Aaron Swartz: The Punishment Did Not Fit the Crime

As long as prosecutors have the option to put first-time computer trespassers behind bars for decades, we will continue to see such clear injustices.

Aaron Swartz, a 26-year-old computer prodigy and Internet activist, was facing decades in prison for violating federal hacking laws when he took his own life earlier this month. Many commentators, including Lawrence Lessig and Glenn Greenwald, have argued that prosecutorial zeal drove Swartz to hang himself. They’re certainly right. Yet prosecutorial discretion would not have mattered much if the possibility of such draconian punishment did not exist.

Swartz was arrested essentially for electronic trespass. He went into an unlocked maintenance closet in a building on MIT’s campus and hooked up a laptop that he’d programmed to automatically download millions of academic articles from the JSTOR archive. In no sense was he stealing. As a fellow at Harvard, Swartz had legal access to the articles. And because he was copying the articles—not taking them—JSTOR continued to have them.

It’s true that Swartz violated JSTOR’s terms of service by downloading the articles in bulk rather than one-by-one, but that should have been dealt with as a breach of contract, not as a criminal matter. As a Swartz supporter has put it, “it’s like trying to put someone in jail for allegedly checking too many books out of the library.”

Nevertheless Swartz was facing 13 felony counts under the federal Computer Fraud and Abuse Act. “If convicted on these charges,” a press release from the U.S. Attorney’s office at the time stated, “Swartz faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.” As Tim Lee has pointed out, that’s a far cry from the $100 fine and up to 30 days in prison one would face for simple trespass in Massachusetts.

The problem, therefore, is not just that federal prosecutors in this case refused to engage sober prosecutorial discretion, it’s that they had the option to seek—and to threaten with—a punishment so out of proportion to the crime. How can such severe punishments be justified for computer crimes?

Nobel laureate Gary Becker’s work on crime and punishment suggests one reason. The more difficult a crime is to detect, Becker has pointed out, the more costly society should want the attendant punishments to be. Consider a pick-pocket who faces a 50–50 chance of getting caught snatching $100 from a man on the street. If the punishment for his crime is a $100 fine, he won’t be deterred. He could continue to pick-pocket and the worst that would happen to him is that he’d break even.

In Becker’s view, there are two ways to increase deterrence: Spend more on policing so that the chance of getting caught increases, or raise the cost of the punishment so that the crime won’t pay. In order to conserve public resources, it makes sense to opt for the latter option, so that’s often what happens.

This might explain why computer crimes, which are notoriously difficult to attribute to a particular perpetrator, often carry outsized penalties. The problem with this, of course, is that when a hacker is caught and is made to face a massive punishment for a trivial crime the punishment seems incredibly unjust.

If it seems unjust, as it did in Swartz’s case, that’s because it is unjust. As a result, such punishments engender not greater compliance, but contempt for the law. Why respect a law that is so obviously unjust, a hacker might wonder—especially one as idealistic as Swartz.

The work of another Nobel laureate in economics, Elinor Ostrom, suggests what might be a more sustainable approach to punishment: a series of graduated sanctions beginning with a light punishment for first-time offenders.

Under such a system, getting caught committing a crime would have three effects: 1) it would stop the crime in question from continuing, 2) it would let the criminal and other potential criminals know that they can get caught, and 3) it would allow the criminal to pay a price but be able to mend his ways and return to the fold of productive society. That, after all, is the ideal outcome.

The “crime pays” problem is solved by making it increasingly more costly for repeat offenders. Recidivists would face harsher and harsher penalties, which would be seen as just, but there would be room for someone like Swartz to learn their lesson and mend their ways. A system of outsized punishments for trivial crimes that are difficult to detect works only by making unjust examples of first-time offenders.

Indeed this is almost the way it worked. A new report reveals that immediately after he was arrested, Swartz was charged by the Middlesex County district attorney’s office simply with breaking and entering. According to the report, the district attorney did not plan to seek jail time, “with Swartz duly admonished and then returned to civil society to continue his pioneering electronic work in a less legally questionable manner.”

Sadly, once the U.S. Attorney’s office decided to take over and bring federal charges it became virtually impossible for Swartz to ever return to society “duly admonished” and without a felony conviction. As long as prosecutors have the option to put first-time computer trespassers behind bars for decades, we will continue to see such clear injustices.

