There will be a lot of debate over the Justice Department's policies in charging computer crimes.

The "victim" in Aaron's case, JStor, asked that the prosecution be dropped. The Justice Department refused to do so.

Elliot Peters, Swartz's attorney, told The Associated Press on Sunday that the case "was horribly overblown" because JSTOR itself believed that Swartz had "the right" to download from the site. Swartz was not formally affiliated with MIT, but was a fellow at nearby Harvard University. MIT maintains an open campus and open computer network, Peters said. He said that made Swartz's accessing the network legal.

JSTOR's attorney, Mary Jo White — formerly the top federal prosecutor in Manhattan — had called the lead Boston prosecutor in the case and asked him to drop it, said Peters, also a former federal prosecutor in Manhattan who is now based in California.

One source of friction is the law.

"The government used the same laws intended to go after digital bank robbers to go after this 26-year-old genius," said Chris Soghoian, a technologist and policy analyst with the American Civil Liberties Union's speech, privacy and technology project.

Existing laws don't recognize the distinction between two types of computer crimes, Soghoian said: Malicious crimes committed for profit, such as the large-scale theft of bank data or corporate secrets; and cases where hackers break into systems to prove their skillfulness or spread information that they think should be available to the public.

JStor noted in its statement:

Aaron returned the data he had in his possession and JSTOR settled any civil claims we might have had against him in June 2011.

Aaron's attorney, Elliot Peters, outlined the deal the Government wanted Aaron to take:

As of Wednesday, the government took the position that any guilty plea by Swartz must include guilty pleas for all 13 charges and the possibility of jail time, Peters said. Otherwise the government would take the case to trial and seek a sentence of at least seven years.

JStor agreed with Aaron's attorney that the terms of the offered deal were excessive.

MIT, on the other hand, didn't do enough.

According to Peters (and also confirmed by Harvard Law Professor Lawrence Lessig, who advised Aaron early on:)

The university eventually took a neutral stance on the prosecution, Peters said. But he said MIT got federal law enforcement authorities involved in the case early and began releasing information to them voluntarily, without being issued a subpoena that would have forced it to do so.

Aaron's family issued a harsher statement, condemning the ovverreaching of the U.S. Attorneys office.

Aaron's death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney's office and at MIT contributed to his death. The US Attorney's office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community's most cherished principles.

Professor Lessig wriote:

[Aaron] is gone today, driven to the edge by what a decent society would only call bullying. I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.

According to Aaron's friends, Aaron was overwhelmed by the criminal charges and had been for months. His former girlfriend Quinn Norton, eloquently writes of the toll the case took on him.

I tried to take care of him while he was being destroyed, from inside and out. I struggled so hard, but not as hard as he did. I told him, time and again, that this was his 20s. It would be better in his 30s. Just wait. Please, just hold on.

He loved my daughter so much it filled the room like a mist. He was transported playing with her, and she bored right into his heart. In his darkest moments, which I couldn’t reach him, Ada could still touch him, even if only for a moment. And when he was in the light, my god. I couldn’t keep up with either of them. I would hang back and watch them spring and play and laugh, and be so grateful for them both.

Quinn told the New York Times :

He had “struggled with chronic, painful illness as well as depression,” she said, without specifying the illness, but he was still hopeful “at least about the world.”

On his webpage, Aaron's last few posts are movie reviews -- of the Dark Knight Rising and Looper, and he references suicide in both:

Thus Master Wayne is left without solutions. Out of options, it’s no wonder the series ends with his staged suicide.

.... Movie Joe somehow is able to foresee this future and concludes the only way to prevent it is to kill himself.

Aaron also wrote of his struggle with depression on his website. In 2007 he wrote:

Surely there have been times when you’ve been sad. Perhaps a loved one has abandoned you or a plan has gone horribly awry. Your face falls. Perhaps you cry. You feel worthless. You wonder whether it’s worth going on. Everything you think about seems bleak — the things you’ve done, the things you hope to do, the people around you. You want to lie in bed and keep the lights off. Depressed mood is like that, only it doesn’t come for any reason and it doesn’t go for any either. Go outside and get some fresh air or cuddle with a loved one and you don’t feel any better, only more upset at being unable to feel the joy that everyone else seems to feel. Everything gets colored by the sadness.

At best, you tell yourself that your thinking is irrational, that it is simply a mood disorder, that you should get on with your life. But sometimes that is worse. You feel as if streaks of pain are running through your head, you thrash your body, you search for some escape but find none. And this is one of the more moderate forms. As George Scialabba put it, “acute depression does not feel like falling ill, it feels like being tortured … the pain is not localized; it runs along every nerve, an unconsuming fire. … Even though one knows better, one cannot believe that it will ever end, or that anyone else has ever felt anything like it.”

