NADIA GUO
<News Editor>
We’re back with the second instalment of Obiter’s Criminal Law Watch Column. Since our last publication, the world of criminal law has been rife with events and hypocrisies to keep you on your toes. This week I’ve chosen to focus on the death of Aaron Swartz.
By now, most of you may be familiar with Swartz’s unfortunate suicide, which took place on January 11th. Swartz, known as a kid prodigy, was the co-author of RSS, and co-founder of Reddit. He was also known for his activism working towards making information more accessible to the public. Much has been said about the correlation of the timing of his death with the ongoing prosecution Swartz faced for downloading about 4 million JSTOR articles at MIT. Swartz had openly criticized JSTOR’s policy of compensating publishers over authors out of its subscription fees, as well as the difference in accessibility to knowledge between consumers in the developed world versus the developing world.
Swartz had been facing 13 charges, including wire fraud, computer fraud, and unlawfully obtaining information from a protected computer, charges which critics say were unlikely to succeed seeing as Swartz never did distribute the articles nor did he ever intend to profit off of them.
Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals had already previously dismissed the theory chief prosecutor Carmen Oritz was basing her prosecution on in United States v Nosal. Kozinski rejected the efforts to criminalize behaviour under the Computer Fraud and Abuse Act, the statute under which Swartz was charged. Kozinski found that that certain parts of the Act were overbroad:
“These courts looked only at the culpable behaviour of the defendants before them, and failed to consider the effect on millions of ordinary citizens caused by the statute’s unitary definition of “exceeds authorized access.” They therefore failed to apply the long-standing principle that we must construe ambiguous criminal statutes narrowly so as to avoid “making criminal law in Congress’s stead.”
Here’s the biggest kicker, which has been bothering everyone from Swartz’s long-time mentor and friend Lawrence Lessig, a professor at Harvard Law, to scores of media commentators: The Department of Justice sought 35 years and a fine up to $1 million for this so-called “felon.”
So what about Canada, you ask? Our equivalent to the CFAA is in ss. 342.1 and 430(3) of the Criminal Code. Under our laws, Swartz would have been facing a maximum of ten years, if that. Furthermore, it appears that not many of those charged under these provisions even go to trial, with one Keith Harwood receiving a conditional discharge and 100 hours of community service. The presiding judge told the accused, “I doubt we’ll see each other again, Mr. Horwood. Unless I see you on the cover of Macleans or Time magazine.” Our IP expert, and editor-in-chief Nancy Situ tells me, “I think Canada takes the ‘those darn kids!’ approach.”
It’s comforting to know that Canadian prosecutors seem to be holding onto their sanities when it comes to citizens operating within the growing ease of information accessibility due to software developments and the Internet. However, the ongoing Teksavvy file sharing case is something to keep an eye on. An adjournment was granted January 14th on the motion made by California-based studio Voltage to access Teksavvy’s confidential client information. The adjournment was to allow the Canadian Internet Policy and Public Interest Clinic (CIPPIC) to enter as interveners. While Teksavvy said it would not be opposing the motion, CIPPIC confirmed its intentions to challenge Voltage’s evidence. If Voltage succeeds, however, the implications for the numerous users accustomed to indiscriminately torrenting movies, albums, and software are huge, as they can no longer expect their Internet providers to keep their usage private. Though for the present it seems the majority of Canadians are offered some protection from lawsuits and criminal charges, this feeling of security may very well be short-lived.
US attorney Carmen Ortiz in the Swartz case has been lambasted by commentators for her role in the aggressive legal assault against Swartz. Seeing as JSTOR refused to press charges for a civil suit, while MIT remained ambiguous about their position, the government’s stalwart continuation of the pursuit against Swartz seems unfounded. Ortiz has kept an unapologetic stance about her department’s actions, stating that her office’s conduct was “appropriate.” But the question remains: Why did Ortiz feel that to seek the maximum legal penalty was “appropriate” for a young man with no previous criminal record, committing an act that brought absolutely no harm to anyone, especially when the only possible victim, JSTOR, refused to press charges? Under federal laws, the crimes of manslaughter, robbery, selling child pornography, knowingly spreading AIDS, genocidal eugenics, and helping a terrorist develop a nuclear weapon all carry lower sentences than the one Ortiz sought. The DOJ’s flimsy treatment of HSBC in its money laundering scandal, along with the 2008 financial bailout, also shed light on the state’s prioritization of triviality over justice.
The truth is that America is less afraid of terrorism and economic collapse than it is of its citizens accessing the truth. The case of whistleblower Bradley Manning, who has spent over 900 days in detention (a year in solitary confinement) awaiting trial for bringing to public light some of the most horrific atrocities committed by the US army during the Iraq War, illustrates the ongoing bureaucratic panic surrounding efforts to keep information in the hands of the privileged. Here in Canada, it was recently revealed by what little information was left in heavily redacted government documents offered to the Ashley Smith inquest that the Department of Justice has spent at least $3.6 million thus far in defence of Correctional Service of Canada (CSC). CSC’s alleged gross misconduct in relation to the teenaged girl’s treatment while in detention leading up to her suicide has been the focus of two coroner’s inquests now, with a lengthy battle late last year over the release of disturbing video footage documenting her oftentimes violent handling by prison guards. The fact that the government is spending $3.6 million in legal efforts keep Smith’s story, a revealing look into the harsh reality of Canada’s incarceration system, from the scrutiny of the public eye is inexcusable, and further illustrates how tantamount it is to even the governments of democratic states to keep a tight lid on issues that may cause discerning citizens to question their actions.
While the causes for the suicide of Aaron Swartz, who battled with depression, cannot be wholly attributed to the prosecutorial bullying he underwent throughout his ordeal, the challenges he sought to confront are tangible and relevant. Before the JSTOR charges, in 2008, Swartz downloaded and released for free documents from the Public Access to Court Electronic Records (PACER), records which, perversely, cost the public 8 cents a page to read. Seeing as government-produced documents do not have copyright protection, and should rightfully be in the hands of the public domain, why weren’t these records available for free?
In a society that boasts the merits of the free flow of ideas and free speech every chance it gets, it becomes easy to believe in the infallibility of “democracy.” This isn’t the USSR, we remind ourselves, nor is it China, where state propaganda is accepted as a given. Yet perhaps even more dangerous than a state which is overt about its censorship of information is a state that offers the illusion of government transparency. As long as we believe we know the truth about things, we are unlikely to ask questions.
The Internet and technological tools provide both a forum and instruments to chip away at this image of the infallible democratic state. The empowerment and expression it lends to the disempowered and voiceless has the potential to lay the bricks for societal transformation in the interests of the public good in a way that has never been done before. But before empowerment and expression come knowledge, and the ability to attain knowledge.
JSTOR has responded to the Swartz tragedy by making more than 4.5 million of its articles free to the public. Which begs the question: Will our governments follow its lead in working towards the goals of transparency and increased information accessibility? Aaron Swartz didn’t die in vain. At least we can make it so he didn’t. Let’s keep the conversation going.