Law Links ~ The Tragic Case of Aaron Swartz

From Boston.com

In July 2011, Swartz, who acknowledged battling depression, was charged in US District Court in Boston with hacking into the archive system JSTOR on MIT’s network during 2010 and downloading more than 4 million articles, some of which were only available for purchase.
Authorities said Swartz planned to distribute the information free on file-sharing websites. At the time, he was a fellow at Harvard University’s Edmond J. Safra Center for Ethics.
Swartz pleaded not guilty Sept. 24.
Swartz, 26, hanged himself in his Brooklyn apartment Friday, according to the statement and the New York Medical ­Examiner’s Office.

Family Statement

. . . Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. 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.
Today, we grieve for the extraordinary and irreplaceable man that we have lost.
12 Jan 2013

From Boston Globe

Andy Good, Swartz’s initial lawyer, is ­alternately sad and furious.
“The thing that galls me is that I told Heymann the kid was a suicide risk,” Good told me. “His reaction was a standard reaction in that office, not unique to Steve. He said, ‘Fine, we’ll lock him up.’ I’m not saying they made Aaron kill himself. Aaron might have done this anyway. I’m saying they were aware of the risk, and they were heedless.”

. . . Marty Weinberg, who took the case over from Good, said he nearly negotiated a plea bargain in which Swartz would not serve any time. He said JSTOR signed off on it, but MIT would not.
“There were subsets of the MIT community who were profoundly in support of Aaron,” Weinberg said. That support did not override institutional interests.

Elliot Peters, the San Francisco lawyer who took the case over from Weinberg last fall, could not persuade prosecutors to drop their demand that Swartz plead guilty to 13 felonies and spend six months in prison. Peters was preparing to go to trial and was confident of prevailing.
But the prospects weighed heavily on Swartz.

“There was such rigidity with the people we were dealing with,” Peters said. “I couldn’t find anyone in that office to talk about proportionality and humanity. It was driven by a desire to turn this into a significant case, so that some prosecutor could put it in his portfolio.”

From Democracy Now Interview with Law Professor Lawrence Lessig, a friend and mentor of Aaron Swartz

LAWRENCE LESSIG:
Yeah, he was dedicating his life to building a world, a nation at least, but a world that was as idealistic as he was. And he was impatient with us, and he was disappointed with us, with all of us, as we moved through this fight. And he—as he grew impatient, he called on people to do more. And it is incredibly hard for all of us who were close to him to accept the recognition that maybe if we had done more, maybe if we had done more, this wouldn’t have seemed so bleak to him, maybe if we had stopped this prosecution.
I received an email from JSTOR four days before Aaron died, from the president of JSTOR, announcing, celebrating that JSTOR was going to release all of these journal articles to anybody around the world who wanted access—exactly what Aaron was fighting for. And I didn’t have time to send it to Aaron; I was on—I was traveling. But I looked forward to seeing him again—I had just seen him the week before—and celebrating that this is what had happened. So, all of us think there are a thousand things we could have done, a thousand things we could have done, and we have to do, because Aaron Swartz is now an icon, an ideal. He is what we will be fighting for, all of us, for the rest of our lives.

AMY GOODMAN: We spend today’s broadcast remembering the life and work of cyber activist, computer programmer, social justice activist and writer, Aaron Swartz. At the age of 14, he co-developed the Really Simple Syndication, or RSS, web protocol, the key component of much of the web’s entire publishing infrastructure. By the time he was 19, he had co-founded a company that would merge with Reddit, now one of the world’s most popular sites. He also helped develop the architecture for the Creative Commons licensing system and built the online architecture for the Open Library. Aaron Swartz committed suicide on Friday. He hanged himself in his Brooklyn apartment. He was 26 years old.
His death occurred just weeks before he was to go on trial for using computers at MIT—that’s the Massachusetts Institute of Technology—to download millions of copyrighted academic articles from JSTOR, a subscription database of scholarly papers. JSTOR declined to press charges, but prosecutors moved the case forward. Aaron Swartz faced up to 35 years in prison and a million dollars in fines for allegedly violating the Computer Fraud and Abuse Act. When the case first came to light, the United States attorney for the District of Massachusetts, Carmen Ortiz, said, quote, "Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars."

~~~~~~~~~~~~ 

AMY GOODMAN: Can you explain what the case against Aaron was? Explain what happened.

LAWRENCE LESSIG: Well, I have to be very careful, because when Aaron was arrested, he came to me, and I—there was a period of time where I acted as his lawyer. So, I know more about the case than I’m able to talk about.

But here’s what was alleged. Aaron was stopped as he left MIT. He had a computer in his possession, which there was tape that indicated that he had connected the computer to a server—to a closet in MIT, and the allegation was he had downloaded a significant portion of JSTOR. Now, JSTOR is a nonprofit website that has been for—since about 1996, has been trying to build an archive of online—giving online access to academic journal articles, you know, like the Harvard Law Review or journal articles from geography from the 1900s. It’s an extraordinary library of information. And the claim was Aaron had downloaded a significant portion of that. And the question, the obvious question that was in everybody’s mind, was: Why? What was he doing this for? And so, the Cambridge police arrested Aaron.

JSTOR said, "We don’t want to prosecute. We don’t want to civilly prosecute. We don’t want you to criminally prosecute." But MIT was not as clear. And the federal government—remember, at the time, there was the Bradley Manning and the WikiLeaks issue going on. The federal government thought it was really important to make—make an example. And so, they brought this incredibly ridiculous prosecution that had multiple—you know, I think it was something like more than—more than a dozen counts claiming felony violations against Aaron, threatening, you know, scores of years in prison. But, you know, it’s not the theoretical claims about what he might have gotten; it was the practical burden that for the last two years, you know, his wealth was bled dry as he had to negotiate to try to finally settle this matter, because the government was not going to stop before he admitted that he was a felon, which I think, you know, in a world where the architects of the financial crisis dine regularly at the White House, it’s ridiculous to think Aaron Swartz was a felon.

