Category Archives: Aaron Swartz Day 2014

Brewster Kahle: Plea Bargaining and Torture

Brewster - Plea Bargaining Torture - 1
Brewster Kahle at the Internet Archive’s Aaron Swartz Day Celebration, San Francisco, California, November 8, 2014

Audio Clip:

Link to video of Brewster’s talk (Direct link to Brewster’s talk from within the complete video of all speakers from the event.)

The transcript below has been edited slightly for readability.

Complete transcription:

Welcome to the Internet Archive. I’m Brewster Kahle, Founder and Digital Librarian here, and welcome to our home.

For those that haven’t been here before… The little blinking lights on the 5 petabytes of servers that are in the back, are actually serving millions of people a day, and being kind of a digital library. The little sculptures around are people who have worked at the Internet Archive, including one of Aaron Swartz up toward the front. In the front because he was the architect and lead builder of, which is an Internet Archive site. And also worked on putting Pacer into the Internet Archive (RECAP), Google Books public domain books, and other projects that we’ve worked on over the years. So with this, we’d like to say, “Happy Birthday Aaron, we miss you.”

I’m going to talk about a cheery subject: Plea Bargaining and Torture. When I was trying to think through the approach that was used to bring down Aaron Swartz and to try to make a symbol out of him, I typed these words into my favorite search engine (“Plea Bargaining and Torture) and back came a paper on the subject, that I am going to summarize and also elaborate on.

I found this wonderful paper, by a Yale Law Professor, in 1978, comparing European Torture Law and current Plea Bargaining. This might sound a little bit far fetched, but stick with me for a minute.

European Torture Law, I had no idea, was actually a regulated, implemented, part of their court system. It started in 1215, when they stopped going and saying “you’re guilty because God said so.” They had to come up with something else. So they basically had to come up with something that was *that sure.* And they said you either had to have two eyewitnesses, or, you had to confess. And this was actually an unworkable system. And instead of changing that, they tried to force confessions, and they had a whole system for how to do it. They had basically how much regulation, how much leg clamping you had. How many minutes of this, for different crimes.

Brewster - Plea Bargaining Torture - 7

So you can see in this diagram, and you can see this guy getting tortured here, but he is surrounded by court clerks. So, it’s not this, sort of, the Spanish Inquisition, as Monty Python would have it. This was actually a smart people state-sponsored system that was trying to fix a bug in their court system, in that it was too hard to convict people. So they tortured them into confessions.

Sound familiar?

So, in the United States, now, we have between 90 and 99 percent. It depends whether you are in Federal or State court, or which county you’re in. 97% of all convictions at the Federal level are done with plea bargaining.

Brewster - Plea Bargaining Torture - 3

So you have basically no chance of having a jury before your peers. This is basically a threat system. They actually did studies in Florida where they jacked up the sentences, and the number of people that plea bargained went up. It’s a system to handle convictions outside of the Court System. Outside of the Jury System. Unfortunately, our Constitution actually has something to say about this that’s in pretty direct contradiction:

“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury;…”
– Article III.2 U.S. Constitution (

Brewster - Plea Bargaining Torture - 2

But as another thinker on this has said, basically Plea Bargains have made jury trials obsolete.

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When Aaron Swartz was threatened with 35 years, it’s got to have hit a young, idealistic person pretty hard. 35 years for downloading books too fast from the library? This doesn’t make any sense. Yet that’s a pretty big threat, and may have had something to do with it. When this sort of played out, after his death, I just found that these quotations notable enough that I’m going to sort of, bore you, with putting them up.

Brewster - Plea Bargaining Torture - 5

So he was faced with 35 years, thanks to Carmen Ortiz. Wonderful. And the Justice Department had never intended for this. No more than a three, four, or potentially five-month range,” said the top attorney in the United States. And we shouldn’t really judge what the prosecutors were doing, based on what they threatened him (with), just by what they were going to do if he pled guilty.

So I think we’ve got a real problem with this. So what’s to do?

Well, I say we should make some noise about it. I think some of the reasons that we don’t make noise about it is it doesn’t happen to our friends. This sort of thing happens to a lot of “other people.” But, in this case, it did happen to our friend, and I think that it’s important for us to respond to it.