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  • Tim||

    Computer crime scares the shit out of the master class, the idea that somebody can access and expose their fucking secrets drives them to pass ridiculous penalties.

    In a time of universal deceit - telling the truth is a revolutionary act.
    George Orwell

  • ||

    It wasn't a computer crime case. It was political persecution with computer crime as the pretext.

  • mtrueman||

    This is not really crime though, and why Reason insists on consulting economists on how to stop actions which are politically - and not economically - motivated is typically wrongheaded.

    The penalties are in keeping with seriousness of their actions. Also note laws equating animal cruelty whistle blowing with terrorism. Political crimes with harsh punishments. No economist, Nobel laureate or not, is going to help explain this as long as he believes that the perpetrators are motivated by financial.

  • Mr Whipple||

    I read the Greenwald article last week. Fucking Nazi cunt. Almost as bad as Melinda Haag.

  • BakedPenguin||

    Huh?

  • Mr Whipple||

    The prosecutor. Melinda Haag is the prosecutor in California that goes after the medical marijuana clinics and locks people up for 30 years (or whatever).

  • Mr Whipple||

  • The Late P Brooks||

    In Becker’s view, there are two ways to increase deterrence: Spend more on policing so that the chance of getting caught increases, or raise the cost of the punishment so that the crime won’t pay. In order to conserve public resources, it makes sense to opt for the latter option, so that’s often what happens.

    Magic spells.

    Why don't we just tell hackers we're going to turn them into toads?

  • Geoff Nathan||

    Not clear how being a TOAD would be a deterrent.

  • Rufus J. Firefly||

    Sounds as though hackers will have to just be aware that the Feds will come after you. Ignorance is not bliss.

    U.S. Att-Gen? The one Holder is in? The one where he chose not to go after the NBP for publicly putting a bounty on someone's head? That Holder? Fast & Furious? Him?

  • PowerBottom||

    I'm hesitant to blame others for the someone's suicide. An individual is the only person responsible for his/her own actions. Trying to blame the prosecutor fits well into the narrative of the crushing power of the state on an individual, but in my opinion, no outside person is responsible for another's suicide.

    Also, fuck that cunt prosecutor.

  • Drake||

    Yes - Fuck the Prosecutor.

    And screw Swartz for being a suicidal coward.

  • $park¥||

    And screw Swartz for being a suicidal coward.

    This.

    I'm sure all the idiots who are just sure he killed himself because of the lawsuit coming down just have absolute proof of that, right?

  • Les||

    Calling Swartz a "suicidal coward" is no less simplistic as being sure that he killed himself because of the prosecution.

  • TakinThyBacon||

    Amen

    Suicide is the harshest form of greed..
    Shifting anguish from one's self on too loved ones is a truly cowardly act.

  • aethelstan||

    A completely unrelated but serious question: would you consider him a coward if he killed himself by seppuku?

  • Too_Big_to_Fail||

    My opinion would definitely change if it were in the courtroom at his sentencing hearing with a sharpened plastic letter opener.

  • D.D. Driver||

    We all agree about the prosecutor. I agree with the rest of your post as well.

    Most of us here disagreed that the college student who jumped off a bridge was "murdered" by his insensitive room mate. Although the government's treatment of Schwartz is orders of magnitude greater than the suffering that the college student endured, we still need to be careful when we make arguments about the government "causing" him to kill himself.

    Suicide is (unless you suffer from a terminal illness) such an irrational act that we need to think long and hard before we get into cause and effect.

    Once we buy into this notion that people "cause" others to commit suicide we have conceded "anti-bullying laws" are appropriate.

    Anyone who reads Reason knows that the government screws over many, many people. Many far worse than Schwartz. Almost none of those people kill themselves. Around the world billions of people live in absolute miserable conditions. They don't kill themselves.

    Schwartz killed himself because of a mental illness. The prosecutor's conduct was awful. It would have been just as awful if Schwartz were still alive.

  • ||

    The prosecutor's conduct was awful. It would have been just as awful if Schwartz were still alive.

    Well said.

  • EDG reppin' LBC||

    I have a hard time finding sympathy for someone who committed suicide. Even if his potential sentence was draconian, Swartz as a rational actor, decided death was preferable. He got what he wanted. Hooray.

