[Infowarrior] - What should the next Aaron Swartz do when the DOJ knocks?

[Richard Forno]

What should the next Aaron Swartz do when the DOJ knocks?

Aaron Swartz found out the hard way that you can't expect justice from the Department of Justice: what should the next Aaron Swartz do when facing decades in prison for information activism?

By Harry Kopyto

  http://boingboing.net/2015/03/12/aaron-swartz-and-impact-litiga.html

I am among those who have seen the recently released documentary about Aaron Swartz's short life, The Internet's Own Boy. I watched the film in light of my own experiences as a lawyer and paralegal engaged in social justice battles for more than four decades.

I have been an advocate and media organizer for rights causes involving individuals and groups seeking access to justice through Canada's legal system. I've taken on more than 70 cases that changed Canadian law, helping to establish employment rights for gay people (eventually followed by changes in provinces' human rights codes to include sexual orientation as a prohibited category for discrimination); compensation for discrimination against Black nurses who lacked sufficient support from their union; affirming the historic right of private prosecution in a unanimous Supreme Court decision against the Ontario government; establishing sexual harassment at work as a workplace safety issue -- thereby allowing female employees to get rapid redress; litigating on behalf of victims of the RCMP Security Service that contributed to its disbanding and civilian reconstitution; achieving the largest awards in a human rights case and in a rent abatement case in Canada and winning a precedent-setting ruling against a multi-national corporation seeking to monopolize control over domain names. In these and other struggles, my weapons of choice were committees of mutual support, rallies, and publishing to broad audiences. These experiences prompted me to consider how Aaron Swartz might have pursued a more aggressive public campaign as part of his legal defense.

On January 6, 2011, Swartz was arrested for a bold act of apparent disobedience―he accessed the JSTOR repository of scholarly articles. According to his prosecutors, he intended to release these to the public. Corporations whose profits depended on charging to access scholarship were not amused. Still, none of them chose to sue. Only the United States federal prosecutors pressed the case, intending to make an example of Aaron. They couldn't ignore his conduct. It would have been a precedent that, if allowed to stand, would be a beacon for others.

Much blame has been placed on ham-handed prosecutors like Stephen Heymann who tried to hammer Aaron into submission. When Aaron and his supporters embarrassed the prosecutor by publicly questioning the prosecution's legitimacy, Heymann and his colleagues retaliated by  adding a long list of new charges to Aaron's case. They turned his alleged unauthorized access to a network -- usually dismissed as a misdemeanor "continuance without a finding" -- into a massive federal indictment.

This was a scare tactic to frighten Aaron into submission. First, the stick: a potential sentence of 35 years. Then, the carrot: a few months in jail in an open comfortable setting. The feds wanted capitulation, a guilty plea.

Supervising U.S. Attorney Carmen Ortiz needed a guilty plea to finesse Aaron's brazen attack against the privatization of knowledge. The ruthless, ambitious Heymann wasn't just lead prosecutor in the case -- he was also hoping to burnish his credentials for a future political career.

Swartz was accused of something more threatening than a property offense―he had launched a public interest attack on the commodification of knowledge. There was no violation of copyright law. There was no trespass on federal property. There was no privacy violation. Downloading a scholar's article, even numerous times, cannot constitutionally constitute a felony under U.S. law.

The prosecutors didn't want to try the untested constitutionality of the Computer Fraud and Abuse Act (CFAA) in a highly publicized court case. They knew Aaron's case wouldn't be easy for them to win if it went to trial. They were ready to give Aaron a kiss for a plea. One of Aaron's lawyers, Marty Weinberg, nearly negotiated a plea bargain that would have kept Aaron outside of a cell completely. The punishment was negotiable -- within limits. The government sought an admission of guilt and time in prison so it could show its mettle in defending privately (and profitably) controlled access to information.

With hindsight, it appears that the 18 months spent negotiating a plea with the feds was wasted. But going to trial was tremendously risky: though a victory could have resulted in the law being declared unconstitutional, the downside was the threat of an outrageously lengthy jail term. Pleading guilty could have resulted in a comparatively light sentence (and a felony on his record)..

Aaron's lawyers knew well that federal felony prosecutions result in findings of guilt 93% of the time ( U.S. Department of Justice, U.S. Attorney's Annual Statistical Report). Of course, many of Aaron's family and friends focused on winning a sure deal to keep Aaron out of jail with his morale intact. For some, including, it seems Aaron, a highly publicized public campaign to prove his innocence by striking the law from the books raised the stakes too high.

