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Aaron Swartz Case Draws Letter To Eric Holder From Darrell Issa, Elijah Cummings

01/28/2013 07:36 pm 19:36:13 | Updated Jan 28, 2013

WASHINGTON -- The top Republican and top Democrat on the House Oversight Committee sent a joint letter late Monday to Attorney General Eric Holder posing pointed questions about the prosecution of Internet pioneer and political activist Aaron Swartz.

Swartz committed suicide this month after fighting federal hacking charges for two years. The letter from Issa and Cummings is the first clear bipartisan response to Swartz's prosecution, heavily criticized by computer and criminal justice experts as unwarranted and excessive. Swartz would have faced up to 35 years in prison if convicted of hacking charges stemming from mass downloads of academic journal articles from the online database JSTOR. Although Swartz had legal access to all of the articles, he was accused of violating the database terms of service by downloading so many at once. JSTOR had opposed his prosecution.

Issa has championed Internet freedom causes in recent years, and was one of the first Republican lawmakers to speak out against the Stop Online Piracy Act. Swartz was a leading opponent of SOPA. But Issa also has a reputation as a hard-nosed political partisan, who made few friends with Democratic members of his committee during his "Fast and Furious" gun investigation, which devolved into a conspiracy-theory circus.

Issa began an investigation into the Swartz case earlier this month. But the joint letter from Issa and Cummings suggests a more collaborative approach to an inquiry into the Justice Department's handling of the Swartz case. The two lawmakers ask for a briefing to be scheduled with Justice Department staff within a week. The letter also raises Holder's profile in the case and is the first sign of an effort to inspect procedural standards at Justice along with any specific failures in the Swartz case.

The letter from Issa and Cummings asks Holder about factors that led to the decision to prosecute Swartz, along with key decisions after the case began. The letter also asks if Swartz's political advocacy, including his anti-SOPA work, were factors that DOJ considered relevant.

Issa told HuffPost he had a staffer looking into the Swartz prosecution earlier this month, calling overprosecution “a tool often used to get people to plead guilty rather than risk sentencing.”

The Justice Department has already agreed to brief the two lawmakers, Cummings told HuffPost. "I expect that we'll be meeting with them next week," he said. "We expect to have a candid and open discussion with the U.S. Attorney's Office and then we'll take it from there, but I promise you we will not leave one stone unturned.

"I'm pleased that it's a joint effort, by the way," said Cummings, whose signature on the letter raises the pressure on the Justice Department. "There's more than one issue here. Is the law too vague? Why was he being charged the way he was when the university decided they were not going to prosecute? Did that have any bearing?"

Holder, who has been silent on the Swartz case, also text received a letter from Senate Minority Whip John Cornyn (R-Texas) last week, asking some of the same questions posed in the Issa-Cummings letter. U.S. Attorney Carmen Ortiz, whose office was prosecuting Swartz, insisted that all of her office's actions were "appropriate," emphasizing that prosecutors did not seek the maximum 35 years in prison permissible under sentencing guidelines.

Internet freedom activists and progressive political groups are pressing for legislative reforms in the aftermath of Swartz's suicide, and the House Oversight Committee's investigation will likely be used to generate specific policy recommendations and political pressure for action.

A proposal to upgrade the Computer Fraud and Abuse Act from Rep. Zoe Lofgren (D-Calif.) has garnered attention from Internet advocacy groups, which are hammering out language for a more substantive reform. The Justice Department, however, has been fighting these efforts on Capitol Hill, according to a congressional staffer familiar with legislative discussions.

A Department of Justice spokesman wasn't available to comment.

The questions from the letter read:

1. What factors influenced the decision to prosecute Mr. Swartz for the crimes alleged in the indictment, including the decisions regarding what crimes to charge and the filing of the superseding indictment?

2. Was Mr. Swartz's opposition to SOPA or his association with any advocacy groups considered?

3. What specific plea offers were made to Mr. Swartz, and what factors influenced the decisions by prosecutors regarding plea offers made to Mr. Swartz?

4. How did the criminal charges, penalties sought, and plea offers in this case compare to those of other cases that have been prosecuted or considered for prosecution under the Computer Fraud and Abuse Act?

5. Did the federal investigation of Mr. Swartz reveal evidence that he had committed other hacking violations?

6. What factors influences the Department's decisions regarding sentencing proposals?

7. Why was a superseding indictment necessary?

A host of Internet freedom activists and progressive political groups are pressing for legislative reforms in the aftermath of Swartz's suicide, and the House Oversight Committee's investigation will likely be used to generate specific policy recommendations and political pressure for action.

This article has been updated to note that the Justice Department is opposing efforts to reform the Computer Fraud and Abuse Act.

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