Promoted from the diaries by streiff. Promotion does not imply endorsement.
Judge Nathaniel M. Gorton issues threat over picture of Aaron Swartz
Unlike Aaron Swartz (right), who rose on his own merits, Federal Judge Nathaniel M. Gorton (left) was apparently appointed to the bench as a political favor after his brother leveraged their inheritance for a position in the U.S. Senate. (From left: Massachusetts Federal Bar Association, Wikicommons)
Federal Judge Nathaniel M. Gorton, of the old money Gorton’s Seafood fortune, has never apologized for his role in driving visionary technologist, pioneering innovator, and civic champion Aaron Swartz to suicide.
Aaron was a prodigious self-made computer programmer whose civic projects and commitment to justice established him as a hero to millions, including to me. Unfortunately though, his story is commonly both misrepresented and misunderstood as the salient facts too often fall by the wayside in today’s deadline-driven, “less is more,” overly-politicized media landscape.
But, especially looking across the chasm which seems to divide the left from the right in America nowadays, the distinctly non-partisan nature of Aaron’s goals and accomplishments command both a profound respect and a simply devastating sadness.
Suffice to say that anyone who cares about the metaphorical little guy and who fights for him over the government bureaucracy will eventually be confronted by those in power and Aaron was no different in that regard. His first known close encounter of the federal kind came as a result of his publishing public U.S. federal court records for free.
Now, you may be asking, if those records are public, then what’s the big deal about publishing them for free?
The logo of the U.S. federal courts’ PACER (Public Access to Court Electronic Records) system, which faces longstanding scrutiny for both (over)charging and possibly tracking members of the public.
The answer is that despite the fact that the records are public, the federal courts themselves still charge 10 cents per page to download them from their so-called “Public Access to Court Electronic Records” system, or “PACER.” That might not sound like all that much, but considering that there are often dozens or even hundreds of filings per case as well as that each such document can exceed 100 pages and therefore cost over $10 to download, PACER fees pose a significant barrier to citizens who wish to scrutinize federal trials which under the 6th Amendment are supposed to be public.
Additionally, any system like PACER raises serious privacy concerns due to its ability to track exactly who downloads which documents. For example, if Jeff Sessions had gotten his way on cannabis enforcement then it wouldn’t have been hard to imagine the DOJ opening up investigations into those who had downloaded documents on cannabis cases.
The RECAP project republishes U.S. federal court documents for free at https://free.law/recap/.
Apparently such concerns led the founders of the RECAP project to feel that PACER (an anagram) was backwards. And apparently Aaron agreed with them, especially since the courts are supposedly limited by law to charging only nominal fees sufficient to maintain PACER itself but they instead seem to be charging far more than is reasonable.
So, RECAP setup a free website as a public service where people can submit documents which they have already obtained from PACER in order for those documents to be made available to anyone anonymously for free. RECAP could legally do this because PACER documents are public records, and even though the courts are allowed to charge for the service of providing them through PACER, the documents themselves are exempt from copyright control and can be republished freely.
However, it could have taken the folks at RECAP centuries to build up a respectable library by accepting documents piecemeal, a few here and a few there, from people going out of their way to share them.
But then along came Aaron. Acording to Wired, he learned that as part of a pilot program launched with the help of the Government Printing Office, a small number of computers had been scattered across the country where members of the public could enjoy free unlimited access to the PACER system. He also discovered that unlike the vast majority of Americans, he just so happened to live close to one such machine.
So Aaron wrote a simple computer program to rapidly download tons of documents from PACER and upload them to the cloud. Over a relatively short period, he donated millions of pages of publicly owned PACER documents to RECAP.
When the folks at RECAP started receiving the documents which Aaron was sending to them, they were happily surprised. But when the feds figured out what Aaron was doing – and apparently that he was endangering their monopoly as well as possibly their ability to track who was accessing which documents – they hardly seemed amused. The free PACER pilot program ended up being suspended citing security concerns.
Also, the FBI sent agents to reconnoiter the home of Aaron’s family. But there was little that they could do for the time being. After all, by design, the computer which Aaron had used allowed the public unlimited access to PACER and apparently he hadn’t violated any posted notices or bypassed any security mechanisms in order to run his program.
As one of RECAP’s founders Carl Malamud later remarked, “I’ll grant you that downloading 20 million pages had perhaps exceeded the expectations of the people running the pilot access [PACER] project, but surprising a bureaucrat isn’t illegal.”
