Lessig on the DoJ's vindictive prosecution of Aaron Swartz

Larry Lessig's remembrance of Aaron Swartz, the young activist who took his life last night, is beautiful and angry, and expresses an important insight into the vindictive, disgusting behavior of the Department of Justice (and the complicity of MIT) in hounding Aaron:

But all this shows is that if the government proved its case, some punishment was appropriate. So what was that appropriate punishment? Was Aaron a terrorist? Or a cracker trying to profit from stolen goods? Or was this something completely different?

Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its. MIT, to its great shame, was not as clear, and so the prosecutor had the excuse he needed to continue his war against the “criminal” who we who loved him knew as Aaron.

Here is where we need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.

Aaron had literally done nothing in his life “to make money.” He was fortunate Reddit turned out as it did, but from his work building the RSS standard, to his work architecting Creative Commons, to his work liberating public records, to his work building a free public library, to his work supporting Change Congress/FixCongressFirst/Rootstrikers, and then Demand Progress, Aaron was always and only working for (at least his conception of) the public good. He was brilliant, and funny. A kid genius. A soul, a conscience, the source of a question I have asked myself a million times: What would Aaron think? That person is gone today, driven to the edge by what a decent society would only call bullying. I get wrong. 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.

Prosecutor as bully


  1. Our system is broke. Prosecutors want to bring in big cases so that they will one day be judges. The higher the charges, the bigger the case. And if it means crushing a brilliant citizen …

    I get wrong. 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.

    Larry hits it on the head right here. Prosecutors and lawyers often talk about the Rule of Law. But I never hear them talk about ethics. And really, that is the first thing anyone who is considering using the force of the government needs to consider. They need to ask “will these criminal charges help the public”, “are the charges proportional to the damage caused”, and “are these charges not just a means to an end or are they necessary for actual justice”. All three of these answers for Aaron would have be a resounding and deafening ‘no’!

    I hope those involved in this prosecution can’t sleep at night.

    1. Big prosecutions don’t lead to becoming a judge, they lead to political careers. Most of the judges I’ve met with criminal law backgrounds were defense bar. In fact, in the jurisdiction where I practice, only one judge is a former prosecutor.

      Also: “Prosecutors and lawyers often talk about the Rule of Law. But I never hear them talk about ethics.” I’d guess that’s selection bias, because I hear ethics discussed all the damn time. But then, I’m a lawyer.

      These attorneys failed. Other attorneys might have rendered better service to the public and Mr. Swartz. Sadly, we will never know. These were the schmucks we got stuck with.

      1. This was a pretty well known case. It isn’t just “Oops, he got some schmucks. Sorry!” Lessig noted that a million dollar defense was needed. This means that a lot of money was approved for this prosecution and a lot of people in power knew about it. So it wasn’t just schmucks, it was a system that allows prosecutors to abuse people for political gain. And it is a system that did not exert its oversight when a citizen was being abused and intimidated.

        1. “Oops, he got some schmucks. Sorry!” Is not what I was trying to convey. If that is the impression you got, I am sorry. The failure extends beyond the immediate prosecutors of the case on up the chain of command to all the people who were involved with the decision to proceed against Mr. Swartz with the ruthless agression that they did.

          My original response was intended to highlight two things. First, that the fact that they are lawyers does not de facto mean that they never consider ethics. Second, that your perception of the perverse incentives in prosecution was slightly skewed. There are perverse incentives, but they are slightly different, and if we are to reform a system we must understand it.

          The third paragraph was included, ironically enough, because I was concerned that with just the first two paragraphs I would be ignoring the very real human tragedy of what happened to Mr. Swartz in my attempts to comment on who becomes a judge and how lawyers thing about ethics.

          1. You are most certainly right, and I’m painting an entire profession with a broad brush, so I apologize for that. Thanks for your insight in this sad time.

          2. And you’re right about there being serious flaws in the system. I think I came off a little harsh on you in my first response, and I apologize about that. I tend to get my back up a bit about people attacking lawyers. I think it is a bit of “Only I get to insult my family that way.” We’re never going to be a popular or well liked portion of the American public, and when I’m candid, I’ll admit we’ve got more than the average distribution of greedy assholes among us.

      2. And that’s precisely the problem. Prosecutors wanting to score a scalp they can wave around when they run for some other office. Particularly when they can brag about being tough on cyberwhatchamacallits. 

