AARON SWARTZ : AARON SWARTZ DEMONSTRATES WHY PUBLIC RECORDS SHOULD BE FREE

Image: Aaron Swartz's mugshot, U.S Marshals

US law requires that the government provide easy access to public records to the general public. The term "public record" can be confusing to many people because even though a record is "public" and available for public examination, it may not be readily accessible for many reasons. States and federal law definitions of what records are public vary, but generally they may include birth, marriage, and death records, court filings, arrest records, government contracts holders, property ownership and tax information, minutes of government meetings, SEC filings, driver's license information, occupational licenses and medical licenses. All of these may be public records, but a person might not be able to access them freely. This raises the question: what good are public records that no one sees? The answer is no good at all. As Professor Fred Cate states:

"Open access to public records is a cornerstone of American democracy. Such access is central to electing and monitoring public officials, evaluating government operations, and protecting against secret government activities. Open access recognizes that citizens have a right to obtain data that their tax dollars have been spent to create or collect. The value of this essential infrastructure, however, extends far beyond government. Its benefits are so numerous and diverse that they impact virtually every facet of American life, to the extent that we frequently take the benefits for granted."

Aaron Swartz would have agreed with Cate. Swartz was one of this generation’s greatest advocates for Open Access and the free Internet movement. He championed ideas and technologies that put public records within the reach of ordinary citizens for free. Reddit, RSS and Creative Commons licenses are all part of the legacy he left behind. Swartz, as founder of the organization Demand Progress, helped to organize the grassroots opposition to the Stop Online Piracy Act (SOPA) legislation being championed in Congress. Although current laws do not recognize any distinction between computer crimes committed for profit and those of Swartz which were committed to spread information that he thought should be available to the public, there should a difference. He was in the midst of preparing for a crucial hearing in his federal criminal case when he committed suicide. Swartz’s suicide which is linked to being prosecuted by the government for releasing JSTOR records without permission only highlights why public records should be free.

Swartz had a long history of working to improve access to public records. In 2006, he acquired the Library of Congress’s complete bibliographic dataset and posted the data in the Open Library because government documents are not copyright-protected within the USA. The library charged fees to access this and Schwartz believed such information should be made freely available. Then in 2008, he answered the appeal of fellow activist Carl Malamud to visit one of 17 libraries conducting a free trial of the antiquated Public Access to Court Electronic Records (PACER) system and download court documents to send to him for free public distribution. Swartz downloaded almost 20% of the entire database using a Perl computer script and donated the documents to Malamud’s non-profit Public.Resource.org. Malamud argued that the government produced documents should be free and PACER was charging 8 cents a page for the information.

The PACER free trial was shut down after the court system’s IT department realized someone was downloading everything for free, even though none of the records were private or sealed. The U.S. court system told the FBI that Swartz comprised the system and pilfered approximately 18 million pages of documents worth $1.5 million dollars because that is how much the public records would have cost if he had paid PACER’s fee of eight cents a page. Federal agents also checked Swartz’s Facebook page, researched his work history, looked for outstanding warrants and prior convictions, looked to see if his cell phone number had ever come up in a federal wiretap or pen register, and checked him against the records in a private data broker’s database. The FBI investigated Swartz for helping to put public documents in the public domain online and closed the case without any charges being filed. Swartz learned about their investigation by filing a Freedom of Information Act request with the FBI.

Sometimes people do not recognize censorship in its many forms and guises. One of the most effective ways to censor information is to put up a fee barrier. This is what was happening with the databases Swartz was accessing for public records. Clemson University professor Kelly Caine believes that Swartz "was doing this not to hurt anybody, not for personal gain, but because he believed that information should be free and open, and he felt it would help a lot of people." The fees may not have appeared to be exorbitant but they added up for the average person. The court would have charged Swartz a total of $1.5 million for the free documents he downloaded from PACER. Imagine if you had to pay $1 for every internet page you accessed including your email account. That $1 fee per page would change the way you surfed, checked accounts, entertained, educated and informed yourself online. More importantly, it would likely keep you from accessing public records released for your health and safety.

