The Freedom Bulletin

Image credit: Taren SK via Tumblr

Was Aaron Swartz killed by depression or by the bullying of the U.S. Attorney’s Office? In the aftermath of his suicide in January, there have been many blog posts, columns, editorials, and articles on both sides of the debate. Those closest to Aaron have taken the latter view, that the harsh treatment by the U.S. Attorney’s Office of Massachusetts, which charged him with 13 felonies for downloading millions of academic articles from the online database JSTOR, caused his death. His friend, lawyer and copyright activist Lawrence Lessig, said at his funeral, “Aaron was depressed because God is depressed. Look at this world and what we have done—who wouldn’t be depressed?” His father, Robert Swartz, went as far as to say, “Aaron did not commit suicide but was killed by the government.” Aaron’s girlfriend, Taren Stinebrickner-Kauffman, explained her view in detail in a recent blog post entitled, “Why Aaron Died.”

I believe that Aaron’s death was not caused by depression.

I say this with the understanding that many other people would not have made the same choice that Aaron made, even under the same pressures he faced.

I say this not in any way to understate the pain he was in — nor, for that matter, the pain that clinically depressed people are in.

I say this despite the fact that early on in our relationship, I had read and discussed with him his infamous blog post about suicide written years before — so I was not unaware that he had struggled with mental health in the past.

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I believe Aaron’s death was caused by exhaustion, by fear, and by uncertainty. I believe that Aaron’s death was caused by a persecution and a prosecution that had already wound on for 2 years (what happened to our right to a speedy trial?) and had already drained all of his financial resources. I believe that Aaron’s death was caused by a criminal justice system that prioritizes power over mercy, vengeance over justice; a system that punishes innocent people for trying to prove their innocence instead of accepting plea deals that mark them as criminals in perpetuity; a system where incentives and power structures align for prosecutors to destroy the life of an innovator like Aaron in the pursuit of their own ambitions.

Ask yourself this: If on January 10, Steve Heymann and Carmen Ortiz at the Massachusetts US Attorney’s office had called Aaron’s lawyer and said they’d realized their mistake and that they were dropping all charges — or even for that matter that they were ready to offer a reasonable plea deal that wouldn’t have marked Aaron as a felon for the rest of his life — would Aaron have killed himself on January 11?

The answer is unquestionably no.

I agree with her.

Of course, not everyone in Aaron’s situation would have committed suicide. People are born with all different temperaments; some optimistic and some pessimistic; some thin-skinned and others able to shrug off criticism; some easily upset by adversity and others more resilient. A profile of Aaron recently published by Slate describes his tendency to become frustrated with situations and people that did not live up to his ideals or suit his personality. For example, he dropped out of high school because he philosophically disagreed with traditional organized education and then out of college because his peers weren’t intellectual enough. He left his job at Reddit because working in an office environment didn’t agree with him. It seems that when it comes to finding happiness and contentment, Aaron was relatively picky. Many, if not most, people don’t love their high schools, colleges, or jobs, but they continue at them because that’s what they’re expected to do, or because they simply need the money. But there’s nothing wrong with the way Aaron was, and there’s no reason to criticize him for reacting to the challenges he faced in the way that he did.

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Internet freedom fighter Aaron Swartz was driven to his death almost two weeks ago by prosecutorial bullying, but his legacy might still change the legal system for the better.

Congressional Criticism

The prosecution – or should I say persecution – of Swartz has drawn increased (and deserved) scrutiny from members of Congress. One needed change is in the Computer Fraud and Abuse Act, the statute under which he was charged. Technically, this law makes it a federal crime to violate a website’s terms of service, something that internet users do every day. Rep. Zoe Lofgren (D-CA) has introduced a bill, entitled “Aaron’s Law,” which would change this. You can view the text of the proposed bill here (PDF). She called the charges against Aaron “pretty outrageous” and the prosecutors’ conduct “way out of line.” In an interview with Mashable, she explained, “If the statute allowed multiple felony charges to be lodged for what Aaron Swartz did, the statute should be changed.”

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Aaron H. Swartz, 11/8/1986 – 1/11/2013

On Friday, January 11, 2013, Aaron Swartz, age 26, hanged himself to death in his Brooklyn, NY, apartment. He was a brilliant computer programmer and a courageous advocate for Internet freedom.