Further, trying to prosecute Aaron would have called yet more unwanted attention onto the controversial fees which the courts were charging the public in order to access documents via PACER.
However, the incident did cause the FBI to open up a file on Aaron. And over time it would get thicker.
As of 2009 it was estimated that RECAP cuts $10 million into PACER’s revenue every year.
Some feel that it was Aaron’s work on the secure Dropbox for WikiLeaks which most infuriated the Obama Justice Department.
However, while Aaron’s efforts on behalf of RECAP probably didn’t earn him any friends in the federal Judicial Branch, according to some, it was his subsequent work on the secure Dropbox for WikiLeaks which led the Executive Branch and specifically the Obama Justice Department to internally declare a vendetta against him. And this seems entirely plausible given what was widely viewed as the Obama administration’s all out general war on whistleblowers as well as its battle against WikiLeaks in particular. In fact, as you can see in the video below, the Obama DOJ wound up taking a good amount of friendly media fire in response to its underhanded tactics against WikiLeaks, which was considered at the time to be a liberal darling:
But, similar to Aaron’s work for RECAP, it had been perfectly legal for him to help WikiLeaks create a mechanism by which it could securely receive documents from third parties. And like before, prosecuting Aaron for helping whistleblowers slip past the Obama administration, which publicly celebrated them as a group during Obama’s candidacy while it then privately prosecuted a record number of them as individuals, could have generated unwanted attention.
Aaron Swartz also worked on the widely-used Rich Site Summary (RSS) as a teenager.
It’s also important to note that Aaron worked on plenty of projects which weren’t specifically designed to thwart the government. He wasn’t a seditious subversive. Rather, he was a civically-minded altruist who didn’t moved to Silicon Valley and cash in on his staggering natural talent for computer programming, though he easily could have done so.
For example, when Aaron was just entering his teenage years and before the Internet had become the bitterly-fought-over political battleground which it is today, he volunteered to help develop part of the Rich Site Summary (RSS), which is now at work behind the scenes delivering content all around the web. Whether you go Red State or RT, chances are that RSS is playing a role in delivering the news which you read (including this article). This is especially true if you pick up stories from aggregators like Slashdot, Drudge Report, or Reddit (with which Aaron also had a history).
And have you ever seen this symbol online?
It’s the logo for the Creative Commons, which Aaron Swartz co-founded to help content makers license and distribute their work under clear and concise terms so that the public can enjoy a wider variety of multimedia, including the ability to “remix” or make derivative works from a lot of it. Today it is estimated that we all have access to 1.4 billion pieces of content under permissive Creative Comments licenses.
These are just some of the dozens of the selfless efforts to which Aaron dedicated himself and from which society continues to benefit in his absence. One would need to write a lengthy book to detail them all.
So it’s probably fair to say that even if they each lived to be 100, none of the people involved in bullying Aaron to death will ever contribute to the world or to this nation even a tiny portion of what he did in just the short time that he was here – not even 1% of 1%. Indeed, while it seems clear that first, they lack his talent, second, they lack his drive, and third, they are simply too selfish, it’s unclear how any of them can power on a computer anymore without being overwhelmed with remorse, knowing both the positive impact of the contributions that he would still be making as well as how they personally continue to benefit from Aaron’s legacy.
Make no mistake, that is how small they are compared to Aaron and that is the significance of losing him – not that they seem bothered by his death except for how it affects their own personal social standing. Further, while Aaron rose entirely on his own merits, the people who bullied him largely inherited their positions as the result of either birth and/or social climbing at the expense of others who were better qualified.
And it is against this backdrop that the final chapters of Aaron’s life really should be examined.
After Aaron’s work for RECAP, he came across something similar to PACER called JSTOR, a “non-profit” which derives millions of dollars of revenue by charging burdensome fees for access to academic research – even though that research was predominantly funded with American tax dollars through grants from the federal government.
For example, say a team at UCLA applies for a grant from the Defense Department in order to work on new technology for computer-assisted robotic artificial limbs which someday could benefit wounded veterans. Once the government approves the grant, federal tax dollars go to the UCLA team to begin their work and in cases like these the grants are often quite large, ranging into the millions of dollars.
When the UCLA team finishes, which may be several years and a small fortune of tax money later, they need to publish their results, i.e. their data. A lot of the time such teams at universities across the nation publish their data to a small number of collections like JSTOR.
