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Tragedy is, Swartz case one of many

Published: January 24, 2013
Section: Opinions


Aaron Swartz was not an innocent man. But he should never have been made to feel that he would rather be a dead one. Before Swartz committed suicide earlier this month, he was known to some for creating Reddit, the popular news and infotainment aggregator. Swartz was a computer programmer, an entrepreneur, an activist. But he was also a thief. It is this last attribute on which the Justice Department through U.S. Attorney for Massachusetts Carmen Ortiz would like us to focus and pay all our attention. Swartz was charged in July 2011 with fraud and unlawful obtainment of protected information. He downloaded almost 5 million academic articles through the online server JSTOR from a computer at MIT. According to the prosecution, he planned to illegally publish these articles for free on torrent pirating sites. Taking the articles from MIT’s database and attempting to distribute them was enough for Justice to call it stealing. Ortiz said that, “stealing is stealing—whether you use a computer command or a crowbar and whether you take documents, data or dollars.” Swartz potentially faced up to 30 years behind bars, but the prosecution said that they were set to offer him a plea deal with six months in prison. Many liberals are calling for Ortiz’s head. Commentators on MSNBC have denounced her. The White House’s online petition system has reached 40,000 signees for President Obama to dismiss her for prosecutorial overreach. But Ortiz was right about the nature of the crime. Even in a world of instant messaging, GPS and an increasingly powerful Internet, taking something that does not belong to you is morally wrong. The articles in question legally belong to JSTOR and its publishing company members. Swartz, a graduate fellow at Harvard, was able to obtain them because MIT allows public guests to access JSTOR. Swartz was planning on making the articles available to people who didn’t already have access to them. This is theft and fraud. Critics of Ortiz, and her handling of the case, are truly saddened by Swartz’s death, and justifiably so. Yet, in the aftermath of his death, some have let their emotion lead to wildly irrelevant arguments. First, some argue that Swartz had not yet committed the fraud. This is immaterial—attempted crime charges are brought and won in court every day. Second, critics argue that Swartz never truly stole because he planned to give the articles away for free. He sought no monetary gain for his actions. But, as Ortiz correctly noted, theft is still theft even if Swartz was going to give the articles away for free. The owners and publishers were cheated of the potential profit in the form of five- to six-figure numbers that they charge to subscribed universities like MIT, Harvard and Brandeis. Swartz would hypothetically have completed the theft. He would have “profited” ideologically by advancing his cause. Ortiz exercised sound judgment. She recognized the irrefutable consequences of his illegal actions. Yet Ortiz is not without fault. There is another facet of the legal system that is just as important as the bureaucratic interpretation of Congress’ laws, and it concerns prosecutorial discretion. Here, Ortiz made a grave overreach. Even if the anti-wire fraud statute, the Consumer Fraud and Abuse Act (CFAA), technically permits indicting Swartz for up to 30 years in prison, Ortiz may be faulted for pursuing the case in light of other factors. She ignored Swartz’s other attributes as activist and Internet pioneer and she ignored the factors behind his actions, instead only focusing on the fact that he sought to take property from the publishers. Swartz was a software entrepreneur and an open-Internet activist. Swartz sought to “liberate” the articles from JSTOR, according to the indictment. He believed that the business practice and the laws that enshrine it were immoral monopolies—barriers to open knowledge. The CFAA was meant to prosecute identity thieves, catch million-dollar embezzlers and prevent cyber-terrorism. One doesn’t have to be an open-use activist to see why prosecuting Swartz for this behavior wasn’t worth the time of the ranking U.S. attorney. There is also the issue of the multitude of crimes that happen each day and limited government resources. A prosecutor in a land with unlimited assistant district attorneys and with infinite resources could, in theory, make no distinction between charging an attempted murderer, whether or not his instrument of choice was a Winchester gun or an Ouija board. But of course real-life prosecutors are often best left to go after the gun rampage, in the name of effective and efficient use of resources. Furthermore, JSTOR’s business model could perhaps be called into question by Swartz’s release of 5 million articles, but JSTOR has amassed almost a billion different references from its nearly 15,000 member academic journals. No university or research institution could feasibly have canceled their JSTOR account and used Swartz’s random trove instead. The accusations against Ortiz of prosecutorial overreach are at their strongest here. Orin Kerr, an expert on the CFAA and a legal writer at the blog The Volokh Conspiracy, summed it up this way: “What Swartz was alleged to have done fits pretty well with the charges that were brought.” But he also said that, “we should be shining a light on the federal criminal system in its entirety.” Every day, prosecutors all over America make these sorts of judgments, and Ortiz made the wrong one. Since his death, Ortiz announced that the prosecution was never going to recommend the maximum penalty to the judge in Swartz’s trial. It’s ballpark, she said after his death, had always internally been six months in jail with a felony conviction. But Swartz feared much more, and the prosecution tried to intimidate him into taking a deal with threats of longer jail time and further charges. Kerr is right: prosecutors do this, and from the perspective of someone like Swartz, much worse, all the time. A young man named Aaron killed himself in light of this fear. And now, Ortiz’s tactics continue to outrage Americans. But every other day, we continue to uphold the current criminal system, where other people, young and old, men and women, black and white—and mostly black—are press-ganged into horrible choices. After bringing up the White House petition page, crestfallen and indignant Americans need only look into the mirror for whom to blame.