Aaron Swartz, the Feds, and Proportionate Responses to Illegal Downloading

How should the federal government have handled Swartz's behavior?

Not everybody following Aaron Swartz's death – the tech genius who committed suicide Friday while facing a host of federal charges over his mass downloading of academic journal papers at MIT – is falling directly into the narrative that he was the target of bullying by overzealous federal prosecutors.

Orin Kerr, George Washington University Law School professor and scholar on computer crime law, looked over the charges against Swartz at The Volokh Conspiracy. He's planning two posts analyzing the case. The first, posted today, is about whether the federal government fairly read the relevant laws. Simply put, he concludes that the charges filed against Swartz accurately reflect the crimes he was alleged to have committed. He also explains that even had Swartz been convicted, he probably would not have realistically faced combined sentences for all his charges:

The indictment against Swartz alleged several different crimes. A bunch of the crimes overlap, but that doesn't mean that they are really treated separately: At sentencing the general practice is to take the most serious of the crimes as the basis for the sentence and to mostly ignore the rest. But the ordinary practice is to charge all the possible offenses committed in the indictment, even if they overlap, and then let the jury sort them out at trial or else drop some of the charges in a plea deal.

Part two of Kerr's analysis (not up as yet) will be focusing on whether he believes the Department of Justice used appropriate discretion or judgment in this case. That's truly where the conflict is right now. Over at Patrick "Patterico" Frey's blog, Swartz's lawyer, Elliot R. Peters, described a plea bargain that didn't seem like much of a bargain:

Peters told me that, in his opinion, the Government had been "awfully unreasonable" in their approach to the case. He said that they insisted that Swartz plead to all 13 felonies. They said that even if Swartz pled guilty, they were going to seek a prison sentence. They told Peters that if the case went to trial and Swartz were convicted, they would seek a prison sentence of 7 to 8 years. They told Peters that they thought the judge would impose that sentence. (Peters told me he didn't agree; he thought the case was defensible and that even if Swartz lost, Peters didn't think the judge would have sentenced him to custody time.)

I posted about Swartz's suicide Saturday with some quick thoughts that certainly lived up to our blog's name. In response to some responses about that post: You don't have to be a leftist like Swartz or even believe that America's copyright enforcement system is rather flawed to be concerned about the federal government's behavior in this case. Much like the prosecution and 10-year sentencing of Aaron Sandusky for defying federal marijuana law (while completely conforming to state law), we should all be concerned whenever the Department of Justice obviously wants to "make an example" of somebody.