Tim Wu: what if we'd treated Steve Jobs and Steve Wozniak the way we treated Aaron Swartz?

Tim Wu, Columbia law professor and technology law expert, has a very well-written piece in the New Yorker describing the point-scoring culture of America's prosecutors and its incompatibility with the kind of eccentric genius that America has always boasted about:

The act was harmless—not in the sense of hypothetical damages or the circular logic of deterrence theory (that’s lawyerly logic), but in John Stuart Mill’s sense, meaning that there was no actual physical harm, nor actual economic harm. The leak was found and plugged; JSTOR suffered no actual economic loss. It did not press charges. Like a pie in the face, Swartz’s act was annoying to its victim, but of no lasting consequence.

In this sense, Swartz must be compared to two other eccentric geniuses, Steve Jobs and Steve Wozniak, who, in the nineteen-seventies, committed crimes similar to, but more economically damaging than, Swartz’s. Those two men hacked A.T. & T.’s telephone system to make free long-distance calls, and actually sold the illegal devices (blue boxes) to make cash. Their mentor, John Draper, did go to jail for a few months (where he wrote one of the world’s first word processors), but Jobs and Wozniak were never prosecuted. Instead, they got bored of phreaking and built a computer. The great ones almost always operate at the edge.

That was then. In our age, armed with laws passed in the nineteen-eighties and meant for serious criminals, the federal prosecutor Carmen Ortiz approved a felony indictment that originally demanded up to thirty-five years in prison. Worse still, her legal authority to take down Swartz was shaky. Just last year, the Ninth Circuit Court of Appeals threw out a similar prosecution. Chief Judge Alex Kozinski, a prominent conservative, refused to read the law in a way that would make a criminal of “everyone who uses a computer in violation of computer use restrictions—which may well include everyone who uses a computer.” Ortiz and her lawyers relied on that reading to target one of our best and brightest.

How the Legal System Failed Aaron Swartz—And Us (via Joho)

• [Michael Smith]

  Also of interest: what if Wozniak had taken the JSTOR documents, or at least accepted credit for taking them. With a good lawyer on his side, would the prosecution have gone anywhere at all?

• [Nihilist]

  anyone who knows that the two steves start, was with phone hacking. they created small blue boxs that on the old att phones emitted a tone that would hook you up to free long distance calls. back when they were expensive. they took that money and built the apple I in steves jobs garage. if this was today, the feds would have put the two steves away for ten years, and they would be felons for the rest of their lives. the feds did kill this kid, and its status quo at the fed…..

• [the damned fool]

  Didn’t we see this one coming?  Thomas Dolan, the husband of U.S. Attorney Carmen Ortiz, had been using a Twitter account to post critically about Aaron and the Swartz family. The Twitter account has since been deleted.

  • [Charles-A Rovira]

    It Thomas Dolan, the soon to be ex-husband of U.S. Attorney Carmen Ortiz if he’s got any brains about him.

    She is a loose cannon and I can only pity their children because, as proven in this case, if they ever step out of line its Mommy Dearest time.

    Keep her away from wire coat hangers.

    • [Mary Margaret McCurnin]

      No more wire hangers!

• [Zach Cone]

  Also not so different than what Mark Zuckerberg did. Before creating Facebook he wrote scripts to scrape all the photos off the different dorm’s servers. 

  “However, the website was shut down by Harvard executives a few days after it opened. Mark Zuckerberg faced charges of violating copyrights, breach of security, and violating individual privacy for stealing the student pictures that he used to populate the website. He later faced expulsion from Harvard University for his actions. However, all the charges were eventually dropped” –Wikipedia

• [10xor01]

  The worm unleashed by Robert Morris in ’88 is probably a better comparison.  Morris was tried and convicted after releasing a worm that took over several thousand unix boxes.  According to wikipedia, he served three years probation, did some community service, and paid a fine of around $10k.

  My guess is that Aaron Swartz would have gladly taken a similar deal, if one were offered.  But unlike Morris, Swartz’s dad wasn’t a big shot at the NSA.

  • [Carl Malamud]

    That’s not a very fair comment. This isn’t about Robert’s dad or Aaron’s dad having clout. It’s about prosecutors and investigators going way beyond their brief. It’s about rule by the arbitrary whims of men and women instead of rule by law and justice.

    It also isn’t about having a person like Woz or somebody else prominent involved. When they came after us for the PACER data, we had all sorts of big guns on our side, including people in Justice and federal judges. But they still tried their hardest to turn an audit of privacy violations in U.S. district courts based on public domain data into a criminal affair.

• [timquinn]

  Let’s face it. There are elements even now who wish they never were able to do what they did. The information revolution has been a boon for democracy and a real problem for the dark forces of all kinds. The future will hold this generation up as the real revolution. The Steve’s got away with it because they were still too low profile. Simple luck (mixed with a lot of preparation, of course.)

• [monopole]

  No need to speculate just consider the impact of federal persecution, Just look at John Draper a contemporary genius in the Phreaking Scene:
  http://www.flyingsnail.com/Scrapbook/John_Draper.html

  My question is how would have Jobs and Woz and Apple have fared at the hands of modern day Apple’s Legal department ? 

• [niktemadur]

  the point-scoring culture of America’s prosecutors

  Bingo.  Any culture where technocrats wield too much power, will stagnate.

• [Ryan Lenethen]

  Kevin Mitnick served 5 years in prison after finally making a deal with Feds.
  http://en.wikipedia.org/wiki/Kevin_Mitnick

  “overzealous prosecution of Mitnick by the government” Sound similar?

• [fruityboots]

  aaron was part of a new breed and a threat to the status quo, i mourn him.

• [Brad Bell]

  The Truth about Aaron Swartz’s “Crime,” continues to be the key document:
  http://unhandled.com/2013/01/12/the-truth-about-aaron-swartzs-crime/
  There was no crime. The charges were entirely bullshit, considering Aaron’s actions are said to amount to little more than hogging library resources. (In contrast, the Steve’s were committing crimes.)

  Something also has to be said for our tendency to think there must be *something* substantial behind criminal charges. It is a lazy habit if we intend to presume people innocent until proven guilty. It also results in people making excuses for Aaron’s alleged risk and recklessness. “Sure he broke some laws, but…” For the record, there is zero evidence of any laws being broken. That’s what’s wrong: 35 years and $1m loss are hung over a man for being inconsiderate in the library.