Tuesday, August 09, 2011

Aaron Swartz, And What Should We Consider a Computer Crime?

The recent indictment of Aaron Swartz for his mass downloading of documents from JSTOR (the nonprofit which digitizes and distributes scholarly journals over the Web) onto his laptop at MIT has been characterized as hacking, theft, sabotage and piracy, depending on who's written about it. The U.S. Attorney for Massachusetts has charged him with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer, while JSTOR itself has opted to pursue no civil action against Mr. Swartz for his actions and numerous knowledgeable people in the field of internet-related crime say that no crime has occurred. What actually happened here?

Mr. Swartz rose to Internet fame as one of the co-authors of the earliest version of RSS, the web-feed/syndication specification. He then went on to work at Reddit in that site's first incarnation before going on to manage both the Internet Archive and Demand Progress, and has advocated consistently for open access to scholarly and scientific works under Creative Commons licenses. In 2008, Mr. Swartz used a free trial of PACER, software providing access to a government database of court records, to provide 20 million documents - approximately one-fifth of the entire database - to free-information activists. He was federally investigated for doing so, but officials were forced to admit that he had not broken any laws.

What is not in question regarding Mr. Swartz's downloading of files from JSTOR is the following: without permission, he accessed MIT's computer network to conduct a download of files from JSTOR (approximately four million files). As a fellow at the Safra Center for Ethics at Harvard, he certainly had the ability and right to access those files; his misconduct was in improperly accessing MIT's network and conducting the download from there.

However, is his misconduct criminal? After all, Mr. Swartz is not being accused of copyright infringement: as mentioned, JSTOR is not pursuing civil action against him, and he was not indicted for piracy crime because it would be impossible for the government to prove beyond a reasonable doubt that he intended to distribute the copyrighted files he downloaded. (Much of what he downloaded was, in fact, publoc domain.) Mr. Swartz maintains that he downloaded the documents as part of his ongoing study of large data sets.

Why, then, is he being accused of criminal fraud by the federal government? Max Kennerly, a trial lawyer in Philadelphia, maintains that this is an overzealous prosecution as there is no evidence that Mr. Swartz had intent to defraud (which under American law typically requires the intent to defraud another person out of money) and JSTOR by their own admission suffered no actual harm:
The whole case looks like the iPhone prototype saga again: a civil claim that some overly aggressive prosecutor is trying to dress up as a federal crime. JSTOR has more than adequate civil remedies for whatever transpired here.

Worse, there’s more at stake here than the possibility that Swartz might go to jail and the certainty that he’ll have one of the most stressful and expensive experiences of his life... This prosecution will give every “hacker” — and I use that term in a complimentary fashion, like the UNIX hackers of old, the people who built the Internet and its tools through creativity and determination — pause before they do anything outside of a bona fide API. The chilling effects will make us all worse off.
Which raises the question: is the indictment of Mr. Swartz part of what the New York Times has referred to as the "nerd scare" - taking prosecutions of computer-based malfeasance (or, in the case of Mr. Swartz, computer-based possible malfeasance) to an extreme level in order to render the entire idea of hacking, be it criminal or not, verboten? Because a prosecution where the purported victim both states that no harm was done and chooses not to take action against the person who committed the supposed crime does seem to be an overreaction.

- Christopher Bird, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net

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