Rights to privacy, freedom of information, and the role of the prosecutor

Dear Readers,

Prosecutors have great discretion

in deciding which cases to prosecute. There are many, many laws on the books

that are never enforced.

For

example, adultery is still a crime in Georgia punishable by up to 12 months in

jail. The last reported appellate court opinion concerning an adultery conviction

was more than 20 years ago. That should give you an idea of when it was last

prosecuted by any prosecuting attorney.

You probably have not heard of Aaron Swartz. At the time of his death, he was

26 years old. He was one of the programmers behind the “RSS” protocol that

permits us to subscribe to feeds, providing us with automatic notices. He is

dead, according to his family, because of an unfair prosecution against him for

“hacking” into the servers of the Massachusetts Institute of Technology (MIT)

to make a point about the freedom of academic thought. Mr. Swartz is dead

because he committed suicide.

The point of his family is that this was not necessary. Mr. Swartz had attached

removable hard-drives in isolated electronic closets at MIT. The purpose of

doing so is that Mr. Swartz was offended by the fact that he felt “Journal

Storage” (JSTOR) had been distorted from its original concept.

Back in

1995, seven different academic libraries started to participate in JSTOR as a

pilot program. The idea was to digitalize academic journals, making them

“searchable,” as a cost-savings measure on storage costs. However, in the law

of unintended consequences, from Mr. Swartz’s perspective, the result had been

to inhibit research and the free exchange of academic expression and data.

So, Mr. Swartz plotted. He carefully and quietly tried to download over four

million articles. MIT caught him in the act and he turned his ill-gotten booty

over to JSTOR and MIT. As a consequence, both JSTOR and MIT chose not to sue

him.

But, the government thought prosecution was necessary. The Massachusetts United

States Attorney’s Office decided Mr. Swartz needed to be prosecuted on the

theory that his intentions were to “liberate” JSTOR’s journals. After first

charging him with four crimes related to theft, computer fraud, and

wiretapping, Carmen Ortiz upped the ante to 13 crimes such that Mr. Swartz was

looking at as much as 35 years in prison.

JSTORS signed off on a straight probation deal, but MIT wanted Mr. Swartz to

serve six months in jail. Evidently, this was more than Mr. Swartz could

handle, as he suffered from depression, and on Jan. 11, 2103, he took his own

life.

Mr. Swartz did not cause any actual harm, other than to prompt MIT to conduct

an internal security investigation. He was a champion of civil liberties

lobbying against anti-piracy legislation. He represents the same independent

streak that has caused individuals to sue to prevent the ownership of our

genetic codes, which I had discussed in a previous column.

 

Most of the time, prosecutors make decisions that are easy and clear. But, in

the case of Mr. Swartz, there is a somewhat sinister undercurrent to his

prosecution. Ms. Ortiz and her assistants may not have been aware of the role

they were occupying. Yet, the truth is that by trying to make an example of Mr.

Swartz, the Massachusetts United States Attorney’s decision carried with it a

“Big Brother” tone.

Still, Mr. Swartz’s tragic death was neither intended, nor can it be fairly

said to have been caused by Ms. Ortiz’s exercise of her discretion. There were

crimes committed and the protection of privacy rights is an important role for

prosecutors. Also, it does not appear the decision to prosecute was reflexively

made. If the plea bargain reports are true, there was clearly some restraint

being exercised.

However, there is another perspective to the wisdom this prosecution. And, Mr.

Swartz remains a symbol for the belief that the free exchange of ideas has more

value to society than ownership rights to academic research. And, it is a point

worthy of debate, maybe not one that should be treated as a crime.

Local attorney Jim Rockefeller owns the

Rockefeller Law Center and is a former Houston Co. Chief Assistant District

Attorney, and a former Miami Prosecutor. Visit www.rockefellerlawcenter.comto submit confidential legal questions,

and to review former articles and Frequently Asked Questions.

HHJ News