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 public.resources.org, 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.