* * *
THE prosecutors offered Swartz a pre-indictment plea deal of a few months in prison followed by a period of supervised release. Swartz gave it serious thought, but was ultimately unwilling to spend time in prison or have a felony conviction on his record. He declined the deal. The government continued to build its case.
“Identify Associates,” a Secret Service agent working the case wrote in a notebook after Swartz’s arrest.19 In March 2011, the US attorneys subpoenaed Quinn Norton—Swartz’s most intimate associate—in hopes that she might be able to elucidate his intentions. The prosecutors could reasonably assume that Norton had some foreknowledge of Swartz’s actions: the two had been dating for years. But Norton, who was in San Francisco at the time the Secret Service found her, claimed that the details of the JSTOR hack had been just another of Swartz’s many secrets.
“I was terribly angry at the very thing I said would keep me safe: my ignorance of his JSTOR activities,” she wrote. “Why hadn’t he told me anything? Why had he let me get sideswiped by all of this?”20 In her initial interview with the Secret Service agents who served her with the subpoena, Norton averred that she had not been in recent contact with Swartz, but she had heard that Swartz had been banned from the MIT campus, and that he had been upset that the ban would prevent him from participating in the 2011 Mystery Hunt. She claimed that she didn’t even know what JSTOR was.21
Norton was summoned to appear before a grand jury, but the prosecutors asked if she would be willing to talk with them beforehand. They offered her a “Queen for a Day” deal, in which whatever she said in conversation with the prosecutors could not be used against her in court. Norton, a journalist who covered Internet culture and computer hacking, was worried that if she didn’t cooperate prosecutors might try to seize her computers, which contained material that could be used to identify some of her journalistic sources. Swartz did not want Norton to meet with Heymann. “Aaron told me his lawyer was angry too, that I was being an idiot,” Norton wrote. “He wondered, loudly, whose side I was on.”22 She reluctantly met with the prosecutors on April 13, 2011.
The government’s notes from the “proffer” session indicate that Norton walked prosecutors through Swartz’s life and work, and recounted the day of his arrest. She told them that Swartz was solitary and prone to depression. She mentioned his work with Open Library and Demand Progress. She explained that academics despised the academic publishing system, and that Swartz didn’t like it much either.23 Norton wrote about the meeting two years later in a piece for the Atlantic, noting that she was on the prescription painkiller Vicodin during the interview and intimidated by the courthouse setting. She portrayed the prosecutors as aggressive and eager to exploit her woozy state and relative unfamiliarity with the criminal justice system. The prosecutors didn’t believe that Swartz had kept the JSTOR downloads a secret; they pressured her to give them something, anything that might explain or contextualize Swartz’s actions. Norton mentioned the “Guerilla Open Access Manifesto,” which the prosecutors had not yet seen.
The manifesto was a public document, then over two years old. “We need to take information, wherever it is stored, make our copies and share them with the world,” Swartz had written. “We need to download scientific journals and upload them to file sharing networks.” To the prosecutors, the fact that Swartz had done the former implied that he had also been planning to do the latter. This thesis would define their case.
Almost immediately, Norton realized that volunteering this information had been a mistake. She had provided the prosecution with a motive. “I opened up a new front for their cruelty,” Norton lamented in the Atlantic. “Four months into the investigation, they had finally found their reason to do it. The manifesto, the prosecutors claimed, showed Aaron’s intent to distribute the JSTOR documents widely. And I had told them about it.”24
Swartz was livid. “Aaron told me that Steve [Heymann] had been viciously gleeful to [Swartz’s lawyer Andrew Good] about the manifesto,” Norton wrote, “that he’d said Aaron would never get as good a deal as he’d turned down now that they had that bit of evidence.”25 Divulging the existence of the manifesto felt like a betrayal to Swartz, and it drove a wedge between him and Norton. Their relationship started to come apart.
