Bringing Reality to Bear on the Aaron Swartz Tragedy

After the first 36 hours following Aaron Swartz’s suicide, the internet was awash in commentary. While well-intended, perhaps, it was awful.  Simplistic, ignorant memes, fueled by confirmation bias and the burning desire to identify an easily digestible enemy and punish her, prevailed. It helped no one to assert, and spread, and persist in spreading, facile arguments neatly tied up in a black bow.

A few brave souls challenged the prevailing anger of the internet, of the Hacktivists, of the geek community, who demanded a villain who committed a singular act worthy of the rage.  That came in the views of former criminal defense lawyer, former federal judge, now Harvard Lawprof Nancy Gertner, and Agitator turned HuffPo writer Radley Balko. In contrast to the childish nonsense of Millhiser’s 10 Worse Crimes piece, these reflected not only a return to sanity, but thoughtfulness based on reality.

In the interim, Massachusetts United States Attorney Carmen Ortiz  issued a statement defending her office’s actions in the case, Silicon Valley Congresswoman Zoe Lofgren introduced an amendment to the CFAA, naturally called “Aaron’s Law” as the rule that every death requires a new law remains in full force and effect. 

In a bow to gestalt, the Hacktivists were certain that the persecution of Swartz was a product of Ortiz’s personal political ambitions. Similarly, they saw the law as criminalizing what they did every day, and thus needed changing. While there were kernels of truth to all of these beliefs, as there almost always are, it diverted attention from core problems that Aaron Swartz, and indeed, all criminal defendants, faced.  As I urged in my earlier post, this wasn’t just about Aaron. He was just one warm body in a system that sucked the life out of many.  That his body went cold made his case stand out.

Orin Kerr at Volokh Conspiracy wrote an initial post on the case about the  efficacy of the charges against Swartz.  No reasonably knowledgeable lawyer doubted the feds could stick the charges. Certainly, Aaron Swartz’s lawyers didn’t laugh them off as meritless. But given the breath of attention the charges were given by non-lawyers and lawyers unfamiliar with criminal law, it was necessary to spell it out.

In a second post, Orin attempts to deal with the far harder questions surrounding the  propriety of the charges as a matter of prosecutorial discretion.  The post is long and addresses some very difficult questions, and I can’t remember Orin ever treading so gingerly over tough issues.

I suspect he recognizes the volatility of the case, and respects the intelligence and integrity of those who will not be inclined to agree with him.  In a post like this, it is essentially impossible to not to have others disagree with at least some portion of his analysis. That he took this risk is worthy of respect, even though there will be no shortage of disagreement on points large and small. 

A few core themes have developed across the articles and posts of those who aren’t blinded by tears or anger, and these are the things that will hopefully transcend the ignorance spread to rally the troops whose concerns are limited to the prosecution of one person, the suicide of one person, and the enemy of one person.  Aside from the harping on half-truths and utter nonsense, there is a groundswell of recognition that the extant prosecutorial posture across this nation has seized too much power and that the system is rife with abuse. 

Yes, Carmen Ortiz had the authority to reign in her zealous prosecutors, and her failure to do so falls squarely on her shoulders.  Whether this was for any personal benefit or not is irrelevant, as prosecutors everywhere do exactly as she did every day, most of whom have no higher ambitions. It’s just they way they roll, even though it never interested the people before who now use laser-focus to find answers that make sense to them.

No, Aaron Swartz never really faced 35 years in prison. The stacking of counts happens in every case, and every federal crime has a statutory maximum, but that isn’t the way we calculate exposure. Ortiz says her office was going to recommend a sentence of six months upon a plea. Does that change a lot of minds about the risk? It should.

A fellow who was acquitted the other day spent a year in jail awaiting trial.  Near as I can tell, I’m the only who gives a damn. Is his life not as worthy as Aaron Swartz’s?  It’s an unfair question, of course. It’s not that his life is less important, but that he’s unknown and friendless. Aaron Swartz was well know and loved within his community. It’s only natural that his friends and admirers take notice. But notice without context creates a false impression, and that gives rise to mistaken assumptions about what happened to Swartz.  Such mistaken assumptions do no one any good and make no one any more knowledgeable.

The most controversial aspects of Orin’s post address the political nature of the case and the punishment.  There are two primary aspects that compel debate, whether Aaron Swartz’s open choice to engage in civil disobedience to further his beliefs was an invitation for punishment, and if so, what punishment was appropriate.  On the first, Orin contrasts the value of democratically enacted laws with individual political views, a paradigm that some (myself included) question because of a certain lack of faith in the concept of democratically enacted laws. Any attempt at further discussion of this point would go on at great length, so it will have to wait for another day.

