasive, and awkward. “I hope this doesn’t happen,” he added, referring to the raid.
But Aaron was clearly worried and seemed a bit embarrassed by the drama. Without admitting anything, he noted that he once downloaded and analyzed hundreds of thousands of law review articles to see who was doing sponsored research. The resulting paper had been published in theStanford Law Review in 2008.
It wasn’t much to go on. I didn’t know the institution or the data set or the dates or the place — but I drafted what I could, to be published if he was indeed raided the next day. It actually took two more months for the feds to charge him for excessively downloading academic articles. That prosecution came despite the fact that the non-profit Aaron had downloaded articles from had no interest in prosecuting him.
Aaron had pissed off Power.
A week ago, Aaron, 26, committed suicide on the second anniversary of being arrested by local police while leaving the MIT campus. Federal prosecutors had taken over the case and later hit Aaron with four felonies, accusing him of planning to publish all the articles, which would have violated copyright law. “Theft is theft,” the prosecutor’s office said.
It’s a bit ironic because in May 2012, Aaron gave a speechrecounting how he came to be part of the fight against SOPA/PIPA, two bills that threatened to build blacklists into America’s internet, ostensibly to fight against online copyright and trademark infringement. It started, he said, with a call in September 2010 from his copyright activist friend Peter who said there was crazy bill called COICA, short for Combating Online Infringement and Counterfeits Act.
Aaron wasn’t convinced. “Peter, I don’t care about copyright law. Maybe you are right, maybe Hollywood is right, but either way, I’m not going to waste my life fighting over a little issue like copyright. Health care, financial reform, those are the issues I work on.” Yet you could say that copyright — shorthand for the intellectual property owned by large profitable corporations — killed Aaron.
But that isn’t quite right.
You could say, as many others including his family have, that the prosecutors in the case really killed him. After all, it was Assistant U.S. Attorney Stephen Heymann — with the support of the head federal prosecutor in Boston Carmen Ortiz — who took a minor case with no victim or harm done, filed a four-count indictment for hacking, and later upped that to 13 felonies — hanging a 35-year sentence (later offered at 6 months if admitting to guilt) over Aaron’s head and forcing his friends into a grand jury room to testify.
But that’s too easy.
While the non-profit academic research distribution database JSTOR decided not to press chargesafter Aaron returned the articles he’d downloaded, MIT did press charges. That supposed bastion of hacker culture wanted the interloper on its famously open network and campus to do real time, and reportedly refused to sign-off on any plea deal that didn’t involve Aaron inside a federal prison. So maybe it was the college administration that killed Aaron.
But that’s not it either.
Power Killed Aaron Swartz
That’s not to absolve Big Content or the Justice Department or big institutions. Power isn’t just an abstraction: It has possessors, supplicants, and hand servants. It can bought and sold with money, integrity, favors and sacrificial blood — usually not one’s own.
Aaron actually came from a life of privilege. And he was extraordinarily talented. At age 14, he contributed to the important internet-sharing specification known as RSS. He then advised Larry Lessig on how to use metadata in Creative Commons, so that alternative copyright licenses could be machine-readable and therefore easily findable and shareable.
He later made a decent pile of money from the sale of Reddit to Conde Nast (which owns Wired), though not as much as many thought — he didn’t want to work in an office for the 3 years it would take to fully vest. Aaron could have then turned to any number of comfortable, lucrative Silicon Valley pursuits, but he decided his life was elsewhere: Fighting to make information free. Fighting to get healthcare for Americans who can’t afford routine medical care. Fighting corruption on Wall Street and money in politics.
In 2008, Aaron whipped up a hack to liberate the nation’s legal history from the official electronic filing system run by the U.S. Courts, PACER. The information inside isn’t copyrighted, yet PACER has a paywall that exists mainly to fill the U.S. Courts’ coffers at the expense of the citizenry. (The U.S. court system tried to ward off its critics by offering free access to Pacer from a few libraries.) Aaron’s script saw an opening, which he used to make more than 20 percent of PACER’s court filings public. He cleverly used the U.S. Court system’s own profession of openness against it, forcing them to call in the FBI and prompting an investigation.
He was never charged with a crime, but, in keeping with his sense of humor, Aaron FOIA’d his own FBI file and posted it to the web with some jabs at the agents. But the downloaded files also later formed the heart of RECAP, a project that lets lawyers and researchers donate to the commons every time they pay to view a filing on PACER.
I think this was the moment Aaron joined a “different” side of activism, a side that recognizes that writing or campaigning aren’t going to change anything when it comes to powerful institutions.
It’s good to be on Power’s good side, though. Just ask the folks at HSBC, which just got busted for laundering money for Mexican drug cartels; no official was charged and the bank got off with a fine (the government didn’t want to disturb the financial markets). Go ahead and crash the economy with the time bombs known as bad mortgages but labeled Grade A investments; you won’t be charged with one felony, let alone 13.
It’s not good to be on Power’s bad side, however. When you are on that side, Power piles on charges rather than shrugging off felonies as simple mistakes. Especially if what you do falls into the gray area of enforcing the letter as opposed to the principles of the law. Think about the other people besides Aaron out there. Think about WikiLeaks, the focus of a federal grand jury investigation, whose volunteers are repeatedly stopped at borders where their electronics are seized. Think about Andrew Auernheimer (a.k.a. “Weev”), the iPad hacker whose real crime was embarrassing the wrong people — and who is awaiting sentencing.
For those who chose to be on the other side of activism — or for those who didn’t have a choice because of birth or circumstance — watch out, because Power has “prosecutorial discretion.”
You can file all the petitions you like with the powers that be. You can try to make Power –whether in the form of wiretapping without warrants or violating international conventions against torture — follow its own laws. But Power is, as you might suspect, on the side of Power. Which is to say, Power never pleads guilty.