The case of 'U.S. vs. Swartz,' dating back two years, was doggedly pursued by federal prosecutors who sought jail time against the 26-year-old computer innovator for his alleged theft of a massive amount of scholarly articles from the JSTOR database service available through the MIT campus network at the time. Swartz committed suicide in January shortly before his trial was set to begin this year, and his death was a shock that prompted widespread media coverage. MIT's 182-page report explains in detail why the university kept to its silent "neutrality" position, saying nothing one way or the other publicly about the federal prosecution of Swartz, who wasn't an MIT student. But some Swartz supporters called the MIT report a "whitewash" to "protect MIT's image."

[BACKGROUND:MIT report says it didn't seek federal charges against Aaron Swartz]

The Boston-based group supporting Swartz, called Demand Progress, said the report might be intended to "provide closure for the MIT community regarding the over prosecution and tragic loss of Aaron Swartz." But the group's representative, Charlie Furman, asserted the MIT report "simply whitewashes MIT's role in Aaron's prosecution and revises history to protect MIT's image." The group says a few, simple actions by MIT could have made a difference. "If the university had said publicly, 'we don't want this prosecution to go forward' there would have been no case and Aaron would be alive today."

Two days after Swartz died by hanging himself in his Brooklyn apartment, leaving no suicide note as to why, MIT President Rafael Reif asked computer science professor Hal Abelson to lead a review of MIT's involvement in the events starting in September 2010 when MIT heard about the JSTOR downloads, up to the January suicide.

Abelson worked on the report with MIT economics professor Peter Diamond, Andrew Grosso, a D.C.-based attorney and former Assistant U.S. Attorney with expertise in computer law, with additional assistance provided by MIT assistant provost for administration, Douglas Pfeiffer.

MIT says its official "neutral" wait-and-see position was based on factors such as lack of consensus internally on the Swartz case -- noting there was some opinion he'd apparently done something wrong -- and a sense that whatever MIT said wouldn't change the intent of federal prosecutors to push forward against Swartz.

"MIT took the position that 'U.S vs. Swartz' was simply a lawsuit to which it was not a party, although it did inform the U.S. Attorney's Office that the prosecution should not be under the impression that MIT wanted jail time for Aaron Swartz. (MIT did not say it was actually opposed to jail time)," the report says. "Among the factors not considered were that the defendant was an accomplished and well-known contributor to Internet technology; that the Computer Fraud and Abuse Act is a poorly drafted and questionable criminal law as applied to modern computing; and that the United States government was pursuing an overtly aggressive prosecution."

In the report, the university admitted it didn't bother to really understand the federal government's computer crime charges against him or who he was. MIT says another factor in its "neutrality" was it discerned no public outcry related to Aaron Swartz. Swartz was not an MIT student, and MIT's response to the federal computer crimes case brought against him might well have been different if he had been.

Swartz, whose brother and father worked at the MIT Media Lab, was a Fellow at Harvard University's Safra Research Lab on Institutional Corruption. He was well-known as an innovator who even in his teen years had worked the World Wide Web Consortium and had become a free speech and civil rights advocate. According to the report, his father repeatedly sought help from MIT to intervene in some way on his son's behalf, but that never happened, and MIT's relationship with the Swartz legal defense team, which changed three times, remained strictly formal.

Swartz was arrested by the MIT police and an agent of the U.S. Secret Service in January of 2011 for breaking and entering related to a network wiring closet at MIT where a laptop computer he was inspecting had been identified as downloading a large volume of academic articles from the JSTOR database service starting in 2010 . In the report, MIT says it made the JSTOR database service available even to a "guest" network user on the MIT campus network which at the time allowed this type of "guest" access to visitors such as Swartz.

JSTOR itself, which believes about 80% of its database appeared to have been downloaded over time, reached a civil settlement with Swartz on June 3, 2011 to pay $26,500 to JSTOR -- composed of $1,500 in damages and $25,000 for attorneys' fees and costs.

JSTOR made it clear at the time it wasn't pressing for criminal charges and preferred no charges to be brought. It's not known what Swartz intended to do with this gigantic mass of scholarly articles which were returned to JSTOR. But in July the U.S. Attorney's Office in Boston pressed on with an indictment against Swartz related to felony charges under the Computer Fraud and Abuse Act. Plea deals offered to Swartz by the U.S. Attorney's Office in Boston all included some jail time, which he rejected.

MIT did provide some information to the U.S. Attorney's Office before a subpoena was formally issued to MIT's general counsel's office on Jan. 27, 2011. The Swartz legal defense team says this violated federal law, but MIT rejects that argument, according to the report.

MIT says it decided to refrain from any statement of support for Swartz in part because it says it heard little support offered by others.

"There was a wide range of attitudes within the MIT community toward Aaron Swartz's actions on the MIT network," the report states. "Even among MIT's proponents of open access (and among Aaron Swartz's friends), there was a general agreement that he had done something wrong. A blanket statement opposing prosecution could have been perceived as extreme by many in the MIT community.

Beyond that, a position opposed to any prosecution at all could have been interpreted by many people as saying MIT was uninterested in respecting contractual agreements with licensors and was not serious about maintain the integrity of its network."

Swartz's family, close friends and public supporters reject the MIT report's conclusions.

"The report also claims that MIT didn't see enough public outcry, get enough feedback from their faculty or students, or think a statement would have made a difference -- but that isn't the kind of responsibility we expect from an institution like MIT," says Furman for the advocacy group Demand Progress. "It's just an excuse and a poor one at that," noting more than 50,000 people signed a petition for Swartz.

MIT, which had extensive contact with the U.S. Attorney's Office in order to deliver large volumes of technical and other information under the rules of discovery, does acknowledge in the report it was less responsive to requests from the Swartz legal defense team.

MIT "could have done more for the defense," the MIT report states. "For example, it could have automatically supplied the defense with a copy of every document supplied to the prosecution, rather than waiting for a defense subpoena. Similarly, it could have offered a defense interview with every employee interviewed by the prosecution. The choice not to do this was based on a judgment that the criminal process was sufficiently fair, without the need for it to provide equality of outcome."

MIT says by October 2012 the relationship with the Swartz legal defense team had become strained, with the defense suggesting "alleged wrongdoing and illegal conduct on the part of MIT," while the role of the prosecution "included rebutting any such allegations." MIT calls this an "asymmetry" that altered "MIT's general stance toward true procedural neutrality."

U.S. Attorney General Eric Holder last March defended the government's handling of the Swartz case, saying "there was never an intention for him to go to jail for longer than a three, four, potentially five-month range." Swartz had rejected the government's plea offers because they included jail time, the MIT report states.

Ellen Messmer is senior editor at Network World, an IDG publication and website, where she covers news and technology trends related to information security. Twitter: MessmerE. E-mail: [email protected]

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