Aaron Swartz And Our Broken Justice System

I didn't know Aaron Swartz, and I have no idea whether his legal troubles contributed to his decision to kill himself Friday. But I do know his federal prosecution for downloading copyrighted information from JSTOR, the online database of social science articles, was overzealous and out of proportion for the alleged offense he committed. Indeed, even JSTOR itself was not supportive of the federal government's actions against Swartz.

For some context, I turn to Swartz's friend and one-time lawyer, Harvard Law professor Lawrence Lessig:

Here is where we need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed. (emphasis in original)

I would think most of us who deal with academic articles and journals for a living think of the services like JSTOR and Lexis-Nexis as quasi-necessary gatekeepers to information we can get on our computers that save us a trip to the local law library. (Indeed, I have a much higher respect for Swartz's similar actions against PACER, a service that charges $0.10 per digital page viewed of court—i.e., public—documents that have no protection of copyright or intellectual property claims. The DOJ opened an investigation but then dropped the case.) But I don't think any of us who may have shared a file against the terms of service should be prosecuted for essentially doing what Swartz did, albeit on a much larger scale.

The United States Attorneys office increased Swartz's original four felony charges to thirteen this past September. Before the increase, Swartz was already facing a potential $1m fine and 35 years in prison for taking the gates off of academic articles. Even if we decide that we want these things to be policed, a 35-50 year prison sentence for temporarily opening a backdoor to information academic navel gazing is patently absurd.

But while many are outraged at the actions of the U.S. Attorney in the wake of Swartz's death, it should be said that over-prosecutions are standard operating procedure for U.S. Attorneys offices across the country. As I've documented before, U.S. Attorneys—and Assistant U.S. Attorneys—have a very wide latitude in whom they prosecute for what offense. Even when a directive from Washington says, for example, "Don't go after medical marijuana dispensaries that are in compliance with state laws," U.S. Attorneys ramp-up efforts and prosecutions. Just this past week, Aaron Sandusky was sentenced to 10 years in federal prison for compliance with state law.

Being in the U.S. Attorney's office is often a stepping stone professionally. On one hand, an "accomplished" USA/AUSA can walk into a partnership at a Big Law firm, a giant payday which may be a professional end point in itself. On the other, some USAs/AUSAs have higher goals, such as federal judgeships or political office. Former Massachusetts governor William Weld made a name for himself zealously prosecuting white collar crime as a U.S. Attorney, and former mayor of New York City and one-time presidential candidate Rudy Guiliani made his bones taking down organized crime as U.S. Attorney in the Southern District of New York. (In that district alone, former AUSAs include, inter alia, two former Supreme Court justices, a governor of New York, one prominent Congressman, a former FBI director, and a former U.S. Attorney General.) If you're an ambitious young lawyer, the U.S. Attorneys Office is the place for you.

Behind any high profile federal case, there is a USA or AUSA standing to gain professional notoriety for it. The Martha Stewart insider trading investigation made headlines, but it turns out her initial "crime" was nothing, so she was actually prosecuted for making false statements to investigators. (That charge, too, was weaksauce.) Nevertheless, the man who prosecuted Stewart became the number two man at the DOJ and, for a time, Acting U.S. Attorney General. His name has also been bandied about for a possible SCOTUS nod. After all, at the end of the day, he got a conviction—that the underlying issue wasn't a crime is, to the DOJ, beside the point.

This is not to say it's all about headlines. Less ambitious USAs go for lower hanging fruit, like arrowhead collectors:

Eddie Leroy Anderson of Craigmont, Idaho, is a retired logger, a former science teacher and now a federal criminal thanks to his arrowhead-collecting hobby.

In 2009, Mr. Anderson loaned his son some tools to dig for arrowheads near a favorite campground of theirs. Unfortunately, they were on federal land. Authorities "notified me to get a lawyer and a damn good one," Mr. Anderson recalls.

There is no evidence the Andersons intended to break the law, or even knew the law existed, according to court records and interviews. But the law, the Archaeological Resources Protection Act of 1979, doesn't require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit. Faced with that reality, the two men, who didn't find arrowheads that day, pleaded guilty to a misdemeanor and got a year's probation and a $1,500 penalty each. "We kind of wonder why it got took to the level that it did," says Mr. Anderson, 68 years old.

Wendy Olson, the U.S. Attorney for Idaho, said the men were on an archeological site that was 13,000 years old. "Folks do need to pay attention to where they are," she said.

The U.S. Attorneys offices prosecute whomever they want, for whatever they want, and there is no shortage of laws—and potential laws—with which they can do it. Mr. Swartz may have done wrong by JSTOR, and perhaps he even deserved to pay a fine for his misdeeds, but a two year federal investigation and the threat of putting a young man in prison for the rest of his life was a despicable and wasteful effort by the federal government. Unchecked and vindictive prosecutions ruin lives, and those who are responsible for them should not be rewarded with political office.

We need federal attorneys, and we need them to have a certain latitude in what cases they do, and do not, pursue. But the Department of Justice should rein in its prosecutors and police their activities more closely. Directives from Washington should discourage unjust prosecutions, promote prudence, and tolerate—if not encourage—discretion. And, unlike the current system, these directives should have teeth. Disregarded memos are not emblematic of functioning government. Nor should win totals and headlines be the measure of a United States Attorney.

bellum medicamenti delenda est

PS: Those interested in learning more about rampant overcriminalization should look here and here. I also highly recommend Harvey Silverglate's book "Three Felonies A Day: How the Feds Target the Innocent."