At age 13, he created a web encyclopedia and won the ArsDigita Prize, an award for young people who create “useful, educational, and collaborative” websites. At age 14, he created RSS, the technology behind the link that you see in the sidebar of nearly every blog, enabling readers to subscribe to blog updates. At age 15, he helped to found Creative Commons, likely the most well-known and popular system for licensing content so that it can be redistributed by others. Later he created a wiki platform called Infogami, which merged with Reddit in 2005, making him more or less a co-founder of Reddit. He built the website framework web.py as well as the Open Library, a digital library making books available for free through the Internet. Additionally, he worked on HTTPS Everywhere, a browser extension that helps to protect privacy. From 2010-2011, he was a fellow at Harvard’s Edmond J. Safra Center for Ethics. In 2010, he founded Demand Progress, an advocacy group that has fought against naked body scanners, the Patriot Act, and threats to Internet freedom. Swartz and Demand Progress were instrumental in defeating SOPA and PIPA, and on May 21, 2012 he gave the keynote address at the Freedom to Connect event in Washington, D.C., entitled, “How we stopped SOPA.”

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On Friday, a jury in New Jersey convicted Dharun Ravi of several counts of invasion of privacy, bias intimidation, and witness and evidence tampering for spying on his college roommate, Tyler Clementi. The case would be nowhere near as highly-publicized as it is, and likely would never have become a criminal case at all, if it weren’t for Clementi’s suicide shortly after the spying, in September 2010. Because Clementi was gay and Ravi had spied on him kissing another guy, his death became symbolic to many gay rights and anti-bullying advocates who demanded (rightly) that something be done to fight back against bullying and harassment. Was Ravi’s conviction – which could result in deportation and/or jail time – the right way to fight back? In some respects, yes; in other respects, no.

Ravi faced 13 main charges and was convicted on all of them. Two invasion of privacy charges were for using a webcam to spy on Clementi and his guest engaging in intimate contact without their consent, two more invasion of privacy charges were for making it possible for others to view the webcam feed, and four attempted invasion of privacy charges involved trying to do the same on a different occasion. Seven additional counts involved deleting tweets and text messages, lying to police, and trying to influence others in what they told police, in order to impede the investigation.

On top of all these charges, the invasion of privacy charges carried various counts of bias intimidation, alleging that either Ravi’s goal was to intimidate Clementi because of his sexual orientation, or that he knew Clementi would be intimidated because of his sexual orientation, or that Clementi ended up being intimidated and reasonably believed that he had been targeted because of his sexual orientation. The jury convicted Ravi of at least one of these bias intimidation counts for each invasion of privacy charge, for a total of 24 convictions on 35 total charges.

See a breakdown of all the charges here.

First of all, I agree with the prosecutor’s and the jury’s harsh response to Ravi’s actions to the extent that it is important to treat mental and emotional harm as seriously as physical harm. Legal systems tend to treat things as a violation of a person’s rights only if they physically hurt the person or cause them to lose property or money. But harassment, humiliation, exclusion, and insults can be every bit as harmful as theft, vandalism, or assault, and perpetrating them against innocent people is equally horrible. Bullying violates the rights of its victims, and the legal system should act accordingly.

In Ravi’s specific case, I think it is completely appropriate for him to be punished for watching Clementi (above) and his guest kissing without their permission, and especially for inviting others to do the same. The details of the case are not as clear cut as many initially believed (including myself when I first blogged about it). Ravi’s defense team suggested that he was worried about theft because Clementi’s male friend was a few years older and looked “creepy.” And as Ian Parker at the New Yorker pointed out, no video was actually posted on the Internet, and there was no sex shown on the webcam, just kissing. But the evidence showed that Ravi intended to watch, and invite others to watch, Clementi and his male friend hooking up. He texted about a “viewing party with a bottle of Bacardi and beer,” tweeted, ”anyone with iChat, I dare you to video chat me,” and made sure the camera was pointing at Clementi’s bed. Ravi’s actions were simply wrong. People have a right to live free from secret surveillance, especially in their own rooms.

