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The Government’s War Against Hackers Rages On

Posted on 24 July, 2011 in Internet Law and Intellectual Property by aaronklaw

Thirty-five years and one million dollars.

That’s what Aaron Swartz faces if convicted on charges brought against him in the U.S. District Court of Massachusetts. The technology wunderkind (a member of Reddit.com’s original coding team, at only 14, Swartz cashed out when the site was sold to Conde Nast) is being accused of stealing over four million documents from M.I.T.’s JSTOR academic database.

But here’s the rub: officials at the university aren’t the one’s pressing charges; the FEDS are. In fact, M.I.T. spokespeople have been unequivocal in their stance: Swartz returned the data and didn’t post it online; as far as they’re concerned, the issue is over.

Politicians eager to earn cyber-crime-fighting badges, however, have drummed up federal charges in the hopes of making an example out of the boy genius.

Aaron’s Downloading Background

The M.I.T. incident is not the first time Swartz has danced a legal waltz with the U.S. Government. Back in 2008, Swartz was pursued by Federal authorities after downloading copious amounts of documents from the Government’s PACER court document system. As an experiment, authorities decided to allow general access to their document dissemination platform. A pioneer in mass downloading, Swartz created a PERL script and was able to obtain some 20 million documents; they were uploaded to the web, and Swartz used the information in an academic capacity.

No doubt, officials of the federal court system were pissed. But their ire was not enough to justify a lawsuit. As court documents, PACER files are considered part of the public domain, so officials had a difficult time cooking up charges. But it wasn’t for lack of trying. Feds tailed Swartz and exacted several in-depth background checks. All efforts, however, were for naught, and the FBI was finally forced to drop the investigation.

The JSTOR Incident

The JSTOR and PACER incidents are similar, but not identical. Since PACER docs were in the public domain, there was no copyright infringement issues associated with posting the material online. The JSTOR files, however, did contain copyrighted material; but Swartz never disseminated them, so  intellectual property laws weren’t broken.

So what went down?

Swartz started downloading tons of documents from JSTOR using a python script; M.I.T. realized what was going on and blocked his IP address; undeterred, Swartz continuously changed his MAC and IP addresses to evade administrators; the demand on the system became too much and M.I.T. shut JSTOR down; when they brought it back up, Swartz installed a computer directly in the Network closet.

The changing IP and MAC addresses are easily explained away; but the network closet installation is what could land Swartz in the slammer. It doesn’t help that a security camera caught Swartz trying to conceal his face while going in and out of the room. Undoubtedly, the prosecution will try to use the recording as evidence that Swartz knew he was breaking some sort of law.

Hacking Charges Against Swartz

Officials believe Swartz intended to distribute the copyrighted JSTOR materials online; though no evidence exists to prove the material was disseminated. And since thought crimes have yet to hit the law books, Swartz should be clear of any copyright infringement charges.

While Aaron doesn’t need to worry about intellectual property charges, there is still the issue of illegally accessing a computer. Formally, Swartz was charged with wire and computer fraud, recklessly damaging a protected computer, and unlawfully obtaining information from a protected computer.

The Government’s Hard-On For Hackers

JSTOR is not filing charges; instead, the Federal government is exercising their right to file a lawsuit against a citizen known to have broken the law.

But why? Considering the country has more pressing issues to address, you’d think they wouldn’t waste resources going after a Harvard ethics fellow who claims to have been downloading materials for research purposes. But in the eyes of government officials, any “hacker” is a potential national security threat.

In the wake of several high profile cyber-security incidents, Capitol Hill is eager to show hackers their tough on the issue. In fact, there’s a push to double prison terms for cyber criminals. The problem is that simply doubling jail lengths won’t do much, but actually convicting someone may prove to be an effective deterrent.

So, FEDS have been on the lookout for someone to act as an anti-hacking poster child, and Aaron Swartz may have drawn the short straw.

Legal Implications

It will be interesting to see if the government is successful in their pursuit of Swartz. As stated, he can’t be rightfully convicted of any intellectual property infringements, and quite frankly, the cyber charges against him are weak — especially since the victim is an unwilling participant.

Caught up in an intellectual property disagreement? Accused of hacking? The Kelly Law Firm can help. Our experienced team of attorneys focuses on technological issues and has helped hundreds of clients across the globe. Contact us today to get started.