Aaron Swartz (center) and Lawrence Lessig (right) pose at a Creative Commons event in December 2002. (Flickr/Gohsuke Takama)
Everyone is looking for a solution to the Aaron Swartz case, some kind of quickly enacted, cathartic maneuver that would make us feel better. In the middle of the week, Representative Zoe Lofgren (D.-Calif.) announced  that she would introduce a bill to amend the Computer Fraud and Abuse Act (CFAA). She calls it “Aaron’s Law.” Lofgren’s move would do what Internet law experts have been asking for some time and keep the CFAA from giving the terms of service agreements—yes, those contracts you don’t read—the effective force of law. As written right now, the CFAA allows a prosecutor to characterize your violation of terms of service as a fraud on the service provider, making your access of their system “unauthorized.” Lofgren’s amendment would limit the law to actions where someone deliberately circumvents the programming of a system to access it, more like what we picture when we think of hackers.
This is an excellent development. But lost in the praise is the fact that such an amendment wouldn’t necessarily, as Jennifer Granick of the Center for Internet Law and Society observed days ago, have kept Aaron Swartz from being prosecuted . The case against Swartz hinged precisely on his having circumvented MIT and JSTOR’s “code-based” attempts to kick his laptop off the system. They had detected his downloads and blocked his IP address, and then his MAC address, a signifier that every computer has. He simply masked both of those to keep his downloads going. His masking would be exactly the sort of programming workaround that would still violate the statute.
The imperfectness of the “Aaron’s Law” solution, however well-meant and even welcome, shows how a lot of us are missing the point. The wrongness of Swartz’s prosecution went beyond whether or not he was a “hacker.” It was wrong because it reflected a completely bizarre set of priorities in law enforcement, one which fetishizes the technicalities of the issues over the real justice of them. There is a broader, and deeper problem to address here.
That’s particularly important because there are already insidious arguments being made in Aaron Swartz’s name. On Wednesday, for example, the Daily Beast published a piece by Michael Moynihan that analogized Swartz’s struggles with the DoJ to those of—wait for it—Conrad Black . The basis for the comparison is this: Black has, since his brief stint in a Florida jail, become a sudden crusader for prisoners’ rights, because like many an accused white-collar criminal, he styles himself the victim of overzealous prosecutors. Never mind that the SEC recently fined Black $6.1 million  for various accounting violations; never mind that Black, like many businessmen accused of wrongdoing, met his overzealous prosecution with what one imagines was a pretty well-funded defense. And certainly never mind that much of prosecutorial zeal in this country is actually directed at young black men , and is therefore much more likely to be the product of racism than free-floating harshness. As it turns out, there is no critique of the American criminal justice system that people will treat more credulously than one articulated by a rich white businessman, and one which just so happens to absolve himself of wrongdoing.
That sort of reasoning is dangerous because it make Swartz’s cause sound like one of the frequent refrains of right-wingers: that the problem is too much regulation, too much law, too much government interference. When, in fact, the problem is not the existence of regulation, but what it is directed at, when the Department of Justice chooses to enforce it, and what that says about the kind of political values the country is increasingly pursuing. As Lessig put it in his grieving post  on Saturday on learning of Aaron’s death, the problem here is of priorities. To “live in a world where the architects of the financial crisis regularly dine at the White House—and where even those brought to ‘justice’ never even have to admit any wrongdoing, let alone be labeled ‘felons,’” as Lessig remarked, isn’t to live in a world of either too little or too much law. It’s to live in one that has the wrong kind.
The most charitable characterization of these charges is that the DoJ sought to enforce the copyright JSTOR had in its database by way of prosecuting Swartz for his “unauthorized” use of MIT’s network to download it. That description leaves out that JSTOR’s copyright was the result of merely scanning articles that are widely available to every university student in the country, whose genesis and publication were (mostly) taxpayer-funded activities in the first place, and whose authors, largely academics, tend to be sanguine about their being copied far and wide. This weak philosophical claim to “own” these papers may be what led JSTOR to reportedly back off quite early in the case. But isn’t it worth considering why there is such a gap between the present position of the copyright laws and that philosophical claim? In a better world we’d be thinking about those questions. In this one, we’re dickering over the tactics Swartz used to highlight the issue.
Lawyers will say it isn’t their role to weigh priorities, but that’s disingenuous. In the defensive statement that U.S. attorney Carmen Ortiz issued on Wednesday , she argued that “the career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold.” Just the use of the phrase “difficult task” betrays that the dubious justice of the case was on their minds. Ortiz further admitted that her office had no evidence that Swartz acted for financial gain, and so wanted only to impose a weak minimum sentence of six months. Which just goes to show: it’s actually the prosecutor’s job to consider the seriousness of the crime, if for no other reason than setting plea bargain terms.
There is evidence to suggest that Ortiz’s office was unusually unreasonable. Reporters have already dug up another hacker who claimed he had been harassed by the efforts of one of the attorneys in this case. Lessig himself titled his post “Prosecutor as bully,” and he was privy to more internal details than most. But just as Lessig called for the suicide not to be “pathologized” as a mere artifact of mental illness, it would also be wrong to see Swartz’s prosecution as an anomaly, a blip. The mere fact, as revealed in court documents, that the Secret Service was at least tangentially involved in the investigation, suggests that there is a broader skew of priorities here, one which reaches beyond one attorney and deserves attention.
The problems with “hacktivism,” after all, will not finish with this case. There may be good, privacy-based concerns to be raised about hacking; no one thinks it’s a good idea for Social Security numbers and credit cards to be subject to unfettered use by crime syndicates or, you know, even Facebook. But the focus on tactics keeps our eye off the ball. Cory Doctorow, in his remembrance of Swartz , hinted that perhaps the DoJ’s pursuit had to do with some suspected association with Bradley Manning. And Swartz wasn’t the first supporter of radical politics  to be dogged thereafter by law enforcement. Something much larger, and more rotten, is happening with these cases. Specifically: someone is looking to frighten anyone who wants to challenge the public to think more deeply and carefully about what justice demands.
Read Rick Perlstein's tribute  to Aaron Swartz.