However, in order for members of the public to get a copy of the data which their tax dollars already helped to produce, they must then pay JSTOR – a private “non-profit” organization which doesn’t chip in to help with the research from which it generates $69 million a year in revenue. Additionally, unlike PACER, JSTOR does look to enforce copyright control over the contents of its collection – taxpayer-funded or not.
As Aaron put it:
I am going to give you one example of something not as big as saving Congress, but something important that you can do right here at your own school. It just requires you willing to get your shoes a little bit muddy. By virtue of being students at a major U.S. university, I assume that you have access to a wide variety of scholarly journals. Pretty much every major university in the United States pays these sort of licensing fees to organizations like JSTOR and Thomson and ISI to get access to scholarly journals that the rest of the world can’t read. And these licensing fees are substantial. And they’re so substantial that people who are studying in India, instead of studying in the United States, don’t have this kind of access. They’re locked out from all of these journals. They’re locked out from our entire scientific legacy. I mean, a lot of these journal articles, they go back to the Enlightenment. Every time someone has written down a scientific paper, it’s been scanned and digitized and put in these collections.
That is a legacy that has been brought to us by the history of people doing interesting work, the history of scientists. It’s a legacy that should belong to us as a commons, as a people, but instead it’s been locked up and put online by a handful of for-profit corporations who then try and get the maximum profit they can out of it. Now, there are people, good people, trying to change this with the open access movement. So, all journals, going forward, they’re encouraging them to publish their work as open access, so open on the Internet, available for download by everybody, available for free copying, and perhaps even modification with attribution and notice.
And the true impact of this is far-reaching, as Aaron understood well.
For instance, in the example above, the research was theoretically being conducted for the Department of Defense. But it wouldn’t be hard to imagine the results also being useful in other areas, such as to help people suffering from conditions like muscular dystrophy, ALS, and more.
However, anyone wishing to make use of that taxpayer-funded information in order to benefit the taxpaying public in any of those other potential ways would have to pay JSTOR in order to get it. This means that researchers can’t always purchase all of the data which might help them to help others.
For instance, cancer researchers who are trying to perform a comparative analysis of cancer treatments to look for chemical compounds common to the most effective therapies might not be able to buy the data for every cancer treatment contained in JSTOR.
In such scenarios, JSTOR isn’t just a leech sucking America’s scientific lifeblood for its own benefit, but it’s also an obstacle in the way of critical advancements.
Further, even if such a team could buy all the data that they’d need, then the small fortune which they’d have to spend to do so couldn’t then be used to test the most promising candidates which they’d find. And even if every research team could always pay out more grant money to JSTOR for access to data, then the critical question becomes, how much tax funding does JSTOR get to sit back and collect off of handing out the same publicly-funded data over and over again? Or what about members of the general public, such as private doctors, who might want to look into the latest research?
Aaron felt that all of this is wrong.
So, as usual, he set to work to change it.
Similar to the conveniently-located unlimited-access PACER workstation which Aaron had found, he discovered that nearby MIT had a contract which allows users on the university’s famously open computer network to enjoy unlimited access to the JSTOR collection.
Though he had dropped out of college himself (as many great computer programmers do), Aaron had been named a Harvard research fellow, and through an agreement between the two neighboring schools, he was able to legitimately register a laptop onto the MIT network.
Then Aaron found an unlocked wiring closet in a MIT building where he could leave the laptop plugged into the network unattended. He left it downloading and returned periodically to swap portable hard drives after they filled up with data from JSTOR.
Like his large downloads from PACER though, Aaron’s high-volume transfer from JSTOR were noticed, but this time by MIT and JSTOR instead of by the feds. MIT then installed a camera in the wiring closet to record the owner of the mysterious laptop which they had found there.
A short time later, Aaron was arrested on his way home with JSTOR data. He forked over the portable hard drives and neither MIT nor JSTOR pressed charges.
But the feds did. This time they didn’t have to worry about calling attention to either controversial PACER fees or to the Obama administration’s controversial – and some might say hypocritical – (mis)treatment of whistleblowers. Further, unlike the PACER data, much of JSTOR’s collection was copyrighted, even if not by its original creators or funders.
