Hacking defendant's suicide spurs debate over prosecutorial overreach

From:  Mark Crispin Miller 

Hacking defendant's suicide spurs debate over prosecutorial overreach

By Mike Scarcella

The National Law Journal

January 14, 2013

Aaron Swartz
Photo via Wikimedia Commons

Carmen Ortiz, U.S. Attorney for the District of Massachusetts

When the leader of a computer crime ring was sentenced in Boston to 20 years in prison for his role in one of the country's largest-ever hacking cases in 2010, U.S. Attorney Carmen Ortiz vowed publicly to "use all available resources" to investigate and prosecute cyber criminals no matter where in the world the crime is committed.

Just months later, federal prosecutors under Ortiz's leadership didn't have to look far to build the controversial hacking case against entrepreneur and political activist Aaron Swartz, who was charged in 2011 in Boston federal district court with the unauthorized use of a university's networks to download millions of articles from the online archive of scholarly literature at the nonprofit JSTOR.

"Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars," Ortiz, the U.S. attorney for the District of Massachusetts since 2009, declared when she announced the charges against Swartz, a prominent figure in the advocacy for a free, open Internet. "It is equally harmful to the victim whether you sell what you have stolen or give it away."

Swartz's suicide on Friday in New York at the age of 26 instantly triggered a wave of criticism of Ortiz and top prosecutors in her office, including Stephen Heymann, for their alleged overzealousness in the pursuit of criminal charges and for the insistence of incarceration as punishment. With the spotlight on Heymann, a career prosecutor, and Ortiz, who was appointed to the post under President Barack Obama, digital rights advocates are urging a review of the case itself and of the laws under which Swartz was indicted.

Supporters of Swartz blame the prosecution--including the emotional and physical toll of fighting charges from indictment to trial--as a contributing factor in the death. Swartz, who had long battled depression, was scheduled to go to trial in April in U.S. District Court for the District of Columbia. In the eyes of Swartz's champions, he's a hero of sorts--someone who wanted to put information into the public domain. A headline in the Boston Globe today called Swartz "the humanist hacker."

On the flipside, a prominent scholar of computer crime on Monday defended the merits of the charges, calling them the stuff that any good prosecutor would bring. And former prosecutors who've worked with Ortiz and Heymann, chief of the cyber crimes unit in the Boston federal prosecutors' office, contend that neither lawyer carries a reputation for unfairness. Swartz faced a potential maximum prison sentence of more than three decades, but prosecutors had offered a deal in which he would have spent six months behind bars.

Heymann is "not a cowboy," said Stephen Huggard, chair of the white collar practice at Edwards Wildman Palmer and a former chief of the public integrity section in the U.S. Attorney's Office in Boston. "His decisions are carefully considered. He's not trying to get a notch in his belt."

Heymann has long been recognized as a national expert in electronic crimes, prosecuting cutting-edge cases. Heymann, whose father was a top lawyer in DOJ under Attorney General Janet Reno, was a lead prosecutor on a high-profile case in 1996 that marked the first-ever wiretap on a computer network. The investigation led to charges against an Argentine man who was accused of hacking into Harvard University's computers. Heymann in 2010 received a DOJ award for distinguished service.

Donald Stern, a former U.S. attorney in Boston who's now senior counsel in Cooley's Boston office, called Heymann "a career guy" who doesn't allow any outside political rumblings to influence his decision-making. Stern called Heymann a "bright, hardworking and ethical prosecutor."

A spokeswoman for the U.S. attorney's office said Ortiz and Heymann are not speaking about the case against Swartz, a prosecution that was tethered to the U.S. Secret Service's New England Electronic Crimes Task Force.

The Secret Service set up task forces around the country following President George W. Bush's signing of the Patriot Act in the aftermath of the September 11 terror attacks. In 2009, the Secret Service announced the formation of three additional task forces in St. Louis, Kansas City and New Orleans "to identify, investigate, disrupt and dismantle individuals and criminal enterprises who are engaged in financial crimes.

The Swartz case wasn't the first brought by Boston-based federal prosecutors to make big news. In March 2010, Boston judges hit master hacker Albert Gonzalez with three concurrent two-decade sentences to prison for hacking several retailers' networks to steal customers' credit and debit card information. Gonzalez¹s victims included a wide range of retailers, including 7-Eleven Inc., shoe seller DSW Inc. and discount retailer The TJX Cos. Inc., which owns T.J.Maxx.

The district's continued aggressive prosecution of computer crimes also yielded an 82-month sentence in February 2011 against Asa Pala, who had pleaded guilty to one count of conspiracy to commit computer fraud and five counts of failure to file an income tax return. His scheme caused German citizens' computer telephone modems to call premium telephone numbers rented from German telephone companies by Pala¹s conspirators from 2003 through 2007.  MORE