WASHINGTON -- One of the top tech experts in Congress, Rep. Zoe Lofgren (D-Calif.), told HuffPost Thursday that the case against Aaron Swartz shows that federal laws need to be changed to prevent prosecutorial abuses. Demand Progress, the liberal activism group Swartz co-founded, is marshalling support for Lofgren's effort, and on Thursday endorsed a concurrent investigation by House Oversight Committee Chairman Darrell Issa (R-Calif.) into the prosecution's behavior in the case.
"The idea that you could be charged with multiple felonies and face up to 35 years in prison under the statute is a mistake. It needs to be changed," Lofgren told HuffPost. "The entire statute is in need of a complete overhaul. I mean, it was written in 1986. So on a parallel track, we should do that. But I also hope that we can act promptly to make some discrete changes in the statute so that no one else would face what Aaron faced.”
Swartz, an Internet pioneer and prominent political activist, took his own life at the age of 26 last week after fighting federal hacking charges for two years. Lofgren declined to comment directly on whether U.S. Attorney Carmen Ortiz had acted improperly by pursuing Swartz so aggressively.
"Basically, he was facing multiple felony counts for what, in the minds of most people, doesn't constitute a crime at all. I don't want to get into the U.S. attorney's behavior," Lofgren said. "I don't know that's necessarily the appropriate role for a member of Congress. I'll just say that the statute permits that, and calls out for a remedy for amending the statute."
Ortiz finally broke her silence on the case Wednesday, issuing a written statement denying any wrongdoing.
"The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct ... did not warrant the severe punishments authorized by Congress," Ortiz said. "That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct -- a sentence that we would recommend to the judge of six months in a low security setting ... At no time did this office ever seek -- or ever tell Mr. Swartz's attorneys that it intended to seek -- maximum penalties under the law."
There continue to be, however, substantial doubts about whether Ortiz should have brought any charges against Swartz at all, much less 13 felony counts.
"Her account of her behavior is completely empty," said Harvard University Law School professor Lawrence Lessig, an intellectual property expert, scholar of government corruption and friend of Swartz. "She has not explained why the U.S. attorney was insisting on a felony conviction for what was obviously at most a political act. The question isn't whether the U.S. Attorney was willing to settle for less than the maximum [sentence] ... Nothing in federal law forces the prosecutor to charge such an act as a felony. So why did she?"
In the fall of 2010, Swartz downloaded millions of academic journal articles from the online database JSTOR. Although Swartz had legal access to the documents through a JSTOR account, his decision to download them en masse, rather than one at a time, violated JSTOR's terms of service agreement. JSTOR, however, did not press any charges against Swartz and urged the prosecution not to seek a criminal case. After Swartz's death, the nonprofit group issued a statement criticizing the prosecution, saying that it shared many of Swartz's open-access ideals. In early January, the organization made 4.5 million journal articles available for free online.
"On [Ortiz's] own admission, Aaron has no motive for personal gain. So why doesn't that decide it for a statute designed to protect economic interests?" Lessig told HuffPost. "If the victim [JSTOR] didn't want this prosecution, what was the interest of the government?"
Ortiz's current claims about leniency contrast sharply with her office's previous, aggressive pronouncements on the case. In July of 2011, Ortiz and the Department of Justice issued a press release stating: "If convicted on these charges, Swartz faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million."
Swartz's lawyers have said Ortiz and Assistant U.S. Attorneys Scott Garland and Stephen Heymann used the prospect of severe penalties to intimidate Swartz into pleading guilty to a lesser charge, insisting on both jail time and a felony conviction as minimum terms. When Swartz refused to accept those terms, Ortiz's office added additional felony charges in an effort to increase pressure on him to accept the prosecution's terms.
"If he had lost [a court trial], given the 13 felony indictments, he was really screwed," Lessig said.
Issa questioned such tactics and the Department of Justice's strategy in the Swartz case in an interview with HuffPost on Tuesday.
"I'll make a risky statement here: Overprosecution is a tool often used to get people to plead guilty rather than risk sentencing," Issa said. "It is a tool of question. If someone is genuinely guilty of something and you bring them up on charges, that's fine. But throw the book at them and find all kinds of charges and cobble them together so that they'll plea to a 'lesser included' is a technique that I think can sometimes be inappropriately used."
Lofgren's bill would modify the 1986 Computer Fraud and Abuse Act, which has been interpreted by the 7th Circuit Court of Appeals to allow criminal prosecution based on terms of service violations. The 9th Circuit, however, has rejected the 7th Circuit's reasoning. Since the Obama administration chose not to appeal the 9th Circuit's ruling, there is no Supreme Court decision to provide a definitive interpretation of the statute. The charges against Swartz hinged on prosecutors' insistence that he had violated the CFAA by breaking JSTOR's terms of service agreement.
Swartz was one of the earliest minds behind Reddit, helped write the code behind RSS 1.0, a tool that allows Internet users to subscribe to content online, and was a staunch critic of political corruption and income inequality.
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