As I See It: Gadfly
January 28, 2013 Victor Rozek
A young man died recently, by his own hand. He had the tussled good looks that women like and men envy, and an exceptional mind capable of contributing to the general welfare. He was, in the estimation of admirers, a digital Robin Hood, robbing the establishment of its data and sharing it without condition or hope of profit; dispensing the King’s venison to hungry men. The King, however, was not pleased, and although the young man did not pose an actual danger to anyone, he was, by all accounts, becoming a royal nuisance. In the end, though, what may have driven him to end his life was not his native brashness, but a principled stubbornness that made him unwilling to cut a deal with the King’s men.
In many jurisdictions, up to 90 percent of criminal offenders chose to plea bargain their case rather than go to trial. The impact of those decisions on the legal system and its incessant flow of defendants is significant. Absent the expedience of plea bargains, the system would quickly become overwhelmed. There aren’t enough judges, prosecutors, or funds available to address even a modest increase in the demand for peer-based justice.
Everyone agrees that plea bargains allow for quick disposition of cases. Few, however, equate them with genuine justice. The bargains struck are Faustian. Serious criminals are offered reduced sentences when the state’s case is tenuous, while innocent defendants sometimes accept reduced sentences for fear of much longer incarceration that would result from losing a trial.
In terms of insuring an outcome, plea bargains give prosecutors an immense advantage. The threat of additional charges and long prison sentences weighs heavily on defendants. For all their expedience and capacity to relieve a chronically overstressed system, the unintended result of plea bargains is that they invariably benefit the guilty and punish the innocent.
The state’s unrestrained ability to grant or withhold leniency lends itself to abuse of prosecutorial power and, according to critics, appears to be at the heart of Aaron Swartz’s recent death. That’s a conclusion that does not totally align with the facts. Swartz was, in fact, open to a plea bargain, just not one that would land him in jail. The federal government had other ideas.
Swartz’s name will be familiar to many in the IT community. He was a prodigy who, at a very early age, became an innovative programmer, and later a writer, political organizer, and champion of a free and open Internet. At age 13 he was already creating prize-winning websites. His facility as a coder won him an invitation (ill-fated as it turns out) to the Massachusetts Institute of Technology, where he hobnobbed with prominent Internet developers. By 14, he was a member of the working group that authored RSS 1.0. From the start, he was convinced that the Internet and its contents must remain free and accessible to all. And when those values were not shared, he used his considerable skills to “liberate” data not intended for his private disbursement. And in so doing, he pissed off a lot of people. But then, being annoying was one of his best traits.
Like any self-respecting Robin Hood, he had numerous adventures in the digital forest, but his two most notorious exploits have names that sound like Santa’s reindeer: PACER and JSTOR.
In 2008, Swartz strolled into the 7th U.S. District Court of Appeals library in Chicago, and stayed just long enough to install a Perl script on a computer that allowed access to federal court documents. He then downloaded nearly 20 million pages of said documents and passed them on to a non-profit organization. The problem was not one of confidentiality; the records were part of the public domain. The government objected because PACER (Public Access to Court Electronic Records) was charging 8 cents per page, not a lordly sum to be sure, but at 20 million pages, we’re talking a heist valued at $1.6 million.
The FBI, the digital Sheriff of Nottingham, sent out their wing-tipped knights to investigate, but charges were never filed. Commenting on being the target of a federal inquiry, Swartz said it showed that the FBI lacked a sense of humor. In retrospect, what it really showed was the depth of his naivety.
Next, Swartz turned his attention to academic articles which were stored in an online archive called JSTOR, (a conjunction of Journal STORage). He was accused of breaking into a network wiring closet at MIT and helping himself to 4 million articles, give or take. Undoubtedly, people who read scholarly articles probably do so because they don’t have access to cable. Nonetheless, Swartz believed that brainiacs should have free access to all the academic fare their neurons desired.
This time he was arrested by the crack troops of MIT security backed by the FBI in case Swartz told them to get lost. But a year later, the Sheriff of Nottingham appeared to again lose interest, and the case was dropped.
But in July 2011, a federal grand jury indicted Swartz on violations of the Computer Fraud and Abuse Act, a law designed to facilitate the prosecution of hackers and punish those who think it is great fun to trash other people’s systems. He was re-arrested, posted $100,000 bail, and pleaded not guilty. Ironically, JSTOR was not interested in pursuing civil remedies because much of its content was already available for free to students and scholars. But the Federalies were baring their teeth, threatening up to 35 years of prison time and a $1 million fine, although prosecutors later claimed that was never a serious option.
That is doubtless true because when the dust of the plea bargaining settled, Swartz was looking at six months of time in a low security facility, the type that probably has WiFi and a wet bar in every cell. But in return, he would have to plead guilty to 13 felony counts, an addition of 9 counts from the original indictment. Critics called it piling on.
Perhaps he was tired of being chased. Perhaps he did not want to admit guilt for doing something he believed was principled and promoted the kind of free and open world he so urgently wanted to create. Perhaps depression, an old familiar demon, reared its melancholy head. Perhaps, like all free men, he could not endure the thought of being locked up even for a second. Whatever his reasons, he did not choose to share them with the world, only the outcome of a desperate and irreversible act: his lifeless, hanging body. He was 26.
Since his death there have been numerous accusations of prosecutorial excess in service to a law that is too broad and too vague. But prosecutors work with what legislators give them. Six months for boosting academic articles seems excessive, but the sentence probably had more to do with hacking than stealing. It is rumored that there was an agreement in place that would have kept Swartz out of prison, but MIT refused to sign off on it. Hell knows no fury like an academic institution scorned.
But what is truly striking is what behaviors we, as a society, choose to criminalize. Wall Street crooks who caused incalculable global suffering remain immune from prosecution. They travel in chauffeured limousines, dine with their political patrons, contribute nothing to the general welfare, and remain secure in the knowledge that the law does not apply to them. But the light of a young idealist with tussled hair, whose only failing was trying to impose a new ethic on reluctant institutions, is now and forever extinguished.
The absence of proportionality is worthy of Javert.