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No Harm

The government should follow Moses’ example and drop its prosecution of hacker Aaron Swartz, who downloaded millions of academic articles but broke no discernible law

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Aaron Swartz, December 2008. (Fred Benenson/Wikipedia)

It may very well be that when the history of modernity is conclusively committed to paper, the three most meaningful words in the English language will turn out to have been not “it is benign” or even “I love you” but rather “terms of service.”

Just ask Aaron Swartz. Now 24, the Internet entrepreneur and activist has already lived a life that would make even the most industrious among us slouch with shame. At 14, he helped develop the now-ubiquitous RSS format, which allows content publishers to streamline and syndicate their offerings. He toyed with higher education for a while, but Stanford was no match for the thrill of starting a company; Swartz called his Infogami,  a social news service that merged with a similar service, Reddit, and was eventually bought by Condé Nast.

Rather than devote his newfound fame and fortune to the pursuit of shiny objects, as many California whiz kids do once they’ve found a way to turn code into cash, Swartz headed to Harvard, where he was a fellow at the university’s prestigious Center for Ethics. Most of his work focused on freedom of information, which is not as peaceable as it may sound. After Swartz used a Chicago library computer terminal to download millions of federal court records—documents that were free to the public on the library’s terminal but elsewhere cost 8 cents a page—the federal government began keeping a close watch on him, claiming that he had illegally “exfiltrated” documents. Nothing ever came of the investigation; Swartz, it was clear, had done nothing wrong. He donated the documents to, an open-government initiative dedicated to making public records freely available to, well, the public.

This week, Swartz was arrested on similar charges, these involving JSTOR, the online archive of academic journals that charges universities premium subscription fees for allowing students access to a vast array of scholarly articles. Swartz, according to the indictment, used an MIT guest account and a piece of software that allowed him to download 4.8 million articles and other documents.

So, what did Aaron Swartz do wrong? If you ask the federal government, a lot, including wire fraud, computer fraud, unlawfully obtaining information from a protected computer, recklessly damaging a protected computer, aiding and abetting, and criminal forfeiture, a bouquet of allegations that could land Swartz in prison for 35 years and cost him up to $1 million in fines. Carmen Ortiz, the United States Attorney for Massachusetts, who is prosecuting Swartz and is an avid aficionado of alliteration, said in a statement that “stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away.”

The victim, JSTOR, was far milder: In a statement the organization said that Swartz had stopped his downloading and returned all the documents he had downloaded, and that “once this was achieved, we had no interest in this becoming an ongoing legal matter.”

An ongoing legal matter, however, it very much is. And like other cases of the same nature, this one is likely to die with a whimper. As is often the case when the government tries to enforce its order on the ever-shifting terrain of our digital wilderness, the reality is far more complex than its federal version. In applying digital ninjitsu to download a mass of articles, Swartz violated JSTOR’s terms of service, as well as those imposed by MIT. But the articles themselves were accessed legally—any MIT guest user can simply log in and read as many as he wants; all Aaron Swartz did was grab a really large pile.

“This makes no sense,” Swartz’s friend David Segal—who runs Demand Progress, a nonprofit organization Swartz founded dedicated to government transparency and accountability—told Wired. “It’s like trying to put someone in jail for allegedly checking too many books out of the library.”

The Swartz case isn’t the first time the federal government has tried to use a violation of terms of service as a rabbit hole through which to crawl into a much larger case. In 2009, after Missouri mom Lori Drew set up a fake MySpace account, pretended to be a local teenage boy, and harassed her daughter’s classmate—harassment that eventually led to the girl’s suicide—U.S. Attorney Thomas O’Brien filed charges on similar grounds to those argued by Ortiz. His theory was a marvelous bit of legalistic sophistry. It goes something like this: Since MySpace’s terms of service require users to provide “truthful and accurate” information when they register (a requirement that is widely ignored, it should be noted, by many of the service’s users); and since Drew registered for an account pretending to be a teenage boy; and since such an act violates the terms of service and constitutes “unauthorized access” to MySpace’s servers; and since unauthorized access violated the federal Computer Fraud and Abuse Act, Drew was guilty.

It didn’t take U.S. District Judge George H. Wu, who was hearing the case, long to dismiss the prosecution as baseless. “Is a misdemeanor committed by the conduct which is done every single day by millions and millions of people?” Wu asked from the bench. “If these people do read [the terms of service] and still say they’re 40 when they are 45, is that a misdemeanor?” The answer was no. It’s still no, as those eager legal eagles now prosecuting Swartz will probably soon learn.

But as the government doesn’t seem to learn from its own mistakes, perhaps Moses can be of service. In this week’s parasha, he is confronted by the tribes of Reuben and Gad with an unorthodox request: As the Israelites prepare to enter the Promised Land, these two tribes, cattle herders by trade, ask to remain on the eastern bank of the Jordan, where the pastureland is primo.

