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Amid Activist Outcry, U.S. Attorney Defends Prosecution of Aaron Swartz

carmen_ortiz

Photo: U.S. Attorney's office, Massachusetts

Nearly five days since news first broke of the well-known Web activist’s death, the U.S. Attorney’s office in Massachusetts issued a public statement on Wednesday evening, defending the office’s actions in pursuing charges of computer and wire fraud against Aaron Swartz.

“I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life,” the statement, written by U.S. Attorney Carmen Ortiz, read.

“I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case. The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably,” Ortiz wrote.

The statement comes after days of widespread Internet outcry over the 26-year-old activist’s death, ruled a suicide last Saturday. At the time of his death, Swartz was being prosecuted by the Department of Justice for allegedly downloading nearly 5 million academic journal articles from the Web site JSTOR in 2010, using a laptop hooked in to the Massachusetts Institute of Technology campus network.

After Swartz handed over a number of hard drives, JSTOR decided not to pursue charges. But many have placed the blame on Attorney Ortiz and assistant U.S. Attorney Steve Heymann, both of whom continued to prosecute Swartz for his alleged crimes.

Swartz’s attorney, Elliott Peters, has accused Heymann in particular of overzealous pursuit of Swartz, in a recent interview with the Huffington Post.

Assistant Attorney Heymann was looking for “some juicy-looking computer crime cases and Aaron’s case, sadly for Aaron, fit the bill,” Peters told HuffPo. Peters said that Heymann believed Swartz’s prosecution “was going to receive press and he was going to be a tough guy and read his name in the newspaper.” Peters also claims that if the case had gone to trial and Swartz was convicted, he could face the maximum penalty: Upward of 35 years in Federal prison and fines of $1 million.

Ortiz’s statement, however, seems to downplay the extent to which her office went after Swartz. “At no time did this office ever seek — or ever tell Mr. Swartz’s attorneys that it intended to seek — maximum penalties under the law,” Ortiz’ statement read.

Mr. Peters has not yet responded to multiple requests for comment.

MIT has also come under fire, taking flak for continuing to cooperate with Attorneys Ortiz and Heymann. The school released a statement on Sunday, expressing sympathy to Swartz’s friends and family and announcing its intent to conduct an internal investigation as to the school’s part in the ordeal.

“It pains me to think that MIT played any role in a series of events that have ended in tragedy,” MIT President L. Rafael Reif wrote.

But activists, academics such as Lawrence Lessig and Swartz’s family aren’t letting MIT and the U.S. Attorney’s office off the hook so easily. Swartz’s family released a statement on Saturday, placing much of the blame squarely on both MIT and Attorneys Ortiz and Heymann.

“Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach,” the statement read. “Decisions made by officials in the U.S. Attorney’s office and at MIT contributed to his death.”

In the wake of many cries for computer crime reform in the days that followed, some U.S. lawmakers have spoken out in favor of amending existing legislation. On Tuesday evening, Representative Zoe Lofgren posted a draft of a bill she planned to propose on Reddit, where supporters of computer crime reform could give Lofgren feedback before she presented the bill to congress.

Read Ortiz’s statement embedded in full below:

January 16, 2013
STATEMENT OF UNITED STATES ATTORNEY CARMEN M. ORTIZ
REGARDING THE DEATH OF AARON SWARTZ

As a parent and a sister, I can only imagine the pain felt by the family and friends of Aaron Swartz, and I want to extend my heartfelt sympathy to everyone who knew and loved this young man. I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life.

I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case. The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably. The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct — while a violation of the law — did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases. That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct — a sentence that we would recommend to the judge of six months in a low security setting. While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge. At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek — maximum penalties under the law.

As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible. We strive to do our best to fulfill this mission every day.


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I think the NSA has a job to do and we need the NSA. But as (physicist) Robert Oppenheimer said, “When you see something that is technically sweet, you go ahead and do it and argue about what to do about it only after you’ve had your technical success. That is the way it was with the atomic bomb.”

— Phil Zimmerman, PGP inventor and Silent Circle co-founder, in an interview with Om Malik