Few journalists were familiar with Aaron Swartz before the 26-year-old activist and programmer took his own life last Friday. But there he was, nestled between a photograph of Tina Fey and Amy Poehler at the Golden Globe Awards and an article on Federalism, on the front page of The New York Times, a primer for those non-Internet types on how a troubled genius, through the act of hanging himself, had transmuted into a “cause” and an Internet martyr.
Even before his tragic suicide, Swartz was something of hero to his comrades in the open-access movement, which demands, as he wrote in a 2008 manifesto, that “information locked up by [academic] publishers” should be freely exchanged, unfettered by profit-motivated corporations. The inventor of RSS 1.0, a popular method of aggregating news stories, and the co-founder of the hugely influential website Reddit, he eschewed the big paydays of Silicon Valley for the comparatively ascetic life of a “hacktivist” who agitated for the “liberation” of information, copyright statutes be damned.
While WikiLeaks founder Julian Assange sucked up the media oxygen, Swartz labored in relative obscurity—until he was arrested in 2011 for illegally downloading 4.8 million scholarly articles from the subscription-only archive JSTOR through an M.I.T. computer, with the intention of setting them free into the wilds of the Internet. While JSTOR refused to “pursue further action,” the United States attorney would aggressively prosecute Swartz on charges carrying a maximum penalty of 35 years in prison.
In a statement, Swartz’s family said that their son’s death was “not simply a personal tragedy,” but “the product of a criminal justice system rife with intimidation and prosecutorial overreach.” Swartz’s family didn’t directly blame prosecutors or M.I.T., arguing instead that “decisions made by officials in the Massachusetts U.S. attorney’s office and at M.I.T. contributed to his death.”
It’s impossible right now to determine if Swartz’s suicide was largely a reaction to the charges against him—he left no note and had long suffered from depression—and unfair to place blame for his death on prosecutors and M.I.T. administrators. Indeed, a pained blog post he wrote in 2007 so disturbed a former colleague that he alerted police, fearing Swartz might be suicidal.
But one point made by the family is worth underscoring: whatever opinion one has of Swartz’s politics, the American criminal justice system, in its relentlessness and inflexibility, it’s unduly harsh sentencing guidelines, requires serious reexamination.
And it’s a point that has recently inched toward bipartisan consensus, with formerly law-and-order conservatives like media mogul Conrad Black, initially sentenced to six and a half years’ imprisonment on charges of fraud and obstruction of justice, being disgorged from the system convinced of its inherent “unfairness, hypocrisy, and barbarism” (likewise, the conservative judicial reform website Right on Crime, endorsed by William Bennett, Jeb Bush, and Newt Gingrich, laments the “overcriminalization” of America and the massive increase in prisoners convicted of nonviolent crime).
Swartz’s lawyer said that his team rejected a plea deal which would have put his client behind bars for six months. The deeper issue, one largely ignored by his legion of online surrogates, is made cogently by Black: “[In the United States] prosecutors win 95 percent of their cases, 90 percent of those without a trial, and people who exercise their constitutionally guaranteed right to go to trial receive more than three times the sentence they receive if they cop a plea, as a penalty for exercising their rights.” In other words, if Swartz wanted to demonstrate his innocence—and potentially not be branded a convicted criminal—those 6 months could have quickly mushroomed into six years. (It should be noted that Elliot R. Peters, Swartz’s lawyer, told blogger Patterico that he believed the “case was defensible and that even if Swartz lost, [he] didn’t think the judge would have sentenced him to custody time.”)
But Swartz viewed his information liberation crusade as a necessary act of civil disobedience, writing that “there is no justice in following unjust laws.” Unfortunately, courts are rarely moved by moralistic attacks of statutes that the accused view as unjust. And as George Washington University law professor Orin Kerr wrote about the case, “the charges against Swartz were based on a fair reading of the law.”
Indeed, in the hierarchy of important political issues, the issue of serious judicial reform ranks several orders of magnitude above than the confusing tangle of copyright law, or the parlor debate over whether JSTOR should charge large fees for access to copyrighted academic papers (before Swartz’s death, the company announced a limited program to allow free access to some of its material).
The media martyrdom of Aaron Swartz is unlikely to “mainstream” the open-access movement, which is of only marginal interest to most Americans and is a rather more morally complicated issue than many of its supporters let on. Instead, those outraged by Swartz’s suicide and looking to convert their anger into action would be best served by focusing their attention on the brutishness and stupidity of America’s criminal justice system.