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I think John Oliver has been on a roll, in terms of some of these unbelievable sorts of diatribes of going and actually doing research and bringing it in front of people in an interesting way. I’d also like to pitch: “is there a documentarian in the house, say?” That we should go, and really go and put this type of behavior in front of more people.

There are others that are trying by not pleading, but it has its downsides. Basically, gum up the courts. At least for me, I take off my… I don’t go through the surveillance device in the airports, and yes it gums them up a little bit, and I feel like that’s my part to help. Would I actually, if it came right down to it, not plead? To help move this forward? I don’t know. By enlarge, we’ve got ridiculous catch-all laws, and we’ve got sentences that are just outrageous, and these have just got to come under control, as well as let’s actually hire some judges.

Ben Wikler Remembers Aaron Swartz

From 2014:

Hi, I’m Ben Wikler. I was a close friend of Aaron’s.

Aaron was somebody who had enormously wide-ranging interests and was dedicated to making as big a difference in the world as he possibly could. That’s what he loved to do.

When he downloaded articles, some people describe it as his great act of civil disobedience, and I don’t think he saw it that way at all.

This wasn’t the fight of his life, it was only the fight of his death.

The fight of his life is still unfinished. It’s the big project of making the world a just and safe and fair place for everyone.

*Clip above from the November 8, 2014 television broadcast of “The Internet’s Own Boy,” on PivotTV.

Aaron Swartz Was No Criminal; Was Fully “Authorized” to Download JSTOR Articles

Republished from 2014

Aaron Swartz Was No Criminal

By Dan Purcell for BoingBoing.

aaronboingboingFrom the article:

You might ask, like I did, what Aaron’s actions had to do with “computer crimes.” Aaron hadn’t broken into a secure network and stolen credit card numbers. He hadn’t stolen anyone’s healthcare data. He hadn’t violated anyone’s privacy. He hadn’t caused anybody to lose any money. There are things that are “computer crimes” that we all recognize are invasive and dangerous, and this was not one of them.

But Steve Heymann did what bureaucrats and functionaries often choose to do. He wanted make a big case to justify his existence and justify his budget. The casualties be damned.

..He had the Computer Fraud and Abuse Act, which is an over broad federal statute that has been made more broad by federal prosecutors trying to stretch its terms. But under the indictment in Aaron’s case, the government still had to prove that Aaron had gained unauthorized access to a computer system. Our defense was really pretty simple. There were going to be other nuances, and we were going to talk a lot about Aaron’s motivations and the type of person Aaron was, but our bottom line was going to be that Aaron had done only what MIT permitted him to do. He hadn’t gained unauthorized access to anything. He had gained access to JSTOR with full authorization from MIT. Just like anyone in the jury pool, anyone reading Boing Boing, or anyone in the country could have done.

We hoped that the jury would understand that and would acquit Aaron, and it quickly became obvious to us that there really wasn’t going to be opportunity to resolve the case short of trial because Steve Heymann was unreasonable.

Of course, after Aaron’s passing, it’s really easy for them to say “35 years. That was a bluff. It was never gonna happen.” That was not what they were telling us. Heymann always insisted on a sentence of hard time in Federal Prison. We said, “this is really a very trivial thing. Can’t we resolve it with probation or some other thing that made a little more sense and would make it possible for Aaron to go on with his life?”

He said “no.” He insisted that Aaron plead to a felony and serve prison time. And of course, what he said, as prosecutors often do, is that if we go to trial, it won’t be so easy, and if we lose, well, this is a tough judge, and the prosecution is going to recommend a very difficult sentence. Aaron may end up having a term of years.

Kevin Poulsen at Aaron Swartz Day 2014 – Details On Poulsen v. DHS

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Download a Hi-res (.mov) file of Kevin’s Talk

Kevin Poulsen filed a lawsuit over access to the Federal law enforcement documents about Aaron Swartz.  MIT intervened in the case as an interested third party – and was awarded the privilege of further redacting the documents before they were made public.

Bottom Line: MIT’s intervention has caused these documents to be released at a much slower rate, so they could redact information about their involvement with the government against Aaron.

