If it was beyond scandalous that Aaron Swartz was facing 35 years in prison and millions of dollars in fines for downloading a bunch of obscure academic treatises without a subscription, it is beyond tragic that he is now dead.
Swartz, 26, a computer prodigy and open Internet activist, hanged himself in his Brooklyn apartment last Friday. While we will never know for sure why, many who love him and know him best believe that prosecutors bullied him to the grave.
The argument about whether Swartz should have been facing criminal charges in the first place is largely academic. It’s true that JSTOR, the subscription-service archive from which Swartz downloaded the articles, didn’t want him prosecuted. MIT, whose computer system Swartz used to download the information, was less forgiving.
The argument about whether prosecutors should have been insisting that Swartz, who had written openly and movingly about his struggle with depression, serve at least six months in prison is not an academic question. It is a question about proportionality and humanity, and on both fronts the office of US Attorney Carmen Ortiz and the prosecutors who handled this case, Steve Heymann and Scott Garland, failed miserably.
It is hard to know what prosecutors were thinking because they aren’t talking, they say, out of respect for Swartz’s family.
Andy Good, Swartz’s initial lawyer, is alternately sad and furious.
“The thing that galls me is that I told Heymann the kid was a suicide risk,” Good told me. “His reaction was a standard reaction in that office, not unique to Steve. He said, ‘Fine, we’ll lock him up.’ I’m not saying they made Aaron kill himself. Aaron might have done this anyway. I’m saying they were aware of the risk, and they were heedless.”
Good says the hard-line attitude was not unique to his case, but the facts were. People who steal things usually benefit financially from it. Swartz downloaded the material because he believed that such information — in this case, much of it research underwritten by taxpayers — should be free to the public. He did it not to make a buck, but to make a point.
Swartz and his lawyers were not looking for a free pass. They had offered to accept a deferred prosecution or probation, so that if Swartz pulled a stunt like that again, he would end up in prison.
Marty Weinberg, who took the case over from Good, said he nearly negotiated a plea bargain in which Swartz would not serve any time. He said JSTOR signed off on it, but MIT would not.
“There were subsets of the MIT community who were profoundly in support of Aaron,” Weinberg said. That support did not override institutional interests.
Elliot Peters, the San Francisco lawyer who took the case over from Weinberg last fall, could not persuade prosecutors to drop their demand that Swartz plead guilty to 13 felonies and spend six months in prison. Peters was preparing to go to trial and was confident of prevailing.
But the prospects weighed heavily on Swartz.
“There was such rigidity with the people we were dealing with,” Peters said. “I couldn’t find anyone in that office to talk about proportionality and humanity. It was driven by a desire to turn this into a significant case, so that some prosecutor could put it in his portfolio.”
Peters stopped short of blaming prosecutors for Swartz’s suicide.
“I’m too much a student of human nature to ascribe a 26-year-old’s suicide to any one thing,” Peters said. “Only God and Aaron know why that happened.”
But that doesn’t mean Peters is in a forgiving mood. He got a voicemail from Heymann on Saturday.
“I’m sure he was sincere,” Peters said. “But I can’t call him back. Either I’ll say something I shouldn’t say, or I’m going to act like I accept his condolences, which I don’t. So the only thing I can do is not call him back.”