The case came together at an agonizingly slow rate. By mid-April 2011, three months after Swartz’s arrest, no federal charges had yet been filed. Though Swartz did his best to maintain a sense of normalcy—he started blogging again, though not as often as before; he assisted with the relaunch of a magazine called the Baffler—other aspects of his life were on hold. His lease on the unit at 950 Massachusetts Avenue expired at the end of May, and he asked to renew on a month-to-month basis, unwilling to commit to an extended stint in Cambridge.
Swartz also began to grow paranoid and worried that he would be arrested and taken away with no warning. That May, still in prosecutorial limbo, Swartz called a Wired editor named Ryan Singel and tipped him that “the feds might come knocking” on his door soon, in response to an excessive downloading incident about which Swartz was unwilling to elaborate. “Aaron, whom I’d written about before, was being careful—which meant cagey, evasive, and awkward,” Singel wrote later. “ ‘I hope this doesn’t happen,’ he added, referring to the raid.”26
The prosecutors were in no rush to deliver an indictment. That spring, they attempted to determine whether Swartz had used his Harvard University computer in committing a crime. (They suspected that Swartz had used his Harvard computer to remotely check the progress of the JSTOR downloads.) They also investigated the possibility that Swartz had siphoned material from other proprietary databases, too. (“! !—Similar Activities—,” a Secret Service agent scribbled in a notebook.)27 And they remained fascinated by the “Guerilla Open Access Manifesto.”
On May 9, 2011, a Free Software Foundation employee named Joshua Gay, an acquaintance of Swartz’s, was summoned to appear before a grand jury to answer questions about “Geurilla [sic] Open Access.” (During this period, the Secret Service consistently botched the spelling of guerilla.) Gay had created a Guerilla Open Access Facebook page, and the prosecutors wanted to determine what, if anything, he knew about Swartz’s plans.28 Free software, open access: ideas that had been advanced as matters of justice now counted as potential crimes.
Three days later, on May 12, Senator Patrick Leahy introduced a new bill called the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011, otherwise known as the PROTECT IP Act, or PIPA. The bill, which featured eleven initial cosponsors, was a cousin to COICA. Whereas COICA had focused on both foreign and domestic websites that illegally hosted copyrighted content, PIPA narrowed its ambit to target foreign offenders. The new bill added a clause that would force search engines such as Google to remove offending sites from their search results; it also allowed individual copyright holders to pursue injunctions against offending websites.
Alongside other groups such as the Electronic Frontier Foundation and Public Knowledge, Swartz and Demand Progress tried to galvanize opposition to PIPA. “COICA was bad, but PROTECT IP is worse,” cried the announcement on the Demand Progress blog. “We’ve been fighting these bills since their introduction, and now we need your help more than ever. Check out the full text of PROTECT IP bill and then SIGN OUR PETITION and help us keep the internet neutral and open!”29 But THEIR PETITION, along with the efforts of their allies, wouldn’t be enough to stop the bill. PIPA unanimously passed through the Senate Judiciary Committee on May 26, 2011, without even so much as a hearing. “This legislation will provide law enforcement and rights holders with an increased ability to protect American intellectual property,” Senator Leahy remarked upon the bill’s approval. “This will benefit American consumers, American businesses, and American jobs.”30
To Swartz and his allies, the economic benefits of PIPA touted by Senator Leahy were far outweighed by the bill’s deleterious implications for free speec
h online. Senator Wyden placed a hold on PIPA the day that the bill moved to the full Senate.31 But it was early in the legislative session, and the hold wouldn’t last forever. With nearly a third of the Senate eventually attached as cosponsors, the bill seemed destined to become law. “Demand Progress was substantially under-resourced, and certainly wouldn’t win this fight on its own, or as party to the small coalition that was responsible for organizing the bulk of the anti-COICA and PIPA work to date,” David Segal later wrote. “We’d have to fend off the bill’s backers long enough to build a more robust coalition, or for somebody to intervene from the heavens.”32
While divine intervention did not appear imminent for Aaron Swartz, his lawyers hoped at least to persuade JSTOR to say a few words on their client’s behalf. Several months after Swartz had been arrested, JSTOR officials’ enthusiasm for the case had waned. A Secret Service agent noted that “JStor upset about 1) Desperately Want Back What was taken; 2) Worried about be bad guy.”33 If Swartz could fulfill the former priority, then maybe JSTOR would be willing to discuss ways to avoid the latter.