The files are all here now at

Here is a complete transcription of last year’s presentation by Kevin Poulsen on this topic. (Let’s band together to put pressure on the U.S. Government to release these files now. :-)

(In case you are just learning about this, I am also including a complete list of references on this topic at the bottom of this post.)

Complete transcription:

My name’s Kevin Poulsen. I’m a contributing editor at Wired magazine, and I’m the one that recruited Aaron to do the project that is now “SecureDrop.” While my presentation is getting set up I’ll say that what the Freedom of the Press Foundation and everybody who’s contributed to that project at the hackathons has made of that greatly exceeds I think, any expectations that Aaron had for that when he was working on it. It’s an astonishing, astonishing achievement, and one that’s become far more important than it was even when we started.

I’ve been asked to talk about my Freedom of Information Act lawsuit against the Department of Homeland Security, and where we stand with the files.

For those just tuning in: After Aaron passed, I, as well as a lot of other journalists and bloggers and independent investigators, very quickly filed Freedom of Information Act requests with the Secret Service, and we all received the same letter (page 3), where the agency summarily denied the request on the grounds that it pertained to an ongoing law enforcement investigation, which was ludicrous under the circumstances.

I filed an appeal. (page 1) The department ignored the appeal, and then, I, with the help of David Sobel, and attorney with EFF and one of the greatest FOIA litigators in the country, we sued DHS and, very quickly, got a court order obliging them to start producing document. (Applause.)

At that point, MIT and JSTOR moved to intervene in the case. They were concerned that, despite the government’s great skill at redacting documents, that some information might slip through that would identify MIT or JSTOR personnel who contributed to the investigation, and they might face some sort of retaliation. Probably from Anonymous.

We reached an agreement with them, where they’re allowed to preview each collection of documents before it’s released to me and suggest redactions of their own. There was some concern at the time that they would abuse that to redact more than just identifying information. So far, it looks like the redactions have just been a word here or there, and email addresses and that sort of thing.

What we’ve gotten so far is 2,889 pages, 177 photos and 11 videos, including the video of Aaron being booked at the Cambridge Police Department.

In the last batch. This will be of interest to maybe two or three of you, that really closely follow this. In the last batch, we actually got the Python script that Aaron wrote to extract the documents from JSTOR. This is actually the thing that I’m asked about the most is “when is going to be released?”

Aaron Swartz' script
Aaron Swartz’ script

Script Transcribed on GitHub

In the last two batches, we’ve seen for the first time some large blocks of material being redacted, and they’re being redacted under FOIA Exemption B5, “Pre-decision Deliberative Processes.” So, if the government is working on something, and they haven’t made a decision, and they’re exchanging memos and back and forth discussing what to do, that’s when that would apply. Or a draft of a treaty. That sort of thing.

And for the first time we’re seeing a notation indicating that an outside agency, not the Secret Service, and not DHS, has made those redactions, and it’s the Executive Office of the U.S. Attorney. And all of these redactions appear to be emails either from or two Stephen Heymann, the prosecutor on the case. So, it’s hard to tell what’s being redacted by definition. It’s not there. But, as it turns out, MIT and JSTOR also released documents, in the wake of the controversy over all of this, and some of them were messages that were redacted from the government’s release. So, we actually can see what’s underneath them. And it’s nothing that you would call a smoking gun. It’s more like, very puzzling why they would want to redact this. So this, message to MIT, from Steve Heymann, or (correction) to JSTOR, from the prosecutor, is asking about the naming of the PDF files that were downloaded. It baffles me as to why they would consider this sensitive.

This one, huge block of redacted text, here, is the reply from JSTOR. You’d imagine this is going to be the Pentagon Papers or something. And no, it’s a detailed examination of the numbering system that JSTOR uses for numbering their documents. Keep in mind this was released by JSTOR voluntarily and redacted by the U.S. Government for reasons of their own. And then this one, again, an entire block. It turns out to be the stuff that the prosecutor is asking MIT to bring to an interview. So this, I think, bears some further scrutiny. I just discovered the unredacted versions of these in the JSTOR documents yesterday, so I haven’t had a chance to talk to David Sobel about it yet. But to me, it looks a little questionable.

