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Aaron Regunberg: The Loss of an Incredible Soul

Friday, January 25, 2013

 

The suicide of Aaron Swartz has led some to call for changes in the way prosecutors approach suspected criminals.

Two weeks ago today, progressive champion and internet visionary Aaron Swartz took his own life. At the age of 26, Aaron had already accomplished more than most of us could dream of doing in a lifetime—he helped develop the RSS web feed format (which is what allows blogs and other feeds to frequently update content); he co-founded the popular site Reddit; he was one of the original organizers of the Progressive Change Campaign Committee; and he co-founded the advocacy group Demand Progress and led the ultimately successful fight last year against SOPA, the internet censorship bill that, without Aaron’s quixotic campaign, would have passed Congress and greatly limited our ability to openly access information in this country.

He was a hero to thousands of political organizers and internet activists around the country, who continue to mourn his passing (this memorial site can give you a small sense of all the lives he touched).

By most accounts, Aaron Swartz was driven to suicide in large part because of the overzealous prosecution he was facing for an attempt two years ago to download a large number of scholarly articles from an academic database onto his computer.

In the words of noted legal scholar Lawrence Lessig, “Aaron's alleged ‘crime’ was that he used MIT's network to access a database of academic journal articles (JSTOR) and download millions of those articles to his laptop computer. He didn't "hack" the network to secure those downloads: MIT is a famously open network. He didn't crack any special password system to get behind JSTOR's digital walls. He simply figured out how JSTOR was filing the articles that he wanted, and wrote a simple script to quickly gather those articles and then copy them to his machine.”

Despite the benign nature of this stunt (JSTOR refused to press charges, and even the prosecution conceded Aaron acted on principle and for no financial gain), U.S. Attorney Carmen Ortiz chose to go all in on the case, charging Aaron with up to 35 years of prison. As Lessig put it, “Facing the choice between a federal prosecutor who insisted that he either accept the label ‘felon’ and go to jail or fight a million-dollar lawsuit against 13 felony indictments, Aaron took the third option, and hanged himself. And with that we all lost an incredible soul.”

Appropriately, Aaron’s death has inspired a great deal of advocacy in the last two weeks. Thousands have joined together to call for Carmen Ortiz to face consequences for her prosecutorial overreach (a petition to the White House requesting her removal took only a day or two to pass the 25,000 signatures required for an official response); and still more activists are now fighting for what’s being called “Aaron’s Law,” a bill recently submitted by California’s Congresswoman Lofgren that would limit the scope of the Computer Fraud and Abuse Act and ensure that future violations of the “terms of service” (that little box you click on websites without reading all the text) would be treated as the simple civil-law breaches of contract that they are, and not felonies potentially resulting in major prison sentences.

I believe this advocacy is incredibly important, but I also hope that the tragedy of Aaron Swartz’s death will highlight a more fundamental problem in our criminal justice system that desperately needs to be addressed: prosecutorial bullying. Because while Aaron’s situation was unique in that Aaron himself was such a unique and brilliant figure (as well as in that his case most likely involved political motivations), the strategy used by Aaron’s prosecutors is the same one utilized against thousands of Americans every day: exploit harsh mandatory minimum sentences, three-strikes laws, and the unreasonable sentencing upper-limits we have on the books for nearly all crimes in order to intimidate defendants into forfeiting their constitutional rights and pleading guilty.

Michelle Alexander, author of The New Jim Crow, has written extensively about how the movement towards stiffer sentencing in the United States has resulted in a dramatic power shift from judges to prosecutors. “The Supreme Court ruled in 1978 that threatening someone with life imprisonment for a minor crime in an effort to induce him to forfeit a jury trial did not violate his Sixth Amendment right to trial. Thirteen years later, in Harmelin v. Michigan, the court ruled that life imprisonment for a first-time drug offense did not violate the Eighth Amendment’s ban on cruel and unusual punishment. No wonder, then that most people waive their rights.”

The Constitution guarantees basic safeguards to the accused for a reason, and it should be of great concern to all of us that government officials have engineered a system in which prosecutors have almost unchecked authority to bully defendants with outrageous sentences. This is how more than 90 percent of criminal cases are resolved, and it is this system that has allowed our nation’s prison population to quintuple in the last three decades, so that while the United Sates has only five percent of the world’s population, it has 25 percent of all the world’s prisoners.