~~~

. . . LAWRENCE LESSIG: Yeah, Aaron was depressed. He was rationally depressed. You know, he was losing everything, because his government was overreaching in the most ridiculous way to persecute him, not just because of this, but because of what he had done before, liberating government documents that were supposed to be in the public domain. Of course he was depressed. He wasn’t depressed because he had no loving parents—he did have loving parents who did everything they could for him—or because he didn’t have loving friends. Every time you saw Aaron, he was surrounded by five or 10 different people who loved and respected and worked with him. He was depressed because he was increasingly recognizing that the idealism he brought to this fight maybe wasn’t enough. When he saw all of his wealth gone, and he recognized his parents were going to have to mortgage their house so he could afford a lawyer to fight a government that treated him as if he were a 9/11 terrorist, as if what he was doing was threatening the infrastructure of the United States, when he saw that and he recognized how—how incredibly difficult that fight was going to be, of course he was depressed.

Now, you know, I’m not a psychiatrist. I don’t know whether there was something wrong with him because of—you know, beyond the rational reason he had to be depressed, but I don’t—I don’t—I don’t have patience for people who want to say, "Oh, this was just a crazy person; this was just a person with a psychological problem who killed himself." No. This was somebody—this was somebody who was pushed to the edge by what I think of as a kind of bullying by our government.

Law Links ~ Apocalypse Law

BuzzFeed: Conservative Pundit Dana Loesch Sues Breitbart.com

St. Louis talk radio host Dana Loesch, also a frequent guest on CNN, alleges in the suit filed in federal district court in St. Louis that the site is refusing to publish her work while "sabotag[ing] her attempts to labor in a similar fashion elsewhere through public misstatements and private threats to sue those who would otherwise employ Loesch."
Loesch is seeking her freedom from the company and at least $75,000 in damages.
Breitbart.com is "binding Loesch to what amounts to an indentured servitude in limbo," she charges in the suit, which was first reported by the St. Louis Post-Dispatch.
The lawsuit also hints at broader woes for the site, whose leaders now include an old friend of Breitbarts, a pair of his young proteges, and filmmaker Steven Bannon, who is best known for a film defending Sarah Palin.

Bloomberg: Judge Tosses Legal Filibuster Challenge

U.S. District Judge Emmet Sullivan in Washington ...ruled that the lawsuit, filed by the public interest group Common Cause, members of the House of Representatives and undocumented aliens who would have benefited from passage of the so-called Dream Act, represented an unwarranted intrusion into the Senate’s right operate as it sees fit.
. . . Other plaintiffs include four Democratic members of the U.S. House of Representatives: John Lewis, of Georgia; Michael Michaud, of Maine; Hank Johnson, of Georgia; and Keith Ellison, of Minnesota; and three Mexican-born U.S. residents who alleged they were denied the benefits of immigration law changes in the House-passed Dream Act because it was blocked by Senate filibuster.
The suit was filed against Vice President Joseph Biden in his capacity as Senate President, and other Senate officers.
The case is Common Cause v. Biden, 12-cv-775, U.S. District Court for the District of Columbia (Washington).

Reuters: Bernie Madoff's Younger Brother Sentenced in Ponzi Scheme

The younger brother of Bernard Madoff will serve 10 years in prison for his role in his brother's Ponzi scheme that stole billions of dollars from investors, a U.S. judge said on Thursday.
Peter Madoff, 67, pleaded guilty in June to criminal charges including conspiracy to commit securities fraud for falsifying the books and records of the investment advisory company founded by his brother.
U.S. District Court Judge Laura Taylor Swain adopted prosecutors' recommendations and sentenced Madoff to 10 years in prison. She also ordered him to forfeit what she called a "draconian" $143.1 billion, which she said would seal his "financial ruination."

