Tuesday, January 15, 2013

In Memoriam of Aaron Swartz; Concerns About the (In)Justice System

On January 11, 2013, Aaron Swartz committed suicide. Those outside the online activism, open access, and social media circles may not be familiar with this young man, but he is responsible for protecting many of our rights to open access and our internet privacy. At the age of fourteen, Aaron co-authored RSS, which is now vital to most aspects of content creation and content consumption online. He created Reddit, a very popular social media site (which knows its fair share of legal troubles, since some members use the forum to trade child pornography). Aaron was also the founder of DemandProgress, a site and online network of activists that became a very powerful tool in fighting COICA (Combatting Online Infringement and Counterfeits Act), the precursor to SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act), which would have severely curtailed our online freedoms and privacy if passed by Congress.

While at MIT, Swartz used his access to online academic databases to download more than 400 academic journals and make them available to the public for free. According to the government, his reason for doing this was that the research written up for these journals was publicly funded, but due to the publishing methods used, the general public had very little access to this vast body of scholarship. Membership plans were pricy, and free membership was only available to those privileged few admitted to undergraduate and graduate programs where the college or university paid for access and allowed students to use the journals.

It is entirely possible, however, that Swartz was doing what a lot of hackers do and honing his skills with new challenges – the digital, online version of climbing the mountain “because it’s there.”

JSTOR, one of the biggest online journal databases and certainly quite a litigious body, was aware of the cyber-trespass, but did not press charges. It was the United States government that pressed charges and, relying on draconian computer laws, tried the case that resulted in a sentence of thirty-five years in prison for this liberation of publicly-funded knowledge and scholarship.

After the verdict, on January 11, 2013, Aaron Swartz committed suicide.

The internet mourned the loss of this young visionary and champion of net neutrality. Lawrence Lessig, an academic and political advocate that is fiercely supportive of online rights and a reform of computer laws, remembered his young friend and colleague, calling him an “incredible soul.” Ronaldo Lemos, the head of Creative Commons Brazil, shared his email exchanges with Swartz, calling him an “original thinker.” Rafael Reif, the President of MIT, issued a statement as well and announced an internal investigation at the university. The Daily Beast published a great write-up about this Free Internet activist, and ABC News reported that Swartz’s death fueled an MIT probe and sparked a White House petition to oust the prosecutor that tried and won the case.

Sadly, the story of an individual using the Internet on his computer and catching a long prison sentence is nothing new or unfamiliar at the Law Offices of Raymond G. Wigell, Ltd. Since he started practicing in 1975, Raymond Wigell has represented many people accused of various online crimes, and in most cases, the government proposes unreasonably long sentences that do not fit the crime.

One particularly memorable case that the Law Offices of Raymond G. Wigell, Ltd., handled involved two young computer hackers. These men were part of a small group of hackers that honed their skills by hacking various software programs and switching servers and bouncing IP addresses. They never sold any of the information or material they hacked; instead, they shared it among themselves and those they trusted. But they hacked one program too many, and the US government caught wind of it and pressed charges. Though this group of “techies” argued that they didn’t harm anyone because they never sold any information, the government maintained that hacking and piracy violated the rights of the owners.

The two men represented by the Law Offices of Raymond G. Wigell, Ltd., accepted responsibility for their wrong-doing but argued that it was without personal gain. They only hacked the programs to see if they could actually do it. . On the government’s end, however, motive doesn’t matter. People who are engaging in silly, harmless conduct online with regard to piracy and hacking are treated the same as those that have malicious intent, or those who act with financial gain as their only motive. The government, when going for prison time, consults the sentencing guidelines and often pushes for the maximum years available, which can be ten, or twenty, or even more than that.

In this case, the sentencing guidelines indicated a sentence of 10 years in prison for one of the men, and Raymond Wigell was able to argue to the judge that a term of 2 years was appropriate under all of the circumstances. For the other man, Raymond was able to argue and successfully get him sentenced to probation.

While cybercrimes are serious, and involve things like hacking, piracy, distribution of pirated materials, and even things relating to sex offender registration and the like, the problem is that often times the punishment doesn’t fit the crime. Between overzealous prosecutors, like the one in charge of the case against Aaron Swartz, and fundamental flaws in our sentencing guidelines and justice system at large, many people are being sent to prison without a compelling reason, or being held there longer than is reasonable or appropriate.

Aaron Swartz’s death is a tragedy. He was a young man with a full life ahead of him, and the potential for even more greatness. He was brilliant, innovative, original, a revolutionary thinker and a celebrated advocate of net neutrality and open access. In our digital age, we need more “hacktivists” like him (despite how online security interests try to frame the idea of hacktivism and hacktivists as something threatening and disruptive).

But in our outrage about the entirely preventable death of a brilliant young man loved throughout the Internet by the lowliest middle-schooler with a Reddit account to a leader of political and academic discourse about the Internet like Lawrence Lessig, we must not forget about the others.

The others are the countless individuals who didn’t create Reddit or co-author RSS, but who were also given unjustly long prison sentences. They are the ones who faced a cold, unfeeling justice system and lost. They are the drug offenders who get lengthy prison sentences for a relatively small amount of contraband. They are the repeat drug offenders who get years upon years tacked on to their prison term instead of treatment that could actually rehabilitate them and help them once more become productive members of society. They are the non-white members of the population that face a higher risk of arrest and lengthier incarceration simply for the color of their skin.

The justice system fails them every single day, but we don’t hear about it on the nightly news. The only people who hear about these people are their family members, their friends, and their defense attorneys. The justice system failed them just like it failed Aaron Swartz. While Aaron and Aaron alone is responsible for the choice he made, it is certainly true that the outcome of his case weighed heavily on his decision.

We mourn Aaron Swartz, and we should be mourning the other men and women like him, who weren’t prodigies and weren’t friends of Lawrence Lessig. We should use our outrage at Aaron Swartz not to kick up the dust now only to let it settle, but to use it as an impetus for a serious discussion of the way our justice system functions, and an examination of sentencing guidelines that, despite their purpose, do not always ensure that justice is served.

In mourning Aaron Swartz and the brilliant life extinguished, we should work toward changing the system that extinguishes countless brilliant, productive lives every day.

The Law Offices of Raymond G. Wigell has represented many people accused of hacking, piracy, and other Internet crimes. If you or a loved one is in trouble, you have hopefully realized from this post that this is not something to brush aside. The US government takes cybercrimes very seriously, and if you or a loved one is being investigated for or charged with any Internet crimes, time is of the essence. Contact the Law Offices of Raymond G. Wigell, Ltd., at (708) 481 – 4800. Attorneys are available 24/7 and the first consultation is free. Let us use our 37 years of experience in criminal defense to help you in your time of need.

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