Ortiz’s Office Stands Fast as Lawmakers Question Prosecutor Tactics
By David Stout | January 21, 2013 3:18 pm

Massachusetts U.S. Attorney Carmen Ortiz’s office said it will not change the way it handles cases, even as lawmakers in Washington pile on about the aggressive tactics used against of open Internet activist Aaron Swartz.

An Ortiz spokeswoman, Christina DiIorio-Sterlingtold the Boston Herald, “We thought the case was reasonably handled and we would not have done things differently.”

But several prominent lawmakers are questioning whether prosecutors were too heavy handed in their  pursuit of the programming prodigy who committed suicide on Jan. 11 as he was facing computer-hacking charges. Harvard Law professor Lawrence Lessig accused prosecutors of “bullying” Swartz

Two leading Republicans, Rep. Darrell Issa of California, the chairman of the House Oversight and Government Reform Committe;, and Sen. John Cornyn of Texas, a member of the Senate Judiciary Committee, are questioning whether it was appropriate for Swartz to have been threatened with up to 35 years in prison. Swartz, 26, hanged himself in his New York apartment.

“I’m not condoning his hacking, but he’s certainly someone who worked very hard,” Issa said, according to The Huffington Post. Had he been a journalist and taken the same material, “he would have been praised for it,” Issa said. “It would have been like the Pentagon Papers.”

Cornyn wrote to Attorney General Eric Holder questioning whether the DOJ was too aggressive in going after Swartz and whether the pursuit of him was in retaliation for “his exercise of his rights as a citizen” under the Freedom of Information Act, according to technology news website TechCrunch.

Wrote Cornyn: “What basis did the U.S. Attorney for the District of Massachusetts conclude that her office’s conduct was ‘appropriate?’ Did that office, or any office within the Department, conduct a review? If so, please identify that review and supply its contents.”

Issa and Cornyn have both been highly critical of the DOJ under Holder, so in that respect their stances are not surprising. And Issa has been a champion of the free flow of information on the Internet. But neither conservative is associated much with Swartz’s brand of “hactivism.”

So in some sense, the Republican critics may be piggybacking on liberal outrage over Swartz’s death to make a favorite point of conservatives: that prosecutors have too much power and thus often bully defendants into rolling over. That argument, when applied to individuals, gets liberal juices flowing. But the same argument may be applied to corporate prosecutions – a subject dear to the U.S. Chamber of Commerce and other conservative-leaning business lobbies.

Meanwhile Reps. Zoe Lofgren of California and Jared Polis of Colorado, both Democrats, have also voiced concerns over the Swartz episode.

Lofgren said she would press for changes in the Computer Fraud and Abuse Act to prevent future such “abuses of power” by the government, the Huffington Post said. And Polis, a former computer entrepreneur, called the charges “ridiculous and trumped up,” according to The Hill.

The focus of the legislators’ questions is Ortiz, the United States Attorney for Massachusetts who until recently was being hailed as a potential candidate for the governorship and the Senate. When Swartz was indicted in 2011, Ortiz was quoted in The New York Times as saying: “Stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away.”

As Main Justice reported last week, Ortiz has defended the work of her office against the tide of criticism and emphasized that she and her prosecutors would have pushed for a far more lenient sentence — perhaps no more than six months in a low-security setting.

Swartz was accused of downloading a cornucopia of information from computers at the Massachusetts Institute of Technology.  He also used library computers to gain free access to thousands of documents from Pacer, the federal courts electronic filing system, at one point crashing Pacer servers. Since Swartz was entitled to obtain the material free anyhow, defenders rallied behind him, with one asserting that the charges against him amounted to “trying to put someone in jail for allegedly checking too many books out of the library,” according to The Times.

That impassioned defense may be oversimplifying things. As The Times reported at the time of the indictment, Swartz was accused among other things of breaking into a computer-wiring closet at M.I.T. and using a false identity to obtain data.

This much seems clear: the death of Aaron Swartz, a mercurial, sometimes erratic but indisputably brilliant young man, was a tragedy.

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