The one thing that I disagree with about this verdict is that it treats the crimes against Clementi as especially bad because he was gay. The basic principle behind hate crimes, of which the bias intimidation charges are an example, is that it is especially wrong to commit crimes against a person if you are motivated by hatred of them based upon a certain group that they belong to, such as their religion, race, nationality, gender, or sexual orientation. First of all, the phrase “hate crime” is a bit of a misnomer because it equates “hate” with prejudice against a group. But it is certainly possible to hate a person for reasons other than their membership in a historically-disadvantaged group. And if directed at a person who does not deserve it, this is every bit as horrible as group prejudice. For example, I was bullied in middle school because I preferred to wear dresses and skirts instead of jeans, was shy and quiet, didn’t listen to “cool” music, didn’t use the latest slang, and was interested in “geeky” things like history and books. As far as I know, I was not the victim of any crimes currently on the books, but had I been, this would not meet the criteria for a hate crime, and so the perpetrators would not face an enhanced sentence. The fact that I was targeted because of who I am as an individual, as opposed to a group that I belong to, does not make the bullying any less hurtful, the motivations behind it any less heinous, or the bullies any less deserving of punishment.

The bottom line is that bullying innocent people and violating their privacy should be treated harshly by the legal system, no matter what the victim’s religion, race, nationality, gender, or sexual orientation.

There are some stories that make me think, “Why on earth would someone do that?”

This is one of them:

“The New Jersey attorney general’s office is reviewing the case of a Rutgers University freshman who jumped from the George Washington Bridge last week after images of him having sex with another man were broadcast on the Internet, and will decide whether to prosecute the incident as a bias crime, a spokesman said Thursday.”

“A body pulled from the Hudson River was identified Thursday as that of Tyler Clementi, 18, of Ridgewood, N.J. His death was ruled a suicide. Clementi’s roommate, Dharun Ravi, and a friend of Ravi’s, Molly Wei, have each been charged with two counts of invasion of privacy for using a webcam to film and transmit footage of Clementi having sex in his dorm room.”

I cannot, for the life of me, comprehend why someone would decide to tape their roommate having sex and put it on the Internet.

I don’t necessarily agree with the idea that this (alleged) crime was homophobic or a hate crime. The accused students may not have been motivated by hatred for gay people, and even if they were, I don’t think that would be any worse than if they were just motivated by hatred for Tyler as an individual.

Taping someone having sex and putting it on the Internet is cruel, wrong, and violates their rights regardless of whether they are gay or straight. It’s a shame that the maximum penalty for this is five years in prison (10 if it is a hate crime), considering that people can get more than that for victimless crimes like gun possession and drug use. If they are indeed guilty, the two suspects’ actions directly caused the victim’s death, so I certainly don’t think it would be inappropriate to charge them with homicide.

Some of the comments that people have posted about this case (here for example) are horrific. While most commenters actually have brains and hearts, some have posted that being gay is vile and despicable, that Tyler committed suicide because he knew that what he did was wrong, that anyone who commits suicide must have something wrong with them, that Ravi was the real victim because he had a gay roommate, and that he had a constitutional right to secretly tape Tyler having sex and put it on the Internet.

Although it must be annoying when your roommate has sex in your room, Ravi and Wei seem to have done the taping not out of frustration but because they thought it would be funny to humiliate a fellow student. Ravi did not seem at all threatened, upset, or even inconvenienced, happily tweeting things like “”I saw him making out with a dude. Yay.” and “Anyone with iChat, I dare you to video chat me between the hours of 9:30 and 12. Yes it’s happening again.” Tyler did not commit suicide because he had “issues;” he committed suicide because two people decided to violate his rights and humiliate him, something that no one should have to deal with. As for the claim that Ravi had a right to do what he allegedly did, ask yourself this question: What is more important, the right to secretly tape people and put it on the Internet, or the right not to have people secretly tape you and put it on the Internet? I think the latter.

The bottom line is that the two suspects in this case, if guilty, are bullies. Tyler’s sexual orientation is irrelevant; the case would be just as tragic, and the alleged crime just as evil, had he been straight. Humiliating another person – whether gay, straight, bi, or asexual - is not funny, and in this case it cost a young man his life.

