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Reforming Laws Used To Prosecute Aaron Swartz

David Isenberg, founder of Freedom to Connect speaks during the memorial service for Aaron Swartz, Saturday, Jan. 19, 2013 in New York. Friends and supporters of Aaron Swartz paid tribute Saturday to the free-information activist and online prodigy, who killed himself last week as he faced trial on hacking charges. (AP Photo/Mary Altaffer)

David Isenberg, founder of Freedom to Connect speaks during the memorial service for Aaron Swartz, Saturday, Jan. 19, 2013 in New York. Friends and supporters of Aaron Swartz paid tribute Saturday to the free-information activist and online prodigy, who killed himself last week as he faced trial on hacking charges. (AP Photo/Mary Altaffer)

Last night in Washington, D.C., family, friends and congressional supporters gathered to remember the late internet activist, Aaron Swartz, and to call for changes in the law that federal prosecutors used to prosecute him.

The 26 year old Swartz committed suicide last month as he faced multiple federal charges for hacking into an MIT collection of academic articles. Hundreds of mourners were on hand to remember Swartz — including his father, Bob Swartz, who said his son was “thrown into a system that is cruel and vindictive.”

The prosecution of Swartz has put the Massachusetts U.S. Attorney Carmen Ortiz on the hot-seat. Her office prosecuted Swartz under a  federal law known as the Computer Fraud and Abuse Act.  Ortiz insists she enforced the law appropriately, but many supporters of Aaron Swartz disagree, and a congressional committee is demanding answers from the Department of Justice about the case. Several members of Congress attended last night’s memorial and said they support a bill that would amend the Computer Fraud and Abuse Act. Among them was Senator Ron Wyden, an Oregon Democrat, who said, “When Aaron hacked, a poorly written criminal law called him a dangerous criminal. Common sense and conscience knows better, and we are going to change this unjust law.”

So was the Aaron Swartz case an example of prosecutorial over-reach by an over-zealous prosecutor? Or was it the inevitable result of an overly broad and out-of-date law in need of reform?


Cindy Cohn, Legal Director and General Counsel for the Electronic Frontier Foundation

Harvey Silverglate, a criminal defense and civil liberties litigator and author of the book “Three Felonies a Day: How the Feds Target the Innocent.”

Scott Burns, executive director of the National District Attorneys Association.


WBUR “Flowers and enlarged portraits of the young man who devised many ways to share knowledge and information online turned a stately Capitol Hill hearing room into a memorial hall. Many who loved and admired Swartz continue to blame his suicide on overzealous federal prosecutors in Boston.”

L. A. TimesAaron Swartz may change the Internet yet again, even in death, with the help of lawmakers who have expressed a fondness for breaking the law.”

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  • http://profiles.google.com/barry.kort Barry Kort

    “I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life.” –U.S. Attorney Carmen Ortiz, January 16, 2013

    If the prosecutor is able to recognize the scale of the anger and outrage directed at her office, then surely she must appreciate that the human emotion of anger arises from deep-seated feelings of injustice. What more compelling evidence is there that the outrageous conduct of her office was patently unjust in the most fundamental meaning of the concept of justice?

    We need a national dialogue on the practice of piling on charges to coerce defendants into accepting unjust plea bargains.

    The prosecution was apparently in the business of annihilation. Swartz faced spiritual annihilation and financial annihilation, with no viable means of escape. To my mind, our justice system is out of control. The prosecution took leave of their senses. Unfortunately, this kind of tragedy is all too commonplace, and most of the time goes unreported.

    The suicide of Aaron Swartz in the face of the appalling over-reach of unchecked discretionary prosecutorial power highlights a much larger problem that pervades our legal system.

    The entire US legal system (including criminal, civil, and family court divisions) is routinely used in an outrageously abusive manner.

    Those who are traumatized, stigmatized, or victimized by such shenanigans within the legal system may suffer what has come to be called Legal Abuse Syndrome.

    In the field of Medicine, every proposed treatment or cure has to be carefully studied and reviewed to ensure that it has demonstrated therapeutic value, and does not inadvertently spread, exacerbate, or even cause the malady it sets out to treat. In the medical literature, a treatment is called “iatrogenic” if it is counter-productive to the primary objective of curing disease.

    The field of Law does not employ such safeguards, and as a result a substantial fraction of our public policies and practices, operating under the color of law, turn out to be iatrogenic — ineffective at best and counter-productive at worst.

    Alan Simpson, the retired Senator from Wyoming, spent some three decades in Congress, during which time he helped craft and enact a great deal of legislation. But after he retired, he remarked that during his tenure in Washington politics, he discovered a law, the way a scientist would discover a natural law. Simpson said he discovered the Law of Unintended Consequences, meaning that the actual outcome of legislation, passed in good faith with an expectation of curing one of society’s ills, frequently turned out to have unanticipated, unexpected, and undesirable consequences. In science, if one is relying on a theoretical model, and the actual outcome of an experiment does not jibe with that predicted by the model, one is obliged to discard the model as unreliable.

    Our governmental systems are rife with unreliable models which give rise to unwise practices, many of which are ineffective at best and counter-productive at worst. We have built governmental systems that lack viable safeguards against iatrogenic treatments of many of our most problematic social ills.

    Here is an example of the kind of scholarly article one might find on JSTOR (which recently relaxed its policies to make many more of them freely available without a costly institutional subscription).

    “Punishment and Violence: Is the Criminal Law Based on One Huge Mistake?” by James Gilligan, Harvard University; published in the Journal of Social Research, Fall 2000.


  • http://www.facebook.com/sue.fioritobrewington Sue Fiorito Brewington

    Prosecutorial bullying must not be so uncommon in the US. Dan Brewington, a blogger in Indiana is serving 5 years in a medium security prison, even though he has a minimum security clearance, for blogging about his experiences in the Dearborn County, Indiana family court system. Judge James D. Humphrey, Custody Evaluator Edward Connor, and Dearborn County Prosecutor F. Aaron Negangard took offense. The Indiana Appeals court reversed his 2 misdemeanors but upheld his 3 felonies and now Dan is Petitioning for Transfer to the Indiana Supreme Court. UCLA Professor Eugene Volokh is writing a friend brief in support of the Petition to Transfer and has written two blog posts about the case. Please see http://www.danbrewington.blogspot.com/2013/02/ucla-law-professor-eugene-volokh-to.html

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