WASHINGTON — The suicide of Internet activist Aaron Swartz is reverberating throughout Congress this week, with family members arriving on Capitol Hill to urge passage of legislation that would soften some Internet laws, and a House committee investigating whether prosecution of Swartz went too far.
Criticism of Swartz’s prosecution has led the House Committee on Oversight and Government Reform to open an inquiry about the case. The panel is seeking answers from the Department of Justice regarding the severity of Swartz’s proposed punishment, and whether his activism affected his prosecution. Justice officials could provide a private briefing for committee members as soon as next week, House aides said.
The committee’s chairman, Darrell Issa, called the prosecution “regrettable” at a memorial service for Swartz at the Cannon House Office Building that was designed to highlight the case and create momentum for passage of the legislation. Senator Elizabeth Warren of Massachusetts also attended the service, but did not speak, according to a participant.
“The crime and the punishment did not fit,” Issa said in a video of the memorial posted online Tuesday. “The best and the brightest in our prosecution — our US attorneys — should care about disposing of small cases quickly and big cases properly. This wasn’t a big case. We know that.”
Swartz, indicted on federal hacking charges, hanged himself in his New York apartment last month. His death came after a two-year legal battle during which he faced 13 felony charges and up to 35 years in prison. In the outcry that followed, cyberactivists and a growing number of politicians have proposed passage of “Aaron’s Law,” which would decriminalize some cybercrime statutes in an effort to prevent a repeat of the Swartz case.
As part of that effort, Swartz’s girlfriend, Taren Stinebrickner-Kauffman, joined Swartz’s family and friends along with politicians including Issa at the memorial service at the Capitol.
“Prosecutors in this country aren’t selected for justice, and they’re not selected for mercy,” Stinebrickner-Kauffman said through tears, in the online video of the memorial service. “It doesn’t matter whether they understand the Internet . . . Until the [law] is amended, the best and brightest in America will be afraid to innovate for fear of prosecutors.”
She said that aggressive prosecution by US Attorney Carmen Ortiz of Massachusetts contributed to Swartz’s decision to take his life, which she called “cut short by a prosecutor’s ambitions.” Ortiz, who did not respond to a request for comment, said in a statement after Swartz’s death that while she felt “heartfelt sympathy” for the activist’s friends and family, “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 Department of Justice’s agreement to brief the House committee came a week after Issa and ranking Democrat Elijah Cummings sent a joint inquiry requesting information about the case. Swartz was originally indicted in 2011 on four felony charges, according to their letter, but a superceding indictment in September upped that number to 13. The final tally was punishable by up to $1 million in fines along with time behind bars, though Swartz would have faced only seven to eight months in prison if he had taken a plea deal.
Representatives John Tierney of Salem and Stephen Lynch of Boston, who sit on the House Oversight Committee, were not available for comment, according to their offices. Warren’s office also said she was not available for an interview. The US attorney’s office in Massachusetts referred questions to the Department of Justice, where officials also declined to comment. The Justice Department would not say whether Ortiz would participate in the House briefing or whether the agency is conducting an internal investigation.
Swartz was arrested in Boston in 2011 on federal hacking charges. Prosecutors alleged that he illegally used the Massachusetts Institute of Technology network to download nearly 5 million articles and documents from JSTOR, among the world’s largest archives of scholarly journals. Although JSTOR declined to press charges, Swartz was indicted under the Computer Fraud and Abuse Act, aimed at curbing computer hacking.
Georgetown University law professor Orin S. Kerr said the law, which punishes those who access protected computers without authorization, enables the type of prosecutorial overreach alleged in Boston.
“I think we need to revisit the statute, we need to limit the statute,” said Kerr, who has been recognized for his work in criminal procedure and computer crime law. “This is a statute that can be taken to be breathtakingly broad.”
Representative Zoe Lofgren, a California Democrat, and Senator Ron Wyden, an Oregon Democrat, drafted legislation last month excluding breaches in user agreements and terms of service from the antihacking law. “Aaron’s Law,” as they dubbed it, would also draw a distinct line between criminal hacking and more minor instances of unauthorized access.
“A thorough revision of the CFAA and substantial reform of copyright laws are necessary,” Lofgren said in a statement on Reddit, the user-generated news website that Swartz helped found. “ ‘Aaron’s Law’ is not this complete overhaul, but is a first step down the road to comprehensive reform.” The proposal could be introduced to the House floor as early as next week, a Lofgren aide said.
While “Aaron’s Law” helps update the statute for the digital age, it does not address the scope of punishments such as those faced by Swartz, said Lawrence Lessig, director of Harvard University’s Edmond J. Safra Center for Ethics.
Lessig, who attended the memorial service in Washington, met Swartz more than a decade ago at a computer conference, he said, calling Swartz “a prodigy.” Lofgren’s proposal — if eventually passed — “would be an important but small step toward the type of reform that Aaron himself was pushing for.”
“The memorial service was an amazing event,” Lessig said. “It was a celebration of Aaron’s life as well as seeing where we can go from here.”