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Prosecutorial Overreach and Why We Have to Care About the Life & Death of Aaron Swartz

January 15th, 2013 by Celeste Fremon


Ever since the news leaked out that cyber wunderkind and activist, Aaron Swartz,
had hanged himself in his Brooklyn apartment this past Friday, a growing number of people have felt compelled to write about the series of events that may have led the phenomenally gifted 26-year-old to end his life.

We know from friends and family that Swartz struggled with depression.. We also know that Swartz was facing federal trial on charges that he illegally downloaded millions of research papers from the scholarly database, JSTOR.

There’s no doubt that Swartz, who helped invent the RSS feed when he was 14, and who co-founded Reddit—among a longer list of accomplishments—did indeed download the millions of articles from JSTOR. No one questions those facts.

What many do question, however, is whether what was basicially an act of cyber civil disobedience that even JSTOR asked the feds not to pursue legally, should have led to criminal charges so severe that, had Swartz been convicted at the trial that was to have begun next month, he could have served 35 years in prison, and paid millions of dollars in fines. Even before the trial, the legal fight had pretty much drained him, financially.

And then, two days before he died, Swartz was offered a plea deal. The 35 years would come off the table, but he must go to jail for six months and plead guilty to 13 felony counts.

This is, of course, business as usual in today’s criminal justice world in which everything is dealt out. This almost always means that, to hammer home the biggest, baddest possible plea deal, prosecutors routinely pile on a mountain of questionable charges, so that the defendant takes the deal—guilty or not—because the downside risk of not taking it is so terrifying.

Aaron Swartz, however, selected neither of the two options the prosecutor offered. Instead, the staggeringly brilliant young man with a mile-a-millisecond mind, and an idealist’s heart, chose door number three: He killed himself.

Yet there’s more to the story.


“SWARTZ WAS A PASSIONATE ECCENTRIC WHO COULD HAVE BEEN ONE OF THE GREAT INNOVATORS AND CREATORS OF OUR FUTURE”

Among the essays and stories that have been written about Aaron Swartz in the last few days, some are particularly worth reading—both for people who already know who Swartz is, and for those who are wondering why so many believed he mattered so much:

A good place to start is with the New Yorker essay by Columbia law school prof, Tim Wu. Among other things, it explains in very clear terms exactly what Swartz did—and why it did not merit the prosecutorial response he got.

Here’s a relevant clip:

Tomorrow is the funeral for Aaron Swartz, the programmer and sometime activist who killed himself last Friday, while facing federal trial. No one knows, or will ever really know, what caused Swartz to take his own life. But his suicide, in the face of possible bankruptcy and serious prison time, has created a moment of clarity. We can rightly judge a society by how it treats its eccentrics and deviant geniuses—and by that measure, we have utterly failed.

I knew Swartz, although not well. And while he was special on account of his programming abilities, in another way he was not special at all: he was just another young man compelled to act rashly when he felt strongly, regardless of the rules. In another time, a man with Swartz’s dark drive would have headed to the frontier. Perhaps he would have ventured out into the wilderness, like T. E. Lawrence or John Muir, or to the top of something death-defying, like Reinhold Messner or Philippe Petit. Swartz possessed a self-destructive drive toward actions that felt right to him, but that were also defiant and, potentially, law-breaking. Like Henry David Thoreau, he chased his own dreams, and he was willing to disobey laws he considered unjust.

Swartz’s frontier was not geographic like Thoreau’s, but defined by other barriers unique to our times. His form of civil disobedience consisted of heading into an M.I.T. closet with a laptop, hooking it up to the Internet, and downloading millions of articles from JSTOR, an academic database. Swartz thought information should be free. It wasn’t a major coup, but it counts as a defiant act—and one that made its point, for it was, and remains, absurdly hard for the public to gain access to what academics supposedly write for it.

The act was harmless—not in the sense of hypothetical damages or the circular logic of deterrence theory (that’s lawyerly logic), but in John Stuart Mill’s sense, meaning that there was no actual physical harm, nor actual economic harm. The leak was found and plugged; JSTOR suffered no actual economic loss. It did not press charges. Like a pie in the face, Swartz’s act was annoying to its victim, but of no lasting consequence.

