Aaron Swartz committed suicide last week. Many accounts, including that of his family, place a substantial part of the blame for the 26 year old’s death at the hands of federal prosecutors.
Swartz who co-founded the hit website Reddit, was one of the geniuses responsible for making the internet work. He believed in free access to information, and dedicated much of his short life to that end. In 2006, for example, he was able to (legally) copy the Library of Congress’ complete bibliographic dataset and make it available for free online. The Library has and does charge a fee for such access.
He did the same thing in 2008 with the federal courts’ PACER system. The system which holds federal court records charged 8 cents per page for access to the public documents. A few libraries had a special free trial for PACER and Swartz was able to download about 20% of the data and donate it to a free website. It was this commitment to open information - especially information taxpayers had already paid for - that got him into trouble with a different database.
JSTOR is a private nonprofit digital archive of back issues of academic journals. Some are copyrighted, and some are not. The archive is available to subscribers, most of whom are academic institutions. Swartz did have legal access to the database as a Harvard faculty member. He accessed the JSTOR database and downloaded about 4 million articles. However, he used MIT’s network instead of Harvard’s to do so. As you might imagine, MIT has one of the fastest networks in the world, and has a widely lauded open access policy - very convenient if you’re a computer genius who wants to download a few million articles.
Swartz basically stashed a computer in a closet at MIT and set it up to download JSTOR articles. Reports indicate he got about 4.8 million in total before it was over. He was arrested after going back into the closet to retrieve his laptop.
JSTOR declined to play any part in Aaron’s prosecution. He returned the data to them and they considered the matter closed. The problem was with the federal prosecutor, Obama appointee U.S. Attorney Carmen Ortiz.
Federal prosecutors have been desperate for a big win on a copyright/download case for a while. As is often the case when prosecutors decide to send a message, or advance a political agenda, instead of applying the facts to the law and using good judgement, the results are less than optimal. The Megaupload case is demonstrative of this phenomena. Authorities wanted to send a message to websites that improperly hosted copyrighted content. Instead of slowly building a case with good evidence and a strong foundation, they rushed in and used resources to create a great show with helicopters and swat teams.
They embarrassed themselves and the United States in the process, leading courts in both the U.S. and New Zealand to criticize the prosecution, and this has left another black mark on the copyright crusade.
Back to Aaron Swartz - even though JSTOR declined to advance any charges, Carmen Ortiz decided she would make an example of Aaron, armed with laws passed in the 80’s to deal with serious criminals. He would be the face of hacking or copyright infringement and made to pay. She approved an indictment with a laundry list of crimes that added up to over 35 years of prison time and over a million dollars in fines. More time than if he had violently assaulted a few coeds instead of downloading articles.
Convinced he did not do anything felonious, Swartz did not believe his actions warranted prison. The prosecution offered him a deal to plead guilty to 13 felonies, and spend 6-8 months behind bars, or face the full might of the government at trial, spending all his money on a defense, and risking a 35+ year sentence if unsuccessful.
Why did Carmen Ortiz file charges that would imprison Aaron Swartz longer than the average murderer? The Atlantic's Clive Crook offers an explanation. “By and large, American prosecutors no longer fight their cases at trial. The new dispensation is justice by plea bargain. The more savage the penalties prosecutors can threaten, the more likely the defendant (guilty or innocent) is to speed things along by pleading guilty and accepting a light penalty. The multiple counts and their absurdly savage sentences are best seen, just as the family said, as instruments of intimidation.”
Aaron was caught up in a combination of bad laws, an indifferent or malevolent prosecutor, and a system where both are flourishing.
“Aaron's tragedy also shines a spotlight on a couple profound flaws of the Computer Fraud and Abuse Act in particular... Among other things, the CFAA makes it illegal to gain access to protected computers "without authorization" or in a manner that "exceeds authorized access." Unfortunately, the law doesn't clearly explain what a lack of "authorization" actually means. Creative prosecutors have taken advantage of this confusion to craft criminal charges that aren't really about hacking a computer but instead target other behavior the prosecutors don't like.”
If you provoke the ire of a prosecutor, you could find yourself in Aaron Swartz's shoes. Have you ever not told the truth about who you were on the internet? Made a comment under a false name or alias? Saved a photo to your desktop? If so, you may very well have committed a federal felony.
Another provision of the Computer Fraud and Abuse Act that allowed for such a travesty is that it makes violating a website's terms of service a federal crime. Here’s Swartz’s friend and Harvard Law professor Lawrence Lessig on the issue:
“The "terms of service" (TOS) of any website are basically a contract. They constitute an agreement about what you can and can't do, and what the provider can and can't do. Not everything on a website is governed by contract alone: Copyright and privacy law can impose property-like obligations independent of a TOS. But the rules Aaron were said to have violated purported to limit the amount of JSTOR that any user was permitted to download. They were rules of contract. Aaron exceeded those limits, the government charged. He therefore breached the implied contract he had with JSTOR. And therefore, the government insists, he was a felon."
