Senator John Cornyn Wants Answers: Did U.S. Attorney Carmen Ortiz Aim To ‘Make An Example’ Of Aaron Swartz?

It’s been one week since the death of Aaron Swartz, the prominent programmer and digital activist who took his own life as he was facing federal prosecution for computer fraud after he allegedly used the network at MIT to illegally download a large cache of scientific journals from JSTOR. Since then, a number of people — including Swartz’s family, friends, and longtime colleagues — have questioned whether Massachusetts’ U.S. Attorney Carmen Ortiz was overzealous in her prosecution of Swartz’s case, and how this may have impacted Swartz’s state of mind leading up to his death.

And now those questions have escalated to the legislative level. On Friday John Cornyn, the Republican Senator from Texas, wrote a letter to United States Attorney General Eric Holder demanding answers on the “prosecutorial conduct” surrounding Aaron Swartz’s case — specifically, whether Ortiz’s office handled things appropriately.

One of the key questions Cornyn asks is whether the punishment that was threatened in the Swartz case — as many as 35 years in prison — was proportional to his alleged crime. He also asks Holder whether the U.S. Attorney’s intention was to “make an example” of Swartz. It bears mention that Cornyn, who was once an early sponsor of SOPA, does not take a soft line on digital crime: He has publicly stated that “stealing content is theft, plain and simple.” Nevertheless, he has serious questions about how aggressive the government should be in cases such as Swartz’s.

It goes without saying that this is an incredibly unfortunate and tragic situation all around. But one potentially positive aspect is that it seems to be sparking a very important discussion about what should be considered a crime in the digital age, and how infractions that do occur should be punished.

Here is the full text of Cornyn’s letter:

January 18, 2013

The Honorable Eric Holder
Attorney General
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Dear Attorney General Holder:

Like many Americans, I was saddened to learn last week of the death of Aaron Swartz. Mr. Swartz was, among other things, a brilliant technologist and a committed activist for the causes in which he believed – including, notably, the freedom of information. His death, at the young age of twenty-six, was tragic.

As you are doubtless aware, Mr. Swartz was facing an aggressive prosecution by the Department of Justice when he took his own life. The U.S. Attorney’s Office for the District of Massachusetts accused him of breaking into the computer networks of the Massachusetts Institute of Technology and downloading without authorization thousands of academic articles from a subscription service. While the subscription service did not support a prosecution, in July 2011 the U.S. Attorney’s office indicted him on four counts of fraud and computer crimes, charges that reportedly could have resulted in up to 35 years imprisonment and a $1 million dollar fine. This past September, the U.S. Attorney’s office filed a superseding indictment charging Mr. Swartz with thirteen felony counts and the prospect of even longer imprisonment and greater fines.

Mr. Swartz’s case raises important questions about prosecutorial conduct:

First, on 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.

Second, was the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General.

Third, what role, if any, did the Department’s prior investigations of Mr. Swartz play in the decision of with which crimes to charge him? Please explain the basis for your answer.

Fourth, why did the U.S. Attorney’s office file the superseding indictment?

Fifth, when the U.S. Attorney’s office drafted the indictment and the superseding indictment, what consideration was given to whether the counts charged and the associated penalties were proportional to Mr. Swartz’s alleged conduct and its impact upon victims?

Sixth, was it the intention of the U.S. Attorney and/or her subordinates to “make an example” of Mr. Swartz? Please explain.

Finally, the U.S. Attorney has blamed the “severe punishments authorized by Congress” for the apparent harshness of the charges Mr. Swartz faced. Does the Department of Justice give U.S. Attorneys discretion to charge defendants (or not charge them) with crimes consistent with their view of the gravity of the wrongdoing in a specific case?

I appreciate your prompt and thorough answers to these questions.



United States Senator

A public memorial service for Aaron Swartz is being held in New York City today from 4pm-6pm ET. You can watch a livestream here.