Swartz was a fellow at the Lessig-headed Edmond J. Safra Center for Ethics at Harvard in September 2010 when he allegedly began the batch download that would lead to his arrest and indictment. Over the course of several weeks, the indictment claimed, Swartz engaged in a game of digital cat and mouse as first JSTOR, then MIT sought to block his access to its network, causing JSTOR on two separate occasions to block all access to MIT computers for several days. Starting in November of that year, Swartz bypassed the wireless registration and plugged directly into the network from a closet on campus, hiding the laptop under a box and running a script to discover and download articles continuously.
The indictment alleged that Swartz was attempting to download the archive for the intention of sharing it online—perhaps carrying forward the agenda of the Open Access movement, which protested the locking away behind a paywall of academic articles. (He had taken a strong position on this issue with the online publication of the Guerilla Open Access Manifesto, a polemic written by Swartz and a small group of collaborators.) It charged him with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. He faced up to $1 million in fines and up to 35 years in prison. The indictment was later amended to thirteen felony counts and as much as 50 years in prison. But those numbers are entirely notional; the plea-bargain phase settled on a reported offer of six to eight months if Swartz would plead guilty to thirteen felony counts. If he rejected the deal, as he did, the government would recommend a sentence as long as seven years, if he was convicted.
Whether any of this constituted a crime that ought to have been one of society’s priorities to punish depends on one’s perspective. No harm had come of it besides a few days of hassle for the MIT IT staff, and, as is always true of digital reproduction, taking copies of JSTOR’s archive left JSTOR with perfect copies of its own. JSTOR eventually made peace with Swartz when he returned the data, and the organization publicly announced it had no further wish to see him prosecuted. Though there were many efforts by the Swartzes to extract a similar statement from MIT, none came.
The analogy his supporters used to describe the crime was “checking out too many books from the library.” The U.S. Attorney for Massachusetts put it differently: Swartz was a thief. It was the latest skirmish in a battle over which analogies would control the digital world—the resort to analogies being a sign both of how rudimentary the legal concepts that govern the Internet are and how slow a consensus is to form about a new medium.
This was a battle fought along many fronts; in legal journals and academic symposia, where a cadre of activists who nurtured Swartz in their midst tried to build a new consensus about who should and should not control the circulation of ideas; in the everyday practices of a hundred million Internet users, who had grown inured to sharing music and videos online; in the offices and laboratories of software and media companies, where the latest copy-protection schemes are devised in an ever-escalating arms race with those intent on undoing them; in the corridors of Congress, where lobbyists from the various media, old and new, seek advantage for their industries by shaping laws that reflect their economic interests; and in courtrooms, where those unlucky enough to be caught flouting the laws face prosecution for doing what the rest of us habitually do on the Internet—copy for free. Though its opponents had a stronger hold on the levers of power, the copyleft believed it possessed an unbeatable trump card: the future, in the form of everyone’s children, who had grown up without any encumbrances on “content.”
Swartz was one of those children, and his interventions began at the margins where the public right to information was unambiguous. In 2008, Swartz exploited a limited opening in the pacer court-document archive to download and release millions of records. The FBI investigated him but ultimately declined to prosecute.
At a memorial, Swartz’s friend Carl Malamud confessed that he wondered if his own hot criticisms of JSTOR—he had tweeted that charging $20 for a six-page article was “morally offensive”—had incited Aaron to take undue risks in hacking it. When I spoke to him a week later, Malamud still hadn’t answered the question for himself. I asked why he had said that he sometimes feels guilty.
“Because the boy got in trouble and he killed himself,” he said. “Did I encourage him to do JSTOR? There were quite a few of us banging the table about this. Did we incite him to do this, and could we have done more once he was arrested? I don’t know. I ask the questions, and I can’t answer them. I can’t look in somebody else’s head and figure out what he was thinking. I could second-guess myself and ask what I did wrong, and I hope folks at JSTOR and MIT are doing the same. This was a tragedy.”