His accomplishments were astonishing considering his short life. By the time of his death on Friday, Aaron Swartz had helped develop the RSS feed, contributed significantly to the evolution of Reddit, and emerged as a leading voice on freedom of information and the ethics of intellectual-property protection on the Internet. He had also become the target of an extravagant prosecutorial vendetta, launched by federal authorities, that reads like an updating of Victor Hugo’s Les Misérables.
Swartz’s family issued a statement placing responsibility for his death squarely on federal prosecutors, led by Boston U.S. Attorney Carmen Ortiz (widely said to be preparing to run for the Massachusetts state house) and prosecutors Stephen P. Heymann and Scott L. Garland, who aggressively pursued dubious felony charges against him. As Swartz sought to have the charges against him reduced to misdemeanors, indicating his willingness to agree to a plea, prosecutors reacted by adding more factually untenable felony charges against him. Swartz repeatedly expressed despair over the effort to criminalize him and deprive him of his freedom. His family wrote:
Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims.
These views were echoed by Harvard law professor Lawrence Lessig, who penned under the heading “Prosecutor As Bully” a blistering attack on the Justice Department:
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.
Similarly pointed tributes were issued by the Guardian’s Glenn Greenwald, who called Swartz an “inspiring hero” and MSNBC host Chris Hayes. Swartz had apparently contemplated suicide before, and it is difficult to say what self-doubts and anxieties led him to act on Friday. On the other hand, it is easy to understand the view, taken by those closest to him, that prosecutorial thuggishness was the cause.
Swartz’s woes sprang from a project he undertook to download and make available an enormous collection of academic publications offered free of charge, but with limited numbers of downloads, by the digital library JSTOR. For reasons that baffle most observers, a group of federal prosecutors decided this was a heinous crime, and they publicly attacked Swartz with a series of preposterous and dishonest assertions that nevertheless carried great weight because they were uttered with the authority of the Justice Department. Swartz’s motivations were extremely clear: not to steal this academic work product and personally benefit, but to make it more widely available, and to protest the fact that intellectual-property law was being manipulated to benefit not the authors or inventors that the law is designed to protect, but rather commercial interests that were corralling those rights for their own purposes, which were often at odds with sound academic policy.
If that concern was “radical,” as prosecutors supposed, then Swartz stood in good company: both Benjamin Franklin and Immanuel Kant, two progenitors of modern intellectual-property law, expressed precisely the same attitudes. Moreover, the prosecutors’ theory rested on a view of the law that is keyed to the interests of corporate predators rather than the public, and that has already been squarely rejected by one federal court of appeals. To its credit, JSTOR quickly saw the injustice of the prosecution, withdrew from it, and criticized the Justice Department’s decision to proceed. MIT’s president issued a statement on Sunday afternoon suggesting that MIT’s decision to support the Justice Department was mistaken, and announcing that a formal review of the university’s conduct — long demanded by faculty and students, who largely supported Swartz — would now be undertaken.
There is no doubt that Swartz’s antics included wrongdoing — hooking his laptop up to an MIT server to download materials — for which he properly should have been chastised and even faced criminal charges. But it is difficult to understand how this even begins to approach the level of criminal culpability of, say, George W. Bush’s fraternity hazing and post-football game hooliganism while he was at Yale, much less to understand how it was turned into a multimillion dollar federal case driven by legal theories that run contrary to clear public interests. One detailed independent examination of the allegations against Swartz concluded that the most serious charge against him amounted to no more than trespassing, deserving at most of a fine and a misdemeanor citation.
In contemplating the sad loss of Aaron Swartz, we should remember him and his valued contributions, which have enriched the lives of millions. We should also take careful measure of the fact that he was another victim of persecution by the Justice Department, which assailed him with unwarranted accusations and malicious, baseless insinuations that caused him great mental anguish. In the American legal system, courts offer no effective protection against such abuse, and prosecutors are sheltered by immunity from being held to account for their misconduct, except by their own superiors.
The death of Aaron Swartz should provide the Justice Department with occasion for some serious introspection, just as MIT has now undertaken. An independent review of prosecutors’ conduct would no doubt find that they proceeded with an erroneous vision of the law. If they had even an ounce of decency, these prosecutors would issue Swartz’s survivors an apology and tender their resignations. But considering their conduct to this point, no one should expect decency. A petition has now been launched requesting that President Obama remove U.S. Attorney Carmen Ortiz over her actions in the Swartz case.