However, Orin contends that those who engage in civil disobedience do so with the intention of being punished, the punishment being the means by which they protest the status quo and bring their issue to the attention of others. While I agree that they intentionally risk punishment, I can’t adopt the view that they seek it. The purpose is well-served by letting others know that they’ve bested their adversaries and challenged the status quo.  Imprisonment isn’t necessary to accomplish their purpose.

As to what purpose is served by punishment, which is a necessary precursor to what punishment would fulfill that purpose, I have no answer worthy of your time to read. That the discussion has moved beyond the nonsense is what matters, and that people are thinking about real questions with real information in an intelligent way is what makes this discussion worthwhile.

Aaron Swartz’s death is a tragedy, but not the only tragedy.  Honor him by doing what he did in his life. Think hard. Stand for something.  Act upon it.

6 comments on “Bringing Reality to Bear on the Aaron Swartz Tragedy

  1. BobN

    Thank you for a thoughtful post on this matter. There is so much ranting craziness on this, even from some, such as Jonathan Turley, that you wouldn’t expect it. I thought Kerr did a good thoughtful job of explaining things. I think that people somehow look at online wrongdoing much differently than physical crimes. If Aaron Swartz had backed up a truck to the MIT library in the middle of the night, loaded up 1000s and 1000s of copies of journals and articles and tried to make off and give them away for free, the crime would be viewed much differently. Similarly, those who write and dessiminate malicious viruses that damage software or hardware should be viewed as a vandal that has come in hit one’s computer with a baseball bat. That being said, we should be concerned about overcriminalizing in both state and federal laws and overcharging by prosecutors nationwide.

    Finally, I think we should actually more concerned about the innocent young man who spent a year in jail before even being tried. He was effectively punished even though he was found not quilty.

  2. SHG

    Thanks, Bob. I read Turley’s post on the case, and was deeply disappointed as well. I expect him to know better.

    Whether digital crimes and brick and mortar crimes compare well is a difficult issue, and one thing I’ve come to realize is that those of us on the law end are horribly inadequate on the technology end to appreciate what we’re doing. This is particularly true of judges and legislators, and gives rise to grossly inadequate definitions and applications which plague us for decades as technology changes in nanoseconds.

    We end up using dubious brick and mortar analogies because they’re easier for us to work with, not because they work well. And we end up with a system that’s shockingly inapt, but all that our tech-ignorant minds can handle.  It’s not a good system.

  3. Antonin I. Pribetic

    As always, a balanced, nuanced analysis of the underlying legal issues. Prosecutorial zeal is not sui generis in any criminal justice system. You have written persuasively about how the deck is stacked against defendants, systemically and systematically.

    The media guilt bias continues to run rampant; it focuses its spotlight on the for what the public clamours: the most visible, the most derisble, the most risible.

    Swartz may have been an internet pioneer and a prodigal son of social media revolution, but many will overlook how the State manipulates the mainstream media to publicize the high-profile game-hunting trophy cases, while the public is never surfeit on a steady stream of scatological sensationalism.

    As the M.A.S.H. theme lyric suggests, Suicide is painless. What endures is the pain and anguish of Swartz’s family, friends. All others facing a similar fate fall further into the abyss.

  4. ellen

    Swartz’s actions were clearly civil disobedience and part of his campaign to make scholarly works available on the internet for free. But contrast the Justice Department’s response in this case to its reaction to civil rights demonstrators, aids activists, etc. who frequently tie up traffic, sit in at corporate headquarters, trespass, and otherwise break laws in order to protest. The US Attorney rarely looks for an opportunity to bring a full “federal case” and the demonstrators usually are arrested on local misdemeanor charges, which are often dismissed.
    But if the political issue is internet freedom, the Justice Dept. prosecutes to the last full measure. It seems to have lumped Swartz with Sgt Manning and considers a breach of academic paywalls equal to misappropriating government classified cables.There is no room for political dissent on this issue, apparently.

  5. SHG

    I believe that Swartz’s actions were civil disobedience as well, but I’m not clear what difference that makes. This isn’t the same as 5000 marchers blocking the Brooklyn Bridge. Do you really need an in-depth explanation why? If so, then this is a waste of time. That said, there are indeed times when the US Attorney gets involved, and things can get very harsh. Just because you don’t know them doesn’t mean they don’t happen.

    As for Bradley Manning, I bet he would have felt a bit more comfortable lumped in with Aaron Swartz. His situation is a lot more difficult, as it should be.  Civil disobedience is an honored means of protesting something one believes to be wrong. But by definition, it carries a potential price. The risk of having to pay the price is what makes it a principled act.  Otherwise, we would all just ignore laws we didn’t like.

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