In the end, Aaron faced 22 federal felony counts from the now-notorious Boston U.S. attorney’s office and up to 35 years in prison from Judge Nathaniel M. Gorton. Hardly a self-made man, Judge Gorton was apparently appointed to the federal bench as a political favor to his brother Slade, who had leveraged their family’s socioeconomic position as old money heirs to the Gorton’s Seafood fortune in order to secure himself a place as a U.S. senator. Judge Gorton is notorious in Boston for almost always agreeing with prosecutors and ruling against defendants, even in the face of glaring prosecutorial and/or police misconduct. So much so, that federal prosecutors in the city are known to use the threat of Judge Gorton as a cudgel against the defendants whose cases get assigned to him, as a source familiar with the matter said was done to Aaron.
Despite the fact that Aaron was trying to give the public access to hundreds of millions of dollars worth of taxpayer-funded research which had been hoarded – or some might say stolen – away from the public to which it seems it should belong, Carmen Ortiz, the top federal prosecutor in Boston at the time, infamously said of Aaron efforts, “Stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars.”
There didn’t seem to be the slightest hint of irony – or shame – in Ortiz’s words when she said the above either. It appears that she actually wanted to sell the idea to the public, as well as to Aaron’s potential jurors, that he was the bad guy – the thief – for fighting to give taxpayers access to data which had been locked away from them after their money had paid to produce it.
Then, when Aaron refused to take a plea agreement which would have permanently branded him as a felon and therefore largely disqualify him from a future in politics, Steve Heymann, who was the cyber crime division chief for Carmen Ortiz’s office at the time, salaciously compared Aaron to a rapist.
But perhaps it was Heymann, Ortiz, and Judge Gorton who should have been the subjects of tough comparisons. For instance, while Aaron had opened doors for himself solely through hard work and aptitude, and while he had always followed his strong moral compass, it seems harder to say the same for those who bullied him to his grave.
For instance, Steve Heymann seems to have been a legacy admission to Harvard Law School, where he might not have been accepted if his father, Philip Heymann, wasn’t also one of the school’s professors. Nor did the younger Heymann’s stature as a division chief under Carmen Ortiz seem coincidental since early in her career Ortiz had assisted his father.
Yet, Ortiz appeared unbothered by the potential hypocrisy of pursuing federal racketeering charges against state employees for alleged nepotistic hiring practices even while Philip Heymann’s son was one of her own chief subordinates. Indeed, she made such cases her main trademark, and on more than one occasion the courts humiliated her office for stretching federal law past its breaking point in efforts to federally interfere with local politics.
And like her subordinate, Ortiz also benefited from powerful political connections prior to her presidential appointment as the U.S. attorney for Massachusetts. Early in her career, Ortiz had worked at the DOJ with a young Eric Holder, who would of course go on to become Obama’s first attorney general. It was during Holder’s tenure and with the recommendations of both Massachusetts senators at the time, namely Ted Kennedy and John Kerry, that Ortiz was recommended to the administration. In time, Holder would face his own scrutiny over alleged favoritism.
As for Judge Gorton, who again became a federal judge under questionable circumstances, appears to be such a reliable force for prosecutors that none of the several experienced defense attorneys who were confidentially asked could think of a single case where he had granted a defendant bail over a prosecutor’s objections. Indeed, Judge Gorton’s tendency not to say “no” to the DOJ may have played a role in his appointment to the controversial FISA court from 2001 to 2008, which many feel rubber stamps 99.97% of the requests which the Department makes.
And more than one seasoned criminal defense attorney said that they believe Judge Gorton makes racially-motivated sentencing decisions against minorities.
Bearing all of this in mind, from Aaron’s arrest in 2011 until the day that he hung himself in his apartment 2 years later, Ortiz’s office reportedly threatened him with what prosecutors would get Judge Gorton to do if he didn’t plead guilty to multiple felonies and thereby effectively end his political career before it had begun.
Indeed, it seems apparent that under a different judge there might have been more room for Aaron’s attorneys to argue that the controversial law under which Aaron had been charged, the Computer Fraud and Abuse Act (CFAA), was unconstitutionally vague and/or that Aaron still hadn’t violated it in the first place since he was using a machine that he had legitimately registered with MIT; and by license, users of the university’s network, like him, were supposed to have access to the entire JSTOR collection.