In June 2011, as part of a civil settlement negotiated by his attorneys, Swartz turned over to the US Attorney’s Office the JSTOR articles he had downloaded, delivering to them a disk that he swore contained the only copies of the documents. He also agreed to pay JSTOR $26,500 for damages and attorney fees.34 In exchange, JSTOR’s attorneys called the US Attorney’s Office to say that the organization had no interest in seeing Swartz prosecuted.35
MIT was not as cooperative. The institute sought no restitution from Swartz and was uninterested in pursuing a civil settlement. MIT had remained publicly silent since the arrest, and when a JSTOR official contacted MIT Libraries in mid-June to discuss the possibility of a joint statement in the event of Swartz’s indictment, the libraries’ representative replied that the school’s attorneys “believe in general that the less MIT says, the better. We can’t really discuss the details of the ongoing criminal investigation and possible indictment, nor do we want to interfere with the processes and duties of the USAO.”36
Swartz’s advocates worked hard to get MIT to reconsider. They hoped that a sympathetic public statement from the school might dissuade the US attorneys from bringing a case. At the least, such a statement would hamper the prosecutors’ efforts to argue in court that Swartz had caused grave harm to any of the parties involved.
On June 13, 2011, Robert Swartz asked Joi Ito, the incoming director of the MIT Media Lab, if he would be willing to intervene on Aaron’s behalf with the MIT administration. Ito obliged. “I wonder if there is any way that MIT might consider this a ‘family matter’ and consider helping to try to limit the extent of the punishment and at least prevent Aaron from going to prison on a felony charge,” Ito wrote to the school’s Office of the General Counsel. “Obviously it was a stupid thing to do, but the weight of the possible sentence seems quite harsh in my personal opinion.”37
But MIT had already decided to remain institutionally neutral. Swartz was not formally affiliated with MIT. Moreover, he had been careless with the institute’s computing resources and institutional relationships. The school saw no reason to speak out on his behalf.38 Despite many subsequent entreaties from Robert Swartz—despite his best efforts to get the institute to see the “human side of the story”39—MIT would not waver from this stance.
On June 16, 2011, Quinn Norton testified before the grand jury in Boston.40 Her earlier deference to federal prosecutors had turned into open antagonism. “When I admitted I wasn’t surprised at all at [Swartz’s arrest and the subsequent investigation], they asked me why,” she wrote later. “I told them because there was a trend towards overreaching police action plaguing the tech community and seeking to criminalize normal computer use and research.”41 Despite her defiant testimony, an indictment was on its way.
As his relationship with Norton disintegrated, Swartz began to date Taren Stinebrickner-Kauffman, a political activist who lived in Washington, DC. She was tall and pale, with a toothy grin and a technical mind. “I grew up as the kind of kid who skipped the prom to go to an international science fair,” she wrote of herself on her blog.42 Like Swartz, she had engineered an early exit from high school.
Swartz met Stinebrickner-Kauffman in November 2010, when he and Ben Wikler had volunteered at the Democratic National Committee during the midterm elections. “As soon as the polls closed in Hawaii, and everyone was beginning to wind down, I turned to Ben and I asked him if Aaron was flirting with me,” she remembered. “And he said he didn’t know, but would it be a good thing if he was? And I said, ‘Yeah, probably.’ ”43
Over the next few months, their paths crossed several times, and a mutual attraction developed. In February, they had both traveled to Madison, Wisconsin, to join with public-sector unions who were protesting the regressive policies of the state’s new governor, Scott Walker. “I was trying very hard to flirt with him without a whole lot of success,” Stinebrickner-Kauffman recalled, “although in retrospect that was right after he had been arrested and stuff, so he might have been a little preoccupied.”44 That June, Stinebrickner-Kauffman traveled to Boston for work and flat-out asked Swartz if he’d like to go on a date. He said yes.
