Cyber cop warriors and paranoia
I was on Virtually Speaking last night with my friend Marcy Wheeler. I was down with a cold and less informed of the details than she (as one would expect) so spent as much of the hour as I could get away with letting her educate me and the audience about the Aaron Swartz case and other assorted DOJ misdeeds. It was a very interesting hour to say the least.
This morning she has a post up with one of the aspects of the case I did not know:
The public story of Aaron Swartz’ now-tragic two year fight with the Federal government usually starts with his July 19, 2011 arrest.
But that’s not when he was first arrested for accessing a closet at MIT in which he had a netbook downloading huge quantities of scholarly journals. He was first arrested on January 6, 2011 by MIT and Cambridge, MA cops.
According to a suppression motion in his case, however two days before Aaron was arrested, the Secret Service took over the investigation.
On the morning of January 4, 2011, at approximately 8:00 am, MIT personnel located the netbook being used for the downloads and decided to leave it in place and institute a packet capture of the network traffic to and from the netbook.4 Timeline at 6. This was accomplished using the laptop of Dave Newman, MIT Senior Network Engineer, which was connected to the netbook and intercepted the communications coming to and from it. Id. Later that day, beginning at 11:00 am, the Secret Service assumed control of the investigation. [my emphasis]
In fact, in one of the most recent developments in discovery in Aaron’s case, the government belatedly turned over an email showing Secret Service agent Michael Pickett offering to take possession of the hardware seized from Aaron “anytime after it has been processed for prints or whenever you [Assistant US Attorney Stephen Heymann] feel it is appropriate.” Another newly disclosed document shows the Pickett accompanied the local cops as they moved the hardware they had seized from Aaron around.
Odd, don't you think? Read the whole thing for Marcy's informed speculation.
My general view of this is that the government is paranoid about cyber-crime and sees it as having an almost mystical power to threaten ... everything. The way the cyber-cops talk about it sounds as close to Alex Jones conspiracy mongering as you get from government officials (aside from the neocon terror types.) I don't know if the Swartz indictment had anything to do with Wikileaks, but because of this paranoia I have to assume it fell into the same threat matrix because Swartz was political and he was a hacker and he hung out at MIT, all of which have been factors in that investigation.
This case was handled by one of the DOJs cyber crime gurus, which means he is a guy who "knows things nobody else knows" and is probably allowed a great deal of latitude about deciding what constitutes a cyber threat (whether to big business or national security.) I expect that there are few real geeks in the bureaucracy and that the brass gives these specialists more rope than they should. And when people with a particular ax to grind have a lot of rope it's not uncommon for them to become just a teeny bit obsessive. (See: all of Western literature)
Anyway, Marcy has some theories about all that that are quite interesting. I can't help but believe there's more to this as well. At the very least, it's fairly clear that he wasn't just being dogged for his alleged JSTOR crime. Whether it was a case of corporate America generally demanding that their "property" be protected (even as they rampantly steal from others with impunity) or it's a more nefarious abuse of the national security powers, this case was an over-the-top prosecution that shouldn't have happened. And I think we all know that it isn't the only one.
They wanted him in jail:
Mr. Swartz's lawyer, Elliot Peters, first discussed a possible plea bargain with Assistant U.S. Attorney Stephen Heymann last fall. In an interview Sunday, he said he was told at the time that Mr. Swartz would need to plead guilty to every count, and the government would insist on prison time.
Mr. Peters said he spoke to Mr. Heymann again last Wednesday in another attempt to find a compromise. The prosecutor, he said, didn't budge.
Mr. Heymann didn't reply to requests for comment Sunday.
With the government's position hardening, Mr. Swartz realized that he would have to face a costly, painful and public trial, his girlfriend, Taren Stinebrickner-Kauffman, said in an interview Sunday. The case was draining his money, and he would need to ask for help financing his defense; two of his friends had recently been subpoenaed in the case. Both situations distressed him, she said.
"It was too hard for him to ask for the help and make that part of his life go public," she said. "One of the things he felt most difficult to fathom was asking people for money."
On Friday, Mr. Swartz was dead.
Note that he was facing up to 50 years in prison for this non-crime. To put that in perspective, Think Progress put together a handy list of crimes for which a person would be charged substantially less:
Manslaughter: Federal law provides that someone who kills another human being “[u]pon a sudden quarrel or heat of passion” faces a maximum of 10 years in prison if subject to federal jurisdiction. The lesser crime of involuntary manslaughter carries a maximum sentence of only six years.
Bank Robbery: A person who “by force and violence, or by intimidation” robs a bank faces a maximum prison sentence of 20 years. If the criminal “assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device,” this sentence is upped to a maximum of 25 years.
Selling Child Pornography: The maximum prison sentence for a first-time offender who “knowingly sells or possesses with intent to sell” child pornography in interstate commerce is 20 years. Significantly, the only way to produce child porn is to sexually molest a child, which means that such a criminal is literally profiting off of child rape or sexual abuse.
Knowingly Spreading AIDS: A person who “after testing positive for the Human Immunodeficiency Virus (HIV) and receiving actual notice of that fact, knowingly donates or sells, or knowingly attempts to donate or sell, blood, semen, tissues, organs, or other bodily fluids for use by another, except as determined necessary for medical research or testing” faces a maximum of 10 years in prison.
Selling Slaves: Under federal law, a person who willfully sells another person “into any condition of involuntary servitude” faces a maximum prison sentence of 20 years, although the penalty can be much higher if the slaver’s actions involve kidnapping, sexual abuse or an attempt to kill.
Genocidal Eugenics: A person who “imposes measures intended to prevent births” within a particular racial, ethnic or religious group or who “subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part” faces a maximum prison term of 20 years, provided their actions did not result in a death.
Helping al-Qaeda Develop A Nuclear Weapon: A person who “willfully participates in or knowingly provides material support or resources . . . to a nuclear weapons program or other weapons of mass destruction program of a foreign terrorist power, or attempts or conspires to do so, shall be imprisoned for not more than 20 years.”
Violence At International Airports: Someone who uses a weapon to “perform an act of violence against a person at an airport serving international civil aviation that causes or is likely to cause serious bodily injury” faces a maximum prison sentence of 20 years if their actions do not result in a death.
Threatening The President: A person who threatens to kill the President, the President-elect, the Vice President or the Vice President-elect faces a maximum prison term of 5 years.
Assaulting A Supreme Court Justice: Assaults against very senior government officials, including Members of Congress, cabinet secretaries or Supreme Court justices are punished by a maximum prison sentence of just one year. If the assault “involved the use of a dangerous weapon, or personal injury results,” the maximum prison term is 10 years.