After Aaron’s death, Ortiz’s office tried to mitigate the resulting backlash by pointing out that it had offered to recommend that Judge Gorton sentence him to 6 months in prison if he had pled guilty. However, prosecutors were conspicuously silent about both what they had threatened to recommend to Judge Gorton if Aaron had refused to plea as well as their insistence on making him a felon for life. Nor did they apologize for overcharging him with 22 counts, comparing him to a thief or to a rapist, etc.
Further, it has been widely reported that these prosecutors had been explicitly warned that Aaron’s mental health had grown fragile and yet continued to push him. In fact, Aaron’s initial lawyer toward Heymann that his office had made Aaron suicidal. Heymann responded by telling them, “Fine, we’ll lock him up.”
After news of Aaron’s death went public, over 61,000 people digitally signed a White House petition to fire Carmen Ortiz but the Obama administration wouldn’t terminate her or Heymann. Instead, it responded to the petition by issuing a statement calling Aaron’s death “tragic” for his friends and family, but noticeably the White House said nothing about the loss to the public of all the wonderful innovations and civic accomplishments which Aaron would still be spearheading if he were alive today.
However, neither liberal nor conservative media outlets were so inhibited, and they both slammed Ortiz in the wake of Aaron’s death. Rolling Stone ran a feature about Aaron called, “The Brilliant Life and Tragic Death of Aaron Swartz” and this was the cover of the conservative-leaning Boston Herald soon after Aaron’s body was found:
(Boston Herald, uploaded February 3, 2013)
For its part though, the region’s largest newspaper, the Boston Globe, was conspicuously reserved on the topic of Aaron’s death. Its relative quiet may have had to do with the staggering amount of confidential information that Ortiz’s administration is suspected of leaking directly to the paper, which had named Ortiz its 2011 “Bostonian of the Year.” Tellingly, the Globe zealously defended Ortiz even after she had left office a long time later.
Further, neither the Globe nor Boston’s local NPR station, WGBH, fact-checked statements made by Ortiz after Aaron’s death claiming that her office would have done something if they knew Aaron was suicidal – which again it appears they had in fact been told quite clearly and to which they had responded by threatening to “lock him up.” For instance, in 2016, WGBH published the following statement from Ortiz wholesale without providing any clue that she might have been lying:
‘It’s an incredible tragedy that this young man took his life,’ Ortiz said, noting that her office didn’t know Swartz was in such a vulnerable place at the time…
Ortiz admits that her office could have communicated better with the public about the lessons of the Swartz case. In the end, however, she blames neither herself nor prosecutor Stephen Heymann for Swartz’s death. The reality, she said, is that no one is responsible. ‘I think when it immediately occurred and I became aware of it and we were blamed and I was blamed initially, certainly by the family, I felt that they had just suffered a tragic loss, and sometimes it’s good to blame someone else in those situations. And to blame the government, that’s a great way to point the finger. I just wish we had the opportunity to save him.’
But, the Huffington Post, which wasn’t exactly known for going after Obama appointees, ran articles critical of Ortiz as long as she remained in office, like this one from more than three years after Aaron’s death, entitled, “This Federal Prosecutor Is Building A Career Indicting The Good Guys.”
Indeed, as one high-profile digital activism attorney emphasized around that time, “The Internet hates Carmen Ortiz.”
For example, when Ortiz’s husband started tweeting about Aaron’s case, he was chased off of Twitter by an apparent cyber mob wielding what may have seemed to him to resemble virtual pitchforks and torches.
However, following Aaron’s death, with the immediate focus largely fixed on Ortiz, Heymann, and the controversial anti-hacking law called the CFAA under which Aaron had been charged, Judge Gorton’s role went largely unnoticed despite all the prosecutorial misconduct which he allegedly let pass in Aaron’s case. And neither Ortiz, Heymann, nor Judge Gorton have ever apologized for Aaron’s death.
Now, more than 5 years later though, Ortiz and Heymann are both out of power while Judge Gorton remains appointed to the bench for life.
The author is the last person to be charged by Carmen Ortiz’s administration with selflessly breaking the same statute used against Aaron Swartz, and despite possible conflicts of interest, Judge Gorton is presiding over his case too. You can learn more about the author from FreeMartyG.com, Rolling Stone, Michelle Malkin, Red State, and RT.
Prior to publication, Susan J. Goldberg, the Circuit Executive for the federal First Circuit Court of Appeals, did not respond to a request for data on Judge Gorton’s sentencing decisions which would be necessary to look for racial and religious trends.