While it was one specifically unjust prosecutor who used a few specifically unjust sentencing laws to harass Aaron Swartz into taking his own life, Aaron’s unfortunate situation was the outgrowth of a much larger structural problem. Our criminal justice system gives prosecutors too much discretion to bully defendants with all sorts of excessive charges, while giving judges too little power to rein in these prosecutors when they get out of control. This prosecutorial bullying has already wreaked havoc on countless lives, and will continue to destroy communities, individuals, and even our most exceptional heroes until we take a lesson from Aaron and join together to fight for a major reformation of America’s unjust justice system.

 

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Comments:

Dave Barry

How dare you accuse the prosecutor of bullying. This kid stole documents and was righteously prosecuted for it. To make him into some sort of bullied martyr is shameful. It is time for people who commit crimes via computer to be held accountable. Larceny is larceny. Your statement that he didn't 'hack' the system is ridiculous. It is similar to the burglar who complains that he didn't break into the home because the front door was left open.

Aaron Regunberg

A few things, Dave:
1. That wasn't my statement, it was Lawrence Lessig's, who I knows much more about legal theory and its connection to information-sharing than you or I.
2. Aaron returned all of the files without having shared them. JSTOR did not prosecute. What he did may have been illegal, but the point is it should be a civil violation, or a misdemeanor at most. The prosecution was pursuing charges we reserve for the most unconscionable acts. That is insane.
3. I'm not going to say any more because hundreds of people much more knowledgeable and articulate than I have already written about your questions in regards to this case. Google "Aaron Swartz" and inform yourself.

edith pilkingoton

Excellent piece Aaron! There's a big difference between justice and the kind of "law and order" public policy that has steadily eroded the civil rights of the accused since Nixon was elected; an erosion that was then greatly exacerbated by Reagan, Ed Meese with the help of others including Democrats like Joe Biden.

Michael Trenn

I guess a crime is only a crime when Liberals say it is so. As I have read about this case, it appears that Mr. Swartz did not "attempt" to download materials onto his computer; he DID download them. To me, it appears to be like a situation in which a thief steals money, and the returns it. Am I wrong about this? Actually, or only "Spiritually?"

paul zecchino

There's a remarkable amount of vaguery in the descriptions of this sad case which makes one curious. Generally, when something seems overly complex, baffling, shifting and vague you're often observing a well-obfuscated nefarious design.

Stealing something and then putting it back is still considered stealing, so I'm told by those certified to speak to the issue.

If you rob a bank, walk out with the loot and then walk back in and hand it back to the teller you're still guilty of bank robbery. At least that's what the defense lawyers say.

paul zecchino

A lot of the computer hacking in which youthful self-anointed crusaders for freedom take things which don't belong to them, and cite noble grounds for so doing reminds one of another era.

Forty years ago, the generation who are today the parents of hackers employed 'blue boxes' to trick Ma Bell's phone switches into giving them free long distance service. They too cited noble grounds, the wires belong to people, Ma Bell is too big and should be giving away the service, blah blah blah. Mostly it came down to their desire to beat the phone company - a then almighty power with which to be reckoned - out of a few bucks.

The 'phone phreaks' exulted in scamming Ma Bell at risk of getting arrested. Eventually, Judge Leonard Green's 1982 decision to break up the phone company changed everything, and within a short time the baby bells were falling over one another offering steadily declining rates for long distance service.

The law is often out of phase with technological innovation. Twenty years ago, old Jimmy Bush moralized about how terrible it was that people used commonly available police scanners to listen to analog cell phone calls. The cell phone lobby had been caught in a big, fat, lie and welcomed legislation which made it a federal crime to listen to cell and cordless phone calls.

The cellular lobby had promoted cellphones as being completely private, when common sense said that speaking over a radio telephone is the same as tacking up a letter on the village bulleting board.

So, congress banned cellphone listening and solved nothing. There was no real problem with cell phone eavesdropping save for a couple sleazebag democrat operatives who got pinched down in Georgia. And within a short time, cell phones shifted from analog to digital and yet more complex transmission schemes which rendered them private to all but government eavesdroppers.

Which brings us to square one, doesn't it, Aaron: as Bud White said in 'L.A. Confidential', "Dudley is taking over the rackets'.

An all powerful state will reserve all functions inluding criminal conduct to itself, to the expense of citizens' liberty, wealth, and very lives.




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