Tim Wu has a terrific piece in the New Yorker about the over-prosecution in the Swartz case and how, under current federal law, the prosecutors have the discretion to turn any of us into criminals. As defense attorney Harvey Silverglate said in the title to his book, we could all be charged with Three Felonies a Day, at the discretion of an ambitious federal prosecutor. As Wu says of Swartz and the JSTOR caper,
The act was harmless—not in the sense of hypothetical damages or the circular logic of deterrence theory (that’s lawyerly logic), but in John Stuart Mill’s sense, meaning that there was no actual physical harm, nor actual economic harm. The leak was found and plugged; JSTOR suffered no actual economic loss. It did not press charges. Like a pie in the face, Swartz’s act was annoying to its victim, but of no lasting consequence.Wu compares what Swartz did to what Jobs and Wozniak did before founding Apple, just as I compared it to the edge-hugging stuff that Bill Gates and Mark Zuckerberg did at Harvard. Under the Computer Fraud and Abuse act that was used to charge Swartz, any of them could be charged today with unauthorized access to a protected computer.
Apparently, we cannot trust federal law enforcement to tell the difference between a bank robber breaking into the computers of Bank of America to steal money, and a libertarian prankster. A petition to the White House is calling for the removal of Carmen Ortiz, the DA in the case, who has been considered a rising star.
The complaint against Swartz carried a theoretical maximum imprisonment that has been variously reported as 35 or 50 years. "But of course he wouldn't have gotten that," people tell me. True, and Ortiz apparently offered as little as 6 months behind bars in exchange for a guilty plea to 13 felonies. While Ortiz has remained silent, supposedly out of respect for the family's feelings, that did not stop her husband from Tweeting, “Truly incredible that in their own son’s obit they blame others for his death and make no mention of the 6-month offer.” Appalling. What is truly incredible is that the federal government, through this family backchannel, is saying, "We're the nice guys; we could have locked him up for life, but if he had only saved us the trouble of trying him, as the Constitution guarantees he can insist, we were willing to let it go with 6 months and 13 felonies on his record." MIT, inexplicably, would not back efforts to get a sentence with no jail time.
But it is far from clear that Swartz would have been convicted of anything had the case been tried. Read the analysis by Alex Samos, who was to testify on Swartz's behalf. But that potential for exoneration assumes that Swartz had the financial resources to fight the charges to the end. Which, because Swartz cared much more about ideals than about money, he evidently did not. It would have been a very costly trial, and the outcome could have been much more than 6 months imprisonment. What would you have done?
Two related news items. First, Rep. Zoe Lofgren (D-CA) is introducing legislation that would tighten the infamous Computer Fraud and Abuse Act, which was the heaviest weapon the feds used against Swartz. Her rewording would exclude "Terms of Service" violations from the statute--so that, for example, if you lied about your age when registering for some Web site, you still might have to answer civilly to the business for which you were registering, but the feds could not stick you in a federal penitentiary for "unauthorized access to a protected computer." (The lying about your age part, readers of Blown to Bits will remember, is what they tried to get Lori Drew on, when they could not find any other statute she had violated.)
And finally, for those who would have locked Swartz away on the basis that he downloaded files he should not have---piracy!!!---consider the fact that Congressional offices are illegally downloading movies and TV shows, and are continuing to do it today, even though this practice was exposed more than a year ago, when it was happening even as anti-piracy legislation was being drafted in the same offices.
Stop this cynical madness! Let's get laws that are focused on real crimes, and federal prosecutors who are more interested in justice than in opportunistically bullying the nation's talented youth.
Update: Retired federal judge Nancy Gertner has joined the ranks of those harshly criticizing Carmen Ortiz for abusing her prosecutorial discretion---and more generally, the pattern the case represents, in which prosecutors pursue high-profile cases to advance their own careers, ruining lives unnecessarily by bullying the accused into giving up their right to trial. See also this editorial in the Massachusetts Lawyers Weekly.