– You could sign up for a web service. You violate the terms and conditions. What’s the worst that could happen?
Aaron Swartz was 24. He hid a laptop and a hard drive in a cupboard at at the Massachusetts Institute of Technology, signed up to the journal storage service JSTOR, and began downloading. Some 5 million articles later he was charged with computer fraud.
JSTOR didn’t want him charged. It felt he had merely broken a contact. It asked for the copies back and left it at that.
If Swartz had broken any other sort of contract, say one involving real estate or the purchase of a multi-million-dollar corporation, the authorities couldn’t have touched him. Those sorts of contracts are settled between the parties, through litigation if necessary.
But in the US, contracts involving computing services are different. The US Computer Fraud and Abuse Act makes it a crime to violate a website’s terms of service where a sum of more than $5000 is involved. There doesn’t need to be a victim and it doesn’t need to complain.
The secret service took over the investigation, just as it had that of Bradley Manning who is charged with handing classified files to WikiLeaks, also in part under the act.
The service swept together enough charges to put the 24-year-old in jail for 35 years (although six months or laughed out of court might have been more likely).
Attorney Carmen Ortiz declared: “Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars.” Her office refused to plea-bargain unless Swartz pleaded guilty to every single charge.
On January 11th, two years into his ordeal, Swartz killed himself.
An expert in computer protection who was to speak at the trial said: “Aaron’s downloading of journal articles from an unlocked closet is not an offence worth 35 years in jail.”
It looks as of the authorities wanted to make an example of Swartz. He was part of the successful fight against the punitive Stop Online Piracy Act. At age 13 he helped design the RSS code that many of us use to keep up to date with websites. He had previously distributed free of charge US court records and had come to the attention of the FBI.
Before his death JSTOR made a limited version of its service available free. It may have been what Swartz was trying to achieve. It said Swartz made important contributions to the development of the internet and the web from which we all benefit. The case is one that we ourselves had regretted being drawn into from the outset. Our mission is to foster widespread access to the world’s body of scholarly knowledge.
In response, Democratic congresswoman Zoe Lofgren has drafted “Aaron’s Law”, an amendment to the Computer Fraud Act that would specifically prevent violations to the terms and conditions of a web service being treated as crimes. But she’ll be up against forces that are as powerful as the gun lobby. They extend to Australia.
Early one morning in 2003 the Australian Federal Police raided the New South Wales house Hew Griffiths shared with his father and charged him with breaking a US law.
His crime had been to share illegally downloaded software. He had never been to the US. Like most Australians he had assumed he wasn’t subject to US law.
The then justice minister Chris Ellison refused to intervene (the government was negotiating the US-Australia free trade agreement at the time). Griffiths became the first foreign national anywhere to be forcibly taken to the US to face copyright charges.
Facing 10 years in prison, Griffiths pleaded guilty and served six months. He was well treated. He told me later the US was good at running prisons. The three years he had spent in Sydney’s Silverwater Detention Centre fighting the extradition were much less pleasant.
Australia’s decision to surrender sovereignty over Griffiths took place as it made another. In order to get the free trade agreement through it agreed to make intellectual property part of Australia’s criminal as well as civil law. Our government (or the US government for that matter) is now free to prosecute an Australian for a breach of copyright and threaten a jail term whether or not the injured party would otherwise have to take itself.
The US is pushing for even more in negotiations currently under way over the Trans-Pacific Partnership trade agreement.
We should say no – Peter Martin