DOJ calls prosecution of Aaron Swartz “fair” and “reasonable”
No it wasn’t.
“I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life,” the statement, written by U.S. Attorney Carmen Ortiz, read.
“I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case. The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably,” Ortiz wrote.
In September, the federal government filed a superseding indictment (PDF), raising the number of felony counts from four to 13.
For a victimless crime, an act of civil disobedience, an act where the harmed party asked that the Feds stop.
“Fair.” “Reasonable.” “Appropriate.”
Orin Kerr argues that the charges conform with law (but criticizes parts of the law and many standard practices of federal prosecutors).
Kerr accepts the government’s argument that Swartz intended to release all documents. I do not, although I believe he would have released the public domain documents (more than half of the docs).
Moreover, Kerr argues the case clinically (that’s what lawyers do) without the context of other crimes against organizations (the HSBC fine rather than criminal penalties) or persons (manslaughter, selling child pornography, helping al-Qaeda develop a nuclear weapon or rape.)
The underlying point Boyd is making, I think, is that the government doesn’t understand hackers and isn’t good at distinguishing between miscreant vigilantes like Swartz who are trying to free information systems and profit-driven or diabolical hackers who are trying to bring down those systems. That’s when an expansive law like the Computer Fraud and Abuse Act becomes dangerous. Prosecutors persuaded of their own righteousness, and woodenly equating downloading a deliberately unprotected database with stealing, lose all sense of proportion and bring in the heavy artillery when what’s in order is a far more mild penalty.
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.
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