The bullying prosecutors were intransigent. Although Aaron's lawyers were willing and able to contest the power of the Dept. of Justice, if directed, the uncertainty of the outcome strongly suggested a more sober approach. They pleaded instead for mercy, even sharing information with the feds about Aaron's mental health history. But in my experience though, the cold and calculating representatives of officialdom never care about the personal troubles of the victim of abusive laws when a political agenda is at stake.

The U.S. government brutalized Aaron. The law he was charged under is largely untested, especially in the context of Aaron's benign conduct. The merits of the charges were wide open to a constitutional challenge―they were too vague and indefinite to pass the test of specificity needed to provide adequate notice of the prohibited conduct.

The CFAA also violated the principle that one cannot be found guilty of an offence more than once―double indemnity. Many constitutional lawyers were salivating at the prospect of challenging these parts of the CFAA. How it was that an alleged breach of a non-negotiable terms-of-service boilerplate agreement could result in criminal prosecution for 13 federal felonies left many lawyers scratching their heads in wonder.

Aaron's acts were harmless: there was no physical harm, no economic harm. JSTOR could not prove it lost a cent. It never sought compensation -- there was nothing to compensate! Yet a non-custodial plea bargain turned out, unexpectedly, to be out of reach despite the best efforts of three sets of top lawyers.

And the evidence against Aaron? MIT's facilities and Web connections were accessible to the public who identify themselves as "visitors" under MIT's "open campus" policy. They could access JSTOR through its network without pay. No lock was picked. The doors to the depository where Aaron's laptop hooked into JSTOR's hardware were never secured. Among the downloaded articles were many that had been prepared with public money and were already freely available through sites more difficult to access. There wasn't even a sign indicating that the room where Aaron connected his laptop was off limits. In fact, in response to his death, many JSTOR journal archives were made available for free to the public (how posthumously generous).

Was there anything that could have been done that could have resulted in a different outcome?

Suppose, for a moment, that we lived in an alternate reality. Suppose that we could have known, somehow, that the negotiations for a reasonable plea would be futile. Suppose that we anticipated how self-destructively Aaron would react to the prospect that his aspirations to a political career, not to mention his freedom, could be dashed by a conviction for a federal felony, which would prevent him from even voting for the rest of his life. Suppose Aaron's lawyers, versed in civil liberties law and impact litigation, had been directed to focus their energy on defending Aaron by demanding that the law under which he was charged be declared constitutionally inapplicable.

Just as Aaron helped mobilize millions of activists to bring down the hated SOPA law, could a similar mobilization have saved Aaron? Aaron's lawyers spoke truth to power. Would the outcome have been different if they spoke power to power? Didn't Aaron himself, through organized efforts, help start a campaign that flooded Congress with eight million phone calls to block SOPA, a victory so expansive that it stunned even Aaron?

Imagine a different paradigm. Let's consider a not-guilty defence of Aaron based on a strategy of broad appeal and mass mobilization. Manhattan's former top federal prosecutor had already called for the charges to be dropped. Retired federal judge Nancy Gertner had questioned the propriety of laying the charges in the first place. Law professor Stephen L. Carter described the prosecution as "ridiculous".

Would tens of thousands of American youth have responded actively to a public campaign, whether on the net, in the streets or in front of the courthouse? What impact would an international defence committee with broad public representation and prominent sponsors have had? With speaking tours for Aaron to build support on campuses and in communities? With phone campaigns to flood congress, MIT or Harvard? With crowdsourcing to raise funds for Aaron's legal defence? With legal intervention by civil liberties groups in the court case? With demonstrations at U.S. embassies around the world?

On September 16, 2012, an Aaron Swartz Defence Fund was initiated by Bettina Neuefeind (lawyer, activist, wife of Creative Commons founder Larry Lessig) when Aaron was already deeply depressed. Just three months before Aaron's death, this fund was announced with a call for public support.

Remember that Aaron's last lawyer, Elliot Peters, was aghast when the only media present during Aaron's final court appearance was a lone reporter from a student paper.

We only have a few clues to how Aaron would have reacted to a mass public campaign. We do know that Aaron felt the weight of the prosecution but spoke little of it. He hid it well (or maybe not so well). One close friend of Aaron's blamed him for taking his life without asking for help. Go easy. He was consumed by his guilt with regard to the crushing financial burden the legal defence imposed on the people who cared for him. He was frightened by the escalating threats to his ex-girlfriend, to subpoena her along with her files to implicate their friends and compel her to testify before a Grand Jury on pain of imprisonment if she refused. What some called his shyness was also Aaron's generous reluctance to enmesh others in what he saw as a personal issue.

