he did some things that could get him into trouble: repeatedly hooking into MIT’s network, trying several times to evade attempts by the university and JSTOR to shut him down, and downloading more articles than JSTOR intended any one visitor to possess.
JSTOR declined to pursue a case against Swartz once it got its files back. One mitigating factor may have been his intentions with the journal articles—Swartz had written online about the need to unlock information, particularly scholarly research, from restrictions preventing it from being freely shared.
“We need to take information, wherever it is stored, make our copies and share them with the world,” he wrote in an article titled “Guerilla Open Access Manifesto.”
His lawyers argued that the mass downloads shouldn’t necessarily amount to a federal crime anyway. “The number of articles downloaded by Swartz may have exceeded JSTOR’s terms of service, but the wire fraud statute does not exist to police violations of private contracts,” Swartz’s legal team wrote.
At this point, we’re left with two big questions:
—Now that we know Swartz may have gotten off with a pretty light sentence, does it seem less wrong for prosecutors to have pursued such an array of charges against him?
One issue to consider, illustrated in an excellent piece by The Wall Street Journal, is the apparent breadth of a key federal computer-crime law. The law was written in the mid-1980s, and made broad to keep up with the rapid change of technology.
But in such situations, it’s also possible to wind up roping in establishment-tweaking, relatively harmless hacker-activists like Swartz along with honest-to-goodness hardened criminals.
It looks like Swartz did some things that could be charged as federal crimes—his defense team’s court filings had so far focused on technical reasons why some charges didn’t apply to his actions, and questions about whether police searches were conducted properly.
If you’re going to play in that territory, even as an activist, you should be prepared for some consequences.
—Why didn’t MIT stop pursuing the case?
The case’s two victims were JSTOR and MIT. It’s been widely reported that JSTOR officials stopped pressing the authorities to go after Swartz. But MIT appears to have remained an active part of the case.
Lawrence Lessig, a Harvard law professor who was a friend of Swartz’s and says he gave advice about the case, wrote on his blog that JSTOR requested that the government drop its case and didn’t pursue its own civil lawsuit. “MIT, to its great shame, was not as clear, and so the prosecutor had the excuse” necessary to pursue its case, Lessig wrote.
One of Swartz’s lawyers also told the Boston Globe that he’d gotten close to negotiating a deal for Swartz not to serve any prison time, but couldn’t get approval from MIT. The Huffington Post quotes an anonymous source at MIT saying the case “snowballed” out of the school’s hands.
The university’s president, meanwhile, has launched an internal investigation into the school’s involvement. “It pains me to think that MIT played any role in a series of events that have ended in tragedy,” president L. Rafael Reif wrote.
Federal prosecutors could always say they were just doing their jobs, and as harsh as the charges seem, there’d be some truth behind that explanation. But the university had its own choice to make, just like JSTOR—and if MIT had stepped away from the case, the authorities would have been left to pursue an essentially victimless crime.
Especially in light of the university’s professed culture of openness, the school’s answers could have serious consequences for its leadership. This one isn’t going away.