  2. There is a deeply flawed logic that we are suffering under, whether we believe it or not. Call it “eye for an eye”. Countless lives and livelihoods are being squandered in its pursuit. Yet it seems impossible to change our collective mind about this.

     I saw this at work last night in Zero Dark Thirty- If we somehow make OSB so fucking important that his life is worth 3,000 lives, then killing him somehow balances the books. To my mind, we added one more set of murders to the existing toll, and we did so without even the pretext of a judicial process.

    By this same kind of logic, suicide is a kind of victimless crime. Yes, there’s a violent murder, but the perp was killed and so life can go on for the rest of us who weren’t involved. Except we were involved and we still are.

     I doubt there’s anyone on the government’s side of this case who feels responsible for this crime- Aaron’s choice probably just shows ‘a blatent disregard for human life’. But hearing about this case doesn’t make me feel any safer, it makes me feel less safe from the ones calling themselves our ‘protectors’.

     I don’t believe a “violent revolution” is inevitable in this country, but then there’s no such thing as a revolution without violence. The industrial revolution was hugely violent, it just didn’t have any well remembered scapegoats.  All we really need is a movement that’s less violent than what’s already in place. If you look at all the violence that’s considered normal, part of the status quo, it adds up to quite a lot.

      I didn’t get to know Aaron Swartz, but I have known a lot of people just barely hanging on. I don’t know his reasons for doing this, but I’ve thought of plenty of my own. The only thing that would make the effort to stay alive worthwhile, would be to make this struggle easier for the next generation of shy geniuses.

     We can’t do anything to diminish gun violence without diminishing *all* violence. We can’t stop these kinds of suicides without making the world a kinder place. We can’t do anything about this kind of social isolation without we start *talking* about it.

  3. Prosecutorial bullying out of proportion to the alleged crimes sums it up well (especially since the bullying victim is, yet again, an eccentric geek). I suspect the Justice Department never forgave him for embarrassing them in the PACER case, where he helped liberate publicly owned information they have a vested interest in keeping expensive and locked up.

    As others have mentioned, we see the exact opposite of the problem, namely prosecutorial leniency out of proportion to the proven crimes, in re: the money-laundering executives of HSBC and the economy-wrecking executives of the “too big to fail” financial services corporations. First under the torture-justifying Cheney regency and now under Obama, the Department of Justice has slowly but surely been losing the privilege of the name.

  4. Remove United States District Attorney Carmen Ortiz from office for overreach in the case of Aaron Swartz. http://wh.gov/E3v1 

  5. The question is why did Aaron feel the need to do this? Have a look at his own words:

    “Go outside and get some fresh air or cuddle with a loved one and you don’t feel any better, only more upset at being unable to feel the joy that everyone else seems to feel. Everything gets colored by the sadness.” When the condition gets worse, he wrote, “you feel as if streaks of pain are running through your head, you thrash your body, you search for some escape but find none. And this is one of the more moderate forms.”

    His family’s:

    Mr. Wolf said he would remember his nephew as a young man who “looked at the world, and had a certain logic in his brain, and the world didn’t necessarily fit in with that logic, and that was sometimes difficult.”

    You can see now why he was depressed, why everything he did was not enough to overshadow the fact that he was not accepted in today’s society. Society today does not accept those who are different, it tries to change them, make them cogs of the grand system. But how can you do that do people who are much greater, who are not average by any means? You force them into a spot reserved for a piece of the puzzle that is average, and which is not large enough to accommodate those who are ‘special’. Aaron was too different, too smart to fit into a system meant for average people, that is why he did not fit in – which in turn was the reason why he was depressed. When society rejects you because you don’t fit in, you are lost, you star doubting and losing faith in yourself, a new belief takes over you that you are crazy and everyone else is sane. You ask yourself, why are you the only one who cannot fit in? Because you’re insane? No, it is because you are indeed the only sane one and everybody else is crazy but too average to realize.

    1. Society never has recognised the idea that there is no such thing as “normal” or “average” but that we are all unique; it functions on the Us vs Them dichotomy where there is no middle ground, least of all for anyone who might suggest that both sides may have both good and bad points.  It’s not particularly different today than at any time in recorded human history (and beyond.)

  6. “The Truth about Aaron Swartz’s ‘crime’ “, by Alex Stamos, who was supposed to take part to the trial as expert witness:  http://unhandled.com/2013/01/12/the-truth-about-aaron-swartzs-crime/

    TL; DR: it wasn’t worth 35+ years because it wasn’t even a crime.

