[Ed: please see the bottom of this article for an important clarification]
I am among those who have seen the recently released documentary about Aaron Swartz's short life, The Internet's Own Boy. I watched the film in light of my own experiences as a lawyer and paralegal engaged in social justice battles for more than four decades.
I have been an advocate and media organizer for rights causes involving individuals and groups seeking access to justice through Canada's legal system. I've taken on more than 70 cases that changed Canadian law, helping to establish employment rights for gay people (eventually followed by changes in provinces' human rights codes to include sexual orientation as a prohibited category for discrimination); compensation for discrimination against Black nurses who lacked sufficient support from their union; affirming the historic right of private prosecution in a unanimous Supreme Court decision against the Ontario government; establishing sexual harassment at work as a workplace safety issue — thereby allowing female employees to get rapid redress; litigating on behalf of victims of the RCMP Security Service that contributed to its disbanding and civilian reconstitution; achieving the largest awards in a human rights case and in a rent abatement case in Canada and winning a precedent-setting ruling against a multi-national corporation seeking to monopolize control over domain names. In these and other struggles, my weapons of choice were committees of mutual support, rallies, and publishing to broad audiences. These experiences prompted me to consider how Aaron Swartz might have pursued a more aggressive public campaign as part of his legal defense.
On January 6, 2011, Swartz was arrested for a bold act of apparent disobedience―he accessed the JSTOR repository of scholarly articles. According to his prosecutors, he intended to release these to the public. Corporations whose profits depended on charging to access scholarship were not amused. Still, none of them chose to sue. Only the United States federal prosecutors pressed the case, intending to make an example of Aaron. They couldn't ignore his conduct. It would have been a precedent that, if allowed to stand, would be a beacon for others.
Much blame has been placed on ham-handed prosecutors like Stephen Heymann who tried to hammer Aaron into submission. When Aaron and his supporters embarrassed the prosecutor by publicly questioning the prosecution's legitimacy, Heymann and his colleagues retaliated by adding a long list of new charges to Aaron's case. They turned his alleged unauthorized access to a network — usually dismissed as a misdemeanor "continuance without a finding" — into a massive federal indictment.
This was a scare tactic to frighten Aaron into submission. First, the stick: a potential sentence of 35 years. Then, the carrot: a few months in jail. The feds wanted capitulation, a guilty plea.
Supervising U.S. Attorney Carmen Ortiz needed a guilty plea to finesse Aaron's brazen attack against the privatization of knowledge. The ruthless, ambitious Heymann wasn't just lead prosecutor in the case — he was also hoping to burnish his credentials for a future political career.
Swartz was accused of something more threatening than a property offense―he had launched a public interest attack on the commodification of knowledge. There was no violation of copyright law. There was no trespass on federal property. There was no privacy violation. Downloading a scholar's article, even numerous times, cannot constitutionally constitute a felony under U.S. law.