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It's Time to Investigate the Aaron Swartz Prosecution


It's time to appoint an independent special prosecutor to investigate the Department of Justice (DoJ) and U.S. Attorney Carmen Ortiz about the death of Aaron Swartz.

It's time to appoint an independent special prosecutor to investigate the Department of Justice (DoJ) and U.S. Attorney Carmen Ortiz about the death of Aaron Swartz.

To the best of my recollection, I've never met Ortiz or Swartz. I write not from any personal connection to this case, but as a deeply concerned American. If we allow the circumstances of Swartz' death to go un-investigated, we'll be a nation of sheep, afraid to question the use of governmental power. Make no mistake: What happened to Swartz could happen to any of us -- gun rights or gun control advocate, Tea Party or Occupy Wall Street supporter, Democrat or Republican -- we'll all be at risk of arbitrary prosecution by DoJ on trumped-up charges. This fight belongs to all of us.

Swartz was a young, highly-talented computer scientist and an activist who was a thorn in the side of powerful established interests. He was accused by DoJ U.S. Attorney Ortiz of downloading (stealing) several million obscure academic research papers from the Journal Storage Project (JSTOR). Ortiz never claimed these documents were of value for terroristic or other harmful purposes, but simply that:

"Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away," said Ortiz regarding the indictment of Swartz.

Assuming Swartz downloaded the documents, it's unclear whether he wanted the papers to make them public as some political statement or prank, use them for a research project, or demonstrate the lack of security in the system. One thing everyone agrees on -- including Ortiz -- is that Swartz didn't intend to personally profit from the material. And JSTOR, from whom these documents were purportedly "stolen," didn't want any criminal or civil charges brought against Swartz.

In this victimless crime -- where the purported victim didn't want to press charges -- Ortiz indicted Swartz on multiple felony counts:

"If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million." Source: Ortiz

Swartz had the right to defend himself in court, but a victory would have left his reputation in ruins (felony accusations, even if false, have a lingering negative effect) and litigation costs would have bankrupted him. If the government lost its first court case, it still might have found reasons to appeal, refile with civil litigation, or invent new charges. Swartz, even if eventually victorious, faced the possibility of years of nasty, ruinous litigation.

But Ortiz wasn't a heartless monster -- she offered Swartz a deal. If Swartz didn't want to endure the risk, ordeal and expense of trial, he merely had to give Ortiz a guilty plea for the felony charges. In exchange for giving up his rights as a U.S. citizen -- and being branded a felon forever -- Ortiz would recommend Swartz serve a mere 6 months in jail (on a charge the purported victim hadn't wanted prosecuted).

Faced with Ortiz' generosity, Swartz committed suicide. It's enlightening to contrast DoJ's treatment of Swartz with its recent treatment of global banking giant HSBC. According to DoJ, HSBC engaged in a highly-illegal, multi-year program of laundering money for drug dealers, terrorists and even the Iranian government, and actively assisting those customers in avoiding US laws. HSBC's punishment for its illegal actions -- a fine equal to one month's profit. Neither HSBC, nor any of its employees, had to plead to even one felony.

Another example of DoJ inconsistency -- it's been widely reported that congressional staffers illegally download pirated copies of copyrighted movies and TV shows -- during working hours, on government computers. The entertainment industry objects (vehemently) to such illegal downloads.

Although the staffers' activities have been reported for over a year and apparently haven't stopped, DoJ hasn't announced any investigation of seemingly flagrant, ongoing violations. The congressional staffers' actions, if true, are exactly analogous to what Swartz was accused of, except: they involve multiple incidents, multiple perpetrators, and actual theft. Yet DoJ appears to be doing nothing -- not even warning these staffers to stop.

The contrast between Swartz' treatment, and the treatment accorded HSBC and the congressional staffers, demands an explanation. If DoJ really believes "theft is theft," why not investigate and indict the congressional staffers? So far, Ortiz' press release explaining her conduct reads like North Korea's justifications for show trials.

Since Ortiz won't enlighten us, we're left to speculate. The most benign possibility is that Ortiz had some legitimate reason for this prosecution, which she hasn't been able to explain clearly. The less benign possibilities are that Ortiz is incompetent or corrupt. If incompetent, Ortiz should lose her license to practice law before destroying more Americans.

However, if (and I truly hope this isn't so) Swartz was prosecuted: To curry favor with powerful entities annoyed by Swartz' activism; To further DoJ careers by inventing a major prosecution against a target without deep-pocket funds or connections; or because of other corruption within DoJ, then the relevant DoJ attorneys should be prosecuted to the fullest extent of the law.

Retired U.S. District Court Judge Nancy Gertner, Harvard Law Prof.Lawrence Lessig and many other Americans with significant legal experience have expressed their concerns over Swartz' treatment in this case.

If Ortiz is truly innocent of wrong-doing and can explain her actions, she has nothing to fear from an independent investigation and should welcome the opportunity to resolve this matter. If you agree DoJ's treatment of Swartz deserves examination, I hope you'll take the time to sign this petition for an independent investigation. Our ability to exercise the freedoms we have as Americans might depend on it.

Note: If you would like further information about this case, I suggest reading Ortiz' original press release explaining her logic in indicting Swartz, and the blog post of the expert witness retained by Swartz' counsel explaining his objections to the indictment.

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