Activist Indicted for JSTOR Theft

A NY Times article, Open-Access Advocate Is Arrested for Huge Download, reports on the indictment of 24-year-old open access activist Aaron Swartz for theft of more than four million documents from the Massachusetts Institute of Technology and JSTOR, an archive of scientific journals and academic papers. Swartz helped create RSS that allows people to receive automatic feeds of online notices and news. In 2008, he used an automated script to download more than 2 million documents from PACER, the website the federal judiciary uses to distribute court documents. PACER was quickly shut down and the FBI began an investigation, but found no wrong-doing. This time, the US Attorney for the District of Massachusetts obtained an indictment, charging him under the Computer Fraud and Abuse Act with computer fraud, wire fraud, and unlawfully obtaining information from a protected computer. If convicted, he could face up to 35 years in prison.

For information on the CFAA, see the Brooklyn Law School Library’s copy of Computer Fraud and Abuse Laws: An Overview of Federal Criminal Laws by Charles Doyle (Call #HV6773.2 .D58 2002) as well as the Congressional Research Service’s report titled Cybercrime: A Sketch of 18 U.S.C. 1030 and Related Federal Criminal Laws.

Critics of the indictment view it as part of a campaign by the US government to place increasing restrictions and controls on internet activity. However one views Swartz’ actions, the government may have difficulty proving the wire fraud charges under 18 U.S.C. § 1343 based on the lack of intent to defraud. Section (a)(4) was meant to prosecute individuals who stole information for the purpose of fraud. It is unlikely that Swartz, a long-time open access information activist, downloaded millions of research papers from JSTOR with the intent of defrauding people. 18 U.S.C. § 1030(a)(5)(B) requires that the prosecutor prove the defendant recklessly damaged a protected computer. Yet JSTOR “explained they’ve suffered no loss or damage.” 18 U.S.C. § 1030(a)(2), the strongest claim against Swartz, makes it illegal for anyone who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains … information from any protected computer.”

Lawrence Lessig, a mentor of Swartz, in a comment on the case said “Even if the facts the government alleges are true, I am not sure they constitute a crime. There is considerable uncertainty in this area of the law. Many wonder about the quick conversion of terms-of-service into criminal prosecution. But that’s a question the courts will ultimately have to resolve.”

David Segal, executive director of Demand Progress, says the persecution makes no sense, comparing it to “trying to put someone in jail for allegedly checking too many books out of the library.” Online activist Gregory Maxwell, showed support for Swartz’s actions by releasing a 32-gigabyte collection of almost 19,000 documents from JSTOR to the Pirate Bay, a site which, in the past, has been accused of encouraging illegal downloading. Maxwell, points to the fact that all of the documents were written before 1923 and should therefore be under public domain. See the Wired article Huge Trove of Academic Docs Posted Online in Response to Activist Arrest.