Swartz campaigning on January 18, 2012, a year before his death, against SOPA, a bill he claimed would "break the Internet". Photo by Daniel J. Sieradski
There's endless wrangling on the comments here on this blog and of course on much bigger blogs with many more people about "what might have been" if Swartz had been forced to face a trial, if the prosecutor had been forced to try to make her case before a jury, and on and on. But, as T.S. Eliot put it, "what might have been and what have been point to one end, which is always present".
What really matters now is not the sidetrack of the hypotheticals, edge-casey and hysterical as they always are from the open sourcerers.
What matters is what happens next, what the repercussions are. After all, the Massachusetts federal courts are not going to try Swartz posthumously, like the Russians are now trying Magnitsky. The charges are dropped and the case is closed because he died. No one will ever know whether "the Internet" mob scene and media circus around a jury trial would have gotten Swartz off, as I believe.
But there are two formal investigations that are ongoing -- one conducted by Prof. Abelson at MIT (see below), and one conducted by Daryl Issa (and I'm actually not sure how formal that is, but it's serious in the sense that he is a prominent member of Congress). Issa is a Republican representing the 49th district in California, but he is four-square for the copyleftists as an extreme Libertarian on Internet issues -- he is for an "open and accessible and free Internet" by which he means he is for defending the California business model of his state. Issa was a champion of the anti-SOPA cause who has really gotten religion on this subject.
Issa pledges to probe the Department of Justice on how this case was prosecuted. This week, he got his fellow member on the House Oversight Committee, Democrat Elijah Cummings, to join him in appealing to Eric Holder in a letter.
PORTRAYAL OF SWARTZ AS A POLITICAL PRISONER
The two have REAAALY upped the ante here by turning this into a "prisoner of conscience" case. They've dropped the bombshell of an allegation that they think the DOJ trumped up this case as punishment for Swartz's anti-SOPA work, as Huffpo reports:
The letter from Issa and Cummings asks Holder about factors that led to the decision to prosecute Swartz, along with key decisions after the case began. The letter also asks if Swartz's political advocacy, including his anti-SOPA work, were factors that DOJ considered relevant.
It's funny, not even the rabid fanboyz of this cause like Declan McCullough have played up that angle much. Maybe because the hack and the arrest came before the SOPA campaign in time. The arrest was January 6, 2011. He was released pending investigation. On July 19, 2011, the federal grand jury released its indictment on federal charges, but Swartz was released on a $100,000 unsecured bond.
The SOPA campaign grew prominent in 2012. Swartz was the keynote speaker at the F2C:Freedom to Connect 2012 event in Washington, D.C., on May 21, 2012.
One could just as well posit that Swartz took up the SOPA campaign as avidly as he did precisely to make himself into an Internet hero and seeming "victim of the Man" to help his case along. All the while as his case was moving forward -- he was released on a bond -- he was stumping against SOPA very deliberately and vigorously and with lots of resources for his funded organization Demand Progress (basically a new shell for the very old Mitch Kapor copyleftist groups in existence already for a decade to do this campaign).
HACKERS ARE JOURNALISTS?!
But Issa lets us know just how biased he is on this probe with this sort of statement:
“I’m not condoning his hacking, but he’s certainly someone who worked very hard,” Issa said. “Had he been a journalist and taken that same material that he gained from MIT, he would have been praised for it. It would have been like the Pentagon Papers.”
Naturally, that's nonsense, because journalists don't write circumvention scripts, hack into systems, disguise their identity, break into wiring closets, cover their faces, etc. If you think they do, you haven't ever studied the Food Lion case. It's not considered ethical for journalists to pretend to be something they aren't to hack into something and gain information illegally. When they do this on the right, boy, are they savaged by the left (see Acorn). So there is no comparison and this is nothing like the Pentagon Papers because there is no war and no conscience issue over people dying needlessly -- nobody is killing somebody and napalming a rice paddy because they can't get a dusty dull old professor's paper; it was never about the content but the idea of smashing the relationship between commerce and knowledge (which is what Creative Commons was set up to do).
