By Dan Kennedy • The press, politics, technology, culture and other passions

Aaron Swartz, Carmen Ortiz and the meaning of justice

Aaron Swartz in January 2012. Photo (cc) by Daniel J. Sieradski. For details, click on image.

Aaron Swartz in January 2012

An earlier version of this commentary was published on Sunday at The Huffington Post.

The suicide of Internet activist Aaron Swartz has prompted a wave of revulsion directed at U.S. Attorney Carmen Ortiz, who was seeking to put him in prison for 35 years on charges that he illegally downloaded millions of academic articles.

Swartz, 26, who helped develop the RSS standard and was a co-founder of Reddit, was “driven to the edge by what a decent society would only call bullying,” wrote his friend and lawyer Lawrence Lessig. “I get wrong,” Lessig added. “But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.”

By Monday morning, more than 11,000 people had signed an online petition asking President Obama to remove Ortiz. Swartz’s family released a statement that said in part: “Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach.”

Ortiz’s vindictiveness toward Swartz may have seemed shocking given that even the victim of Swartz’s alleged offense — the academic publisher JSTOR — did not wish to press charges. But it was no surprise to those of us who have been observing Ortiz’s official conduct as the top federal prosecutor in Boston.

Last July I singled out Ortiz as the lead villain in the 2012 Muzzle Awards, an annual feature I’ve been writing for the Phoenix newspapers of Boston, Providence and Portland since 1998. The reason: her prosecution of Tarek Mehanna, a Boston-area pharmacist who had acted as a propagandist for Al Qaeda.

Mehanna was sentenced to prison for 17 years — not because of what he did, but because of what he said, wrote and translated. Though Mehanna had once unsuccessfully sought training at a jihadi terrorist camp in Yemen, the government’s case was based almost entirely on activities that were, or should have been, protected by the First Amendment.

Make no mistake: Mehanna’s propaganda was “brutal, disgusting and unambiguously supportive of Islamic insurgencies in Iraq, Afghanistan and Somalia,” Yale political scientist Andrew March wrote in The New York Times. But as March, the ACLU and others pointed out in defense of Mehanna, the more loathsome the speech, the more it deserves protection under the Constitution.

In addition to the prosecution of Tarek Mehanna and the persecution of Aaron Swartz, there is the matter of Sal DiMasi, a former speaker of the Massachusetts House who is now serving time in federal prison on political corruption charges brought by Ortiz.

Last June DiMasi revealed he had advanced tongue cancer — and he accused federal prison authorities of ignoring his pleas for medical care while he was shuttled back and forth to Boston so that he could be questioned about a patronage scandal Ortiz’s office was investigating. It would be a stretch to connect Ortiz directly with DiMasi’s health woes. She is, nevertheless, a key player in a system that could transform DiMasi’s prison sentence into a death sentence.

Notwithstanding the anger that has been unleashed at Ortiz following Aaron Swartz’s death, she should not be regarded as an anomaly. As the noted civil-liberties lawyer Harvey Silverglate pointed out in his 2009 book, “Three Felonies a Day: How the Feds Target the Innocent,” federal prosecutors have been given vague, broad powers that have led to outrages against justice across the country.

“Wrongful prosecution of innocent conduct that is twisted into a felony charge has wrecked many an innocent life and career,” wrote Silverglate, a friend and occasional collaborator. “Whole families have been devastated, as have myriad relationships and entire companies.”

Ortiz may now find that her willingness to use those vast powers against Swartz could have a harmful effect on her future.

As a Latina and as a tough law-and-order Democrat, she has been seen as a hot political property in Massachusetts. In 2011 The Boston Globe Magazine named her its “Bostonian of the Year.” She recently told the Boston Herald she was not interested in running for either the U.S. Senate or governor. But that doesn’t mean she couldn’t be persuaded. Now, though, she may be regarded as damaged goods.

Those who are mourning the death of Aaron Swartz should keep in mind that he had long struggled with depression. Blaming his suicide on Carmen Ortiz is unfair.

Nevertheless, the case she was pursuing against Swartz was wildly disproportionate, and illustrated much that is wrong with our system of justice. Nothing good can come from his death. But at the very least it should prompt consideration of why such brutality has become a routine part of the American system of justice.