    I don't like the approach the prosecutors took, but they are not responsible for his death.

  • RBS||

    I agree. I guess this is going to be one of those stories reason beats to death though.

  • EDG reppin' LBC||

    Unfortunately, I think you are correct. I'm not sure why Reason latches onto certain stories?

  • Too_Big_to_Fail||

    Emotional appeal. All major media outlets love that shit.

  • John||

    So unjustly putting someone in extremely dire circumstances doesn't mean you bear some responsibility if that results in suicide?

    I don't see that at all. If the charges and the potential sentence had been just, then I would blame it entirely on Swartz for not being willing to take responsibility for his actions. But that is not what happened here. This is analogous to a murderer being at least partially responsible for his victim's husband's subsequent suicide.

  • EDG reppin' LBC||

    The sentencing the prosecution threatened and the actual sentencing may have been vastly different. But we'll never know because Swartz decided to snuff it. I just don't think the prosecution can be blamed. Swartz, and only Swartz, made the decision to kill himself.

  • John||

    The sentencing the prosecution threatened and the actual sentencing may have been vastly different.

    So if I put a gun to your head and you try to escape me and fall out of a window to your death, I am not responsible since we will never know if I would have actually shot you?

  • EDG reppin' LBC||

    If I grab the gun from your hand, and blow my brains out because I was scared you were going to hurt me, you are not responsible.

  • Almanian.||

    You can grab the gun from my hands when they're cold and dead, and NOT before, thank you very much.

  • EDG reppin' LBC||

    I'd rather just grab a cold beer, and watch football instead.

  • John||

    I would say if my doing unlawful and immoral act of threatening you with the gun, caused you to do that, I would say I am responsible. The critical thing here is what am I doing. If I am doing something legitimate, then I am not responsible for your actions that result from it. But if I do something that is illegitimate and I happen to be unlucky that day and do said illegitimate thing to someone who is unstable, well that is just too bad for me.

  • BakedPenguin||

    I have to agree. I wonder about what kind of counsel he got, though. If he was offered a plea deal of 6 months (itself a ludicrous punishment for his "crime"), his lawyer should have told him what could happen if he turned it down.

  • tarran||

    I doubt it was the jail time... I'll bet it was the time he couldn't use a networked computer. They were saying ten years.

  • ||

    So unjustly putting someone in extremely dire circumstances doesn't mean you bear some responsibility if that results in suicide?

    Maybe I'm mistaken, but Reason seemed pretty unanimous that the indian kid was not responsible for the gay Rutgers student's death. Now that draconian punishment drove a person to suicide, it's no longer the fault of the individual?

    I find it easy to dislike both parties in this case, although if he decided to live through this I would certainly find myself in Swartz's corner.

  • John||

    See my response below. The problem with the Rutgers case was that they tried to throw the kid in prison. But at a moral level was that kid responsible? Sure. He was a dirtbag who deserved to be kicked out of school just like Ortiz is a dirtbag who deserve to lose her job.

  • R C Dean||

    To be fair, being outed as gay is not comparable at all to being threatened by a federal prosecutor with years in federal prison.

  • Lyle||

    I'm with you. Activist should be prepared to do some jail time and he clearly wasn't.

    Not to mention the people in his life clearly didn't help him. They should have been telling him to buck up and be a 21st century internet Nelson Mandela. But they didn't and because he was a weak man with a head filled with a bunch of bullshit he killed himself.

    The people around him and who taught him are as guilty as the Federal government.

  • mtrueman||

    ¨Activist should be prepared to do some jail time¨

    Interesting position. The lesson i would hope activists take home from this is to take more steps to hide their tracks and have an escape route in mind unless they want to spend the rest of their lives behind bars.

    A single man spending his life in prison is not going to cut it in modern America. There are too many willing to jump on what they perceive as a man´s weaknesses - here in these comments we see many who hold Swartz in comtempt for his mental problems, or Manning for his sexuality. Mandela couldn´t have emerged from prison victorious without a good measure of social solidarity, something utterly lacking in these pages.

    In Tunisia couple years ago, the suicide of Mohamed Bouazizi was an important part of the overthrow of a tyrannical government. Had the Tunisians followed the Libertarians at Reason, they´d feel better about themselves for not being suicidal fruit vendors, but they´d still be under a tyrant´s thumb.