FAST AND FURIOUS
If you read the Huffpo piece all the way down, you'll see why Issa loves the Swartz case -- it exhibits his hobby horses and his much bigger fish to fry with holder on Fast and Furious:
“I’ll make a risky statement here: Overprosecution is a tool often used to get people to plead guilty rather than risk sentencing,” Issa said. “It is a tool of question. If someone is genuinely guilty of something and you bring them up on charges, that’s fine. But throw the book at them and find all kinds of charges and cobble them together so that they’ll plea to a 'lesser included' is a technique that I think can sometimes be inappropriately used.”
Funny, that; in order to get back at Obama's appointee as Attorney General over what is seen as a bungled gun-walking sting operation against smugglers to Mexico, where one gun was even found implicated in the death of a US federal agent, for which Holder ultimately was held in contempt of Congress and Obama invoked his executive privilege, Issa will use the case of alleged "overreach" in Swartz to further discredit Obama and his appointees. It's funny to think Holder reportedly once accompanied black radicals who violently occupied an ROTC office, so the Daily Caller reports. That was sort of the hacking of its day, if you will. Holder has more in common with Swartz than not, if true.
WHAT WAS MIT'S ROLE?
One of the key issues to clarify is whether or not MIT really dropped this, or really egged it on. Frankly, there is no definitive answer to that, because if MIT really, really wanted this to go away, given that Swartz's father worked for them and Abelson of MIT was a founder of Creative Commons, friend of Lessig, and Swartz, and there were many other ties, they could have made this go away. They didn't. Says Cummings:
"I'm pleased that it's a joint effort, by the way," said Cummings, whose signature on the letter raises the pressure on the Justice Department. "There's more than one issue here. Is the law too vague? Why was he being charged the way he was when the university decided they were not going to prosecute? Did that have any bearing?"
A lot of people don't understand that if an injured party doesn't wish to pursue charges in a civil suit, or cooperate with prosecution in a criminal suit, that doesn't mean that the prosecutor cannot go forward if he believes that a federal crime has nevertheless taken place. I just don't see how we can pin on these Democrats in Massachusetts any vindictiveness over Swartz's role in the anti-SOPA campaign -- none of them are associated with pushing this bill on the Hill; Ortiz may think that "stealing is stealing" -- and she's right -- but that's because she's applying the law, not because she has Chris Dodd on the speed dial. She and the other prosecutors are unrelated to the drafting of SOPA or its unfolding saga, from all appearances.
It's not clear of the DOJ's Office of Professional Responsibility will do any investigation beacause there isn't actually a concrete complaint of wrongdoing. There is a vague notion that the entire case is "overreach" or "intimidation" but nobody has been able to prove this systematically, it's just the rhetorical cry of the Internet mobs and copyleftist professors. Lessig may have the influence and power and money to push this -- we'll see. I suspect he will succeed; guilt will animate him. Meanwhile, Lessig calls for an investigation of Ortiz, distracting from his own complicity in both the hack and its aftermath.
ABELSON INVESTIGATION AT MIT
Professor Hal Abelson, a computer scientist from MIT has been asked by the president of MIT also to investigate this matter, because the community wants to understand why the MIT leadership backed the prosecutor on this case. Abelson is a founder of Creative Commons with Lessig and close to both him and Swartz, so it's not at all unbiased, but he was chosen precisely because MIT is dealing with an angry mob and needs a figure that mob will trust. Abelson gave a promising statement by saying that he was confident he would find that people followed procedure, setting it up so that he will not be seeing as leading a witch-hunt
Meanwhile, I suppose other agencies like the GAO could investigate the DOJ in broader terms as they have in the past, or other congressional offices.
Swartz's father could bring a lawsuit against MIT. Do wrongful deaths suits related to suicides succeed in this country the way they can in, say, Central Asia? I don't think they do, but they're welcome to try that theory. They could claim mental pain and suffering.
