Bob Swartz: Losing Aaron

Aaron Swartz in May 2004, age 17. (Photo Provided by Bob Swartz)

“There was no question in my mind he understood how this had gone terribly awry, and he was very upset about it,” Bob says. “We didn’t need to have those conversations as to why he did it, or what was going through his head, because that wasn’t the question.”

There’s a story he told Aaron then, just after the arrest. “Look at my hand,” he said to his son, pointing to a scar in the webbing between his index and middle fingers. “When I was a student, I was working in the darkroom at New College, and I was putting a rubber stopper into a glass tube. And every time I put in the rubber stopper the glass tube shattered, and I said to myself, You know, I’m going to put that glass tube through my hand, but I persisted, and I put that glass tube through my hand. And I went to Sarasota Memorial Hospital and the doctor there was not the best and he sewed back my finger and he left that web in my hand. Because I should have stopped—I knew.”

Stephen Heymann, the lead attorney on Aaron’s case, is known for his steadfast, inflexible approach to his prosecutions. He comes from a distinguished legal background: His father, Philip Heymann, is a Harvard Law professor who worked as a Watergate prosecutor. Philip Heymann also served as deputy attorney general in the Clinton White House, where he befriended Ortiz and Eric Holder, who would later become attorney general.

The younger Heymann has made a name for himself pioneering the prosecution of computer crimes within the U.S. Attorney’s Office in Massachusetts. For nearly three decades, he has defended the laws outlined by the Computer Fraud and Abuse Act, and as the chief of the Cybercrime Unit within the U.S. Attorney’s Office, he oversaw the first court-authorized electronic surveillance of a computer network. In 2000 he worked on the case against Jonathan James, a 16-year-old who had breached NASA’s network. James became the first juvenile sent to a prison for hacking crimes.

The CFAA was Congress’s hysterical reaction to WarGames, the 1983 film in which a teenage Matthew Broderick hacks into NORAD’s nuclear arsenal. The aim was to protect U.S. bank and defense computers from international cyber threats, but as the Internet has evolved over the past three decades, so has the CFAA. The Justice Department has extended its scope and now uses it to bring charges for a wide range of online infractions, some as trivial as lying on one’s MySpace page.

Heymann’s work to enforce the CFAA has also helped to shape it. In 1994 he led the prosecution of MIT student David LaMacchia, who was charged with using the university’s networks to copy $1 million worth of software, which he then posted online for others to use. Like Swartz, LaMacchia faced jail time and felony charges. Unlike Swartz, his case was thrown out by a judge, who deemed his actions “heedlessly irresponsible” but let LaMacchia off because he showed no intent to profit from his actions.

In legal circles, this Robin Hood approach to software distribution became known as the LaMacchia Loophole. In 1997 Congress passed a law that strengthened criminal punishment for copyright infringement, even if the owner did not intend to make a profit. The measure was an early predecessor to the Stop Online Piracy Act (SOPA) legislation that was floated in Congress in 2011—legislation that Aaron campaigned against, and which was eventually quashed.

For Bob and Aaron, Heymann was the face of the state. Aaron’s attorneys approached Heymann shortly after Aaron’s arrest, asking him to drop the charges. The meetings did not go well; Heymann refused to accept a settlement that did not involve jail time. At an impasse with Heymann, Bob and Aaron approached JSTOR. The company was much more open to negotiation, and in June 2011, the sides reached a civil settlement. Aaron paid a $26,500 fine. A spokesman said JSTOR considered the case closed: “We [have] no interest in this becoming an ongoing legal matter.”

Nonetheless, the criminal case slouched forward undeterred. As Aaron’s indictment neared, Heymann offered him a plea deal: If he agreed to one felony count, he could get three months in jail, followed by a period of probation and time in a halfway house.

Negotiations continued, but in the end Aaron told Heymann no. He would fight the felony charges and go to trial.

Later, Heymann would tell MIT that he was “dumbfounded” by Aaron’s decision, and claimed that Aaron was “systematically re-victimizing” the university by choosing to go through proceedings. Publicly criticizing MIT at a trial, Heymann said, was akin to “attacking a rape victim based on sleeping with other men.”

In the ensuing months, Aaron was banned from the Harvard and MIT campuses. Secret Service agents tore apart his apartment. Heymann subpoenaed Aaron’s girlfriend, Quinn Norton, to give grand jury testimony. That was bad enough, but even before the jury convened, Norton agreed to meet with Heymann—against Aaron’s pleas. Norton would say later that she thought she could talk Heymann into dropping the prosecution. Instead, he grilled her until he had what he needed: Norton mentioned that Aaron had coauthored the Guerilla Open Access Manifesto (remarkably, the prosecution had failed to read through the blog posts of the Internet activist they had intended to charge). For Heymann, this was a key piece of evidence: It established a motive.

Aaron was devastated. If Norton hadn’t met with Heymann, he believed, the prosecutor might never have found the manifesto for himself. He was furious. And more, Norton would tell an MIT investigator later, he was terrified “that anyone that talked to him would be treated like I was, so he didn’t talk to anyone…. I considered myself radioactive, he considered both of us radioactive—anyone we talked to could suddenly be pulled into this nightmare.”

Bob believes that Norton’s cooperation with the prosecutors was a betrayal that left Aaron bereft. The couple’s relationship dissolved shortly thereafter.

A few days before the indictment, Aaron’s attorney called the U.S. Attorney’s Office and agreed that Aaron would voluntarily surrender. But Bob says the prosecutors insisted on arresting him: “They strip-searched him. They took away his shoelaces. They put him in solitary confinement and left him there. They brought him out in handcuffs. And then, after his bond was posted, they left him in a cell for a couple of hours, with no explanation. It was just sadistic.”

The U.S. Attorney’s Office holds that it did not take the previous FBI investigation into account when it made the decision to prosecute Aaron, but Aaron’s activist ties did seem to strike a chord. On the day of his indictment, Aaron sent 11 tweets, many of which linked to an article on the Demand Progress site that shared details of his case. This “wild Internet campaign” was a “foolish” move that shifted the case “from a human one-on-one level to an institutional level,” Heymann would say later.

Aaron was charged with wire fraud, computer fraud, and “unlawfully obtaining information from” and “recklessly damaging” a “protected computer.” There would be 13 felony counts in all. At the time of the indictment, the U.S. Attorney’s Office said he could face 35 years in prison.

Aaron had ulcerative colitis, and his family feared that his health would deteriorate if he went to prison. He was growing increasingly depressed. “The endless plea negotiations, discussions of jail, what jail to go to, what the halfway house was going to be like…they were torture,” Bob says. “They were torture for me but far more torture for Aaron. He couldn’t deal. I dealt with the legal aspects of the case because it was very hard for him to do that. And, you know, it destroyed his feelings of security.”