“I’ve just had an update,” Duranceau wrote to her JSTOR contact on January 5.77 “The investigation has moved beyond MIT and is now being handled by law enforcement, including federal law enforcement.” Duranceau was referring to Agent Pickett, who would subsequently become very active in the investigation. “If you have the time, I would appreciate if you would take a look at a new development that came to our attention yesterday,” Pickett wrote in an e-mail to the US Attorney’s Office in Boston on January 5, 2011, noting that the task force had discovered a laptop at MIT downloading valuable technical journals, and that the laptop matched the description of one that had been stolen from the MIT Student Center days before. (It wasn’t actually the same laptop.) “I would like to get your opinion on what offenses the suspect could be charged with in this case and what evidence would best support prosecution.”78 (“Thanks for all of the detail—very helpful” was the response. “Steve and I will discuss this and get back to you by the end of the day.”)
The next morning, Steve—that is, Assistant US Attorney Stephen Heymann, the office’s resident computer-crime specialist—responded to the agent with a blank e-mail and a terse subject line: “Please call. Steve.”79 That same morning, the investigators made plans to remove Swartz’s laptop from the closet, dust for fingerprints, and image its hard drive.80 But Swartz returned before they had a chance to do so. He entered the closet shortly after noon on January 6, and this time, he covered his face with a bicycle helmet, as if he suspected that cameras had been installed. Though MIT police captain Jay Perault was watching the video feed in real time, Swartz was too quick for him: in less than two minutes, he disconnected the laptop, retrieved it, and left the closet before officers could scramble to the scene.81 “It is gone, he just left—my guys are looking for him,” an MIT officer wrote at 12:55 p.m.82
From there, things moved quickly. A couple hours later, MIT police captain Albert Pierce spotted someone who resembled the man in the video riding his bicycle up Massachusetts Avenue toward Central Square, away from MIT.83 When Pierce approached, Aaron Swartz informed him that he didn’t talk to strangers. Pierce showed Swartz his badge, but Swartz wasn’t impressed, retorting, “MIT Police were not ‘real cops.’ ”84 Then Swartz dropped his bicycle and ran.
Pierce chased after him, but could not keep pace, so he followed Swartz in his car. Jay Perault joined the chase, accompanied by Michael Pickett. Swartz was two blocks from his apartment when his pursuers ran him down on Lee Street. They surrounded Swartz in a parking lot. They chased him through the cars. They caught him, handcuffed him, and brought him to the station. He initially refused to identify himself to police.85
He called Quinn Norton, who called Swartz’s lawyer, who bailed him out of custody. “I think I saw him on the day he was arrested,” Ben Wikler remembered. “He was just totally, totally freaked-out. White as a ghost.” Earlier that morning, Swartz had posted on Twitter a quote by the philosopher Willard Van Orman Quine: “ ‘Ouch’ is a one-word sentence which a man may volunteer from time to time by way of laconic comment on the passing show.”86
* * *
EVEN if Swartz hadn’t broken a law, he had apparently violated JSTOR’s usage policies. JSTOR allowed walk-in users with no formal university affiliation to use its services as long as they were “physically present on the Institutional Licensee’s premises” while accessing the database.87 Swartz was not physically present while his script was deployed and thus wasn’t explicitly authorized to access the database. Moreover, JSTOR’s terms of service stated that users were not allowed to deploy scrapers or spiders or any other computer programs that might overtax the database’s servers. Users were also forbidden from downloading entire issues or volumes of journals unless they could articulate specific research purposes for doing so.88
Swartz was initially charged with breaking and entering, but the authorities immediately started looking for ways to charge him with more. In 1997, Stephen Heymann had written an article for the Harvard Journal on Legislation called “Legislating Computer Crime,” in which he argued that Congress needed to take action to address the unique challenges posed by digital scofflaws: “The ability of computers to perform a task millions of times in the period that it takes a human to perform the same task only once dramatically increases the harm that a particular action can cause.”89 The skill set that Swartz extolled as a “magic power” to his audience in Urbana was seen by the government as an evil spell.
