Over the weekend, the Boston Globe published what it calls "the inside story" of MIT's role in the federal prosecution of Aaron Swartz. Title notwithstanding, it misses the real story here entirely: why exactly did the Department of Justice go after Swartz so aggressively?
The Globe story is at best a weak coda because it follows up on a long, detailed, and heavily criticized July 2013 report by MIT computer science professor Hal Abelson. It is unclear what, exactly, the Globe's findings add to the record, beyond compounding the impression that there was a lot of confusion in this case, it eventually blew up into a giant mess, and someone died because of it.
The Globe combed through documents that it says both JSTOR (whose "inside story" is sort of covered here too even though it didn't make the headline) and MIT posted publicly after Swartz's suicide last January, and a number of "e-mails related to the case not available publicly." And what it says it found was that:
... the e-mails underscore the dissonant instincts the university grappled with. There was the eagerness of some MIT employees to help investigators and prosecutors with the case, and then there was, by contrast, the glacial pace of the institution's early reaction to the intruder's provocation.
There are some newish and anecdotally interesting facts here. For example, the Globe explains that MIT knew sometime in mid-October 2010 that the downloads of JSTOR articles at the heart of the case were all emanating from one particular building on campus. Nonetheless, no one at MIT searched that building until January 4, 2011, at which point Swartz's laptop was found almost immediately, the police were called in and the feds got involved.
But the Globe does not give any perspective on what it believes an earlier investigation might have accomplished here. Would it have avoided a federal prosecution? Swartz certainly wouldn't have been able to download as many articles, I guess. But it's hard to say what might have happened
The Globe also cites a number of emails from various staffers at both MIT and JSTOR, many of whom are alternately furious, joking, and sanguine about the situation:
"I might just be irked because I am up dealing with [the downloader] on a Sunday night," a JSTOR employee wrote, "but I am starting to feel like [MIT needs] to get a hold of this situation and right away or we need to offer to send them some help (read FBI)."
That afternoon, someone from the [MIT] IT security department wrote to [Secret Service agent] Pickett, deeming Swartz a "really intelligent kid that just got buried under an avalanche of dumb."
It's hard to say what bearing these emails have on the grand theory of this case, either. They do indicate, as documents obtained in discovery often do, that employees will freely voice their various opinions about an ongoing situation in internal emails never figuring that later they may be quoted in the press (or hell, an indictment). But do they represent the official positions, internal or otherwise, of MIT or JSTOR? That's hard to say.
Things get even trickier in the Globe article when they try to articulate the "dilemma" for MIT and JSTOR directly:
Given the institution's global stature, MIT inevitably drew most of the public focus. But what Swartz did was more of a threat to JSTOR, a small organization in a precarious position. Its business is selling access to journal articles, but it doesn't own those articles. If it can't protect them, the journals could yank their material out of the library and threaten JSTOR's survival.
JSTOR itself seemed to refute this in its own comment to the Globe:
JSTOR was "trying to balance our obligation both to be good stewards of the content for the content owners and publishers, for our own viability, for broad access to information, and then the personal situation, the human situation," Guthrie said.
So JSTOR wasn't necessarily as concerned about the "threat" to its survival as it was about balancing the various interests people have in the service it provides. As for MIT, the Globe admitted that even Abelson's report itself was self-critical about the institution's professed "neutrality" towards prosecutors.
The thing is, neither MIT nor JSTOR are the real crux of the story here. They have been the easier entities to report on, of course, but the real question here is why the U.S. Attorneys in this case—and in particular, Stephen Heymann—pursued Swartz so doggedly for what amounted to excessive photocopying of academic articles. People have written up many pieces explaining what Swartz was like. (I liked Larissa MacFarquhar's, here.) We're still waiting for an explanation on what happened at the DoJ's end.
What's crazy is that people were asking this question almost from the beginning. The day after Swartz committed suicide last January, Lawrence Lessig, the Harvard law professor, posted an anguished testimonial to that on his tumblr:
For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor's behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The "property" Aaron had "stolen," we were told, was worth "millions of dollars" — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.
On that front: Swartz's lawyers filed a complaint with the Office of Professional Responsibility last March about Stephen Heymann's conduct during the investigation. Kevin Poulsen, the investigations editor at Wired, after getting a court order, published a cache of heavily redacted documents from the Secret Service detailing the investigation. Politicians including Al Franken, Darryl Issa, and John Cornyn, wrote to the DoJ in January demanding more answers than it has yet provided. Hopefully they'll yield rather more revealing evidence than this Globe investigation did.
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