  • mtrueman||

    ¨Swartz as a rational actor¨

    How do you know that Swartz was a rational actor? How do you know what he wanted?

    You might find it easier to find sympathy for the man if you weren´t so keen on jumping to uninformed conclusions about him and his problems. I see nothing here to cheer about.

  • The Late P Brooks||

    Federal prosecutors are the scum of the eart.

    They are the Torquemadas of our age.

  • John Galt||

    Well, since we as a society choose to allow them to be greatly rewarded for their malevolent self serving behavior these "Torquemadas" won't be changing their methods any time soon.

  • Almanian.||

    What's this "we" stuff, Kemosabe?

    I ALSO WANNA SEE THIS SOCIAL CONTRACT THAT I NEVER SIGNED!!!11!!

    /stereotype but kinda mean it...

  • Mr Whipple||

    In other electronics news, don't get caught unlocking your smart phone. It's now a criminal offense.

    http://rt.com/usa/news/petitio.....nlock-039/

  • Mr Whipple||

    "When freedom is illegal, criminals make laws and Outlaws make freedom"

    - Claire Wolfe

  • John Galt||

    Claire was a wise woman.

    Unfortunately, the majority of the masses are complete and useless imbeciles who will happily trade away, not just their own, but everyone's freedom for anything ranging from a little temporary security to a free Obamaphone.

  • John||

    How the hell did copyright infringement become a criminal issue?

  • Rhywun||

    DMCA - that explains it. That fucking thing is pure evil, again.

  • Mr Whipple||

    Yup. But I don' think it's really about copyright infringement. I think it's about bypassing the trackers they place on phones to gather information and sell.

    But even if you contractually agree to allow those trackers and then bypass them, how it could be a criminal offense.

    I use an old RAZR for a phone. My tablet is WIFI only which I have rooted and Torified. I carry a mobile hotspot as a second line.

  • John Galt||

    "Prosecution" really? More like persecution.

  • Lyle||

    Aaron Schwartz was a weak man if he committed suicide because of a criminal prosecution.

    I'm not saying the Feds were right, but I am saying strong men don't kill themselves and they find a way to persevere. Someone should have reminded him of Nelson Mandela or the many others who have had to endure some unjust prison time. Hell, Bates' story on Downton Abbey would have done.

  • John||

    Sure he was a weak man. But tough shit. I am still holding Ortiz responsible. If she doesn't want to take the risk of a weak person committing suicide because of her actions, perhaps she ought not be bringing unjust politically motivated prosecutions.

  • Lyle||

    It's not her problem that Aaron Schwartz was a weak man though. It was Aaron Schwartz's responsibility to take the road Nelson Mandela and some many other envelope pushers have taken.

    Come on John.

  • John||

    It's not her problem that Aaron Schwartz was a weak man though.

    The moment she brought that prosecution, it became her problem. It is not my problem you have a thin skull. But it becomes my problem the moment I hit you in the head and you die as a result.

  • PowerBottom||

    So, John, do you also believe that Rutgers student who filmed his gay roommate was guilty of making the gay dude commit suicide? He got prison time. Was that just?

  • John||

    I don't think he should have gone to prison. But was that Rutgers' student a dirtbag worthy of derision? Sure. Was he immoral? Absolutely. Was in a sense responsible for the death? If the facts are as they were reported, yes. But there is a difference between being responsible and being criminally responsible.

    In this case, I think Ortiz should be fired and never allowed to prosecute again. I don't think she should go to jail. In the Rutgers case, I would not have objected to Rutgers expelling the kid.

  • Lyle||

    Give this guy a good spank. What he says.

  • nicole||

    I'm not saying the Feds were right, but I am saying strong men don't kill themselves and they find a way to persevere.

    Why? Why, in this case, should Swartz have especially preferred trial/jail time over suicide? Don't you think his story is getting a lot more press now than it would have if he had been in prison for six months, or even a few years? I can see the story already: "Hacker gets six months in prison for illegal network access." BFD. He's in prison, that means he was guilty, right? Comparisons to Nelson Mandela are off-base; the internet activist community is pretty far from the importance (across society) of the anti-apartheid movement.

    I mean, you can say something like, "Well, he could have done much better things with his talent if he had stayed alive," but that doesn't exactly affect him now, does it?