Heymann had a powerful counterspell at his disposal to fight those digital warlocks: the Computer Fraud and Abuse Act (CFAA). Congress passed the first version of the CFAA in 1984 to stop malicious nerds and undersexed teenagers from hacking into banking and government computers, as happened in the Matthew Broderick film WarGames. (WarGames was mentioned more than once in the committee hearings preceding the bill’s passage.) After several rounds of amendment and revision, the law eventually established criminal penalties for anyone caught accessing a protected computer without authorization, and defined a protected computer as any machine engaged in interstate commerce or communication.
Today, any computer with an Internet connection is engaged in interstate communication; likewise, most institutional websites feature terms-of-service agreements that visitors actively or implicitly accept upon arrival. Violating these terms of service can count as accessing a protected computer without authorization. While it is unlikely that federal charges would ever be filed against a teenage boy who clicks the Over 21 box on a beer company’s website, the CFAA’s imprecision gives prosecutors the latitude to hang felony charges on unlikely defendants.
In 2005, during his trip to Cambridge to pitch Paul Graham on Infogami, Swartz visited his father’s office in the Media Lab. “Arguing about the merits of MIT, my dad plays the Noam Chomsky card,” Swartz wrote. One thing led to another, and the two set out on an impromptu search for Chomsky’s office. (They thought they found it, but they weren’t entirely sure.)90
What Swartz may or may not have understood at the time was that MIT’s employment of Noam Chomsky was not the same thing as an endorsement of his political critiques. Nor did it mean that the institute wasn’t yet another of the authoritarian institutions that Chomsky dissected in his books. If you’re interested in understanding power, you have to understand how power perpetuates itself, how it is wielded like a cudgel to bludgeon deviants until they surrender or shatter.
In his 1997 article, Heymann cited the CFAA as model legislation, calling it “a computer crime law at its purest.” In 2011, he was looking for an opportunity to bring it to bear on Swartz. On February 16, Heymann e-mailed his JSTOR contact asking, among other things, “When you have a moment, can you give me a call to discuss loss valuation?”91 You mess with the bull, you get the horns.
9
THE WEB IS YOURS
At the beginning of every year, Aaron Swartz would post to his blog an annotated list of the books he had read over the previous twelve months.1 His list for 2011 included seventy books, twelve of which he identified as “so great my heart leaps at the chance to tell you about them even now.”2 The list illustrated the depth and breadth of Swartz’s interests. There was CODE: The Hidden Language of Computer Hardware and Software, by Charles Petzold (“I never really felt like I understood the computer until I read this book”); The Lean Startup, by Eric Ries (“Read it with an open mind and let it challenge you, so you can start to understand how transformative it really is”); The Pale King, an unfinished posthumous novel by David Foster Wallace, Swartz’s favorite fiction writer (“Probably less unfinished than it feels”).
The list also included Franz Kafka’s The Trial, about a man caught in the cogs of a vast judicial bureaucracy, facing charges and a system that defied logical explanation. Pertinent information is withheld from the novel’s protagonist, Joseph K.; his situation grows less scrutable over time. The system in which he is trapped does not judge its subjects so much as erode them. “I read it and found it was precisely acc
urate—every single detail perfectly mirrored my own experience,” Swartz wrote. “This isn’t fiction, but documentary.”