If you want to see the documents for yourself. This week, I’ve compiled them all into a single place: You’ll also find the FBI and US Marshall’s files on Aaron there, and a compilation of all the files that have been released by MIT and JSTOR to date, as well as all the videos and the photographs that I just described.

More Articles and Resources about Kevin’s FOIA case and MIT’s intervening:


2. WIRED’s Kevin Poulsen on managing investigations, Aaron Swartz and why leaks are the new FOIA –, by George LeVines – August 2, 2013

3. First 100 Pages of Aaron Swartz’s Secret Service File Released
Kevin Poulsen    Security Date of Publication: 08.12.13.

4.  Secret Service Report Noted Aaron Swartz’s ‘Depression Problems’, Kevin Poulsen, Wired, 11.07.13

5.  MIT blocking release of Aaron Swartz’s Secret Service files BoingBoing, Cory Doctorow, Jul 18, 2013

6. Judge orders Secret Service to release Aaron Swartz’s files
Boing Boing, Cory Doctorow  Jul 9, 2013

7. MIT asks to intervene in Swartz FOIA suit
July 19, 2013 by Ed Felten

8. Aaron Swartz FOIA video playlist

9.  MIT intervenes in FOIA release of Aaron Swartz documents, seeks ‘pre-release review’  By Nathan Ingraham, The Verge, July 18, 2013

10.  The MIT surveillance video used against Aaron Swartz is now public By Dell Cameron, Dec 4, 2013


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Discussing Aaron’s Suicide: Q and A at Aaron Swartz Day 2014

Trevor Timm, John Perry Barlow, Brian Knappenberger, and Lisa Rein, during the Q & A panel, after a special screening of “The Internet’s Own Boy” in the Internet Archive’s Great Room, at Aaron Swartz Day, November 8, 2014.

Audio clip:

Link to full Aaron Swartz Day 2014 Video.
The transcript below has been edited slightly for readability.

Lisa: Brian, when you were making this movie, and you had lots and lots of footage, how did you go about deciding which story you were actually gonna tell? One of the things that people who are not familiar with the story sometimes say to me, when they see your film for the first time, is that they are curious about the way that you handled the suicide at the end.

For me, it made sense, because, one thing that I think a lot of us could agree on, when we talked about it, after he died, was that it *didn’t* really make sense. He had had bouts with depression, from time to time, like a lot of people, but it wasn’t really anything that anyone was expecting, or that anyone could go “oh, we knew that was gonna happen,” or, “we were afraid that was going to happen” — that sort of thing.

I liked the way you sort of got that across in the film. How did you decide how you were gonna treat that issue? It was very sad at the end, but you definitely decided not to dwell on it.

Brian: Yeah. I mean, so much was written about Aaron, right after he died. And some of it, at least, had to do with depression or speculating on the role that it might of played in his death. So, I certainly, read everything. I mean, before we even started filming – when I was still in the early stages, I tried to read everybody’s take on it. A lot of people were doing first hand accounts and stuff, but the New Yorker did a piece that was almost exclusively focused on that issue.  And so I decided to take it, and basically just ask the people who were closest to him and try to understand what role it played.

The conclusion I came to is that, Taren, who lived with him during the last years of his life, she doesn’t believe that he suffered from that. Or, that he may have had something like that in his early 20s, but not when she lived with him. His brothers and other people close to him describe a kind of sensitivity, of carrying the weight of the world on his shoulders; the need to want to fix everything, almost. And so I just kind of weighted, based on what I found. I think that’s the short answer.

I think some of that was letting the government off the hook, in some ways. That’s just the conclusion that I came to. That assigning too much to “depression,” was a way of sort of distracting from this two year legal nightmare that would have certainly put anybody in a difficult position.

Lisa: Right. As if it was something where, he could have had a bad day, and done anyway, and not something that he was driven to from the situation. I guess that’s what bothered me too, when people talked about the depression, and they left out the whole part about the relentless, daily persecution by this case on his life.

