Aaron Swartz and prosecutorial discretion (part 1)

Two years ago yesterday, Aaron Swartz tragically took his own life.   If you don’t know the name, you’ve definitely heard of some of the things he’s done.  Do you remember when Wikipedia, Google, and many other sites were blacked out in protest of SOPA?  That was Aaron’s idea.  He was also a founding member of Reddit, but that barely scatches the surface of his accomplishments.  The term “prodigy” comes to mind.

My first blog post discusses the legal issues he was facing at the time of his suicide. Specifically – I look at the intense pressure being exacted on him by a federal prosecutor. Many people, whether guilty or innocent, have felt this pressure when accused of a crime.  Although the Swartz tragedy may be fading in the minds of some, the issues it raised in the collective American consciousness remain as poignant as ever.  The following is from a paper I wrote a few months after Swartz’ death.

I. Introduction

On the morning of January 11, 2013, writer, political organizer, and internet activist Aaron Swartz, was found dead in his Brooklyn apartment at age 26. Although there was no note, he apparently had committed suicide.

About six months before his suicide, he had been indicted for wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer.  All the counts stemmed from an incident in which Swartz downloaded thousands of academic articles from Harvard University’s database with the intent of distributing them publicly. His crime was not theft, since the articles were free, but his use of an automated program to download the files automatically was prohibited by the license agreement. As has been widely reported, Swartz “was doing this not to hurt anybody, not for personal gain, but because he believed that information should be free and open, and he felt it would help a lot of people.”

It would be an overstatement to suggest, as some have, that Swartz’ death was a direct result of the indictment. Swartz had long suffered from depression, documenting his experiences on his blog as early as 2007. It is less of a stretch to suggest that the indictment, and the prospect of spending a significant time in prison, was a contributing factor in his death.

Prosecutor Carmen Ortiz has received criticism from Swartz’ lawyer, his family, and members of the media for how she handled the case. There was even a petition signed by 50,000 citizens calling for Ortiz’s removal from the U.S. Attorney’s office for prosecutorial overreach. Attorney General Eric Holder has defended Ortiz, calling it “a good use of prosecutorial discretion.”

Whether Ms. Ortiz deserves to be penalized for her actions – or whether she engaged in any misconduct at all – is a debatable question. However, one thing is clear – the Aaron Swartz case catapulted the issue of prosecutorial discretion into the national consciousness. In the next part, I will be using the Aaron Swartz case as a springboard to examine the large amount of leeway given to federal prosecutors in the United States, and whether this is a fair system for defendants.


Part 2 will be published next Monday.  Thank you for reading.