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Hacker’s suicide triggers scrutiny of prosecutor, law

The computer crimes allegedly committed by 26-year-old hacker Aaron Swartz became the focus of intense debate by legal experts and Internet activists Monday, three days after Swartz committed suicide while facing federal prosecution and possible jail time for downloading massive numbers of scholarly articles.

The death of the young activist, widely described as a computer prodigy, abruptly ended the case brought against him by the US attorney in Massachusetts, while sparking anguished criticism of the prosecution and the 25-year-old law at its center, the Computer Fraud and Abuse Act.

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In the most recent plea negotiations, Swartz’s lawyer said Monday, the office of US Attorney Carmen Ortiz remained insistent on prison time of four to six months, far less than the 35 years and $1 million fine allowed under federal law but more than Swartz was willing to accept.

Family members called his death “the product of a criminal justice system rife with intimidation and prosecutorial overreach.” His mentor, Harvard Law professor Lawrence Lessig, urged shame on “bullying” prosecutors. And friends and colleagues called for more proportional penalties.

“The case was a great source of stress and fear and feelings of hopelessness for him,” Swartz’s lawyer, Elliot Peters, said in an interview. “I just hope that prosecutors and people at the Department of Justice can find a way . . . to consider proportion and fairness.”

Ortiz’s office continued to decline to comment on the case Monday. A trial had been set to begin in April against the one-time wunderkind, who at 14 helped develop RSS — a groundbreaking technical advancement in how online content is distributed — and went on to help create the social news site Reddit.

The key federal charges against Swartz — wire fraud; computer fraud; unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer — stemmed from his alleged efforts beginning in September 2010 to gain access to an academic database and rapidly download enormous numbers of academic articles normally provided to subscribers in limited quantities.

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According to the government’s indictment last fall, Swartz, then a fellow at Harvard’s Safra Center for Ethics, used the computer network at MIT to sign in as guest user “Gary Host” and access the scholarly database, known as JSTOR. Well known in Internet circles as an activist for unfettered information access, Swartz may have intended to make the contents widely available for free — but he never got the chance.

After the MIT network detected his efforts and tried to block him, the indictment alleges, Swartz sidestepped them in a series of high-tech maneuvers, ultimately bypassing the guest registration process by entering an MIT computer closet and wiring his laptop directly into the network. Eventually MIT installed a camera in the closet and in January 2011, prosecutors said, he was caught.

MIT said Sunday that it will investigate its involvement in the case, “in order to understand and to learn from the actions MIT took,” according to a statement by president L. Rafael Reif.

According to the indictment, the user’s agreement for the database prohibits the use of automated programs to download content, and makes clear that violation of the rules could lead to prosecution. But some hacker advocates say it is unconstitutional to criminalize the violation of a private user agreement. In addition, they argue, the federal law is not specific about what constitutes unauthorized access.

“There are cases where people try to use creative theories to punish behavior that is not really hacking, which is what the law” was intended to target, said Marcia Hofmann, a senior staff attorney with the Electronic Frontier Foundation in San Francisco, a nonprofit organization that advocates for legislative reform. “It’s difficult to assess his case, because we only have the indictment. . . . There are a lot of questions in his case that never got answers.”

But Orin Kerr, a law professor at George Washington University, wrote in a lengthy essay posted online Monday that a detailed analysis shows that the charges against Swartz were fair. For instance, he said, Swartz used false pretenses to obtain articles that JSTOR did not want him to have. He also said that Swartz clearly exceeded his authorized access.

“None of the charges involved aggressive readings of the law or any apparent prosecutorial overreach,” Kerr wrote. “All of the charges were based on established case law. Indeed, once the decision to charge the case had been made, the charges brought here were pretty much what any good federal prosecutor would have charged.”

But Kerr acknowledged in an interview that the proposed penalties might be a different story. “There was reason to bring criminal charges, but it’s hard to know if the prosecution abused its discretion in terms of a plea offer,” he said.

Leaders of JSTOR had not pushed for Swartz’s federal prosecution, and said in a statement they “regretted being drawn into [the case] from the outset,” given that their “mission is to foster widespread access to the world’s body of scholarly knowledge.”

At the heart of Swartz’s refusal to strike a deal with the government, his lawyer said, was prosecutors’ insistence on felony charges.

Prosecutors offered him two options that “never really changed” during the two years the case went on, said Peters: Swartz could plead guilty to all 13 felony charges and the government would argue for a six-month prison term while Swartz’s lawyers argued for less time; or Swartz could plead guilty to all 13 felonies and accept a sentence of four months. A fine was never specifically discussed as part of the plea agreement.

“I said, how about a misdemeanor and probation, and they said, it will never happen,” Peters said Monday. “They said they would never resolve the case without the opportunity to seek a prison sentence.”

Swartz’s response was consistent, Peters said: “He was like, forget it — I’m not going to agree to go to prison and I don’t think I’m a felon.”

But Swartz was scared, his lawyer said, “and I was scared for him, because although I thought we could win — I really did — there’s always a risk, and I wanted to avoid exposing him to that risk.”

The government last offered the plea deal on Wednesday, said Peters, when the lawyer spoke with prosecutors in preparation for a pretrial hearing. Again, the lawyer said, he appealed to them to “resolve the case in a way that doesn’t destroy his life.” But the offer did not change, and the lawyer did not relay it to Swartz. Two days later, Swartz was dead, found by his girlfriend in their Brooklyn apartment.

His case has become “a lightning rod for people who recognize there are serious problems in the way we prosecute computer crimes,” said Hofmann, of the Electronic Frontier Foundation. “It strikes people, that he was a brilliant, constructive person who made the Internet better. . . . He’s no longer around to make those contributions, and the world will be worse for it.”

Jenna Russell can be reached at jrussell@globe.com.

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