Now, will any of this work?
WHAT IS THE LIKELY OUTCOME?
Here's what I think will happen:
1. Issa will find, surprise, surprise that the laws were too harsh, that the sentences, even being routinely invoked, were too intimidating, and that plea bargaining and prosecutorial overreach are big subjects and should lead to...something. Review of laws. Firing of prosecutors? Passage of the ill-conceived "Aaron's law" that Zoe Lofgren is pumping -- Issa's partner in the anti-SOPA struggle. I don't know if Issa has the power to get a prosecutor in Massachusetts fired or reassigned and the mechanisms for this but it may not take this form; he may focus on the use of plea-bargaining itself as something he'd like to get rid of for various reasons -- until a case comes up that he likes when plea-bargaining is used, then he may drop it. My hunch is that he will be able to posture around this for awhile, and maybe even get congressional action to amend the CFAA or pass Aaron's law, but I suspect that it will be hard to sustain the momentum because deep down, he and others know that Swartz was a hacker, and they don't have their real constituents pushing this, they only have "the Internet mob" which is different.
2. MIT's Abelson, despite his politesse at the outset, is going to conclude that MIT officials relied on prosecutors to create a deterrent to hacking of their system. He will find that they began so harshly because they thought it was the Chinese (who just hacked the New York Times), but that they kept it up even after JSTOR reneged because they were just plain mad at the breach -- the way tekkies get. Remember how nothing would pry loose Google from China? Dissidents going to jail over the government looking at their gmail, or the government blocking search -- that wasn't enough. But the minute the Chinese hackers actually *touched Google's servers*, then they cried foul. Then it had "gone too far" and they had to leave.
No one ever names the network administrators and others in charge of MIT's computer system. Ever. In their lives. The tribe closes ranks at times like this. One of the reasons that "the Internet" is so vicious about Ortiz is that they have been sicced on her as a distraction from asking why Mr. Network Administrator or Geek-in-Chief at MIT decided this wasn't an "incovenience," as Anonymous calls it, but a hack.
The tribe didn't turn in that person or persons -- but Abelson might flag them as part of the problem, and they may be fired. Or disciplined. Or just have their names put out on Pastebin so Anonymous can savage them and call them corporate prostitutes and sell-outs.
But the buck went higher than those geeks at the actual servers, and Abelson will write something anguished and soul-searching about how the commuuuunity has to come together and understand that we must all share and work together and be as one and create commonly. Just as JSTOR threw out 4 million files for free two days before Aaron Swartz killed himself (was that part of the despair factor?), so MIT will announce some openness thingy and make available some millions of something or another.
CIVIL SUIT?
But there's still Swartz's father, who wants their heads. He thinks the prosecutors killed his son, with the help of MIT. So they will have to make it right. He may try to launch a suit against the prosecutors but I don't think he will get anywhere with that; he may try to launch a civil suit against MIT -- it won't succeed but it will get settled with perhaps a promise of funding a professorship in Aaron's name, or a center for computing, or an annual series of lectures. People like Fred Wilson, the venture capitalist, who went to MIT and give generously as alumni may throw their weight around and ask for more blood. Either the IT guy or some lower level manager who kept cooperating with the feds. As with Benghazi, the president won't resign but some officials may have to.
This is a complicated story to gain revenge on by quick impact projects. "The Internet" will try to do that by focusing on getting Ortiz gone or getting the law changed, but neither of them are guaranteed.
THE RUINATION OF ORTIZ' LIFE
I do think that Ortiz will be forced to resign or be reassigned or informally not allowed to work on computer cases -- but she faces a bigger problem. Every time somebody puts together a jury, they will have to ask the jurors if they are aware of any reputational issues with Ortiz, and some hipsters and even oldsters will say "Wasn't she the one who wanted to jail that nerd for 50 years and killed him." The Anonymous activity against her, as in Steubenville, is so vicious, and so much has been dragged out, that she may even have to assume a new identity to have a life.
