Eugene Volokh @ The Volokh Conspiracy:
The Internet activist Aaron Swartz has died from an apparent suicide. Swartz was facing a criminal trial in April on charges arising from his effort to “liberate” the JSTOR database, and there has been a lot of commentary accusing the prosecutors in his case of having abused their role in ways that contributed to Swartz’s tragic death. Swartz’s friend Larry Lessig led the way by angrily condemning the prosecutors who charged Swartz as “bullies” who acted like they “had caught the 9/11 terrorists red-handed.” According to Lessig, the prosecutors acted in an “the most absurd or extreme way” and “don’t deserve to have the power of the United States government.” A lot of people seem to agree, and today’s media has picked up the story. The New York Times is running a headline, “A Data Crusader, a Defendant and Now, a Cause.” The Associated Presshas a somewhat similar story, “Swartz’ Death Fuels Debate Over Computer Crime”.
The criticisms of the Swartz prosecution concern two different questions. The first question is the law. Were the charges against Swartz based on a fair reading of the laws? Or was the prosecution being overly aggressive or relying on strained theories in charging Swartz as it did? The second question is discretion and judgment. The DOJ has the discretion to charge cases or not, and prosecutors can agree to different plea deals or even agree to have charges dismissed. Were the prosecutors in this case unfair in how they exercised discretion, or did they act irresponsibly in the case in how they exercised the discretion that the law grants them?
I hope to answer these questions in two posts. In the first post, I’m going to try and answer the first question — the law — as informed by my background as a specialist in this particular area of law who has testified on these statutes before Congress, defended computer crime cases involving these statutes, and helped prosecute them, too. In a subsequent post, I’ll try to answer the second question, the exercise of prosecutorial discretion.
This is going to be a long post, so here’s the summary of my conclusion on the first question: I think the charges against Swartz were based on a fair reading of the law. None of the charges involved aggressive readings of the law or any apparent prosecutorial overreach. All of the charges were based on established caselaw. Indeed, once the decision to charge the case had been made, the charges brought here were pretty much what any good federal prosecutor would have charged. This is different from what a lot of people are hearing on the Internets, so I realize this post isn’t going to be popular. But I’ll explain my position in some detail, starting with the facts and then turning to the law, and then I’ll open it up for comments. And in a subsequent post, I’ll take on the second question of whether prosecutors properly exercised their discretion in the decision to charge the case and during plea negotiations.
This is the second in a series of posts on the Aaron Swartz prosecution. In my first post, I analyzed whether the charges that were brought against Swartz were justified as a matter of law. In this post, I consider whether the prosecutors in the case properly exercised their discretion. As some readers may know, prosecutors generally have the discretion to decline to prosecute a case; once they charge a case, they have the discretion to offer or not offer a plea deal; and once they offer the plea deal, they have some discretion to set the terms of the offer that they will accept. This post considers whether the prosecutors abused that discretion.
To provide some attempted answers, I’m going to break down the question into four different issues: First, was any criminal punishment appropriate in the case? Second, if so, how much criminal punishment was appropriate? Third, who is to blame if the punishment was excessive and the government’s tactics were overzealous? And fourth, does the Swartz case show the need to amend the Computer Fraud and Abuse Act, and if so, how?
This is a very long post, so here’s a summary of where I come out on these four questions.
On the first question, I think that some kind of criminal punishment was appropriate in this case. Swartz had announced his commitment to violating the law as a moral imperative in order to effectively nullify existing federal laws on access to information. When someone engages in civil disobedience and intentionally violates a criminal law to achieve such an anti-democratic policy goal through unlawful means — and when there are indications in both words and deeds that he will continue to do so — it is proper for the criminal law to impose a punishment under the law that the individual intentionally violated. (Indeed, usually that is the point of civil disobedience: The entire point is to be punished to draw attention to the law that is deemed unjust.) As that appears to be the case here, I think some punishment was appropriate.
On the second question, I think the proper level of punishment in this case would be based primarily on the principle of what lawyers call “special deterrence.” In plain English, here’s the key question: What punishment was the minimum necessary to deter Swartz from continuing to try to use unlawful means to achieve his reform goals? I don’t think I know the answer to that question, but that’s the question I would answer to determine the proper level of punishment. The prosecution’s plea offer of 6 months in jail and a felony conviction may have been much more than was needed to persuade Swartz not to engage in unlawful and anti-demoratic means to pursue his policy goals in the future. If so, then I think it was too severe. But it depends on how much punishment was necessary to deter Swartz from using unlawful means to pursue his policy goals. In my view, that’s the question that we need to answer in order to say what punishment was appropriate in Swartz’s case.