  • Lyle||

    He knew what the consequences of his actions were Nicole, but he was unwilling to accept those consequences. Good activists do the jail time for the good of the cause.

    And you're right. He wasn't standing up to something like apartheid. That makes his decision to kill himself look even more stupid.

  • nicole||

    Good activists do the jail time for the good of the cause.

    It's not at all clear to me this would have been very good for the cause. It seems his suicide was, in fact, better for the cause. And it's not like his actions were consequence-free; the consequence was suicide. Maybe he was perfectly willing to "accept those consequences," he had just determined they would be different from what a prosecutor or judge decided to impose.

  • Lyle||

    Killing himself was better for the cause? What?

  • R C Dean||

    He knew what the consequences of his actions were Nicole,

    You keep saying that, but I'm not sure at all that a batshit federal prosecutor bringing kinds of charges, and years of federal prison time, is really foreseeable at all for what he did.

  • John||

    It is not at all. MIT didn't want him prosecuted.

  • ||

    AFAIK, it was JSTOR (or whoever owns the rights to JSTOR) which wasn't keen on the prosecution. MIT was some upset over Swartz's insistent attacks on MIT's network security.

    Another aspect is which was mentioned only once (of which I've seen): his father, Bill, is "an intellectual property consultant to MIT's computer lab". I find that particularly disturbing: father should have advised son regarding the possible consequences of screwing around with MIT's network.

  • nicole||

    Yeah, there's that too.

  • Lyle||

    No, Aaron Schwartz knew what the law was.

  • anon||

    Really? Do *you* know what the law is? I'm sure you commit at least one felony a week, if not per day. Should you be thrown in jail and have us toss the key?

  • Les||

    It might comfort you to view this through the childishly simplistic lens of "strong" and "weak," but depression is a very, very complex thing.

    It has nothing to do with "strength."

  • Andrei Bilderburger||

    I don't think weak. I think mentally ill. Fairly seriously mentally ill from the background one could assemble from media reports, though of course those are not always accurate.

  • The Late P Brooks||

    we as a society choose to allow them to be greatly rewarded for their malevolent self serving behavior these "Torquemadas" won't be changing their methods any time soon.

    Chris Christie, Eliot Spitzer, Richard Blumenthal, and who knows how many others strode majestically across piles of broken bodies and ruined lives to public office. I'm not sure which I despise more, the prosecutors or the rubes who vote for them.

    P T Barnum would be proud.

  • John Galt||

    No doubt doubt many of those "rubes" waste countless hours watching programs on their TVs that elevate the prosecutor to an almost god-like status.

    I've gotten too old to summon up enough energy to despise much of anything. These days I'm just left disgusted.

  • Andrei Bilderburger||

    Figure out what else to do about criminals to keep them in control and we can dispense with these bums. Until then they serve a useful function.

  • John Galt||

    A "weak man," perhaps. But without question one who nonetheless labored against many things that are completely unjust. That bought him a lot of leeway as far my personal opinion of him is concerned. The good far outweighed the bad.

  • The Late P Brooks||

    Yeah, that disgusting little pussy weakling shit Swartz snuffed it over the threat of prosecution and a little jail time.

    Bob Menendez, on the other hand, is a real man, who laughs in the face of federal investigators.

  • John||

    +1000

  • Lyle||

    Exactly. You're starting to get it. Bob Menendez for the win! Aaron Schwartz... he's just dead.

  • Brandon||

    This is the correct use of the word "Draconian." I am sick of seeing it used to describe imaginary budget cuts.

  • Guy Incognito||

    Swartz should have gone to a public place and set himself on fire, like Mohammed Bouazizi. And I don't say that to mock or disrespect. It seems like they were both two ballsy young guys who got hen-pecked to death by a couple of power-drunk bitches-on-wheels. Symbols of a generation, frankly.

    On another note: Man, Greenwald's still got it. He is the one flaming liberal I consistently enjoy reading and often agree with. I'm so glad he left Salon. Since him and Ruben Bolling left there is no longer any reason to visit that shitty, awful website.

  • The Late P Brooks||

    Maybe he was perfectly willing to "accept those consequences," he had just determined they would be different from what a prosecutor or judge decided to impose.

    But that's CHEATING!

  • The Late P Brooks||

    Man, Greenwald's still got it. He is the one flaming liberal I consistently enjoy reading and often agree with. I'm so glad he left Salon.