“We went to a Chinese restaurant on Mass Ave. [in Cambridge], somewhere near Central Square. He told me he was really busy and had a lot of things going on, which I didn’t really know what they were,” Stinebrickner-Kauffman said. The date, which went well, ended on a mysterious note: “He said that he didn’t think he’d be able to see me for, like, six weeks, that his schedule was so packed. Which I was, like, a little disgruntled about.”45 But Swartz rearranged his schedule to make room for romance: that weekend, he flew to Washington, DC, to see Stinebrickner-Kauffman.
As June turned to July, Swartz had stepped down from his position as executive director of Demand Progress, in anticipation of being charged with a crime. He had officially ended his long-term relationship with Quinn Norton. He had revised his will and made a bequest to a charity called GiveWell. “He explained that he wanted to use his money to accomplish as much good as possible, and that as long as he was alive, this meant funding projects of his own,” GiveWell’s cofounder, Holden Karnofsky, later wrote, “but that if something unexpected happened, he wanted the money to go to the next-best option.”46
Swartz had been circumspect with Stinebrickner-Kauffman, referring to his legal troubles only as “the bad thing.” Early in their relationship, Stinebrickner-Kauffman and Swartz were walking down Massachusetts Avenue in Cambridge toward Boston, near the MIT campus. “I had to go to the bathroom, and for some reason he waited for me out on the sidewalk as I ran into the cafeteria building instead of coming in with me,” Stinebrickner-Kauffman later wrote.47 “I didn’t think much of it at the time.” She didn’t know that he had been barred from campus.
But the time for circumspection was coming to an end. On July 18, Swartz called Stinebrickner-Kauffman and told her that something big would be in the news the next day. Stinebrickner-Kauffman later recounted the conversation on her blog: “He said, ‘I’m going to be indicted for downloading too many academic journal articles, and they want to make an example out of me.’ And I said, ‘That doesn’t sound like a very big deal.’ He paused for a second and thought about it and said, ‘Yeah, I guess it’s not like anybody has cancer.’ ”48 Even seven months into his ordeal, it was still occasionally difficult to believe that it was worth taking seriously.
* * *
THE next day, the US Attorney’s Office in Boston announced that Swartz had been indicted in federal court on four felony charges. Swartz reported to the John Joseph Moakley United States Courthouse on the Boston waterfront, where he was arrested by US marshals, then photographed and fingerprinted and freed on a $100,000 bond. In his booking photograph, he wore a gray, collared shirt and a pursed, inscrutable smile—half nausea, half I’ll-never-tell.49
Swartz was accused of wire fraud—for downloading the JSTOR
articles “by means of material false and fraudulent pretenses”; computer fraud—for accessing protected computers on MIT and JSTOR’s networks “without authorization and in excess of authorized access”; unlawfully obtaining information from a protected computer—for accessing materials with a value in excess of $5,000; and recklessly damaging a protected computer—for causing loss to MIT and JSTOR “aggregating at least $5,000 in value and damage affecting at least 10 protected computers.” The latter three charges had been brought under the Computer Fraud and Abuse Act.
The indictment recounted the extent of Swartz’s JSTOR activities in great detail. During November and December 2010 alone, Swartz had downloaded from JSTOR “more than one hundred times the number of downloads during the same period by all the legitimate MIT JSTOR users combined.” He had used a program called keepgrabbing.py to siphon the articles. After retrieving his computer from the switching closet on January 6, Swartz had taken it to the MIT student center and reconnected to the network wirelessly, with a new IP address. The indictment flatly asserted that “Swartz intended to distribute a significant portion of JSTOR’s archive of digitized journal articles through one or more file-sharing sites.” If convicted on all charges, Swartz faced a maximum penalty of thirty-five years in prison and a $1 million fine. Nobody believed he would ever get anything close to a maximum sentence, but the specter of those thirty-five years hovered over him always, like a show of power, a symbol of fear.
“Federal Government Indicts Former Demand Progress Executive Director for Downloading Too Many Journal Articles,” read the headline of the post on Demand Progress’s blog that afternoon. In the blog post, David Segal compared the charges against Swartz to “trying to put someone in jail for allegedly checking too many books out of the library.”50
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