“The rule of law does not do away with the unequal distribution of wealth and power, but reinforces that inequality with the authority of law,” observed the late Howard Zinn. “It allocates wealth and poverty in such calculated and indirect ways as to leave the victim bewildered.”
Earlier this month, cyber activist and Internet access advocate Aaron Swartz committed suicide. Swartz, one of the founders of the organization Creative Commons, as well as the web protocol Real Simple Syndication (RSS), faced up to 50 years of jail time in addition to fines totaling millions of dollars for allegedly illegally downloading millions of articles from JSTOR, the academic journal reference database subscribed to by most major American universities. At the time of his death, Swartz was 26 years old.
The charges were not brought by JSTOR, however, nor by the Massachusetts Institute of Technology (MIT), whose computers Swartz used for his alleged activity, but rather by the United States government. “Stealing is stealing,” U.S. Attorney for the Commonwealth of Massachusetts Carmen Ortiz commented on the case, “whether you use a computer command or a crowbar, and whether you take documents, data or dollars.”
But others aren’t as sure as Ortiz, and claim that, regardless of any debatable issues pertaining to political activism versus legal misconduct, the case against Swartz is a blatant example of a beefed-up prosecution overplaying a crime.
One of those critics is Harvard Law Professor Lawrence Lessig, director of the Edmond J. Safra Center for Ethics and longtime friend of Aaron Swartz. “The federal government thought it was really important to make—make an example. And so they brought this incredibly ridiculous prosecution that had … more than a dozen counts claiming felony violations against Aaron, threatening, you know, scores of years in prison,” Lessig told Amy Goodman on Democracy Now! “The government was not going to stop before he admitted that he was a felon, which I think… you know, in a world where the architects of the financial crisis dine regularly at the White House, it’s ridiculous to think Aaron Swartz was a felon.”
Both Lessig and the Swartz family have noted that, while he suffered from depression, Aaron Swartz’ suicide was committed in part because of the excessive prosecution by the U.S. government. His defense ruined Swartz financially and threatened to do the same to his parents.
“Aaron’s death is not simply a personal tragedy,” the Swartz family said in a statement. “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.”
“This was somebody,” adds Lessig, “who was pushed to the edge by what I think of as a kind of bullying by our government.”
“I get wrong,” Lessig wrote in a blog post titled “Prosecutor As Bully,” “but I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.”
An online petition calling on the Obama administration to “Remove United States District Attorney Carmen Ortiz from office for overreach in the case of Aaron Swartz” was created shortly after Swartz’ suicide. As of this writing, one week later, there are over 40,000 signatures.
Carmen Ortiz was nominated by President Obama and confirmed by the U.S. Senate in November of 2009. Since then, she has been named “Bostonian of the Year” by Boston Globe Magazine and been talked up as a possible future Democratic candidate for the seat of senator or governor here in the Commonwealth.
But Ortiz has also drawn her share of criticism.
“Those who are mourning the death of Aaron Swartz should keep in mind that he had long struggled with depression,” Dan Kennedy, assistant professor of journalism at Northeastern University, wrote for Huffington Post. “Blaming his suicide on Carmen Ortiz is unfair.
“Nevertheless,” Kennedy added, “the case she was pursuing against Swartz was wildly disproportionate, and illustrated much that is wrong with our system of justice.”
How disproportionate? In his recent article on AlterNet, Ian Milhiser writes of “10 Awful Crimes That Will Get You Less Prison Time Than What Aaron Swartz Faced.” Among them are assaulting a Supreme Court justice (maximum 10 years), robbing a bank (maximum 20 years), helping terrorists build a nuclear weapon (maximum 20 years), selling slaves (maximum 20 years) and selling child pornography (maximum 20 years).
“It should be noted that Swartz faced such a stiff sentence because prosecutors charged him with multiple federal crimes arising out of his efforts to download and distribute academic papers,” Milhiser writes.
It seems an especially strange case since JSTOR, the organization that was the victim of the alleged crime, never pressed charges.
“The case is one that we ourselves had regretted being drawn into from the outset,” JSTOR said in a statement, “since JSTOR’s mission is to foster widespread access to the world’s body of scholarly knowledge. At the same time, as one of the largest archives of scholarly literature in the world, we must be careful stewards of the information entrusted to us by the owners and creators of that content.”
According to Lessig, JSTOR is planning to make the academic articles available on the Internet, just as Swartz had apparently wanted to do.
“I received an email from JSTOR four days before Aaron died, from the president of JSTOR,” Lessig recalled in his Democracy Now! interview, “celebrating that JSTOR was going to release all of these journal articles to anybody around the world who wanted access—exactly what Aaron was fighting for.”
MIT has initiated an investigation into its role in the Swartz case and his impending suicide. Thus far the U.S. Attorney’s Office has not done the same.•