    Really? I haven't read any of his stuff for quite a while, because Salon hates my computer, and won't format as a readable page (Boo Fucking Hoo, sez I).

    Maybe I should try that link. I, too, have a lot of respect for Greenwald. Intellectual consistency is not exactly something we're drowning in.

  • Guy Incognito||

    Apparently he left and went to the Guardian last year. I haven't been to Salon in years, and I was actually pissed when I clicked on a link yesterday and it took me there. Speaking of ignorant bitches-on-wheels. I can't stand that fucking website.

  • John||

    I stopped reading it when Camile Paglia quit. She was always the only writer on there I found interesting.

  • Guy Incognito||

    I've had my disagreements with him, but I don't see how any serious civil libertarian could not like Greenwald. He's an unstoppable rhetoric machine (rhetoric in the good, classical sense) when it comes to speaking truth to power. He's prolific.

    I liked Paglia, but mostly for how she pissed off all the soulless, dried-up prune-bags who populate Salon. Her writing was hit-and-miss.

    Tom the Dancing Bug is the best comic strip currently going that I know of, but Bolling left a long time ago.

  • The Late P Brooks||

    Just three months ago, Ortiz's office, as TechDirt reported, severely escalated the already-excessive four-felony-count indictment by adding nine new felony counts, each of which "carrie[d] the possibility of a fine and imprisonment of up to 10-20 years per felony", meaning "the sentence could conceivably total 50+ years and [a] fine in the area of $4 million." That meant, as Think Progress documented, that Swartz faced "a more severe prison term than killers, slave dealers and bank robbers".

    "So, you refuse to confess your sins and surrender yourself to Jesus, even though we show you His loving embrace on the rack, eh? Get the hammers, Father, and break his knees, so they will bend more easily before the altar of our loving god."

  • The Late P Brooks||

    A petition on the White House's website to fire Ortiz quickly exceeded the 25,000 signatures needed to compel a reply

    The president will get right on that, as soon as he gets back from the skeet range; he's got a string going, and doesn't want to be disturbed.

  • anon||

    I skimmed a comment comparing Swartz to the guy that got "outed" by his roomate and jumping off a bridge, and found a fallacy in the comparison. The college roomate wasn't threatening with basically life imprisonment for a "crime." Were I faced with life in prison, I may very well take the "cowardly" option of suicide, although I believe I would've waited until such a sentence were a certainty. Were I to have a porn starring me pop up on the internet, I doubt I'd give much of a fuck.

    The difference is placing value on how others perceive you vs. sacrificing your liberty for (essentially) eternity. I think the comparison is foolish at best.

  • John||

    And no one is saying Ortiz should go to jail, just be fired. I wouldn't hire that kid from Rutgers as a US attorney either. So what is the point?

  • anon||

    The point I was drawing is that the prosecutor should suffer some consequence for his actions as his actions directly deprived someone of their liberty. The Rutgers student fiasco was an essentially victimless crime. There's a huge difference between someone that has the power to put me in prison and someone that does not; I'd actually hire the Rutgers student long before Ortiz, as Ortiz has clearly demonstrated the ability and willingness to abuse power.

  • John||

    I was agreeing with you. I think the Rutgers kid was being a total shit. I wouldn't have minded if Rutgers had expelled him. The mistake people make is they confuse people objecting to the criminal prosecution of the Rutgers kid with demanding that Ortiz be fired.

  • anon||

    Yeah, and if being a dick were a crime, well, I'm pretty sure everyone here at least would already be imprisoned, heh.

    I do think there is a legitimate case to be made for imprisoning Ortiz though.

  • John C. Randolph||

    no one is saying Ortiz should go to jail,

    I am.

    That bitch tried to steal a motel from a couple of innocent senior citizens, and I'm sure she's had her grubby paws on many other cases of theft under color of authority.

    -jcr

  • DenverJay||

    I think local DA's have different motives and modifying influences (i.e., being elected by the locals, overcrowded jails, etc.) than Federal prosecutors. But from what I know of Federal prosecutors, they are total assholes. The one I met, a total bitch from the SEC, couldn't care less about guilt or innocence, or how her actions could potentially destroy lives. To them, it is a game, with points scored by how much time or money they can confiscate from their targets. That is how their pay and career advancement is decided. They are indeed the worst kind of people.
    BTW, I managed to win my case (without a lawyer!), but my buddy, who may actually have been guilty (I'm still not sure) is getting ready to go to Club Fed for 2 or 3 years. He starts his sentence in about 2 weeks, almost to the day when the statute of limitations would have expired. Oh, and he spent thousands on a lawyer.