His arrest in January had been a shock; its subsequent ramifications were just as jarring. “Neither of us seemed able to believe this was serious,” his girlfriend at the time, Quinn Norton, later wrote.3 The JSTOR downloads, Swartz and his supporters rationalized, equated to withdrawing too many books from a library. Why would the government care about that? Yet Swartz was facing two state felony breaking-and-entering charges. He had been barred from the MIT campus. Federal prosecutors were starting to build a case against him. In his notebook, Swartz wrote a story about walking to breakfast in Cambridge, feeling chest pains, and being rushed by ambulance to Beth Israel Hospital. “Well, it’s probably just stress,” the doctor said in Swartz’s story. “You’re too young to be having heart problems.”4
Soon after his arrest, Swartz tried to contact JSTOR, perhaps thinking that an apology and an explanation might make the bad thing go away. “If you know someone who works at JSTOR (or ITHAKA), please send me an email: [email protected]. Many, many thanks,” read a January 10 post on Swartz’s Twitter account.5 “Do you know Kevin Guthrie?” Swartz asked Carl Malamud on February 6. (Guthrie was the president of JSTOR’s parent organization, ITHAKA.) “no, but I’m a big fan of Arlo and Woody,” Malamud replied.6
While Swartz scrambled to find a JSTOR contact, the US Attorney’s Office had already worked its way inside. On January 10, Stephen Heymann held a conference call with a JSTOR official “to discuss the theft of material from JSTOR,” according to the Secret Service.7 Heymann continued to accumulate evidence against Swartz, deeming him responsible for JSTOR’s ostensible loss of revenue from the articles he downloaded, as well as the expenses JSTOR had incurred in fixing the servers that Swartz had crashed. (Withdrawing too many books from a library is one thing; toppling the shelves on your way out the door is another.) The police had seized the laptop that Swartz used to connect to the MIT network, as well as a thumb drive containing a version of the downloading program that Swartz had used. “We are taking our time with this investigation and crossing all the T’s etc,” a Secret Service agent wrote in a January 20, 2011, memo. “Case continuing, more to follow.”8
In 2009, the FBI had eventually dropped its investigation into Swartz’s PACER downloading spree. But unlike the court records Swartz had siphoned from PACER, the JSTOR articles were copyrighted documents that qualified as private property. Swartz’s governmental antagonists were unimpressed by his reputation as an Internet icon and unwilling to cut him slack because of his youth and achievements. “Looks like he is a big hacker, i googled him,” was one MIT police officer’s response upon Swartz’s arrest.9 Not Reddit cofounder; not Open Library architect; not computer prodigy or applied sociologist or Harvard affiliate or any of the other lines on his résumé. A big hacker. And a suspicious person might well read some of Swartz’s overheated free culture rhetoric and conclude that he was a malicious one.
Ascertaining Swartz’s motives would be key to the federal case. The prosecutors knew he had downloaded the JSTOR documents, but they didn’t know why, and Swartz was determined to keep it that way. His blog went silent for months after the arrest, as if he was reluctant to say anything that the prosecutors might theoretically be able to use against him. On February 1, Malamud asked Swartz for some Department of Justice documents that Swartz had recently acquired through a Freedom of Information Act (FOIA) request. “i’ll try to get the FOIA docs scanned at some point, but i’m trying to lie low at the moment,” Swartz replied.10 He told almost no one about his situation.
On February 9, 2011, the government obtained a warrant to search Swartz’s one-bedroom apartment at 950 Massachusetts Avenue in Cambridge. A Cambridge Police officer staked out the apartment that evening, but found it abandoned: “The unit has no sign of life. The curtains are wide open and the lights have not flickered once,” the surveilling officer noted.11 The next morning, perhaps worried that Swartz had skipped town, the Secret Service issued an “URGENT Request” for records of any airplane flights Swartz might have booked.12 But Swartz eventually returned home, and the Secret Service executed the warrant on the morning of February 11, seizing a modem, a hard drive, some rewritable compact discs, his phone, his notebook, and a few other items.
Swartz presented a brave face during the search, asking the police what had taken them so long to get around to searching his apartment. But the agents’ presence upset him, and his bravado quickly wilted. The official report details how, midsearch, an agent “observed Swartz leave the building, walk to the street and sprint away after he reached the street.”
Swartz headed for the Safra Center for Ethics at Harvard. The agents eventually followed, and they had Harvard police officers secure Swartz’s office while they obtained a federal search warrant. They seized Swartz’s work computer, a portable hard drive, and his controller for the video game Rock Band and left him there, humiliated and deprived of devices.13 Harvard University eventually suspended Swartz’s Safra Center fellowship and banned him from campus.14 His isolation grew.
