As the late Bill Stuntz of Harvard Law School documented in a recent book, the expansion in criminal liability occurred in response to public alarm about the rise of crime from the 1960s to the 1980s. Courts have also enlarged the concept of intent, so that while in the past a person formally guilty of theft could be acquitted if he did not realize that what he was doing was wrong, today it is enough merely to intend to do the thing that the law prohibits. In the past burglary meant breaking into house; today it means entering through an open door. Robbery once required proof of force or the threat of it; now force can be “implied” from any kind of theft from a person. The serious crime of drug dealing can be inferred from the less serious crime of drug possession if you’re caught with a sufficient quantity. Conviction of fraud no longer requires proof that anyone was injured. Conviction of rape once required proof that the victim resisted; now it does not. And in this last instance, it is easy to see why. If conviction of rape requires proof of resistance, then many actual rapes will go unpunished. The risk that innocent people may on occasion be convicted (or driven to a plea bargain) is a price deemed worth paying. This logic, which is so persuasive to people concerned about violence against women, can apply to the other crimes as well.
Laws that proscribe innocent behavior are tolerated so that they can be used against people who are clearly guilty of something when that guilt is hard to prove in court. For example, prosecutors will charge rapists with sodomy in case rape cannot be proved, but they do not enforce sodomy laws against anyone else. Some laws create “pre-crimes” that enable the government to catch people before they cause harm. We cannot punish suicide bombers after they kill people, so we punish them before they kill people—by attaching draconian penalties to actions that are loosely correlated with terrorism but can also be harmless (buying materials that can be used to make bombs, hobnobbing with known terrorists). The Computer Fraud and Abuse Act is broadly drafted so the government can stop hackers in the earliest stages of their hackery, before they get far enough to release credit card numbers, destroy trade secrets, or launch nuclear missiles from military bases. That is why Swartz could be charged with a crime even though he was caught before he could use the JSTOR database for ill or for good.
This kind of system serves the public interest only if prosecutors actually distinguish bad people from good people and are properly motivated to use their sweeping powers against only the bad. Politics, not abstract notions of law, are the chief motivating force here. Prosecutors target bad people because if they do not, the public gets upset; but prosecutors will also target good or innocent people if the public wrongly thinks them bad.
So it is both ironic and apt that Swartz’s defenders argue that the government should be prosecuting greedy Wall Street fat cats responsible for the financial crisis rather than ideologically overzealous hackers like Swartz. Ironic because the same populist outrage against dimly understood behavior motivates the call for prosecutions of hackers and the call for prosecution of bankers. Apt because the argument shows how much prosecutorial discretion both influences social policy and is in turn subject to political pressure.
It is tempting to argue that features of the approach I’ve outlined violate the Constitution or at least the American way. Maybe so, but the system exists for a reason. Lawmakers cannot keep up with technological and social change. Narrowly updating a narrowly drafted law in response to changing conditions is fruitless: Hackers, bankers, and terrorists will always be one step ahead. Because defining harmful conduct in advance of its occurrence is so difficult, lawmakers instead give broad discretion to enforcers and hope they exercise it wisely. And this is fine with the public, as long as it appears to be the only system that will keep us safe.
But it also follows that Lessig, in defending Swartz, gets the better of Kerr, who defends the government. The problem with the prosecution was not that Swartz was innocent. He was probably guilty. The problem with the prosecution was that the U.S. attorney could not show why resources should be spent securing his conviction rather than the conviction of someone else.
For this reason, Swartz’s death may contribute to the cause of the open-access movement far more than his activism did. Not by provoking the enactment of Aaron’s Law, which either won’t pass or won’t make a difference. (Swartz could also have been convicted of wire fraud.) As I have explained, the government can keep order only through selective enforcement of hugely broad laws, so it will reject efforts to narrow them. But by fueling a political backlash against prosecutions of hackers, Swartz’s suicide has secured a kind of immunity for people who follow in his footsteps. Although the U.S. attorney might have won in the court of law if the case had gone to trial, she has lost in the only court that counts in the long haul—the court of public opinion.