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Friday, September 13, 2013

DOJ Decided To Ratchet Up Case Against Aaron Swartz Because He Spoke Out Publicly About Being Innocent

by Mike Masnick

A few weeks ago, we wrote about the MIT report concerning the case against Aaron Swartz. A number of people have picked up on some really questionable things in the report. One incredible claim made in it was that Assistant U.S. Attorney Stephen Heymann, who was running the prosecution against Swartz, apparently admitted that he really only ramped up his efforts against Swartz to punish Swartz and the organization he founded, Demand Progress, for having the audacity to discuss the case publicly and explain why Swartz believed he didn't do anything wrong. Here's the passage from the report:
The prosecutor said that, pre-indictment, he had wanted to approach the case on a human level, not punitively. To this extent he made an extremely reasonable proposal, and was "dumb-founded" by Swartz's response.

The prosecutor said that the straw that broke the camel's back was that when he indicted the case, and allowed Swartz to come to the courthouse as opposed to being arrested, Swartz used the time to post a "wild Internet campaign" in an effort to drum up support. This was a "foolish" move that moved the case "from a human one-on-one level to an institutional level." The lead prosecutor said that on the institutional level cases are harder to manage both internally and externally

MIT used this to explain why it thought that any public statements it might make in support of Swartz would make the case worse for him, because Heymann, in his petty vindictive mind, might view it as a further "wild" public campaign by Swartz. Leaving aside that this makes absolutely no sense at all, the actions of Heymann are particularly despicable here, suggesting that merely professing your innocence to crimes that you believe you are innocent of, should lead to much greater prosecution.

This passage has now caught the attention of Rep. Darrell Issa, and he is asking Attorney General Eric Holder about whether or not the DOJ directly comes down hard on those who exercise their First Amendment rights in the face of questionable prosecutions:

"The implication that the Department ratcheted up the prosecution by moving the case to 'an institutional level' after it discovered the petition by Demand Progress suggests that the Department acted in a retaliatory manner and that it bases its charging decisions on externalities such as an Internet campaign," Issa, who chairs the House Oversight Committee, wrote in his letter to Holder.

"The suggestions that prosecutors did in fact seek to make an example out of Aaron Swartz because Demand Progress exercised its First Amendment rights in publicly supporting him raises new questions about the Department's handling of the case," Issa wrote.

A separate point that comes out in the report that is equally as absurd was that Heymann believed that the case required some jail time as punishment because it "involves the unauthorized downloading of intellectual property that cost millions of dollars to create." This is ridiculous on so many levels. First of all, MIT made those works freely available to anyone on campus, so the argument that it was "unauthorized" remains very questionable. Second, the "cost millions of dollars to create" argument is simply laughable. Nearly all of that was publicly funded by taxpayer money, which is supposed to lead to the enrichment of public learning and knowledge -- the exact thing that Swartz appeared to be focused on. This ridiculous belief that he needed to be put in prison because of the monetary cost of creating these educational works is astounding. And sad, given the eventual outcome.

It's no secret that the DOJ often seems to think that "intellectual property" laws are designed to protect the moneyed interests of copyright holders, but that's not what the Constitution or the law says. At the very least, the people hired as US Attorney's to represent the US government should know better than to ratchet up prosecution for people who are expressing their First Amendment rights and doing things that directly align with the Constitutional reasons for copyright law.

Assistant US Attorney Stephen Heymann is a disgrace to the Constitution he's supposed to be defending.

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