Photo courtesy of Jon Markoff via Facebook.

Alleged Craigslist Killer Philip Markoff committed suicide a little over a week ago, on August 15. Although I never knew him personally, and although he is an accused murderer, I am still a little sad about his death.

I went to both of Markoff’s arraignments and was planning to attend his trial in March. It is disappointing that he won’t have a trial, but of course that is not the only reason why his death is sad. No matter what crimes he may have committed, he is a human being and a unique individual.

The way Markoff died must have been extremely painful. From what I pieced together from various news reports, it seems that he killed himself sometime between 1:59 a.m. when he turned out his light and 10:06 a.m. when jail staff found his body. He cut his wrists, arms, ankles, and throat with a makeshift scalpel made of a pen and a sharpened piece of metal, severing his carotid artery and several veins. At some point, he wrote two words on the wall above the door, presumably in his own blood: “Megan,” his ex-fiancee’s name, and “pocket,” which seems to be a word he and Megan used for each other. He stuffed toilet paper down his throat to prevent attempts to revive him. He used gauze to tie a clear plastic bag over his head to suffocate himself and another one around his feet to hide the blood. Then he lay down and covered himself with a blanket.

Many people say that suicide is the coward’s way out, but what Markoff did takes a strange kind of courage. Clearly, he wanted to die, and he used his medical training to ensure that this would happen. Markoff’s life belongs to him, and I believe that he had the right to do what he wanted with his own life, including ending it. I don’t believe in encouraging inmates to kill themselves, as some people have suggested, but neither do I support taking away their freedom and privacy to keep them alive against their wishes.

The other day I was reading the comments on the Facebook group supporting Markoff, and it was interesting to read the positive comments about him. Some people expressed sadness at his death and condolences to his family, some emphasized that he was never proven guilty and the world never got to know what evidence his defense team might have presented, and others criticized Suffolk County D.A. Dan Conley for promising to present evidence to the public without Markoff having any opportunity to defend himself. Despite the seemingly strong evidence against Markoff, I admire his family and friends for sticking by him. His brother Jon wrote:

“He was a great guy, and a lot of people are really going to miss him. Thanks for everyone’s support through this difficult time. RIP Phil I will always love you.”

His Facebook picture is the one above of him and Phil together.

Questions still remain, such as:

• Why did Markoff commit suicide? Was it out of guilt, to avoid a trial, or simply because there would be nothing to look forward to if he was convicted and sentenced to life in prison?
• Why did he write Megan’s name on the wall, display her pictures on the table in his cell, and choose to die on the day after his would-be wedding anniversary? Did he love and miss her, or did he feel angry and betrayed? Or both?
• How exactly is Conley going to present his evidence against Markoff? Could his family sue to stop this? Will they sue the Nashua Street Jail for wrongful death? Can Julissa Brisman’s family sue anyone for her death?

We will eventually learn the answers to some of these, but others we may never know the answers to.

He will forever be 24 years old, unmarried, and the alleged Craigslist Killer.

Rest in peace, Phil Markoff.

Suffolk County District Attorney Dan Conley held a press conference today about Philip Markoff’s suicide, and he also e-mailed out the following press release (I bolded the most important parts):

“At 10:06 am this past Sunday, Aug. 15, a corrections officer making routine rounds at the Nashua Street Jail discovered Phillip Markoff unresponsive in his jail cell.  Staff at Nashua Street immediately administered CPR and notified 911.  Within minutes, members of Boston Emergency Medical Services responded to Mr. Markoff’s cell.  Efforts to revive Mr. Markoff were unsuccessful and he was pronounced dead at 10:17 am.  Mr. Markoff died at his own hand.

“This death should not divert attention from what really happened here. It should not obscure the overwhelming evidence against Mr. Markoff or the brutality of his crimes. It is, in no small way, the ultimate indicator of consciousness of guilt.

“As the District Attorney, I am designated by statute to direct all death investigations within Suffolk County.  Mr. Markoff’s death is no different.  I have assigned Assistant District Attorney Mark Lee, deputy chief of our Homicide Unit, to lead this investigation with the Boston Police Homicide Unit squad led by Sgt. Det. Mark Sullivan.

