Co-written with George Scialabba and originally published in Guernica on July 23, 2011.
“Stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data, or dollars,” said United States attorney Carmen M. Ortiz in announcing the indictment of our friend Aaron Swartz, a programmer, civil liberties activist, and Cambridge resident who is accused of breaking into a computer closet at MIT and downloading several million articles from the academic database JSTOR. “It is equally harmful to the victim, whether you sell what you have stolen or give it away.”
For a statement of intellectual property law at its most simple-minded, business-friendly, and injudicious, one could not do better than Ms. Oritz’s fulmination. Aaron, who is 24 years old, faces a maximum penalty of $1 million and 35 years in prison in spite of the (uncontested) facts that the data he allegedly purloined was returned before it was released; service interruption was minimal; and neither MIT nor JSTOR has taken legal action. This is a bogus indictment over a fictitious crime. What explains it?
Politics, for one thing. The real purpose of the indictment is to terrorize advocates for open access at a time when corporations and their allies in government feel themselves under siege by hackers. “Stealing is stealing” is phrase-making designed to confuse the legal and moral distinctions between the kind of cyber-crime everyone should oppose, such as stealing credit card and social security numbers, and efforts, like Aaron’s, to make knowledge more accessible to the educated public. Ms. Ortiz, incredibly, asks the public to ignore the motive behind the act. Lawrence Lessig, director of the Edmond J. Safra Center for Ethics at Harvard, disagrees. “Aaron has never done anything in this context for personal gain,” Lessig told the New York Times. “This isn’t a hacking case, in the sense of someone trying to steal credit cards.”
We know Aaron as a person of exceptional intelligence and integrity, and we are far from alone. His agitation on behalf of a less secretive, more public-friendly policy toward commercial, academic, and government data has won him a fellowship at the Safra Center, the directorship of Demand Progress—an online activist group with 500,000 members—and the respect and regard of colleagues online and off. What looks like vandalism to government lawyers in fact honors the best of American traditions. “There is no justice in following unjust laws,” he has written. “It’s time to come into the light, and, in the grand tradition of civil disobedience, declare our opposition to this private theft of public culture.”
Aaron, then, offers an excellent opportunity for the government to reassert its role as a security service for powerful institutions and their clients, a role that it’s been bungling of late. Threatening him with a long detention signals a coming counter-offensive against the more democratic culture for which he and others like him stand, and once again illustrates the Obama administration’s awful zeal for prosecuting whistleblowers and anti-secrecy activists.
However this case is resolved, the misapplication of government discretion should affront our collective moral intelligence. How many Bush administration officials have been indicted for misleading the country into a war of choice in Iraq? How many Wall Street executives have been indicted for the lucrative financial deceptions that cost millions of Americans their homes and livelihoods? How many British Petroleum executives have been indicted for the negligence and mismanagement that caused last year’s catastrophic oil spill in the Gulf of Mexico? The virtual impunity of the rich and powerful is a widely known fact; episodes like the prosecution of Aaron Swartz rub our noses in it.
The U.S. Attorney should withdraw the indictment, apologize to Aaron and his family, and busy her office with real criminals.