Aaron Swartz Was Gifted and Brave. Too Bad He Wasn’t “Too Big to Fail”

Richard Eskow

By all accounts Aaron Swartz was brilliant, gifted, idealistic … and fragile.  Too bad he wasn’t “too big to fail.”

I never met Aaron, but I know a lot of people who knew him well. (We did “converse” as members of the same online discussion group.) I learned about Aaron’s suicide at the age of 26 the same way millions of other people did: on the Internet whose freedom he served with such dedication and brilliance. 

His death, just before his coming prosecution by the United States Department of Justice, brought to mind a line from the London Times‘ famous 1967 editorial protesting prosecutorial overreach in the drug trial of Mick Jagger:

“Who breaks a butterfly on a wheel?”

Suicide is an expression of the most profound pain imaginable, and mental health professionals caution against blaming it on any single factor. But they’ll also say that external stress can drive a person at risk over the brink. That’s what Aaron Swartz’s family and domestic partner say the Justice Department’s prosecution did to him.

So the question goes out to Massachusetts District Attorney Carmen Ortiz, and to Attorney General Eric Holder too: Who breaks a butterfly on a wheel? And, even more importantly: Why?

As the Science Progress and TechDirt websites noted in 2011, the US Attorney’s office in Massachusetts spoke of “stealing” when it indicted Aaron, but the indictment itself made no mention of copyright infringement. He used MIT’s network to download articles from the academic publishing company JSTOR, but that was permissible under their terms of service. But he did it with a software routine that downloaded millions of articles, apparently surreptitiously, and apparently with the intent to distribute them for free.

Whatever you think of his tactics, Aaron Swartz had an excellent point: JSTOR has been charging very high fees to let people read academic research, much of it funded by taxpayer money.None of that money apparently went to the authors. JSTOR didn’t want to prosecute Aaron, and has already decided to make millions of these articles available for free itself.

Aaron Swartz never made those pages public, and in any case he never intended to profit from his actions. Neither statement is true of Google, which placed millions of pages of copyrighted materials online. Aaron was never sued for copyright infringement, but Google was. And yet neither the Bush nor Obama Justice Departments pursued criminal charges against Google or its executives.  Google just wrote a big check and bragged about the settlement when it was over.

But then, Google’s too big to fail.

Aaron Swartz was never charged with “stealing” anything, but US Attorney Ortiz called him a thief anyway. If she had said that as an ordinary citizen, without the power of the Holder/Obama Justice Department behind her, she might have been sued for slander. Independent experts were shocked at her prosecution – some would saypersecution - of Swartz, which appeared to have a very thin legal rationale behind it.

Had Carmen Ortiz “gone rogue”? That seems unlikely. She’s enjoyed a close working relationship with Eric Holder that goes back to 1980, when she hqd a summer job working with Holder in (ironically enough) the Justice Department’s public integrity unit.

Aaron’s attorney said that Stephen P. Heymann, a “cybercrimes” expert in Ortiz’s office, insisted just last week that any plea bargaining include jail time for Swartz. That’s consistent with the Obama Administration’s extraordinary efforts to intimidate and harass figures like Aaron Swartz and Julian Assange, often using their lack of establishment clout to set legal precedents that would later apply with equal force to the New YorkTimes or any other news outlet.

Information may “want to be free,” as parts of the cyberculture like to say, but the Obama Administration apparently doesn’t share the sentiment.

Not a single individual at any major Wall Street bank has faced criminal charges, even as the settlements add up to hundreds of billions of dollars for their wanton – and criminal – lawbreaking. These settlements have allowed banks and bankers to escape the legal consequences of their actions, even as they admit (tacetly or openly) to crimes that include investor fraud, stock fraud, forgery, and perjury.

The Justice Department demanded jail time for Aaron Swartz, but not for any bankers. Instead it pushed for a foreclosure fraud deal that was unfair, unjust, and imbalanced. Bankers admit to these crimes, pay huge fines (or rather, their shareholders do) – and then, as the New York Times so ably documented, commit the same crimes over and over again.

There are no butterflies on Wall Street.

The investigators who uncovered criminal behavior at GE Capital were stunned when no indictments were handed down by Holder’s Justice Department, even though the investigators had identified the specific individuals involved and had provided documentation of their criminal fraud. GE’s punishment? CEO Jeffrey Immelt was appointed to lead President Obama’s “Jobs” Council.

JPMorgan Chase has been a similar nest of fraud. Its punishment? CEO Jamie Dimon got mildly grilled – and flattered, too – by a Senate Banking Committee where all but two members had received campaign contributions from his bank.  Too bad Aaron Swartz didn’t have its “vast web of money and staff connections.”

Many observers felt that the evidence of criminal action at Goldman Sachs was very substantial, and that it pointed toward (among other things) perjury by CEO Lloyd Blankfein. As we documented here, the evidence against some AIG executives was equally compelling.

But the Administration didn’t indict any bankers. Instead the President and Treasury Secretary pronounced them innocent without bothering to investigate. And when New York Attorney General Eric Schneiderman went after Wall Street, Holder’s Justice Department reportedly put heavy pressure on him to stop.

No butterflies on Wall Street.

Carmen Ortiz, like other US Attorneys, serves at the pleasure of the President. Like all US Attorneys, she works “under the direction of the Attorney General.” Eric Holder owes the American people an explanation for her actions – and his own inaction. So does his boss, the President.

The London Times got the “butterfly on a wheel” quote from Alexander Pope’s “Epistle to Arbuthnot,” which also speaks of “well-bred Spaniels (who) civilly delight/In mumbling of the Game they dare not bite.” When Wall Street’s been the game, the dogs of justice have mumbled at their heels but never bitten.

Aaron Swartz’s actions created no economic loss, while Wall Street’s crimes cost trillions of dollars. The LIBOR scandal alone implicates every major bank in the country. Bank of America, the worst corporate offender of them all, continues to go scott-free as CEO Brian Moynihan sneers at the law.

But they’re pursuing Aaron and Assange, not Blankfein and Brian. They’re chasing immigrants, not Immelt. They’re crushing butterflies and protecting birds of prey. Why?

Nothing can bring Aaron Swartz back. But if his death serves to shed light on these issues, if the American people finally demand answers about these perversions of justice, I like to think he’d be happy about that.  

For those who loved him and must now live without him, that’s not much. But it’s something.

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