About 3 months ago, Aaron Swartz, a 27 year old computer hacker committed suicide. Before his death, he was indicted on 13 felony counts of wire fraud and violations of the Computer Fraud and Abuse Act, which exposed him to 50 years in prison. What did Swartz do? According to reports, Swartz broke into a network closet at MIT to gain direct access and used a fake student account to log into MIT system to access JSTOR database, which is a collection of academic journals and publications storage. In September 2010, Swartz began accessing and downloading the JSTOR files. However, he downloaded so many files, his rate of download prompted JSTOR to deny all MIT-identified computers access and raised the suspicions of JSTOR and MIT administration. Swartz was found out, and convinced to turn over the hard drives that stored the copied data. MIT decided not to proceed in charges once the material was returned and Swartz agreed to make no further efforts to distribute it, but The US Attorney General’s office chose to continue the prosecution and imposed 13 felony counts indictment with penalties of up to 50 years in prison and million dollar fines. The First amendment guarantees the freedom of speech. Even if it is not an absolute right, people can express their ideas or beliefs through speech, actions and many kinds of ways. Swartz, an Internet freedom idealist, thought JSTOR files should be accessed by anyone, not only people with special authorization. He broke into the network and downloaded a great deal of files to manifest his beliefs of knowledge freedom. In my opinion, it is simply a way to realize his right of freedom of speech which is protected by the Constitution. Many reporters described his conduct as a hardcover over-borrower in the real world. They said his action is a digital version of someone who has a valid library card, but borrows more books than he should. However, a hardcover over-borrower denies books to other borrowers; Swartz did not deprive anyone of anything. What he downloaded remained on JSTOR to be accessed by anyone who wanted to read. However, this “harmless” speech expression was treated by the US attorney as a crime whose punishment could be as high as manslaughter, kidnapping, or other ferocious crimes. Prosecutors indicted Swartz for violating Section 1030 of the Computer Frauds and Abuse Act, Title 18, §1030 provides that: (a)Whoever— (2)intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains— (C)information from any protected computer[commits a felony]. Analyzing the elements of §1030 and Swartz’s conducts; the conclusion may be that Swartz violated the law by accessing the protected database without authorization. Nevertheless, it cannot be denied that Swartz acted in this way to practice his constitutional right of freedom speech. To force a plea of guilty, the USA general attorney inflicted a 50 years charge and million dollars fines on Swartz who had no prior criminal record. According to the news report, the US Attorney had offered Swartz a three month sentence. How can you pursue a felony criminal with an indictment of 50 years and then offer a three month sentence bargain instead? If a US prosecutor offers a 3 month sentence, he must think the accused conduct is misdemeanor itself. If so, how can the US attorney indict the trivial crime with 50 years sentence? This manipulation was thus called a clearly prosecutorial overkill. Nowadays, we are living in a society where people request for openness. Even the USA government itself is promoting open government campaign. We can say that what Swartz did about liberating information and knowledge to some extend comports with the openness demand. Even though Swartz did violated the “law”, however, as a representatives of US open government and as a protector of people ‘s fundamental rights, a US attorney should exercise his “good use of prosecutorial discretion” in Swartz’s favor to deal with this “harmless” case. Apparently, this is not the case. The Ninth Circuit rules that a protected speech must have some evidence that the defendants’ speech was informational in a manner removed from immediate connection to the commission of a specific criminal act. Swartz’s conduct conveyed messages of knowledge freedom other than committing a “crime”, thus he should be protected. In fact, the prosecutor can be condemned for infringement of the constitutional right. In our class, we talked about Internet surveillance and how what we do online can be overseen by the government. Prosecutors must have known Swartz’s sensitive character and great enthusiasm for freedom from the Internet. They can easily deduce that instead of pleading guilty, he may have suicide to carry out his principle. I can imagine that before the US Attorney indicted Swartz, they must have surf the Internet to follow his twitter, all his published articles, and even the emails stored in 3rd ISP. They must have found that he was active in fighting against the Internet censorship bills, corrupting institutions and supporting the development of the nonprofit Open Library to collect information about every book ever published. They can easily grab his personality as an idealist of freedom. Without search warrant, the government still could have obtained all private information of Swartz from internet. I think Swartz never thought about his free speech on Internet would become records assisting the government to make strategy to indict him. It seems to me that the result of his right to speech was used by the government as a weapon to indict and convict him. We can easily perceive that without complete protection of the Fourth amendment, we would lose protection from the First amendment as well. Once government can collect data from 3rd party without our consent or court order or a warrant, we cannot freely express our opinion online in that whatever we said would become evidence against us. Giving up speech through the Internet may be the best way to protect ourselves. I wonder whether the result would be different, if Swartz left few traces for government to track. I think I can never get the answer.

-- YuwenHuang - 01 May 2013