Sunday, April 14, 2013

Aaron Swartz

Yesterday I took part in a protest over Aaron Swartz's unjust prosecution at the hands of US attorney Carmen Ortiz. I had followed this story this winter as the details emerged of an obvious case of prosecutorial over-reach. I hope that Swartz' death will ultimately provide the impetus to reexamine some of the unbalanced priorities in the Federal judicial system, particularly the amount discretion allowed prosecutors in deciding who in this society gets treated as criminals.

Aaron Swartz used the unsecured MIT networks to download a massive amount of legal documents from the online database JSTOR and make them available on peer to peer networks. JSTOR declined to press charges, but federal prosecutors Carmen Ortiza and Stephen Haymann ultimately levied the full weight of the Computer Fraud and Abuse Act against him, charging him with crimes that could have resulted in a million dollar fine and up to 35 years in jail.

Aaron Swartz' 'crime' was paying for the right to download publicly available legal documents and then making those documents available for free on the internet. This is certainly illegal, in the sense that the JSTOR prohibits this use of its documents, but let's keep in mind, these documents were made free and available to the public anyway shortly before Swartz' death.

Swartz was making a point about the access that the public should have in a democracy. In any sane system, Swartz would have been given a slap on the wrist or community service and he could have continued his remarkably promising life. After all, during the 70s, Steve Jobs and Steve Wozniak were involved in the phone phreaking subculture, using technology to get long-distance phone calls for free.  When caught, no crusading prosecutor hounded them into ruin. They were given community service and went on to create Apple. The same could be said of Mark Zuckerberg. If given the same treatment as Swartz, Zuckerberg would've crashed and burned in the first 10 minutes of the 'Social Network.'

On a larger point, the legal system of the United States no longer much resembles the procedural shows on TV. We don't live in a society where 'Law and Order,' trials happen routinely. Trials are the exception.

The basic problem is that over the past thirty years there has been a steady creep of laws governing what can be considered criminal activity on the web. The way the law currently reads, any violation of a website's Terms of Service agreement can be considered a felony. That means that fake Facebook profile you created for your cat is a felony. That means the 'disrespectful' comment you left on article is a felony. The reason you never hear about people being brought up on charges on these trivial but very real crimes is that the government relies on prosecutorial discretion in who is gets arrested and charged.

But that faith in discretion is severely challenged when prosecutors like Carmen Ortiz and Stephen Haymann arbitrarily decide who will be brought up on charges, and what they will be charged with. The whole notion of innocent until proved guilty is rendered meaningless when the state coerce confessions with ridiculously severe penalties for the most trivial crime.
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