The same day that the Secret Service obtained a warrant to search his apartment, Swartz had presented three papers in a seminar at the Safra Center. The best-received among them was an “institutional ethnography” of Congress titled “How Congress Works.” In it, Swartz argued that the wealthiest members of society set the congressional agenda; that “even new members of Congress are surrounded and advised by individuals whose interests are far from being aligned with those of the elected officials’ constituents,” as a Safra Center recap put it.15
Misaligned congressional priorities were more than just a matter of academic interest for Swartz. In 2010, as part of his work with the Progressive Change Campaign Committee, Aaron Swartz had met a young Rhode Island state representative named David Segal, who was running for the US Congress. Segal promised to be a progressive voice in Congress, and, moreover, an Internet-friendly one. His campaign was underfunded and at times endearingly homemade: one campaign advertisement featured several crude puppets, to emphasize that Segal would be no one’s puppet in Congress. Segal lost by a wide margin in the primaries.
Soon thereafter, Swartz left the PCCC and, together with Segal, founded the advocacy organization Demand Progress: a political action group that would address a wide range of issues pertaining to civil liberties, social justice, and the Internet. The group hoped to bridge the gap between the people who used the Internet and the people who hoped to regulate it by giving Internet users new ways to speak out on their pet issues. They also hoped that this dialogue would force lawmakers to address and contend with opinions that they were not accustomed to hearing.
Their marquee tactic was the online petition, which, if Washington lobbying techniques were described as weapons, would probably be deemed the equivalent of a popgun, or a very small rock. But well-aimed rocks have been known to topple giants, and Demand Progress hoped to leverage its executives’ social networks and technical prowess to obtain signatures in numbers that couldn’t be ignored. Their first opportunity to test this theory occurred in November 2010, when the US Senate Judiciary Committee considered a new bill called the Combating Online Infringement and Counterfeits Act (COICA).
Two longtime intellectual property hard-liners, Senators Patrick Leahy of Vermont and Orrin Hatch of Utah, introduced the bill. COICA was designed to fight copyright infringement by targeting foreign and domestic websites that hosted pirated content: illicitly uploaded movies or music or similar files. COICA empowered the Department of Justice to seek injunctions against these sites and effectively take them offline via a process called DNS blocking. The bill would also allow the government to seek court orders to prevent other websites from doing business with these offenders. “Protecting intellectual property is not uniquely a Democratic or Republican priority—it is a bipartisan priority,” said Leahy upon the bill’s introduction.16 The bill’s eight initial cosponsors, who
sat on both sides of the aisle, presumably agreed.
Although COICA was framed as a weapon against “file lockers”—such as the website Megaupload, founded by an obese, gaudy man who went by the name Kim Dotcom; or alleged bootleg-film havens with names such as The Pirate Bay—many feared that it carried broader implications for the Internet at large. “It gave the government vast new powers to censor the Internet,” Swartz would later say. “The attorney general could go to a court, and without proving that a website had committed any crime, or violated any law, they could get that website shut down. Taken off the Internet, so that nobody could access any piece of it.”17
Stopping COICA became Demand Progress’s first campaign. In November 2010, the group launched a petition against what it termed the “Internet Blacklist Bill,” and as online petitions go, it was wildly successful. “I’ve worked at some of the biggest groups in the world that do online petitions,” Swartz later said. “But I’ve never seen anything like this. Starting from literally nothing, we went to ten thousand signers, then a hundred thousand signers, then two hundred thousand, then three hundred thousand.”18
Still, the petitions did not directly impede the bill’s momentum. COICA passed the Senate Judiciary Committee by a unanimous vote and seemed destined to come up on the floor of the Senate, until Senator Ron Wyden placed a “hold” on the bill, thus delaying its progress. In March 2011, the congressional session and COICA expired. It was a small and unsatisfying victory. Swartz and Segal were sure that COICA or something similar would soon return. Like reanimated corpses in a horror movie, regressive computer laws just kept coming, unable to be stopped, only slowed down or outrun.
The Idealists Page 23