Update: MIT, where Swartz allegedly downloaded the JSTOR articles, has announced an internal investigation, reports Evan Allen of The Boston Globe. Lauren Landry of BostInno has statements from MIT president Rafael Reif and from JSTOR.

Photo (cc) by Daniel J. Sieradski via Wikimedia Commons and published here under a Creative Commons license. Some rights reserved.

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  1. Mike Benedict

    As I understand it from a friend who was a member of the team investigating Swartz, the implications of this case were wide-ranging and would have involved any person stealing any online information from any business. They were very eager for it to go to trial and were devastated that Swartz killed himself.

    I personally don’t know much about this case and don’t have an opinion. That said, who is to say the degree to which Swartz’s apparent mental illness informed his perpetual need to thumb his nose at any and all convention that didn’t suit his worldview.

  2. Tom Keating

    depression kills, the Ortiz prosecution, in light of other serious hacking incidents, including wikileaks, seemed in scale with the crime. C’mon, Dan, don’t let your love affair with all things Internet cloud you reasoning.

    • What crime? These were academic articles whose authors received no payment for their production, and whose research and publication was funded by us, the taxpayers. Schwartz was merely planning to give all of us taxpayers access to academic work we had already paid for.

  3. Paul Rickter

    Fairly or unfairly, Carmen Ortiz may now have a permanent Aaron Swartz problem if she ever plans on running for public office. The MA Democratic Party is filled with young tech savvy folks who made a huge difference for Elizabeth Warren last year. It’s really hard to see these people lifting a finger to help Ortiz run for anything unless she has a really convincing explanation for how her office handled the Swartz case.

    • Mike Benedict

      That assumes that anyone who knows something about social media and IT 1) knows Swartz and 2) thinks he was in the right. Pretty big set of assumptions.

  4. Is it just me, or do you think that if Aaron Swartz had been convicted, the government would have offered him a deal to stay out of prison — in return for helping the government catch hackers?

    • Dan Kennedy

      @Paul: I don’t know. Seems to me that that’s what the government should have been offering him before the trial. He comes across as pretty intense and uncompromising, though. Not sure he would have even accepted that.

      • Tom Keating

        how do you know that they didn’t offer him options like that. From what I read in the Globe, he was dedicated to his cause, and maybe felt that accepting any option other than going to trial to further his cause for free information was not acceptable

        • Dan Kennedy

          @Tom: Swartz was allowed to download JSTOR articles for free, but he exceeded his allotment. The government charged that he was planning to make them available to everyone for free, but — in fact — he did not. Yes, the government gave him the opportunity to plead guilty to a felony and serve four months. For what exactly? Violating JSTOR’s terms of service? JSTOR wasn’t even interested in pressing charges.

          @Cynthia: Why did you put “innocent conduct” in quotation marks? Are you quoting someone? Who? What did he or she say?

      • Mike Benedict

        I’ll ask my Secret Service friend what the backstory is, but my guess is that this case wasn’t just about Swartz but about any hacker and the digital rights and protections American businesses can expect to have. There’s this notion that anything on the web should be free. But isn’t that “if it’s there I can take it” mentality exactly what is undermining comprehensive newsgathering in the first place?

        • Dan Kennedy

          “But isn’t that ‘if it’s there I can take it’ mentality exactly what is undermining comprehensive newsgathering in the first place?”

          @Mike: Eh, not really. The collapse of the advertising model has far more to do with the straits in which the news business finds itself than free content.

      • Mike Benedict

        The collapse of the advertising model is in large part due to the fact that a given reader can get whatever news they want, for free, from a variety of sources. When there’s an abundance of a product that reaches a target audience, advertisers in general don’t look at that product as being very meaningful.

  5. “Innocent conduct”? These are wildly disparate cases.

    DiMasi is a corrupt thief, stealing public money while relying on public lip service to progressive ideals to protect him. Speaking as a person who had to use his crap computers, he deserved jail.

    Mehanna’s conduct is arguably treasonous, giving aid and comfort at best. It at least meets the standard for a hate crime.

    Swartz appears to have committed an intellectual version of ‘suicide by cop’ seeking out confrontation and illegal activities.