In this sense, Swartz must be compared to two other eccentric geniuses, Steve Jobs and Steve Wozniak, who, in the nineteen-seventies, committed crimes similar to, but more economically damaging than, Swartz’s….


THE PRODIGY/ACTIVIST

And then, for a quick, smart, interesting summary of who Swartz was and his importance inside the digital community, listen to this NPR interview with Declan McCullagh, chief political correspondent with CNET.


WHEN THE LAW IS WORSE THAN THE CRIME

Emily Bazalon of Slate also has a very interesting and informative essay on the legal side of the matter.

Here are a couple of quick clips:

…..Swartz was charged with fully 13 counts of violating the Computer Fraud and Abuse Act, which meant he faced millions of dollars in fines and up to 35 years in prison. This law is notoriously capacious. Prosecutors can stretch it to cover misdeeds that would otherwise barely qualify as illegal. To illustrate just how much overreach the act allows, law professor Orin Kerr, who writes at Volokh Conspiracy, once posted a ridiculous new terms of service for the blog and then wrote, “If you post an abusive comment; you are an employee of the U.S. government; your middle name is Ralph; you’re not super nice, as judged by me; or you have visited Alaska, I have kinda bad news for you: You are a criminal, as you have just violated 18 U.S.C. 1030(a)(2)(C) by accessing the Volokh Conspiracy’s service without authorization or in excess of authorization.”

You can argue with Swartz’s tactics—as Harvard law professor Lawrence Lessig, who knew and clearly loved Swartz, writes: “The causes that Aaron fought for are my causes too. But as much as I respect those who disagree with me about this, these means are not mine.” As Lessig emphasizes, however, not every miscreant deserves to have the full weight of the U.S. government come crashing down on him. JSTOR said Swartz did not sell or give away the articles he’d downloaded and declined to take any action against him. (MIT, by contrast, lamely remained silent throughout his prosecution—only now are administrators investigating the university’s involvement in Swartz’s case and promising a public accounting.)

[BIG SNIP]

I’d like to tell you that the prosecutorial overreach that took place in Swartz’s case rarely happens. But that’s not true. There are many principled prosecutors who only bring charges they believe they can prove beyond a reasonable doubt. But there are also some who bring any charge they can think of to induce a defendant who may be guilty of a minor crime to plead guilty to a major one. These cases usually are hard to call attention to: They’re not about innocence, easy and pure. They’re about the muddier concept of proportionality. If any good at all can come from Swartz’s unspeakably sorrowful death, maybe it will be how this case makes prosecutors—and the rest of us—think about the space between guilt and innocence.


“THE WORLD IS A POORER PLACE…” BUT THIS TIME IT’S LITERALLY TRUE

This emotional essay from WIRED Magazine’s Threat Level section by Kevin Poulsen shows how colleagues viewed Aaron Swartz

Here’s a clip:

We often say, upon the passing of a friend or loved one, that the world is a poorer place for the loss. But with the untimely death of programmer and activist Aaron Swartz, this isn’t just a sentiment; it’s literally true. Worthy, important causes will surface without a champion equal to their measure. Technological problems will go unsolved, or be solved a little less brilliantly than they might have been. And that’s just what we know. The world is robbed of a half-century of all the things we can’t even imagine Aaron would have accomplished with the remainder of his life.

Aaron Swartz committed suicide Friday in New York. He was 26 years old.

When he was 14 years old, Aaron helped develop the RSS standard; he went on to found Infogami, which became part of Reddit. But more than anything Aaron was a coder with a conscience: a tireless and talented hacker who poured his energy into issues like network neutrality, copyright reform and information freedom. Among countless causes, he worked with Larry Lessig at the launch of the Creative Commons, architected the Internet Archive’s free public catalog of books, OpenLibrary.org, and in 2010 founded Demand Progress, a non-profit group that helped drive successful grassroots opposition to SOPA last year.

“Aaron was steadfast in his dedication to building a better and open world,” writes Internet Archive founder Brewster Kahle. “He is among the best spirits of the Internet generation. I am crushed by his loss, but will continue to be enlightened by his work and dedication.”


