Bob Swartz: Losing Aaron

In an interview in December, Carmen Ortiz’s first assistant attorney, Jack Pirozzolo, spoke with me about the case. “Steve [Heymann] is a cautious, careful prosecutor…. He has taken the tragedy of Mr. Swartz’s suicide very hard. We as prosecutors have a job to do. We follow the evidence wherever it leads and recommend charges based on the evidence and the applicable law. In this case, the evidence of criminal conduct led to Mr. Swartz, and I don’t think there can be much debate about that,” he told me. He holds that the rule of law must be applied regardless of someone’s talents, stature, or political beliefs. “As far as I am aware, Congress hasn’t told us that there is a certain set of rules for MIT students and another set for everyone else…. A person’s affiliation with MIT or Harvard does not bestow immunity from the consequences of breaking the law…. Mr. Swartz was obviously a talented guy, but our system can’t work if we apply a set of rules to one group of people and not another because we approve of their talents. There is, in some sense, a breathtaking double standard that’s being applied here.”

To Bob, Heymann’s actions went beyond the duties of a prosecutor.

“He clearly doesn’t have a sense of what he’s doing to people,” Bob says of Heymann. “And this isn’t the first time.”

The pressure that Aaron was under was not unique. In 2008, Jonathan James, the juvenile hacker Heymann had convicted in 2000 at the age of 16, found himself again under suspicion. At the time, Heymann was leading an investigation into the largest identity-theft ring in U.S. history, and James was implicated. He was never charged, but Secret Service agents ransacked his home and put a tracking device on his car.

On May 18 of that year, he was found dead in his home from a self-inflicted gunshot wound. In his suicide note, he wrote that he’d become convinced that he would be scapegoated as a key member of the hacker ring because of his past conviction. “The feds play dirty,” he wrote.

The relationship between Heymann and MIT was complicated, and only came to light much later.

Abelson’s 182-page report, released in July, provides a remarkable glimpse of a university wrestling with its public persona. And while the report would ultimately find that MIT was justified in its neutral stance, the university often appears incurious and callous in its pages.

For example: Just days after JSTOR first noticed Aaron’s bulk download and notified MIT, an MIT Information Systems & Technology staffer wrote an email explaining that the university did not require user authentication to access JSTOR. Yet the bulk of the allegations against Aaron dealt with him “exceeding authorized access” to the MIT network under the CFAA. “At no time, either before or after the arrest of Aaron Swartz, did anyone from the prosecution inquire as to whether Aaron Swartz had authorized access to the MIT network,” Abelson wrote. When it came to the most fundamental question in the case—was Aaron authorized to access MIT’s network or not?—MIT maintains that the feds simply never asked.

And MIT never spoke up.

MIT has maintained that its policy in Aaron’s case was to remain neutral—which in practice meant, “do nothing.” This was not without precedent. MIT had taken a similar stance when its students had tangled with law enforcement, and Aaron was not even a student.

Bob maintains that in Aaron’s case, MIT’s “neutrality” was in fact an abdication. By its silence, Bob says, the administration betrayed its mission. MIT has consistently sold itself as a leader on open access to scholarship—its professors create and share curricula over OpenCourseWare, and in 2009, they voted to make all of their scholarly articles available on the Web. Even as Heymann pursued Aaron for downloading millions of journal articles on MIT’s campus, the university was touting the launch of MITx, a program that would provide free online courses to millions of students around the world.

While claiming neutrality, MIT’s IS & T employees initially handed over many records to Heymann without a subpoena. Even later, Heymann and the Secret Service were permitted to call or email any staffer at will, an unusual privilege. In those exchanges, MIT staffers, either wittingly or unwittingly, helped Heymann build his case. What MIT describes as neutrality looks to Bob an awful lot like complicity with the prosecution. Abelson seemed to agree, writing that MIT’s dispassionate approach, in fact, “was not neutral in outcomes.”

Another key question in the prosecution’s case was determining damages. MIT staff tallied up more than $5,000 worth of man-hours lost and “out-of-pocket costs,” bumping the allegations into felony territory. But Abelson found that MIT padded the number: By his calculations, the university’s only expenses were the cost of installing the video camera and making photocopies for the prosecution.

More examples of MIT’s complicity turned up in files that Aaron’s defense team obtained from the feds during discovery. When the Secret Service had trouble accessing Aaron’s computer, it contacted MIT for help, emails show. The IS & T staff helpfully explained how to hack into it. Then there’s the chummy note from an IS & T security analyst who had worked closely with the Secret Service. On the day Aaron was indicted, the analyst emailed Heymann: “Nicely done Steve and kudos! …it’s just a true relief and very refreshing to see your accuracy and precision.”

“They call this neutrality,” Bob says.

Abelson’s report also chronicles Bob’s ordeal. From the time of the indictment through the end of 2011, Abelson found, Bob tried to persuade MIT to change its stance. He tried, and failed, to get Aaron an appointment at the Media Lab, in the hopes that it would garner him university support. Aaron’s attorneys reached out to MIT to attempt to reach a settlement, but MIT rebuffed them. Bob pleaded: “Why are you destroying my son?”

In fall of 2011, Bob’s wife, Susan Swartz, fell severely ill. Bob pulled back from the legal proceedings to focus on tending to her, and Aaron changed lawyers. In spring of 2012, Aaron’s new attorneys tried in vain to schedule an appointment with MIT to discuss a plea initiative. Twelve calls went unanswered from May through September.

In September 2012, Bob again asked MIT to publicly state that it did not want jail time for Aaron. It refused. The university’s general counsel told Abelson they believed publicly backing Aaron would actually hurt his case.

Tensions at MIT heightened in October after Aaron’s lawyers filed a motion alleging the university was “acting in concert” with the prosecution, violating federal law and Aaron’s Fourth Amendment rights protecting him from unreasonable search and seizure. The motion sought to suppress the indictment and all information gathered during the investigation. MIT was afraid its employees might have to defend themselves on the stand, which Abelson concluded served to further align the university’s interests with the prosecution.

In the dwindling months of 2012, as both sides began to prep for hearings and it became increasingly apparent that Aaron’s case would go to trial, squabbles over documents erupted. MIT continued to provide materials to Heymann’s office under subpoena, but Heymann was not sharing them with the defense; when Aaron’s lawyers asked MIT to send copies of the same documents, MIT’s counsel referred them to the U.S. Attorney’s Office. Bob soon came to believe that Heymann had never anticipated that the case would see a courtroom. The attorneys exchanged barbs over judicial misconduct.

These debates were still very much in play when the attorneys from all parties were notified that Aaron had taken his own life.