At first, Moses is livid. As he sees it, the Israelites have all signed a contract with the Lord, a contract with terms of service that clearly stipulate that all Hebrews must enter Canaan together, fight against its inhabitants, and inherit the land. But the men of Reuven and Gad want some freedom, and Moses is infuriated: “If you turn away,” he tells the dissidents, God “will leave you in the desert again, and you will destroy this entire people.” The dissidents, God bless them, aren’t cowered by Moses’ fiery words; rather than abandon their plan, they suggest a compromise—they’ll build their homes on the eastern end of the Jordan, then ride into Canaan with the other tribes, help fight against the Medianites who inhabit much of the land, and, once the war is over, cross the river once more and return to their homes.

Moses is appeased. As much as he’d like to have all his people contained within the confines of Canaan, he realizes that different tribes have different needs and that the way to govern them isn’t by enforcing draconian measures but by letting the spirit of the law, rather than its letter, reign supreme. As long as the men of Reuven and Gad are willing to fulfill their civic duties and join their brethren in war, they mustn’t be punished.

The same logic should prevail in the case of Aaron Swartz. He hadn’t done anything illicit with the documents he downloaded—it is quite possible that he intended them for personal research use, as he had done before when he downloaded and analyzed a great number of law articles to ascertain which legal scholars were receiving remuneration from corporations. And so the accusations against him read like a misguided and overzealous attempt to make a case of him in an effort to deter hackers everywhere. But Swartz isn’t a mere hacker; he’s a civic-minded young man who has devoted much of his energy to better serving the public’s interest by ensuring that information—too often locked behind paywalls for no good reason—be placed in the hands of those who have every right to it. Rather than attempt to lock him up, the government would do well to follow Moses’ advice and pay attention to Swartz’s arguments.

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Since you raise the Lori Drew case, and the death she directly caused to a young teen ager through her repeated willful actions, maybe you should ask how to deal with that heinous behavior other than “legal loopholes” to evade responsibility?

Swartz used his guest status at MIT to “grab more” and then attempt to give it to others – attempting to steal copyrighted material on a large scale from the small academic journals etc. who barely make enough to keep publishing and providing a service. Look closely at the commentaries, Talmud and elsewhere about theft and intention and Swartz surely should be adjudicated. Let the court decide, especially given Swartz’s repeated actions.


Thank you for your thoughtful reply. A few observations:

As we judge people based not on the content of their character but on their actions, and as Lori Drew’s, while leading to a death of a teenaged girl, broke no discernible law, we’ve no choice but to find her innocent. It is maddening, but inevitable. This, in other words, is no legal loophole; this is justice.

And as for Swartz, there is absolutely no indication that he intended to share these documents with others. In fact, much in his previous actions suggests that he might have intended to use the materials for his own research purposes, as he’d done in the case mentioned in the article’s last paragraph. And even if he’d shared his content with the public, of the 4.8 million articles he’d downloaded, only 1.7 million were actually copyright protected; it is not inconceivable that Swartz, an ethics-minded man, would’ve made that distinction prior to releasing the documents.

Still, it is just these points we should be discussing in light of the case. Thank you, then, again, for your reply.




Thank you for your response.

While Lori Drew broke “no discernible law” as you say, and therefore is not guilty of any crime legally, I do not know if we can say that her “getting off” is justice in the true sense of justice. Legally not guilty and justice are not the same in my view.

(Of course we do not know if Lori Drew “got off” in a larger sense than the legal one.)

Have a good shabbos.

Amen to that, and a good shabbos to you, too.

“the ever-shifting terrain of our digital wilderness”

The above description is the major reason that Drew and Swartz ended up as defendants in our legal system. To me, the “crime” of the Drew case is an adult preying on a child. Whether Lori Drew tormented that teenager online or in person is irrelevant. Swartz, on the other hand, was involved with accessing material that was made to be accessible. Maybe Swartz’s case has more to do with making JSTOR and MIT look stupid than with theft.

rivka says:

Mr. Swartz is regarded as an internet folk hero. His contributions to date are certainly laudable and his larger goals worth, at the very least, pondering. However, in the case of JSTOR, why shoot the messenger? Surely folks realize that licensing cost are only one aspect of delivering this service to subscribers. There’s server costs, subscription fees to the numerous journals, indexing, help desk, etc. Does running them out of business really further our democracy? Why not instead promote greater dissemination of original research and creative works through free portals like under Creative Commons licences? This is not unheard of, as I know several Ph.D. graduates who chose to publish their dissertations that way.

Shabbat shalom.