PROSECUTOR AS BULLY

3. Finally there is the essay Swartz’s friend and mentor, Lawrence Lessig, a Harvard Law prof and the director of the Edmond J. Safra Center for Ethics at Harvard University.

Lessig’s essay should be read in its totality. But here’s a random clip, to give you an idea of the content and tone:

…First, of course, Aaron brought Aaron here. As I said when I wrote about the case (when obligations required I say something publicly), if what the government alleged was true — and I say “if” because I am not revealing what Aaron said to me then — then what he did was wrong. And if not legally wrong, then at least morally wrong. The causes that Aaron fought for are my causes too. But as much as I respect those who disagree with me about this, these means are not mine.

But all this shows is that if the government proved its case, some punishment was appropriate. So what was that appropriate punishment? Was Aaron a terrorist? Or a cracker trying to profit from stolen goods? Or was this something completely different?

Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its. MIT, to its great shame, was not as clear, and so the prosecutor had the excuse he needed to continue his war against the “criminal” who we who loved him knew as Aaron.

Here is where we need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.

Aaron had literally done nothing in his life “to make money.” He was fortunate Reddit turned out as it did, but from his work building the RSS standard, to his work architecting Creative Commons, to his work liberating public records, to his work building a free public library, to his work supporting Change Congress/FixCongressFirst/Rootstrikers, and then Demand Progress, Aaron was always and only working for (at least his conception of) the public good. He was brilliant, and funny. A kid genius. A soul, a conscience, the source of a question I have asked myself a million times: What would Aaron think? That person 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.


AND PERHAPS THE VERY LAST WORD SHOULD TO SIR TIM BERNERS-LEE WHO, AFTER ALL INVENTED THE INTERNET AND WHO, ON JANUARY 12 TWEETED IN EXACTLY 139 CHARACTERS:

Aaron dead. World wanderers, we have lost a wise elder. Hackers for right, we are one down. Parents all, we have lost a child. Let us weep.



Photo: Aaron Swartz in 2008, with former Red Hat CEO Bob Young in the background. (CreativeCommons)

Posted in Freedom of Information, Life in general, Sentencing | 4 Comments »

4 Responses

  1. jim hitchcock Says:

    Bill Nighy should play Tim Berners-Lee in the movie.

  2. Celeste Fremon Says:

    Ha! Excellent casting, Jim!

  3. John Moore Says:

    A good, dispassionate and detailed analysis by libertarian law professor, blogger and expert on cybercrime is at
    http://www.volokh.com/2013/01/16/the-criminal-charges-against-aaron-swartz-part-2-prosecutorial-discretion/

    My own comments… I got my start in software as a hacker, and got “prosecuted” for it by my university – way back in 1969. So I have a lot of sympathy for the guy.

    Also, there is no doubt that prosecutors have way too much power.

    However, if you read Kerr’s analysis (link above), a couple of things become clear:

    1) He committed crimes and justice demanded a punishment

    2) The huge sentences were not at all likely, plus he was offered a plea bargain to just 4 months in jail and a felony conviction (I think the latter might be going to far).

    3) The computer fraud act is way too broad. Kerr addresses that.

    4) He knew he was breaking the law. He considered it civil disobedience. He knew the extend of the possible penalties. The tradition of civil disobedience includes taking the punishment even though you may consider the law unjust. As brilliant as he was, he apparently never thought this true.,

    5) It’s a tragedy. Suicide is always a tragedy, and I think it indicates that he was probably a depressive or bi-polar and not getting enough treatment (or it didn’t work given the circumstances).

  4. 10-33_Go Says:

    I don’t know if he should have been charged or not, but I do believe that there is honor is civil disobedience only if there is a likely or in-fact punishment. I don’t see honor or nobility in sacrifice without a price. Perhaps in this case, the price was 4-6 months, plus probation. We don’t know what was in his mind last week, but it seems he wasn’t willing to pay the small price, so paid the big one instead. I guess there’s some nobility in that–but am not sure what point he made.

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