It is hard to believe the Government was unaware of Aaron's struggle with depression. In an 8 page letter from the prosecutor to Aaron’s first lawyer (Via PACER, Document 20-1 filed 09/27/11), outlining the discovery in the case, the prosecutor writes the material includes:

....numerous relevant statements not made to government agents drafted by Defendant Swartz before the date of his arrest contained in electronic media, such as Twitter postings, websites and e-mail.

The Government added to the pressure by forcing his former girlfriend, Quinn Norton, to testify before the grand jury. In the same letter to his lawyer outlining the discovery, in a section on promises and inducements to witnesses, the prosecutor writes:

Promises, rewards, or inducements have been given to witness Erin Quinn Norton. Copies of the letter agreement with her and order of immunity with respect to her grand jury testimony are enclosed on Disk 3.

Was it really necessary for the Government to intrude on Aaron’s most private and intimate relationship and require his girlfriend to testify against him to make its case?

One misperception I keep reading online is that Aaron broke into the wiring closet at MIT to download the documents. There was no unauthorized entry or trespass into either the wiring closet or the university’s network. The wiring closet was not locked and was accessible to the public. If you look at the pictures supplied by the Government, you can see graffiti on one wall. This was not a hands-off area. Also, MIT had an open campus policy.It welcomed guests and invited them to log onto their network while on campus. It didn't take steps to verify who logged on. Using a pseudonym when logged on is not a violation or a crime.

Guests can register online to connect to MIT’s network.

You can also connect wirelessly to the MIT GUEST wireless network. This network does not require authentication, is not encrypted, and is not intended to access internal resources. Learn more about connecting to the MIT GUEST wireless network.

The University says here:

How to Connect

It is easy to connect to the MIT GUEST wireless network with a wireless device. Since there are no restrictions to connecting, your device should be able to "see" the network as one of the open wireless options and connect instantly. If your device can not see the network, contact the IS&T Help Desk for assistance.

Also, MIT's policy stated that a court order is necessary to turn over DHCP usage logs:

MIT is required to comply with a court order or valid subpoena that requests the disclosure of information contained in DHCP logs. Failure to comply could have serious consequences for the individuals, IS&T, and the Institute. MIT's Office of the General Counsel is qualified and authorized to confirm that a request for information contained in logs is legitimate and not an improper attempt to gain access to confidential information.

Aaron had a lot of good arguments for the suppression hearing set for Jan. 25. You can read a summary of them here.

Just last week, both sides filed briefs over the prosecutor's disclosure of an email he received in June, 2011 from the Secret Service Agent on the case, that he claimed to have somehow "overlooked" and was turning over now. The e-mail directly contradicted what the Government had previously told the court on a suppression issue.

Aaron was seeking to suppress evidence seized from his laptop, hard drive and a usb drive, which state police had seized without a warrant. One of the issues was the delay in seeking a search warrant. The feds didn't seek a search warrant for 34 days. Then they let that warrant expire without executing it, and sought another one, resulting in the search not occurring until 48 days after the computer and drives were seized. The Government was forced to admit that an earlier representation to the Court was not factually accurate. It had written in its initial response to one motion to suppress:

The Secret Service did not seize [Swartz’s] laptop, hard drive, or USB drive on January 6, 2011; the Cambridge Police Department did. Nor did the Secret Service possess this equipment before obtaining the warrants; the Cambridge Police Department did. Thus, the United States did not affect Swartz’s possessory interest in his equipment until it executed warrants. … Swartz cannot simply morph allegations that local police held evidence too long in a local prosecution into a claim that federal law enforcement officers did so in a subsequent federal case

The email the AUSA turned over a year and a half late stated:

The laptop and external hard drive have been logged into evidence with MIT police. Cambridge Police will take the laptop and hard drive to process them for prints this morning. I am prepared to take custody of the laptop anytime after it has been processed for prints or whenever you feel is appropriate. As far as I know no one has sought a warrant for the examination of the computer, the cell phone that was on his person or the 8gb flash drive that was in his backpack. (My emphasis)

This is not the first time the Mass. U.S. Attorney's office has delayed turning over evidence favorable to the accused. In 2008, a prosecutor in that case begged the judge for mercy in deciding whether to sanction her for withholding evidence.

The Judge, while noting she has admitted the mistake and that it was not intentional or strategic, has taken the matter under advisement, stating it's hardly the first such lapse in the Boston U.S. Attorney's office: [

One of the many articles I read yesterday) compared Aaron's alleged misconduct to taking too many books out of the library. Perhaps the Government legitimately believed Aaron should be prosecuted. But judging from the pleadings, and I read all of them of PACER this weekend, their case was far from a slam-dunk. If they had any inkling of his bouts with serious depression, and it seems they should have, the overcharging is hard to reconcile with their sworn duty to seek justice.

It's good that MIT will review its actions. The Justice Department needs to do the same.