Bank robbery, selling child porn, selling slaves, genocidal eugenics: all these federal crimes carry a maximum sentence of 20 years, less than half the 50-plus years that U.S. Attorney Carmen Ortiz and prosecutors Stephen P. Heymann and Scott L. Garland threatened against Internet genius and activist Aaron Swartz, who killed himself on January 11 at age 26, mere weeks before he was to be tried on charges of stealing academic journal articles from the Massachusetts Institute of Technology (MIT).

In an age when the term is overused to include every YouTube sensation who can carry a tune, Swartz really was a genius. At age 14, he played a key role in developing the Really Simple Syndication or RSS web protocol that is the key part of the web’s publishing infrastructure. Also as a teenager, he helped create Reddit, a popular social networking site that made him wealthy at a young age.

Why did Ortiz, Heymann and Garland file thirteen felony counts calling for a 50-year prison term and a $4 million fine? In addition to being a case of prosecutorial excess, the Swartz prosecution draws back the curtain on an emerging alliance between the government and corporate media to control and restrict the freedom of information promised by the Internet.

Swartz’s case, if one sets aside the technical aspects, was quite simple. As a Harvard Fellow in late 2010 and early 2011, Swartz was authorized to access and download academic articles from JSTOR, an online archive that sells access to digitized versions of more than 1,600 academic journals to subscribers, almost exclusively academic institutions that can afford the fees, which can reach tens of thousands of dollars per month.

Swartz opposed JSTOR’s policies, which pay academic publishers but not academic authors, and restrict academic data—much of which is based on research paid for by tax dollars—to large institutions and wealthy individuals. In an effort to free the content and make it publicly available, Swartz used his access at MIT to download nearly the entirety of JSTOR’s archive, but was stopped before he could do anything with it. In June 2011, JSTOR settled its case against Swartz, who returned the data he had downloaded. JSTOR then told prosecutors that it had no desire to see him prosecuted, although MIT was ambiguous about its intent.

The U.S. Attorney’s office in Boston was not so forgiving, charging Swartz with two counts of wire fraud, five counts of computer fraud, five counts of unlawfully obtaining information from a protected computer, and one count of recklessly damaging a protected computer. Each of the charges carried a possible fine and prison sentence of up to 10-20 years, adding up to a maximum 50+ years in prison and a $4 million fine. During plea negotiations, prosecutors allegedly insisted that Swartz spend at least 6 months in prison.

Swartz’s prosecution was based on a radical interpretation of the Computer Fraud and Abuse Act (CFAA), which Congress passed in 1984 to prosecute hackers who accessed computers to steal information or to commit cyber-vandalism. Like some other prosecutors in the Justice Department who were apparently incapable of distinguishing between private rights and the public interest, Ortiz, Heymann and Garland interpreted the law to include violating a website’s terms of service or a company’s computer usage policy.

Thus the indictment filed against Swartz explains that because “each user must agree and acknowledge that they cannot download or export contents from JSTOR’s computer servers with automated computer programs such as Web robots, spiders, or scrapers,” Swartz’s use of a spider violated JSTOR’s terms, and as such constituted an unauthorized access under the CFAA.

The breadth of this legal theory would make felons of millions of Americans. CNN.com, for example, has terms that include the following: “You agree not to upload, post or otherwise transmit any User Content that advocates or provides instruction on illegal activity or discuss illegal activities with the intent to commit them.” This language, if it were set forth in a statute, would be a blatantly unconstitutional violation of the First Amendment and its enforcement would be struck down.

Under the government’s theory of the CFAA, however, a commenter on CNN’s website who advocates “illegal activity,” like disobeying the recently signed executive orders relating to gun control or refusing to register for the draft, would be guilty of a felony for violating the website terms. In effect, this theory gives privately-owned websites the power to pass national legislation that ignores the Constitution, and offers them the services of the Department of Justice to enforce their edicts.

Fortunately, an en banc panel of the Ninth U.S. Circuit Court of Appeals last April rejected this theory of the CFAA, under which, it said, “millions of unsuspecting individuals would find that they are engaging in criminal conduct.” The Court ruled that violations of employee contract agreements and website terms of service were better left to civil lawsuits and the Justice Department declined to appeal the ruling to the Supreme Court.

Nevertheless, Ortiz and her minions, who were not technically bound by the Ninth Circuit ruling, pressed on aggressively, probably for two reasons.

First, Swartz was an activist with a history of conflict with the Justice Department, an organization not known for its affection for activists who engage in civil disobedience. In 2008, Swartz targeted Pacer, an online service that sells access to federal court documents, which are created at public expense, for a per-page fee. Swartz downloaded millions of those documents and put them into the public domain, for which he was investigated by the FBI but never charged. He also worked with the Progressive Change Campaign Committee and founded Demand Progress, which led the fight to keep the Internet open and to defeat the Stop Online Piracy Act in early 2012.

Second, the same theory of the CFAA that was used against Swartz is also being used against Pfc. Bradley Manning, who has been charged with being the source for much of the material published by Wikileaks. The Justice Department is thus eager to pursue this theory and persuade the courts to adopt it. Like that of Wikileaks, Swartz’s activism was part of the global fight over who controls the flow of information on the Internet, and he challenged the authority of the government and of corporations to treat information as private property under their control. That, in the end, is why the system worked so hard to destroy him.

-Matt Bewig

To Learn More:

Aaron Swartz Faced A More Severe Prison Term Than Killers, Slave Dealers And Bank Robbers (by Ian Millhiser, Think Progress)

How M.I.T. Ensnared a Hacker, Bucking a Freewheeling Culture (by Noam Cohen, New York Times)

Highland Park Tech Guru “Killed by Government,” Father Says (by Sandra Guy, Chicago Sun-Times)

White House Must Respond to Petition to Remove U.S. Attorney in Aaron Swartz Case (by David Kravets, Wired)

US Government Ups Felony Count In JSTOR/Aaron Swartz Case From Four To Thirteen (by Tim Cushing, techdirt)