Brian: Yeah, I mean, people go through worse and don’t take their own life, obviously. So, it was just something that I thought a lot about. I basically proceeded by talking to people who were close to him and trying to understand who he was, and what role that played, and I think I got some pretty candid, and pretty honest answers about that.

John Perry: I don’t have reason to say this, but I’m gonna say it anyway. It occurs to me, even though I know that Aaron Swartz would’ve been a truly extraordinary force in the world, had he lived. I’m not certain that he would’ve been the extraordinary force in the world that he became by dying when he did, and I’m not certain that he didn’t know that. It’s not out of the question in my mind that he made a strategic and very hard decision to allow himself to be a martyr to this cause at this particular point.

Lisa: I thought of that too, except that one would say that making a pragmatic decision about the timing of taking your life isn’t necessarily a sane decision to make.

john perry

Truthdig on Aaron Swartz Day: A Vital Legacy Lives On

Photo: Wikimedia Commons/Daniel J. Sieradski CC BY-SA
Photo: Wikimedia Commons/Daniel J. Sieradski CC BY-SA

Aaron Swartz Day:  A Vital Legacy     Lives On

By Thor Benson for Truthdig.

From the Article:

Swartz would have been 28 years this week, on Nov. 8. To celebrate his life and legacy, communities across the globe will observe Aaron Swartz Day on his birthday. He fought for an open and thriving Internet but also for causes like ending corruption and government secrecy, and the day in his honor will mark the full range of his accomplishments and his battles, which remain alive today.

Swartz was adamantly opposed to laws like SOPA and PIPA that he believed would have allowed corporations to shut down free expression and frustrate an open Internet. What many don’t realize is that he also feared government surveillance, well before Snowden arrived. “One thing that Aaron didn’t see—is he didn’t see Snowden,” Brian Knappenberger, director of a documentary about Swartz’s life called “The Internet’s Own Boy,” told Truthdig. “We have footage in the film that talked about Aaron being concerned about NSA surveillance and overreach that was a year before Snowden came forward.”

Knappenberger said Swartz was waiting for a moment when people would realize how serious a problem government surveillance was becoming, and he died before he could witness the Snowden revelations. Instead of learning from what happened to Swartz and being more lenient with Internet activists, “lawmakers in the government just get worse about whistle-blowers and hacktivists by going after them even stronger,” Knappenberger said.

Knappenberger worries when he sees the Obama administration creating “insider threat” programs that encourage people with top-secret clearance to turn in co-workers who they believe might leak information. Sometimes, a recent divorce can be considered a reason for the government to suspect that an employee might leak information. Knappenberger said the U.S. government is targeting legal whistle-blowing instead of dealing with illegal activity such as warrantless surveillance being carried out by its branches.



The Daily Dot On Aaron Swartz Day and International Hackathon

daily dot aaronCelebrating Aaron Swartz at the Internet Archive hackathon

by Kate Conger for the Daily Dot.

From the article:

Prosecutors painted him as the bad kind of hacker—the Hollywood sort who breaks into computer networks with a flurry of keystrokes to steal top-secret information.

“It’s just nonsense. Of course Aaron was a hacker in the broad sense of the term, but in terms of the criminal term, he was no hacker and he didn’t do anything like that,” said Dan Purcell, a partner at the law firm of Keker & Van Nest LLP in San Francisco. Purcell would have represented Swartz had his case gone to trial. Instead, Swartz committed suicide in Jan. 2013, before the trial commenced.

“What Aaron did, whether you call it a prank or a consciousness-raising exercise, it was not a crime.”

This distinction is an important one for organizers of the memorial hackathon, like Lisa Rein, cofounder of Creative Commons, who selected “setting the record straight” as the theme for this year’s event. Like Purcell, she emphasized that Swartz’s actions were far from criminal.

But as much as Aaron Swartz Day is about dispersing misconceptions about what it means to be a hacker, it’s also about simply hacking.

Lisa Rein’s Opening Remarks At Aaron Swartz Day at the Internet Archive

Link to video herelisarein.

Thank you everyone for coming. We have a lot of material to cover tonight, and then a whole movie to watch afterwards, so I will keep my opening remarks brief and to the point.

