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Aaron Swartz and the Meaning of "Public"

BY Nick Judd | Monday, January 14 2013

Aaron Swartz in January 2012. Photo: Daniel J. Siederaski

To better understand the strong feelings Aaron Swartz had about free access to information, I paid $1.80 to read the indictment that overshadowed him for the last two years of his life.

PACER, the federal courts' online records system, charged me 10 cents per page to download the 18-page document. In it, federal prosecutors accuse Swartz of wire fraud, computer fraud, and other felonies. According to this document, MIT police spotted Swartz on Jan. 6, 2011, and attempted to question him. The indictment says he had spent months using the campus network to download millions of academic articles from JSTOR, the online research archive. Prosecutors allege that this was criminal behavior because he had used his computer skills to thwart attempts to prevent him from accessing JSTOR through MIT's network and because he did some of the downloading through a laptop hidden in a closet on MIT's campus.

On Jan. 11, 2013, a little over two years after his arrest, Swartz, 26, hanged himself in his Crown Heights apartment. As news spread of his death, he was eulogized here and almost everywhere else on the Internet where people stand for freedom of speech and access to information. JSTOR announced that it had never wanted to be involved in the case in the first place, and had elected not to press charges against Swartz after he handed over the files he had downloaded. In a statement, Swartz's family accused the Massachusetts U.S. Attorney's Office and MIT of contributing to Swartz's death.

"Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death," they wrote. "The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community’s most cherished principles."

The U.S. Attorney's Office has yet to issue public comment, although Assistant U.S. Attorney Stephen Heymann entered a document in court Monday dismissing charges against Swartz due to his suicide. MIT's president, L. Rafael Reif, said in a statement Sunday that it saddened him to have MIT play a role in tragedy and announced that he had asked free-software advocate and computer science professor Hal Abelson to review the university's actions related to Swartz's case. In posts around the web, Swartz's friends and confidantes point out that the brilliant programmer and activist was open about his own struggles with depression. Their collective grief forms a collage of prose, and in it I see a soul dynamic enough to challenge the established order of the universe but fragile enough to fracture and break before finishing his task.

All of this information was freely available, but to review an official copy of the superseding indictment that overshadowed him, I paid $1.80. The sum itself is trivial — for the U.S. courts, supposed to cover reproduction costs. But in the Internet age, Swartz might argue, reproduction costs should not be trivial, they should be infinitesimal. And in the context of a document that defined the final two years of a life cut short, to pay at all is perverse.

The people who knew Swartz best make it clear that he was too complex to be defined only by his criminal case, or by its affect on him. But after Swartz's death, one of the clearest cries from his friends and supporters is that not only did the proposed punishment not fit the alleged crime, the crimes he was charged with seemed not to fit the actions he was accused of taking.

Swartz' view was that it was perverse to ask anyone to pay for digital copies of federal court documents not because of their importance to individual lives but because they are in the public domain. They are meant to be free. So in 2008, Swartz found a way to download nearly 20 million pages of text from the PACER database to be published on a free alternative, RECAP. He used peculiarities of the PACER system, and of libraries where access to the system was less restricted, that were apparent to him but surprising to the federal government. Though he was not prosecuted, this attempt to match expectations with reality was so shocking to the federal government that the FBI began to investigate him.

Swartz requested his FBI file, as any American is welcome to do under freedom of information laws. He published excerpts on his blog.

Privacy rules start to slide away from a person's life after that person dies. That applies to FBI files and, apparently, to court testimony.

Alex Stamos is the chief technology officer of Artemis Internet and was an expert witness for the defense in U.S. vs. Swartz. After Swartz died, Stamos learned that there were no negative consequences to speaking openly about his testimony in the case.

