Orin Kerr has a post about whether Aaron Swartz was treated fairly by prosecutors. It’s a lengthy and thoughtful post which is illuminating on several levels, and I recommend that you read the whole thing. However, I’m sad to say that Orin has kind of ducked the main question:
What punishment was proper? Did prosecutors go too far? To answer that, we need a benchmark of how much punishment was enough. And to answer that, we need to look at the social harms involved in the conduct. Swartz was caught before he executed his plan, so there were relatively minimal harms from the plan that was stopped before it succeeded. But as I’ve explained above, it seems like Aaron was committed to a long-term plan to continue to engage in such conduct, including through unlawful means. In his view, this was not a one-off, or an impulsive decision. Rather, he felt that there was a moral imperative to violate laws that he saw as unjust. And critically, he didn’t want to violate those laws in a symbolic way just to bring attention to laws he saw as unjust. Swartz was not acting in the grand tradition of civil disobedience in which one willingly draws punishment to bring attention to the unjustness of the law. In his own words, he didn’t want to “just send a strong message opposing the privatization of knowledge.” Rather, he wanted to change the facts on the ground to make his preferred world a fait accompli. That is, he wanted to make the laws unenforceable, winning the debate unilaterally outside of Congress. In his words, he wanted to act so that the democratically-enacted laws that allowed privatization of knowledge would become “a thing of the past.”
Given that commitment, I think one appropriate benchmark for the proper punishment is based on what legal scholars call “special deterrence.” In plain English, the question is this: What is the minimum punishment that was needed to persuade Swartz not to do this sort of thing in the future? To my mind, the answer to that question provides a reasonable benchmark to determine the proper punishment. By all accounts, Swartz was a tremendously brilliant guy with an incredibly bright future. His death is a tremendous tragedy. But had he lived, we would all have been better off with a future in which Swartz directed his incredible talents to pursuing his ideas through lawful means rather than unlawful means. Many people — and many readers of this post in particular — share Swartz’s sense of good social policy. But we live in a democracy. We might not like all the rules in a democracy, but the way to change those rules is through democratic change. Swartz could have tried to be punished under the law to bring attention to the law in the hope of changing it through the democratic process. But instead he had something anti-democratic in mind. I think it’s pretty clear that in a democratic system, that kind of anti-democratic cause is something that we should disfavor. You can break the law to draw punishment, but the ultimate goal of traditional civil disobedience is achieving change through the legal means of democracy. Swartz had something else in mind, it seems; changing the law de facto by his unilateral action. Given the importance of the difference, a punishment that was the minimum sufficient to persuade Swartz to follow the law in the future seems appropriate.
This brings up the difficulty that we don’t know exactly what penalty would have persuaded Swartz to follow the law in the future. So I’ll ask those who knew Swartz best: What do you think would have been sufficient to persuade Swartz to abandon the moral imperative of civil disobedience and instead agree to pursue change through only legal means? I’ll defer here to the people who knew Swartz best, with whatever they think the right answer is. Would probation have been enough? A month of home confinement? Jail time? I really don’t know. It may be that the answer was unknowable.
On a deep, philosophical level, Orin is probably right to defer to those who knew Swartz best. But this is the real world, where prosecutors didn’t know Swartz, and had to make their decisions based on the knowledge available to them. As someone with an extensive background in this subject matter area, Orin’s opinion would be particularly valuable. As someone with zero background in cybercrime prosecutions and minimal knowledge of federal sentencing standards, my opinion is considerably less valuable.
But hey, this is America, where your opinion doesn’t have to be particularly insightful for you to hold it and express it with considerable force and conviction. So I’ll give my opinion. As I do, keep in mind that while my opinion is minimally informed by my own experience as a prosecutor, I am speaking (as I always do on this blog) as a private citizen, and not for my office. Just like it says on the sidebar to the right.
My opinion is going to assume that the charges against Swartz were appropriate, both legally and factually — something I do not necessarily assume in real life. I don’t believe I know enough about the case and the law to reach that judgment.
Assuming he was guilty, what punishment was appropriate? I would look at several factors, and the following list is not exhaustive, but they are the factors that leap to mind:
- Swartz does not appear to have been out for personal gain, and the value of the material seems to have been overblown. At the time Swartz killed himself, it was known that JSTOR had opened its archives. The Wall Street Journal reported on Monday:
Mr. Swartz’s goal, friends said, wasn’t to steal the material for personal gain, but to make it publicly available. On Wednesday, after a 10-month trial program, JSTOR opened its archives to free reading by the public.
Based on material I have seen elsewhere, I am not 100% certain this sweeping statement is totally accurate, but let’s assume it to be for now. This material Swartz attempted to “liberate” was allegedly worth millions of dollars, but today — and two days before Swartz killed himself — it is suddenly freely available. Legally, that may mean nothing on a technical level, but as a great prosecutor in our office once said, once a prosecutor starts using the word “technically,” he is usually in trouble. This truly is a fairly unique situation — not just because Swartz was buddies with Larry Lessig, but because the valuation of the material Swartz downloaded was debatable. If an owner can snap his fingers and erase millions of dollars of value, it’s hard for me to ignore that.
- Swartz had no record and his crimes were nonviolent. The fact that he was a genius does not make his crimes less worthy of punishment, but someone’s lack of criminal record certainly factors into the equation.
- When compared to other cybercrimes, this crime seems less malevolent by comparison. Remember: I was told the state penalty for swatting in California is three years maximum — and then only if someone concludes that the victim was put in danger of losing his life or being severely injured. Swartz’s prosecutors wanted 7 or 8 years in prison after trial, and a swatter can only get three years in state prison? Something is out of kilter here, no?
Stacked up on the other side are Swartz’s clear knowledge that he was doing something society saw as wrong and his open declaration that he believed it to be philosophically correct regardless of society’s beliefs. IF you assume the charges are appropriate, he has to be punished in a way that deters him.
To me, a single felony conviction and the prospect of future custody time if you violate the conditions of your supervised release would be enough. 13 felonies seems like overkill. Prison time seems like overkill.
I could be wrong about that, and my judgment could be influenced by the fact that I prosecute only murder cases. Like I said, Kerr’s insights would be far more valuable than mine. But my own less informed opinion is that it was not necessary to send this guy to prison.
That said, 6 months in a low security prison is not the end of the world if you have committed 13 felonies. I have visited such a federal prison, at Lompoc. There are no fences. Prisoners milk cows, play softball, and sleep in barracks-style bunks. Rationally, it’s not worth killing yourself over. Clearly, his suicide was not a rational act, and to blame it on prosecutors is, I think, unfair.
All that said, the thing that continues to bother me is that the prosecutors argued (at least insinuated) that the federal government did not have control over certain evidence such that they could get a search warrant, when (as I have shown) an email that they had not disclosed showed they absolutely did. I would like to see Kerr opine on that — and, frankly, I’d also like to see him opine on whether the prosecutors’ conduct was appropriate based on what they knew. Again: they had to make their decisions, like all prosecutors, based on what they knew (and could reasonably learn).
By the way, Carmen Ortiz has made a public statement about the case, defending her prosecutors. You can read it here.