"It's that last step that is so odd within the tradition of American law. Contracts are important. Their breach must be remedied. But American law does not typically make the breach of a contract a felony. Instead, contract law typically requires the complaining party to prove that it was actually harmed. No harm, no foul. And in this case, JSTOR -- the only plausible entity "harmed" by Aaron's acts -- pled "no foul." JSTOR did not want Swartz prosecuted. It settled any possible civil claims against Swartz with the simple promise that he return what he had downloaded. Swartz did. JSTOR went away.”
Aaron Swartz was an influential man with very important friends, and that’s why this case is getting so much attention. Sadly, this kind of behavior by prosecutors is not an extreme example, but instead par for the course.
“[I]t’s important to realize that what happened in the Swartz case happens it lots and lots of federal criminal cases. Yes, the prosecutors tried to force a plea deal by scaring the defendant with arguments that he would be locked away for a long time if he was convicted at trial. Yes, the prosecutors filed a superseding indictment designed to scare Swartz even more into pleading guilty (it actually had no effect on the likely sentence, but it’s a powerful scare tactic). Yes, the prosecutors insisted on jail time and a felony conviction as part of a plea. But it is not particularly surprising for federal prosecutors to use those tactics. What’s unusual about the Swartz case is that it involved a highly charismatic defendant with very powerful friends in a position to object to these common practices. That’s not to excuse what happened, but rather to direct the energy that is angry about what happened. If you want to end these tactics, don’t just complain about the Swartz case. Don’t just complain when the defendant happens to be a brilliant guy who went to Stanford and hangs out with Larry Lessig. Instead, complain that this is business as usual in federal criminal cases around the country — mostly with defendants who no one has ever heard of and who get locked up for years without anyone else much caring.”
That was law professor Orin Kerr. He has a proposal for change: “Felony liability under the statute is triggered much too easily. The law needs to draw a distinction between low-level crimes and more serious crimes, and current law does so poorly.” Some have proposed “Aaron’s Law” which would remove terms of service violations from the federal criminal code.
While changes in a few federal laws will help people charged under them, it leaves the rest of federal defendants in the same unchanged boat. However, there are some other interesting proposals that would change the process for all federal defendants:
1. Reveal criminal sentences
As a rule, juries determine guilt, and judges pass sentences. Juries are not told what the penalty for the crime. If we changed this rule and allowed juries to be told the penalties, they, in appropriate cases, would likely vote not-guilty if the penalty is draconian. If our sentences are rational and just, we need not fear juries’ reaction. 30 to life for a murder - no problem. Life without parole for non-violent marijuana crimes - maybe the jury will think twice.
Nullification generally is when jurors refuse to hold a defendant guilty even though by the letter of the law they are guilty. If we reveal sentences thinking that juries will nullify outrageous sentences, we need to change the rules regarding nullification. William Penn is the most famous beneficiary of this practice. In 1670, jurors in his trial for illegally preaching a Quaker sermon in London found him not guilty.
As it stands, jurors are allowed to nullify, and judges are allowed to inform jurors that may nullify. Judges may also allow attorneys to inform jurors that they have the right to nullify. What is lacking however, is for the right of a defendant to inform the jurors of their rights. Judges are not fond of nullification arguments, and prosecutors less so. Judges as a matter of course refuse to allow defense attorneys to speak of nullification. As most jurors are ignorant of their powers, they do not avail themselves of this option.
One recent case from the news where we can imagine a nullification argument is that of David Gregory. If the D.C. authorities had charged him with a felony for possessing a 30 round ammunition magazine, it is easy to see why it might be effective to argue that this reporter who simply displayed an inanimate object should not be imprisoned for a year. If Aaron Swartz was permitted by right to make a nullification argument at trial, perhaps this tradgedy could have been avoided
Unless and until the accused has the right to present an actual nullification argument to jurors, we as a society fail to benefit from this important power juries hold.
3. Reveal Plea Bargain Offers
Aaron Swartz was offered a sentence of 6 months in prison. Law Professor and Instapundit blogger Glenn Reynolds has proposed that juries be told of the prosecution’s plea offers. You can imagine the kind of monster the prosecution would paint Swartz as while trying to convict him on crimes warranting a 35+ year sentence, and how that characterization would go over if they knew a 6 month sentence was offered.
Just at the federal level there are so many criminal laws that they cannot even be counted. Criminal defense attorney Harvey Silverglate says “The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have not only exploded in number, but, along with countless regulatory provisions, have also become impossibly broad and vague.”
In her press release trumpeting this important prosecution, United States Attorney Carmen M. Ortiz said, “Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars.” Except of course it isn’t. A hungry man stealing a loaf of bread from a market to feed his family is treated differently than a con man bilking senior citizens for personal gain.
Aaron Swartz knew he was breaking the law when he downloaded those articles. What he did not know, was that if a prosecutor wanted to make his life hell, she could credibly see to it that he was locked up until his mid 50’s. We should make sure that punishments fit crimes, and that when we collectively threaten to remove a human being from society for a generation or two, they actually did something worthy of such a profound punishment.