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Swartz didn't face prison until feds took over case, report says

The late Internet activist was facing a stern warning from local prosecutors. But then the U.S. Attorney's office, run by Carmen Ortiz, chose to make an example of Aaron Swartz, a new report says.

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
5 min read
Federal prosecutor Carmen Ortiz, who threatened Aaron Swartz with decades in prison.
Federal prosecutor Carmen Ortiz, who threatened Aaron Swartz with decades in prison. U.S. Department of Justice

State prosecutors who investigated the late Aaron Swartz had planned to let him off with a stern warning, but federal prosecutor Carmen Ortiz took over and chose to make an example of the Internet activist, according to a report in Massachusetts Lawyers Weekly.

Middlesex County's district attorney had planned no jail time, "with Swartz duly admonished and then returned to civil society to continue his pioneering electronic work in a less legally questionable manner," the report (alternate link) said. "Tragedy intervened when Ortiz's office took over the case to send 'a message.'"

The report is likely to fuel an online campaign against Ortiz, who has been criticized for threatening the 26-year-old with decades in prison for allegedly downloading a large quantity of academic papers. An online petition asking President Obama to remove from office Ortiz -- a politically ambitious prosecutor who was talked about as Massachusetts' next governor as recently as last month.

Ortiz, 57, also came under fire this week for her attempt to seize a family-owned motel in Tewksbury, Mass., for allegedly facilitating drug crimes, despite ample evidence that the owners worked closely with local police. In a stinging rebuke, U.S. Magistrate Judge Judith Dein tossed out the case yesterday, siding with the motel owners -- represented by the public-interest law firm Institute for Justice -- and noting (PDF) that prosecutors had alleged a mere "15 specific drug-related incidents" over a 14-year period during which "the Motel Caswell rented out approximately 196,000 rooms."

"I don't think she should have the power she has to pull this stuff on people," Russ Caswell, owner of the Motel Caswell, told the Boston Herald last night. One reason prosecutors file forfeiture cases is that proceeds from the sale of seized property can be used to fund the budgets of law enforcement agencies. (Other nearby businesses that also experienced infrequent drug-related activity were not, however, targeted by Ortiz.)

The Massachusetts Lawyers Weekly report was written by Harvey Silverglate, a prominent Cambridge criminal defense lawyer whose clients have included Michael Milken and Leona Helmsley. Silverglate, the author of Three Felonies A Day: How the Feds Target the Innocent, is of counsel to the firm that initially represented Swartz in his attempts to defend himself against 13 felony charges brought by Ortiz's office. Those charges carried a maximum penalty of 50 years in prison.

Silverglate told CNET today that:

"Continuance without a finding" was the anticipated disposition of the case were the charge to remain in state court, with the Middlesex County District Attorney to prosecute it. Under such a disposition, the charge is held in abeyance ("continued") without any verdict ("without a finding"). The defendant is on probation for a period of a few months up to maybe a couple of years at the most; if the defendant does not get into further legal trouble, the charge is dismissed, and the defendant has no criminal record. This is what the lawyers expected to happen when Swartz was arrested for "trespassing at MIT." But then the feds took over the case, and the rest is tragic history.

Ortiz has defended her actions as appropriate. A representative for Ortiz's office did not respond to a request this afternoon for comment on this story. A representative for Gerard Leone Jr., Middlesex County's district attorney, said she did not have an immediate response to questions about Swartz's prosecution.

'Aaron's Law'


• Neelie Kroes, the vice president of the European Commission, wrote in a blog post that: "If our laws, frameworks, and practices stand in the way of us getting all those benefits, then maybe they need to be changed."

• The Electronic Frontier Foundation posted additional suggestions for "Aaron's Law," an effort to rewrite the Computer Fraud and Abuse Act in response to Swartz's prosecution.

• Harvard professor Larry Lessig said he would give the Roy L. Furman Professor of Law and Leadership lecture on Feburary 19 on "Aaron's Law."

• Michael Eisen, a biologist at UC Berkeley, wrote that academia "betrayed and continues to betray Aaron Swartz."

Open-records pioneer Carl Malamud spoke about "Aaron's Army" at a memorial service at the Internet Archive yesterday.

Ortiz compared Swartz 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. Earlier this month, 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 committed suicide.

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

Swartz was accused of 13 felony counts relating to connecting a computer to MIT's network without authorization and retrieving over 4 million academic journal articles from the JSTOR database (he was permitted to access JSTOR because of his Harvard affiliation, 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."

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 free-culture activist with over 30 years in prison as recently as the week before he killed himself. Rep. Zoe Lofgren, a Democrat whose district includes the heart of Silicon Valley, has proposed rewriting those laws.

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."