Law enforcement eventually did catch up with Swartz. As the New York Times reported in 2011: "A respected Harvard researcher who also is an Internet folk hero has been arrested in Boston on charges related to computer hacking, which are based on allegations that he downloaded articles that he was entitled to get free." Swartz reportedly downloaded about 4 million articles from academic journals stored in JSTOR, a fee-based repository which provides a limited number of articles to students and researchers free of charge. The massive download requests caused some of Massachusetts Institute of Technology’s servers to crash. At the time, Swartz was a fellow at Harvard University and was provided with a free JSTOR account. However, he took measures to hide his own identity as the computer’s owner and user on the JSTOR network. Prosecutors alleged that he downloaded an extraordinary number of articles from JSTOR using a laptop attached to MIT's computer network, which ran a script named "keepgrabbing.py". They said that Swartz acted with the intention of making the papers available for free on peer-to-peer (P2P) file sharing sites. Swartz was charged with computer fraud, wire fraud, unlawfully obtaining information from a protected computer and recklessly damaging a protected computer. He faced up to 35 years in prison and a fine of $1M if convicted. Swartz pled not guilty.

Prosecutors expected the Swartz case to test how far the Computer Fraud and Abuse Act (CFAA) of 1986 could be applied in a situation like Swartz’s unauthorized accessing of free information he was entitled to get. The CFAA was enacted to enhance the government’s ability to prosecute hackers who accessed computers to steal information or to disrupt or destroy computer functionality. JSTOR, the victim, made a public statement after Swartz’s arrest that it would not pursue civil litigation against him. Moreover, shortly before his death, JSTOR decided to make “more than 4.5 million articles" available free to the public. Thus, it is apparent no real harm was done by Swartz. Prosecutors routinely decline to prosecute cases where the black letter law may have been violated but the victim is not aggrieved; yet, in this case, the prosecutors relentlessly went after Swartz because they wanted to make an example of him. In the eyes of the law, Swartz was a criminal. He broke the law when he violated a “terms of service” agreement and accessed so many free public documents. MIT had no problem with supporting the prosecution in their case against him.

MSNBC contributor Chris Hayes summed the situation up when he said, "at the time of his death Aaron was being prosecuted by the federal government and threatened with up to 35 years in prison and $1 million in fines for the crime of—and I’m not exaggerating here—downloading too many free articles from the online database of scholarly work JSTOR." The federal government is unlikely to prosecute typical internet users for violating terms of service agreements but Swartz was unfairly singled out because he had been so vocal about open access. Just the thought of being convicted on felony charges like the ones Swartz was facing is a very big deal with lifelong implications and his initial attorney notified prosecutors that he was at risk for suicide. Whether it was 35 years or six months in jail, the depressed young man would have been forever scarred by the overzealous and overly aggressive prosecution lead by U.S. Attorney Carmen Ortiz for violating a “terms of service” agreement for documents in the public domain.

In the wake of Swartz’s suicide, Congressional Representative Zoe Lofgren (D-CA) introduced legislation she dubbed "Aaron's Law," which would modify the Computer Fraud and Abuse Act, the basis for Swartz's prosecution, to clarify that its definition of unauthorized access "does not include access in violation of an agreement or contractual obligation, such as an acceptable use policy or terms of service agreement, with an Internet service provider, Internet website, or employer." It would make a similar change to the wire fraud statute.

Amending a hacking law like the Computer Fraud and Abuse Act of 1986 to exclude end-user license agreement (EULA) violations is not enough to address the issue of free access to public records. Swartz wanted information everyone has the right to know to be made public for free. JSTOR seems to be getting that point, even though the organization has not ceased to charge access fees for one of the world’s largest archives of scholarly literature that is mostly in the public domain. In an undated, unsigned statement, it admits that the Swartz “case is one that we ourselves had regretted being drawn into from the outset, since JSTOR’s mission is to foster widespread access to the world’s body of scholarly knowledge." This mission was not actually harmed by Swartz’s actions in the case.