Chicago Tribune: Robert Bork Dies

Robert Bork, a symbol of the U.S. conservative legal movement and a failed nominee for the U.S. Supreme Court, died on Wednesday . . . Bork, 85, died in a northern Virginia hospital where he had been treated for an infection.
. . . "To bork" was added to the Oxford English Dictionary in 2002 with the definition, "To defame or vilify (a person) systematically, especially in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way."
. . . After a fierce confirmation fight, the Senate rejected Bork 58-42, the largest margin of defeat for any Supreme Court nominee and a big defeat for Reagan.
Bork remained bitter for years and conservatives regarded him as a martyr to liberal activism and unreason, and used him as a rallying cry in subsequent battles.

CBS: Texas State Troopers Suspended for Body Cavity Search

A Texas State Trooper who was thrust into the spotlight Tuesday after dash camera video showing her giving body cavity searches to two women became public has been suspended.
Trooper Kelly Helleson was suspended Wednesday, the day after the two women she searched as part of a traffic stop earlier this year sued her and another trooper for what they called a violation of their privacy.
. . . The two women 38-year-old Angel Dobbs and her niece, 24-year-old Ashley Dobbs, were pulled over in Irving on their way to Oklahoma by a male trooper after the trooper noticed the women tossing cigarette butts out the window of their car. That trooper, David Farrell, claimed to smell marijuana coming from the vehicle and requested the search by a female trooper.
Farrell remains on active duty.

Law Links ~ SCOTUS: Filming the Cops, Gay Marriage, Facebook Copyright, Jindal and School Vouchers

I'm starting a new weekly feature called "Law Links" to alert readers to legal actions here and around the world. This has always been an interest of mine, and even more-so now that my daughter is a new attorney who just passed the Bar Exam and is in court every day.

SCOTUSBlog Gears Up for Supreme Court Rulings Next Week

Editor's Note: On Tuesday, December 4, we expect one or more opinions at 10 a.m. We will be live blogging.
On Friday, the Court has granted two new cases, Mutual Pharmaceutical Co. v. Bartlett (12-142) and Association for Molecular Pathology v. Myriad Genetics, Inc. (12-398 ). The Court did not act on the same-sex marriage cases. Additional orders are expected Monday at 9:30.

Bloomberg: A Free Market Fix for the Copyright Racket

Even as digital technology has made reproducing, remixing and repurposing creative works easier -- with potentially enormous benefits for consumers and producers of new works -- the monopoly privileges of copyright have expanded. The result is a bizarre combination of rampant copyright violations, frequent encroachment on legitimate fair use, suppression of new technologies and business models, and the ever-present threat of draconian penalties.

Ars Technica: Supreme Court Backs 7th Circuit Over Filming Police

The United States Supreme Court rejected a request from a Chicago-area prosecutor to review a recent ruling that the First Amendment protects a right to record the actions of police officers as they perform their public duties.
. . . The Supreme Court's decision to let the Seventh Circuit's ruling stand is a victory for the American Civil Liberties Union of Illinois, which spearheaded the case. The ACLU's chapter in Massachusetts also had success vindicating a First Amendment right to record the actions of public officials. The First Circuit Court of Appeals ruled police violated the rights of a Boston man when they arrested him for using his cell phone to record the arrest of a suspect. In March, the city agreed to pay $170,000 to settle his civil rights lawsuit.

Louisiana Judge Rules Against Bobby Jindal's School Voucher Program

The Associated Press said that (Judge) Kelley’s 39-page ruling concluded that the voucher program violates provisions in the state constitution regarding the Minimum Foundation Program, or MFP, which determines how public schools are funded. “The MFP … was never meant to be diverted to private educational providers,” Kelley’s ruling said.
What Jindal’s team has been doing is implementing a voucher program, potentially the country’s largest, as a result of a new law that in part allows the state to offer vouchers to more than half of its students, or some 450,000 students. About 10,000 have applied, with most of the slots given to Christian schools, some of which didn’t really have the resources to handle the influx. They also use curriculum that promotes Young Earth Creationism, the belief that Earth is no older than 10,000 years old — and that human beings lived alongside dinosaurs — despite definitive scientific consensus that it is billions of years old.

Wired: Magical Copyright Hoax Debunked by Facebook

A silly copyright notice is sweeping Facebook . . . with users attaching pseudo-legalese to their status updates in a misguided effort to prevent Facebook from owning or commercially exploiting their content. The notice incorrectly implies that Facebook has recently changed the copyright provisions of its user agreement. It then unnecessarily asserts a user’s copyright over his Facebook posts (you retain such copyright without posting a notice) and cites the “Berner Convention,” an irrelevant international treaty properly spelled “Berne Convention.” The notice then instructs Facebook to get written permission to make commercial use of the user’s content, which is pointless as Facebook users agree to let the social network make money off their posts when they sign up for the service.
Popular hoax-debunking site Snopes addressed this copyright notice in the spring and updated their refutation today. Also, Facebook has taken the further step of putting out a statement of its own:

There is a rumor circulating that Facebook is making a change related to ownership of users’ information or the content they post to the site. This is false. Anyone who uses Facebook owns and controls the content and information they post, as stated in our terms. They control how that content and information is shared. That is our policy, and it always has been.