This year’s event’s theme is “setting the record straight” so that we can move forward. To me, this means providing a better understanding of Aaron’s actions, and how the entire situation became a misunderstanding of epic proportions that pretty much spiraled out of control.

There are a few initiatives underway designed to prevent this from ever happening again, and aimed at protecting innovators, such as Aaron, from relentless prosecution by third parties that don’t understand the nuances of the parties involved. We’ll hear from the EFF’s April Glaser, who will tell us about the upcoming Freedom to Innovate conference, which is designed to protect future student innovators from legal prosecution that victimized Aaron.

Through a combination of learning more about Aaron’s case, which we are going to do tonight, and having access to things like Aaron’s FBI and Secret Service files, which we are beginning to be released to us little by little, thanks to Kevin Poulsen’s Freedom of Information Act requests – can we begin the process of fully understanding what happened to Aaron, so that we can be sure to try to stop it from happening to anyone else.

Cindy Cohn, soon to be the EFF’s new Executive Director, will explain to us why CFAA reform is firmly stalled in both houses. (Probably now more than ever.) Finally, Dan Purcell, from what was Aaron’s new legal team, is here tonight to help us understand what their strategy was going to be for clearing his name at trial.

2013 and 2014 were big year’s for many of Aaron’s projects and ideas. He received a posthumous EFF Pioneer Award in 2013, and was inducted into the Internet Hall of Fame as well that year, on the same night as Vint Cerf and John Perry Barlow. Aaron surely would have been pleased to be in such distinguished company.

I think he would also be pleased to see his DeadDrop prototype blossom into the SecureDrop whistleblowing submission platform that now has 15 instances in full swing, protecting leakers from our government’s spying eyes, and enabling submissions to prestigious news organizations such as The Guardian, The Washington Post, the New Yorker, and Forbes. I also think he would’ve been proud to see his mentor Lawrence Lessig and his MAYDAY PAC team raise over 10 million dollars to fund congressional candidates committed to fundamental campaign finance reform. Remember, Aaron is the one who challenged Lessig to set out on his new course, way back in 2007.

So join us tonight, along with hackathoners in 12 16 cities around the world, as we celebrate Aaron, set the record straight about not only what he did not do, but about what was done to him, and try to find a way to move forward together, and continue to make the world a better place. Thank you.

‘Inspiration for people, threat to US govt’ – Aaron Swartz film director to RT

Aaron RT2‘Inspiration for people, threat to US govt’ – Aaron Swartz film director to RT

November 9, 2014   for RT

Download link to video piece that goes with this article.

From the interview:

RT: Aaron Swartz was basically driven to suicide for standing up to the government for what he believes in. Do you think his fate will put others off following in his footsteps?

Brian Knappenberger: No. I mean I think that treatment of Aaron Swartz was awful and it was outrageous. But I actually think that if it was meant to be a kind of persecution to put people off of this kind of behavior, I think it backfired. If it was meant as deterrence, or it was meant to make an example, as the prosecution said to Aaron’s dad and to Aaron’s council, I think that effort, probably, backfired.

People are inspired, looked at what he did and are inspired by it. I don’t think that the legal efforts against him actually would put off future Aarons. And if anything they’ll inspire them.

Video From Aaron Swartz Day at the Internet Archive

lisareinVideo of Speakers:

Lisa Rein (Coordinator, Aaron Swartz Day)                                                                         April Glaser (EFF, Freedom to Innovate Summit)
Yan Zhu (Yahoo, SF Hackathon Organizer)
Brewster Kahle (Digital Librarian, Internet Archive)
Cindy Cohn (EFF Legal Director – CFAA Reform)
Kevin Poulsen (Journalist – FOIA case that MIT intervened in)
Garrett Robinson (SecureDrop)
Daniel Purcell (Keker & Van Nest, one of Aaron’s lawyers)

Q and A after the movie:  with Brian Knappenberger, Director, “The Internet’s Own Boy,” Trevor Timm (executive director and co-founder, Freedom of the Press Foundation), John Perry Barlow (co-founder, EFF, Freedom of the Press Foundation), and Lisa Rein (Coordinator, Aaron Swartz Day).