Aaron Swartz's suicide last weekend a few months before he was to stand trial for computer fraud has evoked tidal waves of outrage against the federal prosecutors for vastly abusing their power by bringing inflated and unfair charges against Swartz, the 26-year-old
Internet folk hero and crusader to make Internet Web files free and open to the public. Dubbed "the humanist hacker," Swartz was indicted in 2011 on numerous counts of computer and wire fraud for breaking into computer networks at M.I.T. and using a false account to download some 4.8 million academic documents from the JSTOR database. The charges carry potential punishment of 35 years in jail and $1 million fine.
The government's conduct has been called a "grotesque miscarriage of justice," "egregious overcharging," and "shameless." The vitriol against the prosecutors is not surprising. The pursuit of Swartz appears Javert-like -- it involved expending considerable legal artillery, bringing draconian felony charges against a person who the prosecutors must have known was emotionally fragile and possibly suicidal, and the certain awareness by the prosecutors that Mr. Swartz was motivated not by greed or self-interest but by principled idealism. To Swartz's defenders, the prosecutors' conduct appears to run absolutely counter to the conventional understanding that a prosecutor's legal and ethical responsibility is not to tack scalps onto his wall, but to serve the cause of justice.
But there is more to this tragic story. Vilifying prosecutors in this way occurs every time a prosecutor uses his or her enormous discretion to bring criminal charges that in many instances may be seen as abusive, overzealous, and unjust. Indeed, there are hundreds and hundreds of cases in which prosecutors, as in the Aaron Swartz case, have been accused of this type of arbitrary, vindictive, and tyrannical behavior. Many of these cases illustrate ways in which a prosecutor uses a vague, broadly-worded, and open-ended statute such as the Computer Fraud and Abuse Act to charge crime.
But for those who are quick to charge the prosecutors with misconduct, it is important to understand what the Swartz case is not about. It is not about selecting Mr. Swartz from a group of similarly-situated individuals who may have violated a law and prosecuting him only, not the others. That was the accusation against prosecutors when they massed their heavy fire-power selectively to prosecute Martha Stewart, but she did lie to federal officials, and her act did violate federal law. Nor is the Swartz case about a prosecutor retaliating against someone because that person has engaged in constitutionally-protected activity, such as protesting, whistle-blowing, or associating with unpopular groups. Even his most ardent supporters do not contend that Mr. Swartz's conduct was constitutionally-protected. Nor is there any suggestion that the government targeted Mr. Swartz for prosecution based on personal or political reasons, or as part of a vendetta against political foes, as in the horrendously unfair federal prosecution of former Alabama Governor Don Siegelman. From reviewing the criminal charges, it appears that in gaining access to the networks dishonestly, Mr. Swartz did in fact commit acts that were unlawful under the statute. And I have seen nothing to suggest that the prosecutors in the case behaved with improper motives, or violated any legal or ethical rules.
For prosecutors to charge an individual who openly violates the law and is so outspoken about his conduct is hardly exceptional or surprising. Indeed, any responsible prosecutor could reasonably be expected to view charging that person as a deterrent that might frighten other potential offenders from committing similar crimes. Channeling a prosecutor's discretion in this way is well within the legitimate contours of prosecutorial conduct, particularly prosecutors who are specially assigned to investigate and prosecute electronic crimes as these prosecutors were. Also, not be ignored -- and I'm sure it had some influence on the decision to charge Mr. Swartz -- is the fact that Mr. Swartz in 2008 created a program to enable him to access and download from a massive federal court database some 20 million pages of federal judicial documents. To a prosecutor who believes in good faith that he or she has the responsibility to vindicate the law, prosecuting an open and notorious cyber-violator and thereby deter other potential violators is neither illegitimate nor exceptional.
To be sure, the fact that a prosecutor has good cause to believe that somebody committed a crime does not mean that the prosecutor necessarily should charge that person, nor does it mean that a prosecutor should bring charges that appear to be disproportionate to the offense. What is so troubling about the Swartz case is the realization that a prosecutor has the power of life, liberty, and death. It is the realization that a prosecutor -- federal or state -- has almost unlimited power to decide whether someone should be charged with a crime, how serious should be the charge, whether to allow that person to plead guilty, and whether to give that person immunity. A prosecutor's charging power is the most dangerous power of all exactly because it can be so easily abused, and there are virtually checks to correct abuses.
The tragic case of Aaron Swartz unquestionably is the most vivid recent example of a prosecutor's use of broad discretion to charge crime. Indeed, the circumstances of Mr. Swartz's case appear to allow, if not invite, heavy charging. The computer fraud statute is extremely broad, violating the statute is not too difficult, and violators are either never detected or are not prosecuted because of lack of resources or other law enforcement priorities. In the end, the single most significant check on a prosecutor's discretion is not the judicial courts, nor the court of public opinion. The only realistic check lies in the integrity and professionalism of prosecutors. To those friends and supporters of Aaron Swartz, this for sure will not be seen as much of a check.