In a blog post, Stamos writes that prosecutors overstated the implications of what Swartz was accused to have done. One of the charges against Swartz was "unlawfully obtaining information from a protected computer." Stamos explains at length that the government overreached in its description of how "protected" the MIT network was — "MIT operates an extraordinarily open network ... In fact, in my 12 years of professional security work I have never seen a network this open." — and how "protected" Swartz would have found a connection to JSTOR — "The JSTOR application lacked even the most basic controls to prevent what they might consider abusive behavior, such as CAPTCHAs triggered on multiple downloads, requiring accounts for bulk downloads, or even the ability to pop a box and warn a repeat downloader."

"Aaron Swartz was not the super hacker breathlessly described in the Government’s indictment and forensic reports, and his actions did not pose a real danger to JSTOR, MIT or the public," Stamos writes elsewhere in the post. "He was an intelligent young man who found a loophole that would allow him to download a lot of documents quickly. This loophole was created intentionally by MIT and JSTOR, and was codified contractually in the piles of paperwork turned over during discovery."

When Swartz allegedly began downloading academic articles from JSTOR, he was, in his own way, joining ongoing tension over access to academic knowledge. Academic information, like court documents, is a class apart from music or even news. In the academic journal world, authors are rarely paid. In fact, academics sometimes pay a fee to access the peer review, editing, and publication of a journal, which can enhance their reputations and increase their job prospects.

In tribute to Swartz, the economist Eva Vivalt is asking academics to make freely available online as many PDFs as they can of academic articles they've downloaded in the course of their studies.

Using the Twitter hashtag #pdftribute, a rapidly growing number of people are doing just that.

"He really cared a lot about making knowledge free and open," Vivalt told me Monday via Skype, "and with the paywalls that are in place at a lot of journals, there's really limited access to a lot of the content that's online. So it's helping towards the same goals as he was striving towards."

Just days before Swartz died, JSTOR announced that it would make the fruits of 1,200 journals available to the public on a limited basis. More than 4.5 million articles would be free to download — about half a million more than the number Swartz was accused of attempting to "liberate" with an Acer laptop and a few hard drives tucked in a closet at MIT. How freely available academic research could be was, and still is, an undecided question — but Swartz was clearly certain about how freely available he thought it should be.

The New York Times quotes Michael Wolf, Swartz's uncle, as saying this about his departed nephew: That Swartz "had a certain logic in his brain, and the world didn’t necessarily fit in with that logic, and that was sometimes difficult.”

Writing here, Micah Sifry observes, as others have, that Swartz frequently challenged his friends and mentors. In Micah's words, "That was Aaron--pushing everyone he knew to do more with what they had."

Every word written about Swartz's death suggests to me that he spent his life challenging everyone to look not at what systems — governments, people, friendships — were expected to do or doing at present, but what they were designed to do. Courts are supposed to be open. Academic knowledge, in his view, was clearly meant to be free. And he showed no hesitation using a system that could free information that was meant, in his understanding, to be free, regardless of what people expected that system to do instead. Federal judges wrestle with how to discharge their duties in the digital age. The entire academic publishing industry is in flux. Swartz, for better or worse, seemed to believe he was pushing both systems to adhere to their founding principles.

There will be two digital shrines to Aaron Swartz. One exists in the files of the federal courts and, antithetical to his beliefs, costs ten cents per page even when "page" means very little. The other will be free and open to everyone.'s Brewster Kahle, with whom Swartz worked on the RECAP project, among others, is hosting a digital collection devoted to the departed activist.

But there may be another archive, in accordance with Swartz's wishes.

On Aaron's website is a post that begins, "If I get hit by a truck ... please read this web page."

"This page is here so that if for some reason I'm no longer able to keep my web services running, people will know what to do," the post explains. It designates a historian and developer, Sean B. Palmer, to be his "virtual executor." And it sets specific guidelines for Swartz's own digital archive.

"I ask that the contents of all my hard drives be made publicly available from," he wrote.

He continued:

If something does happen to me, please update the footer of this page with a link. Also email the relevant lists and set up an autoresponder for my email address to email people who write to me. Feel free to publish things people say about me on the site. These are probably all obvious and I'm sure you'll figure it out.

Oh, and BTW, I'll miss you all.

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