ANONYMOUS ATTACKS USSC AND SUPREME COURT JUSTICES
And speaking of Anonymous, the attack on the Supreme Court is their first attack on justice as an institution. Before, they attacked the Pentagon because you're supposed to hate the war machine. They attacked the FBI over HPGary or Barrett Brown singled out an FBI agent. But they didn't try to overthrow the independent judiciary as a tactic. Now they are doing that, claiming it's because they're disappointed idealists who are saddened by corruption, but of course that's the ruse and the pose used by these forces to smash, smash, smash as anarchists must do. (And I'll never be surprised if we discover some day that foreign secret police have helped this effort along on top of supposed genuine homegrown idealists).
One of the purposes that Assange and other anarchists like him in WikiLeaks, Anonymous and OWS do what they do is to make it so that the target has to "become unlike itself" and close down or become "a security state" worse than it was, to discredit it in people's eyes. An old, old terrorist tactic. The Leninist "the worse, the better".
Because the results are going to be somewhat fuzzy from these other "civic" processes -- Issa's probe isn't going to yield some clear-cut disciplinary path; the complexity of tackling plea-bargaining will be hard; the passage of "Aaron's Law" may not work --that Anonymous will step up its game in trying to smash the justice system. Nobody loves Barret Brown, but if he comes to trial or if Hammond does or if Sabu finally goes to court, Anonymous will have fresh reason to do smashing of the justice institutions.
Civil rights activists and Glenn Greenwald and all the rest will tell the DOJ and other officials that they shouldn't crack down on these anarchists as this will make them heroes and spiral into worsening cycles of hacking and violence. They should minimize the witch-hunt so they are not treated as heroes. The same philosophy use on the "war on terrorism" to make it not a war but a police action, and a minimal one. So Anonymous will be emboldened and empowered, and will have fresh cases to be angry about.
WILL PASTEBIN JUSTICE OCCUR?
There's several factors that might intervene to put a monkey wrench into these awful scenarios. Nobody ever seemed to ask for or take an interest in any toxocology test. But if it came back that illegal drugs or powerful psychotropic drugs known to cause suicide in other cases were found, this might lesson the hackers' cause all around. Or if some hacker friend or ex-friend or skeptic or just plain spiteful bastard tired of reading about the "Reddit co-founder" who didn't really co-found Reddit decides to investigate and put up on pastebin that Swartz's suicide was really about something else, not his case, or that in fact he had more ambitious and sinister designs for his hack than was known. The script kiddies always betray their own, and this is a matter of time before revisionism starts to happen in the hagiography. But I think this could be a slow process because hundreds of people turned out for the memorial services in various cities and there is a lot of passion around this issue with many people wanting to illustrate it with a martyr.
The petition on whitehouse.gov to remove Ortiz has to reach 100,000 signatures now to get an answer, because they moved the goalposts from 25,000. And it will get it, even if somebody has to make the alt accounts and the proxies or bring in the foreign vote. Obama will look this all over, see Issa and Fast and Furious in the landscape, and punt. It's too bad that federal agent had to die from that gun Holder let walk, because then Swartz's martyrdom could have been displayed in the pristine way it needed to be displayed by Issa to get full bi-partisan support. I could be wrong about this, however, given that Elizabeth Warren already got behind the cause and it will escalate.
EFF, Google and the Berkman Center have kind of stayed away from this story somewhat, making only brief comments or calls for laws to be reviewed. EFF never declared Swartz innocent and never took up his case, as they won't take criminal hacking cases, we're told. They haven't made the struggle against a prosecutor and institutions like plea-bargaining their own -- in part they may be waiting to see if this could backfire on them, because like anybody, if the plea-bargaining helped one of their own, they might come to like it again.
But my guess is that with Anonymous banging down the gates, with the Swartz family understandably angrily grieving and wanting justice in the form of punishment for prosecutors and/or MIT, with "the Internet" baying about MIT and prosecutors, what will be sacrificed in this case is truth and justice. We will all be that much closer in the end to the Wired State.
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