JSTOR has received some unauthorized help in spreading this access to their archive of scholarly knowledge. A couple of days ago, a group of online archivists released the "Aaron Swartz Memorial JSTOR Liberator,” a JavaScript-based bookmarklet that lets Internet users "liberate" an article, already in the public domain, from the online academic archive JSTOR. By running the script—which can only be used once per browser—a public domain academic article is downloaded from JSTOR to the user’s computer, then uploaded back to ArchiveTeam in a small act of protest against the organization’s restrictive policies.

Though there is a plethora of free public record information on the web, the type and quality of the information varies from state to state. Most government agencies and court systems at all levels of government - local, state, and federal - are making public records available on websites to different degrees. However, all of this public information is not necessarily available to access for free online. Sometimes the information is accessible electronically from government sites for free or a low-cost. Other times, the agency or court sells the public records in their custody to fee-based commercial data "JSTOR Statement: Misuse Incident and Criminal Case". JSTOR. Retrieved January 21, 2013.compilers and information brokers who provide access for an even higher cost. Any number of people may want to access the public records in these databases but they cannot do so due to the fees required. This is unconscionable since public records are already paid for by the taxes of the people. Why should they have to pay a second time for public records essentially ‘held in trust’ for them by the government?

Public records provide notice of official actions taken by government to all the individual members of society, as well as give the official status of individuals and property. Using the internet and other new electronic technology to make public records accessible to citizens is a potent way to empower people with tools to keep government accountable quickly and cheaply. The internet allows easy, inexpensive access to public records information from a multitude of databases. This internet access does alter the balance between access and privacy that has existed in paper and microfiche records because no one has to physically retrieve such records, but such records are still available public records--- they just require more effort to obtain. As other countries’ concerns over personal privacy have lead them to enact laws that limit the ability to use personal information, the United States must continue to resist regulating how information on individuals can be gathered and used. Public records were meant to be free and accessible; thus, any laws that limit the public's rights to access such information should be resisted.

Swartz understood that the benefits of free access to public records cannot be underestimated. While much of what he downloaded and put into the public domain for free access were scholarly works and judicial documents, the ability to access other public records freely is just as valuable. Public records are the foundation of all of our real property and real estate transactions. Every day journalists and reporters rely on public records for information to use in news reports that inform the public about crimes, court cases, legislation, abuse, government fraud, waste, and abuse, and countless other issues. Moreover, law enforcement uses public record information to prevent, detect, and solve crimes. For example, the FBI routinely uses commercial online databases and social media to obtain a wide variety of public source information about individuals they are seeking, including witnesses, tax cheats and deadbeat parents. Epidemiologists and other researchers collect public information for thousands of studies each year concerning public health, disease patterns, environmental quality, and other subjects. Public records are used for many legitimate reasons and should be accessible by anyone, not just those with financial resources and specialized know-how.

Three days after Swartz died, the global hacktivist collective, Anonymous, broke into MIT's website and replaced its front page with the simple line: "In Memoriam, Aaron Swartz." A statement followed that called the Justice Department's prosecution "a grotesque miscarriage of justice" and "a distorted and perverse shadow of the justice that Aaron died fighting for. We call for this tragedy to be a basis for a renewed and unwavering commitment to a free and unfettered Internet, spared from censorship with equality of access and franchise for all." Free access to public records is absolutely necessary in order to assure accountability of our government and public officials, as well as secure our collective safety and civil liberties. These records must be seen. Additionally, internet freedom economically facilitates public record access, making information and knowledge as available as possible to the ordinary individual for a variety of beneficial uses. Supporting measures that enhance free access to public records could help prevent another case like Aaron Swartz’s from happening again.