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.
“We must have total transparency about the investigation into Aaron. Why was the Department of Justice grinding their axe with Aaron? Was it really because of JSTOR and the past anger about PACER? That is absurd and unbelievable. It is disproportionate and it is unjust.
One concrete thing that needs to happen is for the FOIA case to be properly resolved. We must find a way to speed up the processing about FOIAs regarding Aaron. Rather than hundreds of documents at a time, we should have all 85,000 at once, and not mediated by MIT, who is partially responsible for the outcome we have today.”
…he was talking about Poulsen v. DHS.
MIT’s intervention has caused these documents to be released at a much slower rate. An unacceptable rate.
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.)
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.
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 keepgrabbing.py going to be released?”
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: swartzfiles.com. 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:
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.
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.
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.
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 1216 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.
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.
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).
Online hacktivists are holding a “hackathon” spanning two days to honor the would-have-been birthday of dead computer programmer and hacktivist Aaron Swartz.
The hackathon will be a global phenomenon, spanning 11 cities including Berlin, Boston, New York, Buenos Aires and Oxford, according to its affiliated website. However, its main location will be in San Francisco where programmers, developers, artists, researchers, and activists gather together, according to the Electronic Frontier Foundation.