One of the questions raised by observers of the DOJ case against Aaron Swartz has centered around prosecutorial discretion. That is, prosecutors decide which cases to pursue and how large and heavy the book will be that they throw at the defendant.
I was initially troubled by the case — one where there was no harm — and compared it with HSBC’s nominal wrist slap. But there is a closer-to-home case that highlights just how misshapen “justice” is in the Massachusetts office run by Carmin Ortiz. From the Boston Globe (emphasis added):
Last Friday, on the same day that Swartz hanged himself in his Brooklyn, N.Y., apartment, prosecutors from Ortiz’s office stood in a Boston courtroom and allowed a former state representative named Stephen “Stat” Smith to plead guilty to a misdemeanor for rigging absentee ballots in three elections. Swartz’s lawyers asked for the same consideration, that Swartz be allowed to plead guilty to a misdemeanor. Prosecutors refused.
You have got to be kidding.
This was a two-year investigation of fraudulent votes — absentee ballots allegedly intercepted before reaching the voter and cast without her knowledge. Over multiple elections.
In exchange for Smith’s plea that he is guilty of two misdemeanor counts of deprivation of rights under color of law, prosecutors recommended that Smith spend six months instead of the maximum two years. Smith also resigned from elected office as Massachusetts state representative and agreed not to seek public office for five years.
Let’s connect the dots here.
Aaron downloads scholarly documents — without violating terms of service, according to his lawyers — as part of what appears to be a pattern of civil disobedience. After his arrest, he returned the documents, most of which are in the public domain, to the database owner, JSTOR. JSTOR asks the DOJ not to prosecute. Instead, the prosecution tallies enough charges to total 35 years in prison (“fair” and “reasonable” and “appropriate”) and refuses to allow him to plead guilty to a misdemeanor.
Some legal minds assert he should never have been charged with a felony to begin with.
The Computer Fraud And Abuse Act: To summarize brutally, one key argument about the interpretation of the Computer Fraud and Abuse Act is whether or not violation of mere terms of service can be enough to trigger the penalties of the Act. Many of us think this interpretation goes too far and at least one Appeals Court has agreed.
“Just because you can charge someone with a crime, just because a technical crime has been committed, doesn’t mean you should,” Gertner said.
“At the time of the indictment, [Ortiz] said, ‘Stealing is stealing.’ I saw that all the time when I was on the bench,” she said. “This is a classic line. Stealing an apple if you’re hungry is different than Bernie Madoff. It is obviously different.”
Others disagree. Former federal prosecutor Orin Kerr, now a professor at George Washington University law School: “The law is broad and seems to cover this kind of act.”
Regardless, being branded a felon means losing your right to vote temporarily or permanently (two state exceptions). For an activist like Aaron, that may have been more harmful than the prison sentence.
Then we turn to Smith.
Smith rigs votes in multiple elections — causing harm to both the system of democratic elections and voters — and is allowed to plead to a misdemeanor, maximum two years sentence. The DOJ recommends six months. And says he can hold public office again after five years! “Fair” and “reasonable” and “appropriate”? I don’t think so.
How many more examples will crawl out of the woodwork?
No, the questions about this case have not stopped.
- Rep. Zoe Lofgren (D-CA) wants to reform the CFAA.
- Rep. Darrell Issa (R-CA), House Oversight Committee Chairman, is investigating the DOJ for “overprosecution.”
- Senator John Cornyn (R-TX) has written AG Eric Holder with a serious of pointed questions about the investigation.
- The White House petition to remove Carmen Oritz for overreach has passed the 25,000 signature threshold. As of this writing, it’s at 45+K.
- And how, exactly, did the U.S. government collect emails it shared with the grand jury … when there “was no court-authorized electronic surveillance” of his case?
- And what of the coincidence of his FOIA requests regarding Bradley Manning being linked with timing of the Secret Service warrant for his hardware at MIT?
Congress needs to bring the CFAA into the Internet age, and it needs to do so with citizen freedom in mind, not corporate lockdown.
And someone needs to remind the DOJ of its mission: “to seek just punishment for those guilty of unlawful behavior, and to ensure fair and impartial administration of justice for all Americans.”