When it comes to the prosecution of Aaron Swartz, the 26-year-old computer prodigy who killed himself, US Attorney Carmen Ortiz has explaining to do.
But there are also questions for Swartz’s lawyer, Elliot Peters.
Why reject the government’s offer of a four-to-six month prison sentence? That’s much less than the 35 years and $1 million fine allowed under the federal law that Swartz was charged with violating.
Peters told the Globe that Swartz didn’t believe he was a felon; he was acting on the principle that information on the Internet should be free when he downloaded academic journals from an MIT computer system. But defending principle was not his lawyer’s job. It was to provide Swartz with the best legal advice, given the charges and the government’s refusal to back down.
When a citizen takes actions that break standing laws, there can be consequences, no matter how wrong the laws may be. Remember “Letter from Birmingham Jail,’’ composed by Martin Luther King Jr. after his arrest for protesting racial segregation laws? King wrote: “One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”
Swartz’s decision to end his life is a tragic waste of youth and genius. His family and friends blame federal prosecutors for overreaching. Writing for WBUR.org, Harvard Law Professor Lawrence Lessig, the young man’s mentor, argued that Swartz is “gone today, driven to the edge by what a decent society would only call bullying.”
An emotion-soaked perspective is understandable from those closest to Swartz. But the widespread revulsion directed at the US attorney’s office is overreach by cyber-bullies. Defense lawyers would also love to see federal prosecutors back down from other criminal cases.
The prosecution of Swartz was linked to his alleged violation of a 25-year-old law called the Computer Fraud and Abuse Act.
As the Globe reported, Swartz allegedly gained access to an academic database called JSTOR and downloaded a major portion of what is normally provided to subscribers in limited quantities. As summarized in a lengthy blog post by Orin Kerr, a law professor at George Washington University, Swartz’s efforts concluded with his breaking into a closet in the basement of a building at MIT, where he connected his computer directly to the network. Investigators filmed him using his bicycle helmet as a mask to avoid being identified. Spotted afterward by MIT police, he tried to run away, but was caught and arrested.
Kerr, who specializes in this area of law, concluded that “the charges against Swartz were based on a fair reading of the law. None of the charges involved aggressive readings of the law or any apparent prosecutorial overreach. All the charges were based on established case law. Indeed, once the decision to charge the case had been made, the charges brought here were pretty much what any good federal prosecutor would have charged.”
His post offers a lonely defense of the US attorney, who is under widespread, personal attack. A petition on whitehouse.gov calls for her ouster, and now has enough signatures requiring a response. An ill-advised tweet from her husband, who rushed to her defense with postings critical of Swartz’s family, further fueled the controversy.
Federal prosecutors took a tough, all-or-nothing position, as they always do once they take on a case involving a clear violation of law. The system encourages it, and it’s worth questioning why there’s no room for mercy. But why this case was prosecuted doesn’t seem that mysterious.
Massachusetts is one of the high-tech capitals of the world. This involved a major network breach at MIT, a major institution. Free information is a nice principle, but right now everyone is trying to bury it behind a paywall.
Swartz ran up against the power of money. As smart as he was, he didn’t know when to back down and it sounds like his lawyer didn’t tell him.