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Prosecutor in Aaron Swartz 'hacking' case comes under fire

Carmen Ortiz was being talked about last month as the next Massachusetts governor. Now she's being investigated for threatening the late Aaron Swartz with decades in prison.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
6 min read
Carmen Ortiz, U.S. Attorney for Massachusetts
Carmen Ortiz, U.S. Attorney for Massachusetts U.S. Department of Justice

A politically ambitious Justice Department official who oversaw the criminal case against Aaron Swartz has come under fire for alleged prosecutorial abuses that led the 26-year-old online activist to take his own life.

Carmen Ortiz, 57, the U.S. attorney for Massachusetts who was selected by President Obama, compared the online activist -- accused of downloading a large number of academic papers -- to a common criminal in a 2011 press release. "Stealing is stealing whether you use a computer command or a crowbar," Ortiz said at the time. Last fall, her office slapped Swartz with 10 additional charges that carried a maximum penalty of 50 years in prison.

"He was killed by the government," Swartz's father, Robert, said at his son's funeral in Highland Park, Ill., today, according to a report in the Chicago Sun Times.

Last Wednesday, less than three months before the criminal trial was set to begin, Ortiz's office formally rejected a deal that would have kept Swartz out of prison. Two days later, Swartz killed himself.

"He was being made into a highly visible lesson," says Harvey Silverglate, a Cambridge, Mass., attorney who first met Swartz in 2001 and spoke with him after his arrest. "He was enhancing the careers of a group of career prosecutors and a very ambitious -- politically-ambitious -- U.S. attorney who loves to have her name in lights."

Ortiz' spokeswoman did not respond to questions from CNET today. The spokeswoman, Christina Sterling, had said earlier this week: "We want to respect the privacy of the family and do not feel it is appropriate to comment on the case at this time."

Replies Silverglate, the defense attorney and author of the book "Three Felonies a Day:" "It nearly made me puke. Out of deference to the family they weren't going to respond to the charges? It wasn't 'out of deference to the family.' It was out of deference to their careers."

Swartz was accused of 13 felony counts relating to connecting a computer to MIT's network without authorization and retrieving over four million academic journal articles from the JSTOR database (he was allowed to access JSTOR, but not to perform a bulk download). The advocacy group Demand Progress, which Swartz had helped to create and which helped to defeat the Stop Online Piracy Act a year ago, likened it to "trying to put someone in jail for allegedly checking too many books out of the library." (Swartz also sold a company he founded called Infogami to Reddit and was one of the co-creators of the RSS standard for syndicating content.)

If Swartz had stolen a $100 hard drive with the JSTOR articles, it would have been a misdemeanor offense that would have yielded probation or community service. But the sweeping nature of federal computer crime laws allowed Ortiz and Assistant U.S. Attorney Stephen Heymann, who wanted a high-profile computer crime conviction, to pursue felony charges. Heymann threatened the diminutive free culture activist with over 30 years in prison as recently as last week.

The Boston U.S. Attorney's office was looking for "some juicy looking computer crime cases and Aaron's case, sadly for Aaron, fit the bill," Elliot Peters, Swartz's attorney at the Keker & Van Nest law firm, told the Huffington Post. Heymann, Peters says, thought the Swartz case "was going to receive press and he was going to be a tough guy and read his name in the newspaper."

Heymann was also the Boston office's point person in a second investigation that spurred another young hacker to kill himself. In 2008, 24-year-old Jonathan James committed suicide after being named a suspect in a federal cybercrime investigation. His suicide note said: "I have no faith in the 'justice' system. Perhaps my actions today, and this letter, will send a stronger message to the public."

"The charges were ridiculous and trumped-up"

Aaron Swartz, who committed suicide two days after federal prosecutors rejected his attorney's proposal for no prison time.
Aaron Swartz, who committed suicide two days after federal prosecutors rejected his attorney's proposal for no prison time. Fred Benson/ Creative Commons: Flickr

Ortiz has now found herself in an unusual -- and uncomfortable -- position: as the target of an investigation instead of the initiator of one.

An online petition asking President Obama to remove her from office has garnered 35,000 signatures. The threshold at the time for triggering an official White House response, which has not yet happened, was 25,000. (A separate petition asking for the removal of prosecutor Stephen Heymann has attracted only 4,000 signatures so far.)

House Oversight Committee Chairman Darrell Issa, a California Republican, said he has launched an investigation into Ortiz's prosecution of Swartz. It's a bipartisan sentiment: Rep. Jared Polis, a Colorado Democrat and former Internet entrepreneur, told the Hill that: "The charges were ridiculous and trumped-up. It's absurd that he was made a scapegoat."

Rep. Zoe Lofgren, a Democrat whose district includes the heart of Silicon Valley, published draft legislation today (PDF) called "Aaron's Law" that would no longer make it a crime to violate terms of service agreements.

Ortiz had been a rising star in the Democratic Party: a law-and-order Hispanic prosecutor who had won high-profile convictions including Salvatore DiMasi, the former Massachusetts House speaker. The Boston Globe named her "Bostonian of the Year" in 2011 and reported last month that Ortiz was a potential gubernatorial candidate.

Swartz's friends and family have, in the days since his death, argued that Ortiz, Heymann, and assistant U.S. attorney Scott Garland employed tactics should have been reserved for serious criminals, not an activist who merely downloaded more articles than JSTOR would have preferred. A Swartz family statement posted at RememberAaronSW.com says: "The U.S. attorney's office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims."

Larry Lessig, the Harvard law professor who spoke at Swartz's funeral today along with Web inventor Tim Berners-Lee, said in a blog post that even though Swartz had no intention of profiting from any downloaded journal articles, "our government continued to push as if it had caught the 9/11 terrorists red-handed."

Alex Stamos, who the defense had planned to call as an expert witness on computer intrusion, said: "I know a criminal hack when I see it, and Aaron's downloading of journal articles from an unlocked closet is not an offense worth 35 years in jail." Law professor Tim Wu added that Ortiz's "legal authority to take down Swartz was shaky" after a federal appeals court ruling last year.

It's true that Swartz would not have faced 50 years in prison; that was, after all, the maximum sentence for his supposed felonies, not the minimum one. But Ortiz and her staff were intent on requiring that he plead guilty to multiple felonies and serve significant time behind bars.

Jennifer Granick, director of civil liberties at Stanford University's Center for Internet and Society and former criminal defense attorney, elaborated on why Swartz was so reluctant to plead guilty:

There was great practical risk to Aaron from pleading to any felony. Felons have trouble getting jobs, aren't allowed to vote (though that right may be restored) and cannot own firearms (though Aaron wasn't the type for that, anyway). More particularly, the court is not constrained to sentence as the government suggests. Rather, the probation department drafts an advisory sentencing report recommending a sentence based on the guidelines. The judge tends to rely heavily on that "neutral" report in sentencing... If he plead guilty to a felony, he could have been sentenced to as many as 5 years, despite the government's agreement not to argue for more. Each additional conviction would increase the cap by 5 years, though the guidelines calculation would remain the same. No wonder he didn't want to plead to 13 felonies. Also, Aaron would have had to swear under oath that he committed a crime, something he did not actually believe.

JSTOR has said since 2011 that it had no interest in pursuing criminal charges, and added last weekend that it "regretted" having been drawn into "this sad event." MIT, which reportedly did encourage Ortiz to pursue the case, is now conducting an internal investigation.

Last Wednesday, two days before Swartz took his life, JSTOR said it was making its archives of more than 1,200 different academic journals free for the public to read.

Computer prodigy Aaron Swartz remembered
Watch this: Computer prodigy Aaron Swartz remembered