Inquiry widens into Swartz prosecution

Aaron Swartz was arrested in 2011 after allegedly using MIT’s network to illegally download documents from JSTOR.Noah Berger/Reuters/File

WASHINGTON — A congressional committee is broadening its investigation of the Boston-based prosecution of political activist Aaron Swartz, whose January suicide prompted questions about whether the Justice Department went too far in enforcing a 27-year-old law regulating computer use.

Darrell Issa, chairman of the House Committee on Oversight and Government Reform, said in an interview that he plans to expand his inquiry into how the office of US Attorney Carmen Ortiz of Massachusetts handled the case.

“Are we using excess prosecution, excess claims in order to force guilty pleas?” the California Republican asked. “Or are we trying to genuinely offer punishment fitting the crime? In the case of Aaron Swartz, it’s very clear that they were trying to send a message to people other than Aaron Swartz with what they were willing to offer him and what he was charged with.”

Issa said his committee is seeking information from the Massachusetts Institute of Technology, where Swartz hacked computers, and JSTOR, the scholar database whose files he downloaded.

Issa’s staff was recently briefed by the Justice Department on the rationale for the prosecution of Swartz, but Issa said the committee was left with many questions that he hopes will be answered in an expanded inquiry.

Whatever happens in the investigation, the case has simultaneously pushed Congress to review whether to update the law under which Swartz was prosecuted. That has prompted a debate with potentially far-reaching consequences, as lawmakers ponder whether to revise a law enacted in 1986 — when the Internet as it is known today barely existed — without creating an opening for illegal hacking.

Swartz was arrested in Boston in 2011 after allegedly using MIT’s network to illegally download 4.8 million documents from JSTOR, one of the Internet’s largest collections of scholarly articles. Though JSTOR didn’t press charges, Swartz faced 13 felony counts that carried up to 35 years in prison and $1 million in fines.

Ortiz offered Swartz a plea deal that would have cut his time behind bars to less than a year, an offer the activist turned down. Aides said Ortiz declined to comment Tuesday, but she wrote in a statement after the activist’s death that her office’s “conduct was appropriate in bringing and handling the case.”

Some Internet activists are pushing lawmakers to rewrite the 1986 Computer Fraud and Abuse Act under which Swartz was prosecuted. Aimed at narrowing the statute, draft legislation dubbed “Aaron’s Law” is set to be introduced on the House floor in the coming weeks.

Lawmakers, however, face a balancing act that will only intensify as commerce and communication continue to move online: how to keep the Internet free and open while combating the growing threat of cybercrime.

“Computers have come a long way since [1986],” Representative Joseph Kennedy III of Brookline said. “It might be time for an update.”

But the 32-year-old Kennedy — among the few members of Congress who grew up with computers — acknowledged the challenges facing lawmakers as the Web becomes more integrated into everyday life.

“The Internet . . . has fostered so much innovation, which is a great thing that we need to encourage,” Kennedy said. “The difficult part about innovation is that, by its nature, it is disruptive . . . There is a balance, again, to be struck on this.”

Issa, who is leading the inquiry on Swartz’s case with ranking member Elijah Cummings, said the committee is asking the question, “Should the tools of the kind of prosecution they had, the kind of years he was facing — should those tools exist for exactly what he did — in the future?”

Swartz’s motive in downloading millions of JSTOR files is unclear.

Two officials with knowledge of the House Oversight Committee briefing said the Justice Department pointed to Swartz’s past advocacy of free and unrestricted information online as evidence of his intent to distribute the documents. The officials confirmed a report in The Huffington Post that a Justice official referenced the “Guerilla Open Access Manifesto” that Swartz wrote in 2008, which called for “civil disobedience” toward copyright laws since “information is power.”

“There is no justice in following unjust laws,” Swartz wrote. “We need to take information, wherever it is stored, make our copies and share them with the world.”

Representatives Stephen Lynch of South Boston and John Tierney of Salem, two Massachusetts Democrats on the House Oversight Committee, declined to comment on the briefing.

JSTOR has begun informal communication with the committee and will cooperate in its investigation as needed, an official said. MIT, meanwhile, launched an internal inquiry on its actions related to Swartz and will release its findings in a matter of weeks, though officials wouldn’t comment further.

The briefing also touched on prosecutors’ knowledge of Swartz’s history of depression the two officials said, as critics contend that the prosecution contributed to the 26-year-old’s decision to take his own life. Swartz’s release on $100,000 bond in July 2011 came under a condition, among others from Judge Judith Dein, that he seek mental treatment as directed by pretrial services.

“I’m a little concerned about some mental health issues here,” Dein said during Swartz’s arraignment, according to a court recording of the proceedings. “I guess there’s been some concerns in the past about his ability to handle the situation.”

Though many activists contend Swartz was unfairly prosecuted under the law, some legal experts instead lay blame on the statute itself, which they say is overly broad.

Orin S. Kerr, a professor at the George Washington University Law School, said what Swartz did “was pretty clearly a felony . . . this was not something that was even in the periphery of the statute.”

Kerr nonetheless argued that the law’s punishments are overly harsh, adding that its broad language can criminalize something as minor as violating a terms of service agreement. Falsifying personal information on a Facebook account, Kerr offered as an example, breaches the site’s small print, terms of service to which most users automatically agree.

“The government can put in jail any Internet user they want,” said Kerr, an expert in computer crime law. “We’re at the early age of figuring out what should be a crime and what should not be a crime when it involves computers.”

Representative Zoe Lofgren of California drafted legislation to reform the Computer Fraud and Abuse Act soon after Swartz’s death. The proposal would rewrite certain aspects of the hacking law, decriminalizing violations of terms of service, and giving “unauthorized access” a more concrete definition. “Cybersecurity is a serious problem,” Lofgren said in an interview. “This has nothing to do with it.”

Still, “Aaron’s Law” could prove a tough sell in Congress, especially given recent steps to ramp up protections against cybercrime and cyberterror. A report released last week by Mandiant, a US-based computer security firm, tracked years of cyberattacks on American corporations and government agencies by a group tied to the Chinese Army.

“Any time you’re talking about weakening a criminal statute, there’s always a fear that legislators will appear weak on crime,” said Andy Sellars, a fellow at Harvard University’s Berkman Center for Internet and Society.

Swartz first gained fame as a teenager when he cofounded Reddit and helped develop Creative Commons and RSS, a feed to automatically update content for online users. Over the past five years, he began translating his knowledge of Internet tools to mainstream progressive causes.

After the House and Senate unveiled legislation in 2011 to bolster copyright law — and fundamentally change how information is shared online, critics argue — Swartz catalyzed an Internet response that helped stall both bills in January 2012. Giants such as Google, Wikipedia, and Reddit joined tens of thousands of other sites in blacking-out web pages, and millions of Internet users protested online through petitions and e-mails.