Sunday, January 13, 2013

Is it a crime when the victim declines to prosecute?

A brilliant young man has killed himself and it's hard not to see this as a completely needless tragedy.
Open democracy advocate and internet pioneer Aaron Swartz was found dead Friday in an apparent suicide, flooding the digital spectrum with an outpouring of grief. He was 26 years old. 
Swartz spent the last two years fighting federal hacking charges. In July 2011, prosecutor Scott Garland working under U.S. Attorney Carmen Ortiz, a politician with her eye on the governor's mansion, charged Swartz with four counts of felony misconduct -- charges that were deemed outrageous by internet experts who understood the case, and wholly unnecessary by the parties Swartz was accused of wronging. 
Swartz repeatedly sought to reduce the charges to a level below felony status, but prosecutors pressed on, adding additional charges so that by September 2012Swartz faced 13 felony counts and up to half a century in prison. 
Swartz had long lived with depression and a host of physical ailments, which made his accomplishments that much more astonishing. Barely a teenager, he codeveloped the RSS feed, before becoming one of the earliest minds behind Reddit. ....
"Aaron’s death is not simply a personal tragedy," [his family's] statement reads. "It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney's office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims." 
That sentiment was echoed by Harvard University Law School Professor Lawrence Lessig, a friend of Swartz, wrote a withering blog post attacking the Department of Justice for its misplaced zeal...
Swartz's friend Henry Farrell, a political scientist at George Washington University, also pointed at the DOJ.
"His last two years were hard, thanks to the U.S. Department of Justice, which engaged in gross prosecutorial overreach on the basis of stretched interpretations of the law," he told HuffPost. "They sought felony convictions with decades of prison time for actions which, if they were illegal at all, were at most misdemeanors. Aaron struggled sometimes with depression, but it would have been hard not to be depressed in his circumstances. As Larry Lessig has rightly said, this should be a cause for great shame and anger." 
In the fall of 2010, Swartz downloaded millions of academic journal articles from the nonprofit online database JSTOR, which provides such articles free of charge to students and researchers. As a faculty member at Harvard University, Swartz had a JSTOR account, and downloaded the documents over the course of a few weeks from a library at the Massachusetts Institute of Technology. 
JSTOR typically limits users to a few downloads at a time. Swartz's activities ultimately shut down JSTOR's servers briefly, and eventually resulted in MIT's library being blocked by JSTOR for a few days. 
This was inconvenient for JSTOR and MIT, and a violation of JSTOR's Terms of Service agreement. Had JSTOR wanted to pursue civil charges against Swartz for breach of contract, it could have. But JSTOR did not, and washed its hands of the whole affair. In 2013, JSTOR made several million academic journal articles available to anyone, free of charge. Academic research is designed to be publicly accessible and is distinct from the research of private corporations, which assert aggressive intellectual property rights over activities they fund. Last June, Swartz told HuffPost that both JSTOR and MIT had advised prosecutors they were not interested in pursuing criminal or civil charges. 
But the government pressed on, interpreting Swartz's actions as a federal crime, alleging mass theft, damaged computers and wire fraud, and suggesting that Swartz stood to gain financially.


Murdoch Matthew said...

A comment elsewhere linked the case of Swartz with Bradley Manning's, and guessed that, in its zeal to control the flow of information completely, the government was seeking to "make an example" of both of them. But they aren't examples; they're fragile human beings more idealistic and brave than most.

JFred Muggs said...

It's also worth noting that Swartz had been previously under federal investigation for his role in collecting and redistributing federal court decisions from PACER. The charges on that were ultimately thrown out by a judge who ruled that since federal government works produced in the course of business are public domain, there could be no charges brought for redistribution of of those works. He made more than a few enemies in the DoJ then, and part of this investigation was payback for having the audacity to get the better of government attorneys in court.

JCF said...