Imagine that we appealed to Harvard's and MIT's faculty and student associations to support Aaron. They might have reacted positively in contrast to the gutless administrators who proclaimed "neutrality", putting paid to Aaron's father's hopes that they would come to Aaron's rescue. When the prosecution threatened to implicate Aaron's partner and broaden its investigation, imagine a legal strategy to push back and redouble efforts to massively publicize this tactic of blatant intimidation and blackmail. Imagine that we ringed the courthouse with a phalanx of protestors every time Aaron's case appeared in court? Could we have mobilized public sentiment in defence of Aaron?

Aaron's mood was always brightest and most combative, even exhilarated, when he mobilized the public behind him. The prospect of success in Aaron's legal battle may have been dramatically enhanced by the creation of an independent, visible, ongoing, international militant campaign in which legal tactics were subordinate to the struggle to defeat a quintessentially political prosecution under a law that was and continues to be legally indefensible. Imagine if we could have convinced Aaron to do what he was best at doing―campaigning publicly for justice!

In the real world, we know the course of events demoralized Aaron and filled him with feelings of guilt and shame for burdening his family and implicating his friends. Those who loved Aaron tried their best.

Two days after the plea-bargaining blew apart on January 11, 2013, Aaron's family was close to a million dollars in debt. He could not afford a trial.

Suppose there was a broad social and political infrastructure to supplement his legal defence. Would the Aaron that turned the online world upside down not have thrived in an uncompromising, bold, unwavering public, social, and legal struggle which looked to him for moral and political leadership? Wouldn't the same Aaron who was so deeply committed to sharing the vast store of human knowledge have also thrived as the cutting edge of a campaign to overturn an indefensible law that blocked such access?

Aaron's attempt to mobilize public support for his case -- a press release in support of his case from Demand Progress, the organization he helped found -- provoked an all-out retaliation from the U.S. prosecutors. At the first whiff of resistance, they added 13 felony counts to his charge-sheet. They understood that Aaron was attacking them on their weakest flank. In the courtroom, they would likely win -- as they obtain findings of guilt in 93 percent of federal felony prosecutions. In the streets and in the court of public opinion, and especially on the Internet, they were fighting on Aaron's home turf.

It's easy to understand Aaron's decision, and the decision of his supporters and legal team, to retreat from provoking the rage of the U.S. prosecutors who had him in their crosshairs.

But the U.S. prosecutors have shown us what to expect from capitulation. They have shown us what happens when we let them intimidate us into giving up on the only force we have that they lack.

There will be more Aarons. The CFAA is still on the books, and it one of the stupidest, most grotesque statutes in the USA, overdue for a constitutional challenge. Aaron's tactics evolved with each fight, the ones he won and the ones he lost. He lost this one, and taught us a lesson we need to remember -- next time. The key idea is to build a movement that can change the balance of forces. To build such a movement you have to have a vision -- overturn a bad law in court by pleading not guilty and protect a victim of the bad law. It's tempting to see the farcical conviction of Barrett Brown as an example of why pushing back is a waste of effort, but Barrett Brown did exactly the opposite. Brown is an American writer, activist and journalist from Texas who facilitated analysis of information leaked by the hacktivist collective Anonymous and other sources that exposed the private machinations of the vast intelligence contracting network. His work was seminal in translating raw data about the U.S. military-industrial complex into an accessible, centralized format to the dismay of the cybersecurity industry. Following the 2012 Stratfor email leak, the U.S. Department of Justice filed 17 charges against him, seeking to silence him forever.

Brown's only offence was posting online a publicly available link containing publicly available data that he was researching as a journalist. He accepted his guilty plea as valid. Never questioned the law itself. Agreed that he was guilty and should be punished. He thereby effectively sanctified the law itself, which criminalized the posting of links. In fact, he justified his prosecution by asking for an overall sentence of 30 months (time served). The court gave him four years for threatening a police officer and his children on YouTube while only 12 months for posting the link. So now he sits in jail after his sentencing in January. Yes, there was a public campaign in his case. But only to get money to pay lawyers to lower his sentence and collect character-testifying letters from people in an attempt to influence the judge. It was a sympathy ploy with no focused political demand.

There was never any prospect of building a unified movement that could inspire people with a vision of doing away with this law around a clear, unifying demand. But even assuming for the sake of argument that the cases were identical, should we conclude that just because someone loses, then everyone would lose?


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It's better to burn out than fade away.