By: Park MacDougald
By the time this article is published, much will have already been said about the life and death of computer programmer and internet activist Aaron Swartz. Swartz, the co-founder of Reddit and a leading light in the Open Access movement, committed suicide in his Brooklyn apartment this past Sunday. He was 26 years old. At the time of his death, Swartz was being prosecuted by the federal government on 13 felony counts and facing the prospect of up to 50 years in prison and over $1 million in fines. His crime was using his access as a Harvard faculty member to download 4 million scholarly articles from the subscription-based academic library JSTOR, with the alleged intent to make the information freely available to the public. He never released the articles.
Swartz had long suffered from depression. Not surprisingly, however, public outrage over his suicide has centered on the actions of the federal government and U.S. Attorney Carmen Ortiz, the lead prosecutor for the case and rumored future candidate for governor of Massachusetts. A petition calling for her resignation has already reached the 35,000 signatures required for a response from the White House.
Speaking at his son’s funeral on Tuesday, Aaron’s father claimed that “he was killed by the government,” a sentiment that has become something of a leitmotif in the public outpouring of grief, support, and anger that has followed his death. In a way that few can, Swartz’s case powerfully illustrates the absurdities of the American justice system, and the disconnect between it and most Americans’ innate concept of justice. In a quote that has now become famous, Ortiz justified the threat of massive jail time by asserting that “stealing is stealing… whether you take documents, data, or dollars.” By the letter of the law, she was right. That is why the attempts to blame Ortiz are missing the larger picture: the real problem is a system in which a case like Swartz’s is a result of everyone doing their job well.
For comparison, consider the case of Synthes, a medical device maker that was convicted, along with four of its top executives, for the off-label marketing of a bone cement. At least five patients died after being treated with the cement in a manner explicitly forbidden by the FDA, but encouraged by the company’s sales representatives. The trial was notable for its unusually harsh sentencing: the executives plead guilty to misdemeanors and had to serve 5-9 months in jail – a sentence so draconian that it drew incredulity from the executives’ defense lawyers. In contrast, Swartz’s initial plea deal, no longer on the table by the time of his suicide, would have included at least 6 months in prison and a felony conviction. As Swartz’s friend and Harvard Law professor Lawrence Lessig noted: “in the 18 months of negotiations, that [the felony] is what he was not willing to accept, and so that was the reason he was facing a million dollar trial in April – his wealth bled dry, yet unable to appeal… for the financial help he needed to fund his defense.” (It is worth reading the entirety of Lessig’s post).
Critics can rightly point out that had Swartz accepted the plea deal, he would not have been facing such a stiff penalty. Carmen Ortiz’s husband Tom Dolan, an executive for IBM, has responded to criticism of his wife by suggesting exactly that. He tweeted, in reference to the statement made by Swartz’s family: “Truly incredible that in their own son’s obit they blame others for his death and make no mention of the 6-month offer.” (They are truly a charming couple; there is considerable symbolism in a wealthy CEO and ambitious prosecutor teaming up to crush a young idealist with the power of the state.) And although it may seem distasteful for the DA’s husband to imply that the dead defendant got what he deserved, perhaps he is right.
This, however, raises other questions.
Why is the preferred tactic for prosecutors in the United States to threaten defendants with outrageous near-life sentences in order to intimidate them into making a deal, all to save the government the cost of going to trial? Can this, in any sense of the word, be called a “fair trial?” Take the case of Brian Banks, a once-promising high school football player who was exonerated after serving 5 years in prison for a rape that he did not commit. Banks, however, was not convicted by a jury – he plead guilty after being threatened with 41 years in prison should the case be brought to trial, a risk his lawyer advised him not to take.
Aside from the outrage that Swart’z suicide has generated, a new and critical eye has been cast on intellectual property law in the United States, and for good reason. Swartz intended to distribute the JSTOR articles because he believed it was immoral that the information was locked behind a paywall, preventing anyone but the privileged from accessing the information, despite the fact that the research contained within was largely funded by public money, and edited and reviewed by volunteers. He may or may not have been right. These laws are important and worthy of attention, but a narrow focus on offending statutes must be combined with an appreciation for the broader implications.
James Madison said that “knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power knowledge gives.” Aaron Swartz, instead of using his prodigious talent to make money through financial speculation or the development of surveillance technology for repressive governments, dedicated himself to making the sum total of human knowledge available to everyone on the planet, regardless of ability to pay. These traits are, in the words of Lambert Strether, “maladaptive, even lethal” in our society. They earned him the prospect of 50 years in prison, ten years more than the median sentence for murder. This should give everyone pause, not just those who share the litany of causes he campaigned for in his short life. The land of the free is becoming, and perhaps has been for a long time, the land of the cruel.