Dear Rivka,
Thank you for taking the time to comment. You make an excellent point. But, again, it should be remembered that there is no clear indication that Swartz intended to disseminate the articles, and that the vast majority of the articles he downloaded were not copyright protected. Still, the question of access to academic research is one worth pondering. While scholars and publishers alike have the right, of course, to profit from their labors, it is in our interest, as a society, to keep the work as accessible as is possible and prohibit the excessive use of exclusionary measures designed to keep out all but the moneyed few.
All the best,

If you break the law to make a larger point about cumbersome restrictions on our civic freedom, shouldn’t you be willing to abide by the consequences? Even if it wasn’t done for self-enrichment, it was done knowingly, and more than once.

Isn’t stoic endurance in the face of official wrongdoing a trait common to all the civil rights leaders worthy of our admiration?

I don’t think this kid deserves prison time, but it seems unbecoming of an apostle of the cause of free speech to try to avoid any kind of penalty. That does strike me as a little self-serving, to cultivate the glamor of the bandit without taking the risks.

Thank you, Roy, for your comment. But the point is precisely that it remains unclear that Swartz had broken any laws. He certainly violated terms of service — imposed by both JSTOR and MIT — but that does not constitute criminal activities.

I haven’t read through all the comments, and I should probably reread your piece, but had Swartz exhausted all the other channels for remedying his complaint? (I’m not a lawyer, just trying to sound like one.) And if he had, couldn’t he have just mounted a lawsuit? I’m sure there are plenty of lawyers with a penchant for free-speech cases who would have taken this on pro bono. That’s not a very romantic way of going about things, but it’s an effective and time-honored one, with deep roots in this country’s civil rights history.

My basic instincts about this are Kantian; I don’t think this is the kind of thing–ransacking online data, even for the purest of motives–that we’d want to see universalized.

I share your basic instincts, but the Swartz case is more complex. He had no complaint to remedy, nor a lawsuit to file. In all likelihood, all he was trying to do was access a database he was permitted to access and, violating terms of service, downloaded a large number of articles at once for research purposes. When the company complained, he returned the documents. This strikes me as reasonable behavior, and as a responsible way to challenge the porous and shifting relationship between users and service and content providers. Swartz pushed, JSTOR pushed back, and no lawyers were necessary to resolve these issues. Until, that is, the government spotted an opportunity to “send a message,” and mounted its silly campaign. It’s a shame.

I’m with you to a point, and frankly wish I could access all those JSTOR files for free, but given what happened to him the first time around, he might at least have given notice about his intentions–unless of course he meant it as a provocation. Suggesting otherwise seems unduly legalistic to me, i.e., arguing he had no idea how JSTOR would react and that this was all done innocently. Obviously, he’s not stupid. Which brings me back to my point; if you’re going to create a test case to try to push back the boundaries of content-sharing on the internet, you ought to be prepared for the consequences–that is, if you really believe in the value of what you’re doing and its not just theater.

I agree with that, Roy. And I think Swartz is ready: He surrendered himself as soon as he was notified of the prosecution, and is now preparing to fight the case in court. I think the public debate — the sort we’re having right now — was very much what he had in mind, and agree with him that it’s a debate well-worth having.

Well then, there’s obviously no daylight between us, Liel. Now is the Aaron Schwarz referenced in the preview of Janice Erlbaum’s piece the same person we’re talking about here, Aaron Swartz?

We’re blessed with a bounty of Swartzes/Schwartzes. But as the Swartz I wrote about is not too far removed from his own Bar Mitzvah, I doubt it’s him…

Marv Moskowitz says:

I’m not sure how an electronic download gets “returned”. Nevertheless, there is a conflict out there between those who think information should be freely available to all and those who want to keep extending ownership, possibly in perpetuity. Although an author should be able to get a fair income from his efforts, I’m not sure it is right that documentary filmmakers are blocked from using 50 year old news clips. A balance needs to exist, and currently it seems to have shifted to the owners of capital.

Even so, it seemed like an unusual coincidence, in which case there were a thousand bad jokes crying out to be heard. Better that it’s not.

This is nothing new, there are cases in Britain of internet hackers whom the US government is trying to extradite. Internet hacking is a crime. It does not matter if you wanted to do it as a joke, or sell the secrets to an enemy agent.

The problem that you have is that alot of the younger computer set have no concept of boundaries and think the internet is a free-for-all. They think that since they can do it, they have every right to do it. However, there are consequences to actions especially when you break the law, and someone smart enough to be a Harvard fellow should have known that. While freedom of access is essential in any democratic society, so to is the protection of your work product, and the right of the US to protect itself from cyberterror (think electric grid, water supply and computerized nuclear missiles).

That being said, when it comes to all these hackers being prosecuted by the US government (in this story and in Britain), it truly would behoove the gov’t that instead of sticking these indiviudals in jail, they should sign them up for cyberspace counterterrorism unit.

Alan Wolf says:

Man, did you ever get it right, too bad the feds are blinded by revenge and jealousy.

Aaron’s Uncle Alan


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No Harm

The government should follow Moses’ example and drop its prosecution of hacker Aaron Swartz, who downloaded millions of academic articles but broke no discernible law

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