    I’m not sure how any of these activities are ‘innocent’.

    • Tom Keating

      Cynthia is correct. they are wildly disparate. I go back again to the Globe story this morning. The guy was severely depressed. Depression is a killer, and painting Ortiz with “Jaubert zealotry” as the cause of his hanging is just wrong.

      • Dan Kennedy

        @Tom: I totally agree — “Those who are mourning the death of Aaron Swartz should keep in mind that he had long struggled with depression. Blaming his suicide on Carmen Ortiz is unfair.”

  6. DK – I was quoting your post – “Wrongful prosecution of innocent conduct that is twisted into a felony charge has wrecked many an innocent life and career,” wrote Silverglate. While that statement might be true, I question the innocence of your examples.

  7. David Stevenson

    The articles he downloaded were free. MIT’s network had no safeguards to prevent a download of that magnitude.

    At Halloween, some families leave the bowl of candy outside and let the kids take what they want.

    What Swartz did was the equivalent of a kid taking all the Halloween candy out of the bowl.

    What he did was inconsiderate and rude and maybe even morally wrong, but it wasn’t a felony and certainly shouldn’t have been treated like one.

  8. Dan, it is deeply misleading to say that Ortiz “was seeking to put him in prison for 35 years.”

    As the Boston Globe reported, Ortiz had two offers on the table for Swartz for plea-bargaining–one offer for four months and the other for six months in jail, with some different conditions attached to each offer.

    Swartz wanted no jail time, which is why he wasn’t taking either deal.

    Thirty-five years is the maximum time that Swartz could have been sentenced to if convicted, but that is not the same as saying that Ortiz “was seeking” to put him in jail for the maximum possible time.

    • Dan Kennedy

      @Michael: This is how the feds get people to plead guilty to crimes they don’t believe they committed — make the alternative so horrible that they don’t have a choice.

      • Michael Pahre

        Yes, but Ortiz was not “seeking to put him in prison for 35 years”. Instead, she was charging him with a series of crimes that could carry a maximum sentence of 35 years–but offering him 4-6 months instead. That’s a world of difference.

        Your statement in the article above is still highly misleading.

        I challenge you to find the Boston Globe making a statement equivalent to what you said, she Ortiz herself “was seeking” to get him 35 years. The Globe makes no such statement, because it is projecting a motivation onto somebody else with no supporting evidence. Isn’t that a no-no in Journalism 101?

      • Michael Pahre

        The article you linked says, “Yet the penalties Swartz faces are stiff – a maximum sentence of $1 million in fines and 35 years in prison.”

        It does not say, “Ortiz was seeking to put him in prison for 35 years,” which were your words.

        The maximum sentence possible under the charges is not equivalent to the U.S. attorney seeking the maximum possible sentence.

        Challenge is still open.

        P.S. Her statement from the last day reinforces that she was only seeking 4-6 months, which the Globe reported earlier in the week.

        • Dan Kennedy

          Good grief, @Michael. Go back and read the coverage. The Globe had an exclusive on the four- to six-month offer. Before that story was published, every story you can find mentions the possibility of 35 years in prison. The headline of the editorial you blithely dismiss is “Hacker should face charges, but 35 years is too much.”

          And don’t think for a minute that Ortiz wouldn’t have sought a 35-year sentence if Swartz had insisted on his right to a trial. That’s simply the way that prosecutors do business.

        • Dan Kennedy

          Um, @Michael? Here is today’s Globe editorial, published after the four- to six-month offer was revealed: “In piling on 13 charges and thereby threatening Swartz with up to 35 years in prison, Ortiz’s office went way, way too far.” Commence parsing!

  9. I am sorry about his death. Is this case more about an internet celebrity that committed suicide?

  10. Dan Kennedy

    @Michael: You do realize that I wrote this post before the Globe reported on the four- to six-month deal, right? The 35-year possibility was reported repeatedly over many months, including by the Globe.

    Doesn’t take away anything from what I said. The fact is, if Swartz had insisted on going to trial, he may very well have ended up with a 35-year sentence. What are we to make of a criminal-justice system that is obsessed with pressuring citizens to choose a guilty plea they don’t believe in rather than insist on their day in court?

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