WASHINGTON — A petition urging President Barack Obama to fire U.S. Attorney Carmen Ortiz for prosecutorial overreach in her office’s case against Aaron Swartz had garnered more than 10,000 signatures in the few days since the open-democracy advocate’s death. A leading academic has also called for an independent inquiry into her office’s conduct.
Swartz, an Internet pioneer, took his own life on Friday at the age of 26, after fighting federal hacking charges for two years.
In the fall of 2010, Swartz downloaded millions of academic journal articles from the online database JSTOR. The scope of the download was a violation of JSTOR’s terms-of-service agreement — users are typically limited to a few downloads at a time — although Swartz had legal access to all of the articles through his database account. JSTOR decided not to pursue any civil case against Swartz and urged the U.S. Attorney’s Office for Massachusetts to abandon the criminal case against him. The Massachusetts Institute of Technology, whose computer network Swartz used to download the documents, did not do so.
Assistant U.S. Attorneys Scott Garland and Stephen Heymann, working under Ortiz, filed 13 felony charges against Swartz, seeking decades of imprisonment. While Garland was formally the lead prosecutor and both men have a long history of prosecuting Internet activity, it was Heymann who handled all negotiations with Swartz and his attorneys, according to those lawyers. In vain, Swartz sought to reduce the charges.
In the days since Swartz’s suicide, friends and family have severely criticized the prosecution for contributing to his death (Swartz lived with depression). An online petition through the White House’s We the People portal seeks to have Ortiz discharged for her office’s alleged overreach.
Ortiz’s office declined to comment for this story. “We want to respect the privacy of the family and do not feel it is appropriate to comment on the case at this time,” said Ortiz spokeswoman Christina Sterling.
It is too late to do anything for Aaron Swartz, but the [sic] who used the powers granted to them by their office to hound him into a position where he was facing a ruinous trial, life in prison and the ignominy and shame of being a convicted felon; for an alleged crime that the supposed victims did not wish to prosecute.A prosecutor who does not understand proportionality and who regularly uses the threat of unjust and overreaching charges to extort plea bargains from defendants regardless of their guilt is a danger to the life and liberty of anyone who might cross her path.
The Obama administration has vowed to respond to any We the People petition eclipsing 25,000 signatures.
On Monday, Harvard Law School professor Lawrence Lessig told HuffPost Live that Ortiz’s office should open an independent investigation to examine problems with the prosecution’s case against Swartz, just as MIT President L. Rafael Reif announced that the university would explore its own role in his death.
“MIT just over the weekend announced that they were going to do an internal review, and they’ve appointed, I think, the very best possible person to do the review, professor Hal Abelson at MIT. I think it’s time for the Justice Department to do the same thing,” Lessig said. “Carmen Ortiz, who is the U.S. attorney in this district — I’m not sure she was day-to-day close to this case, but I think it’s incumbent on her to say she’s going to do the same thing, she’s gonna have an independent person look at what happened here and ask the question whether the prosecutor, the actual line prosecutor, went too far.”
Watch the conversation with Lessig above.
Also on Monday, software company ThoughtWorks, where Swartz was employed at the time of his death, released a statement joining the family’s assertion that the Department of Justice and MIT bore some responsibility for his suicide. “We share and support the official statement from the family and partner of Aaron Swartz that decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. Aaron was the target of a vindictive government prosecution by the Department of Justice and a disproportionate reaction,” the company said. “ThoughtWorks also supports the growing calls for accountability for the prosecutorial abuse, directed by lead prosecutor Stephen Heymann under the supervision of US Attorney Carmen Ortiz, that bullied Aaron. We demand an investigation into the Department of Justice’s actions in this case.”
Ortiz, who was appointed by Obama, is close to U.S. Attorney General Eric Holder.
Top DOJ brass have also looked fondly on Heymann, bestowing him with the Attorney General’s Award for Distinguished Service in 2010. Heymann (pronounced “high-men”) conducted the first court-authorized electronic surveillance of a computer network, jointly brought the first federal prosecution of a juvenile computer hacker and developed online investigative principles for federal law enforcement. He is the son of Phillip Heymann, the onetime head of the Justice Department’s Criminal Division, and serves as deputy chief of the criminal division in the U.S. Attorney’s Office for Massachusetts.
For an assistant U.S. attorney, Heymann has an unusually high profile. He was quoted extensively in a 2010 New York Times story about a young hacker who was flipped by the feds and wrote the article “Legislating Computer Crime” for the Harvard Journal on Legislation in 1997. An Internet activist made that article available for free in memory of Swartz, who advocated relentlessly for the free and open spread of information.
Ortiz filed Monday to formally dismiss the charges against Swartz.
“The United States Attorney for the District of Massachusetts, Carmen Ortiz, hereby dismisses the case presently pending against Defendant Aaron Swartz. In support of this dismissal, the government states that Mr. Swartz died on January 11, 2013.”