  • Andrei Bilderburger||

    I agree that you likely are characterizing the average prosecutor accurately. However this doesn't mean that real criminals like Mr. Schwartz should not be punished so hard they wish they'd never done it.

  • TakinThyBacon||

    Seems Reason is being rather hypocritical, blaming prosecutors for someones self inflicted death seems like something that should be in the Brickbat section of this site.

  • Andrei Bilderburger||

    Yup.

    It is OBVIOUSLY the prosecutor's fault that a mentally ill criminal chose to kill themselves.

    The prosecutor obviously is collectively responsible for the health and well being of all the criminals in his jurisdiction.

    Besides, he isn't supposed to punish them any harder than they want - I didn't realize Reason had become a branch of the Democratic party.

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  • TomG||

    The charges had nothing to do with copyright or trespassing. Nor were his actions meaningful activism on behalf of open access.

    Swartz deliberately broke into a private computer network and caused network managers several days of work. That probably amounted to a few thousand dollars in damages and a maximum sentence of 6 months. He was wealthy and had a top lawyer. I see nothing problematic with the case.

  • DenverJay||

    Except the government wasn't threatening him with 6 months in jail. They were trying to get him sentenced to 50 years plus in prison. I see a lot that is problematic with that.

  • TomG||

    That would be problematic if it were true. But it isn't. 50 years is the number you get when you add up the maximum for all charges, but sentencing guidelines don't allow anything close to that. An actual conviction could have been only on the most serious charge actually applicable, and would have been limited based on damages related to the charges.

    Unlike Europe, where the prosecutor often works out an appropriate punishment in advance with the court, in the US the prosecutor offers a range of options and an upper limit for each of the options. It makes no sense to total up the upper limits (although prosecutors themselves like to do it for press releases).

  • Andrei Bilderburger||

    Given what he was trying to do, 50 years is a reasonable sentence. The only problem I see with that is some democrat might get elected and let him out early.

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  • Imarightwingextremist||

    Mr. Brito, your article and the government’s treatment of Aaron Swartz prompted me to ask you a few questions.

    Under what theory of law can the Federal government criminalize commercial breach of contract? And what is left of due process when selective prosecution can become an instrument for persecution?

    It seems likely to me that Mr. Swartz ran into the same witches’ brew of victimless crime and government bureaucracy that increasingly threatens the lives and property of ordinary Americans.

  • Andrei Bilderburger||

    Aaron Schwartz was a severe criminal and got what he deserved.

    Mr. Schwartz trespassed in order to steal millions of digital papers that are sold by JSTOR. His intent was to distribute them for free over the internet, doing tens or hundreds of millions of dollars of damages to JSTOR.

    THis is not a victimless crime. This is not petty crime. This IS a crime, not a civil contract dispute. It is grand theft, criminal copyright violation, larceny, and probably a few more.

    The free market economy is revolving more and more around intellectual property. If stealing millions of dollars of assets so as to destroy a business is considered fun and games, the economy will collapse.

    Mr. Brito is at best clueless in his apologia for an evil criminal. Mr. Schwartz chose to self-inflict a reasonable consequence on himself given the gravity of his crimes. Mr. Brito has done much less - hopefully the editor will inflict the lesser consequence of never letting him write for Reason again.

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  • Mickey Rat||

    "He went into an unlocked maintenance closet in a building on MIT’s campus and hooked up a laptop that he’d programmed to automatically download millions of academic articles from the JSTOR archive. In no sense was he stealing. As a fellow at Harvard, Swartz had legal access to the articles."

    So why did he not access the articles through his Harvard account rather than trespassing in MIT's closets? Probably because what he was doing would have been a violation of Harvard's contract with JSTOR that would have led to Harvard being denied access to the archive. If Swartz did not know what he was doing was wrong or at least the other parties involved would see it as wrong, he would not have acted as he did.

    Sorry, but the rationalizations of what Swartz did does not stand up to logic.

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