Aaron Swartz downloaded academic articles from JSTOR in violation of JSTOR’s terms and conditions. He was indicted for violating federal law. Refusing the prosecutor’s plea bargain offer of six months in jail, he killed himself. Depending on who you believe, he misused MIT’s facilities or he did not; he willfully broke the law or unknowingly broke a poorly defined and selectively enforced law; and he sought to destroy intellectual property or only to prod JSTOR to share research with academics and the taxpayers who had financed it. But the facts no longer matter: By becoming a martyr to open access, Swartz has, for better or worse, dealt a blow to government efforts to delegitimize hackers and their values.
The fury occasioned by the government’s prosecution of Swartz might seem puzzling. If Swartz caused no harm, as his defenders argue, then he would have served no prison time at all. But Swartz’s defenders say that prosecutors should not have brought the case or should not have upped the charges to induce him to plead guilty. Swartz was driven to despair by the prospect of a bankrupting trial, jail time, and the humiliating stigma of a felony conviction, all on account of a vaguely worded law that was wielded like a sledgehammer by an obtuse U.S. attorney to score political points.
As Orin Kerr has pointed out, this is a generic complaint about our criminal justice system. Lawmakers pass extremely broad and vaguely worded statutes that criminalize vast swaths of behavior then leave it to prosecutors to decide who to target and who to spare. The major constraint on prosecutors is limited resources, so they threaten defendants with draconian punishments to coerce them into plea bargains. Judges and juries remain backstops against the worst injustices, but because trials themselves are ruinously expensive and can end in long prison terms, defendants often forgo the protections they offer.
So where Kerr, who provides a measured defense of the prosecution, and Larry Lessig, who provides a passionate and eloquent defense of Swartz, can agree is that the law—in this case, the Computer Fraud and Abuse Act—is too broad. They both think people should not go to jail for violating the terms of access to databases stored at websites. Other commentators assert that we have learned a lesson about the injustice of our law enforcement system and that we can do something about it by supporting a new law that narrows the Computer Fraud and Abuse Act, aptly called Aaron’s Law. And so at least needed legal reform will emerge from the tragedy of Swartz’s death.
Don’t bet on it, but that doesn’t mean his death was meaningless.
The first thing to understand is that people have been making complaints like these for decades about a range of broadly criminalizing laws. Such as the prohibition against material support for terrorism, which sweeps in donations to Islamic charities. Insider trading and other corporate fraud laws, which sweep in trades that hurt no one and accounting gimmicks that fool no one. Tax laws, which provide both a set of rules that permit you to minimize your tax burden and vague standards that enable the government to punish you if you minimize it in what turns out to be the wrong way. Conspiracy laws that are used to convict people who haven’t even followed through with their plans to commit specific crimes. Then there are the old standbys: vague laws against “disorderly conduct” and “loitering” and “breach of the public peace,” which enable police to arrest whoever they want.