“The investigation into Mr. Markoff’s death has been active since the moment of its discovery.  It remains active even at this hour and as a result there are still some pieces of information that cannot yet be released.  Nonetheless, the public deserves updated and accurate information about Mr. Markoff’s death.

“The following information is based on the recovery of physical evidence, key witness interviews, examination of video surveillance footage, an autopsy of Mr. Markoff’s body by the Office of the Chief Medical Examiner, and initial observations of the condition of Mr. Markoff’s body and his cell at the time he was discovered. 

“Mr. Markoff was the sole occupant of cell #24 at Nashua Street Jail.

“At 1:59 am on Sunday, August 15, he was alone in his locked cell and turned out his light.

“A review of surveillance footage reveals that no one entered Mr. Markoff’s cell until the time he was discovered some eight hours later at 10:06 a.m.

“Mr. Markoff took several measures to harm himself and ensure his own death.  Using a primitive scalpel made from a pen and a sharp piece of metal, he inflicted a series of small punctures and incisions on his body, including his neck, arms, wrists, and ankles.  He hit several veins and the carotid artery in his neck.  All of the wounds were consistent with suicide.

“Mr. Markoff fastened a plastic bag around his head with a length of gauze. He fastened a second plastic bag around his feet.  These were large, clear bags available to inmates at the jail.

“After autopsy, the Medical Examiner determined that this series of actions resulted in air loss and blood loss and combined to cause his death.  We’re currently awaiting toxicology reports to determine what medications, if any, were in his system and whether they contributed to his death.

“Many of you are also curious as to what effect Mr. Markoff’s death has on the criminal case against him.  His death effectively terminates our pending prosecution, and we will file a nolle prosequi closing the case at the next scheduled court date of Sept. 16.

“The evidence assembled against this defendant was overwhelming in quantity and substance.  All of it was developed by the men and women of the Suffolk DA’s office and the Boston Police Homicide Unit who left no stone unturned in their efforts to bring Philip Markoff to justice for the murder of Julissa Brisman.

“With Philip Markoff’s final actions, the Brisman family has been deprived of an opportunity to hear a verdict rendered, to see justice pronounced, and even the chance to tell the court and Mr. Markoff – face to face – what Julissa meant to them and the immeasurable pain and loss he inflicted upon them.  These are important moments for victims of this type of violence and, as we did from the very beginning, I ask you all again to keep Julissa Brisman and her family and friends in your thoughts and prayers.

“I want to extend a final word of thanks to Comissioner Ed Davis for his leadership throughout this case and to the men and women of the Boston Police Homicide, Special Investigations and Fugitive Units.  I also want to recognize the Massachusetts State Police, the FBI, Secret Service, Warwick , Rhode Island police department, the Rhose Island Attorney General’s Office, and the New York City Police Department for their outstanding contributions into the investigation of Philip Markoff’s crimes.”

For more details about Markoff’s dramatic death, see the following news articles:

• Boston Globe – Craigslist suspect Markoff scrawled messages in blood
• Boston Globe – ‘Nothing remarkable’ about Markoff while he awaited trial
• Boston Globe – Markoff fashioned ‘primitive scalpel’ to kill himself
• Boston Globe – James Fox: Denied justice or just us?
• Boston Herald – Suicide dashes hopes for truth
• Boston Herald – Markoff was ‘hell bent’ on killing self
• Boston Herald – NH gun shop cleared in sale of gun to Markoff
• Boston Herald – Margery Eagan: Cowardly act spared Brismans lifetime of pain
• Boston Herald – Autopsy results show Markoff bled, suffocated to death
• ABC – ‘Craigslist Killer’ Philip Markoff died among his fiancee’s photos
• Right Juris – Accused ‘Craigslist Killer’ committed suicide
• New York Post: Final Craigslist chiller

Update as of August 18: Suffolk County Sheriff Andrea Cabral gave a press conference, where she defended the jail’s policies and said that it is impossible to prevent 100% of suicides. She also said that Markoff had been dead for some time before he was found at 10:06 a.m. Additionally, Fox 25 obtained a few exclusive pictures of the bloody words Markoff wrote on the wall of his cell and the makeshift scalpel and plastic bag that he allegedly used.