The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion

Lots of people openly violate federal criminal laws. An enormous number of them, like Swartz in this case, do so non-openly but in a way that a trivial amount of investigative effort would reveal. The vast majority of them are not charged.

This selective prosecution is a de facto policymaking process. It's not enough that the prosecution not be an abuse of discretion, it needs to also be good policy. Saying that the law needs to be amended to stop enforcement might be the technically proper thing to do but it's not the only option open to opponents of the law.

1. I absolutely agree that the whole process of plea bargains, threats, etc is unethical, immoral, etc. And we should object to it in all cases, not just when it happens to someone like Aaron Swartz.

2. I absolutely disagree that Aaron's actions would seriously threaten the revenues for journals. Once a journal has been delivered, it has been paid for. Retroactive access to past journals does not lessen the desire for libraries to proactively gain access to future ones. The fact that journals are willing to let articles onto JSTOR where they are often available for a nominal (and in many cases a nonexistent) fee says very clearly that the marginal value that Aaron would have taken would be miniscule.

3. I strongly disagree that the process by which the USA acquires more laws at this point can be fairly described as "democratic". There is a minimum facade of democratic input, and in rare cases (eg SOPA) this can redirect the system. But on the whole the system is not democratic, and describing it as such tends to give people a false sense of complacency.

4. That said, I agree with the general principle under which Orrin would have recommended sentencing. But I emphatically disagree with the specific conclusions there. We have ample evidence from, for instance, the ease with which JSTOR got Aaron to back down and return materials before the prosecutors arrived that he actually could be deterred. There was every reason to believe that he found jail to be a very threatening prospect, and the plea bargain suggested by his lawyer would have, in fact, deterred him from future action. Given that, there was no need to seek large punishment.

5. The specific suggestions on reforming the CFAA seem very good to me. If we're optimistic that the Supreme Court will set precedent interpreting the CFAA in a very good way, then we don't want Congress muddying the waters with a provision that can confuse future courts about whether they should follow the reasoning in precedent or guess at the intent of worse recent statutory law. The ease of elevating crimes to a felony strikes me as a very clear problem.

I could go on, but as I say it will take me some time to digest this article.

what i got from the article is that Ortiz was not overzealous. she was doing what most prosecutors do all the time. why should we single her out? if we wanted to fire all prosecutors that used her tactics, we'd probably have to fire the majority of federal prosecutors.

HSBC has admitted that it is for all practical purposes a criminal enterprise masquerading as a bank. This is not a paperwork mistake or a lapse of oversight, it's their business model. Nobody will be prosecuted. The people performing these admitted criminal acts will be allowed to keep their paychecks, their bonuses, and in many cases, their jobs. No jail time, no criminal records, not even 40 hours of picking up trash in a park.

As a concrete example, consider the last election. More than 50% of voters voted for Democrats in Congress (even when you discard seats where there was only one party on the ballot, still over 50% voted that way), and a large majority in polls want Congress to become less partisan. Yet Republicans won Congress by a significant margin, and most members of Congress are in seats where their only realistic political challenges will come from the radical wing of their own political party.

In short, the population wanted moderates with a slight preference for Democrats, yet overwhelmingly we got extremists and a significant Republican majority. This does not reflect the desires of the American people, nor will the actions of our elected officials reflect our aspirations.

I could multiply with examples of how the governance of our society results in things not desired by the population, or not supported by my understanding of how the Constitution was meant to be read. But my point is simple. If you like sausage, you shouldn't learn how it is made. I want to like our legal system, but I've learned just enough about how it works and came to be that I cannot trust it.