    1. It’s pretty short and worth reading. I don’t think it deserves a TL;DR: It deserves a must read! Please pardon the amends:
      TL; DR: it wasn’t worth 35+ years because hogging the library is inconsiderate, not wrong – and certainly not a crime. 

  7. A suicide by a young man hounded out of his vocation by the authorities — that’s what got the whole Arab Spring thing started off, wasn’t it?

  8. Sorry, but I don’t agree at all that Lessig nailed it, insofar as he speculates that what Aaron did was either legally or morally wrong. Aaron’s act was at worst civil disobedience, which would put it in the territory of “Legally wrong, but morally right.”

    And I stand firmly behind the idea that it wasn’t legally wrong, either.

    toyg’s link above, the article written by Alex Stamos,  is very informative on this matter.

  9. From Lessig’s blog:

    > .. unable to appeal openly to us for the financial help he
    > needed to fund his defense, at least without risking the ire
    > of a district court judge …

    Anyone know what that’s about?  You’re not supposed to raise money for your own defense?

    1. just speculation, but did he have some sort of restraining order against internet usage placed on him by the judge, that would have made an indiegogo or other crowd-funded plea impossible?

  10. Some comments are in order about JSTOR. This is an organization that sells access to papers from academic journals for a hefty price (typically $15-40 per article), unless one has online-access to such articles through an institution (which pays hefty fees for that access).

    The trouble is, JSTOR is supposed to be a non-profit organization. In my state (Illinois), non-profit organizations, if they wish to remain exempt from property taxes and other taxes, are required to function as charities — that is, they must provide access to their services at reduced cost or for free to people who have low incomes. Because JSTOR charges a flat fee for access to everyone, regardless of income, they do not satisfy the requirements of a tax-exempt non-profit organization in my state because they are not acting in a charitable manner. Unfortunately, the letter of the law (it’s in the Illinois constitution) is not always applied to the more privileged non-profit organizations. While Federal law and other state laws may define the requirements of non-profit organizations differently, it seems to me that all non-profit organizations should adhere to the Illinois standard.

    This lack of charitable behavior is true not only JSTOR, but many other organizations in the academic community. The real crime, here, is allowing a non-profit organization (that is almost certainly tax-exempt) sell short articles for ridiculously high prices, thereby limiting access to this knowledge to a rather exclusive circle of wealthy individuals and institutions. To make matter even worse, much of the research that is reported in these journal articles has been funded by the government (state, federal, and local levels) using taxpayer dollars. It appears that Aaron Swartz was attempting to remedy this social injustice.

  11. Where is the justice in persecuting a young man into insanity?  There is none!  How does the death of this fellow benefit the public good?  It does not!  There is no justice here, only tragedy and sadness!

  12. On some internet forums, simply posting a dot ‘.’, is a mark of respect, and a placeholder for emptiness, for silence.

    edit: Although here you will have to use two dots.

  13. Folks, be VERY careful what you say in defending the late Aaron Swartz. That’s because I’m starting to see online claims that Swartz was _murdered_ by US government officials–claims that in my humble opinion is starting to reach into what I call “black helicopter” category. 

    I don’t want such ridiculous claims seeing the light of day, because that would seriously compromise legitimate criticism of the government’s case against him.

  14. Could he have been murdered by the government?..Why does a bright young man suddenly give up the fight he is passionate about?  
    To anyone who thinks this is not possible, well – yeah, i would take off the rose coloured glasses and consider every angle.

  15. Lessig says “But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar”, but CACM is full of liars, then. Then do exactly that.

    1. I agree re: possible outside “interference”. Even if Aaron was not executed directly, he was certainly hounded beyond the endurance of most of us – no matter how yourng, dedicated, centered and loved. I am also beyond sad for his girlfriend having to find him. From sources as diverse as “The True Story of the Bilderberg Group” to my own experience on a Grand Jury one summer, I am in depressive awe of the rampant corruption in many if not all of our Government Groups, Departments and Agencies – at all levels from Local to National.

  16. Let’s be very clear hear Aaron did break the laws on the book. He felt  the “idea” was “greater” then the law. Whether right or wrong this was the case.

    1.  Neither MIT nor JSTOR pressed criminal charges, though.  So apparently the “aggrieved” parties either don’t agree with you or didn’t care.

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