U.S. Attorney Under Fire for Swartz Suicide

This Dec. 8, 2012 photo provided by ThoughtWorks shows AaronSwartz, in New York. Swartz, a co-founder of Reddit, hanged himself Friday, Jan. 11, 2013, in New York City. In 2011, he was charged with stealing millions of scientific journals from a computer archive at the Massachusetts Institute of Technology in an attempt to make them freely available. He had pleaded not guilty, and his federal trial was to begin next month. (AP Photo/ThoughtWorks, Pernille Ironside)

U.S. Attorney Carmen Ortiz faces a formal congressional investigation and calls for her resignation over the prosecution of Aaron Swartz, an Internet pioneer and activist who committed suicide earlier this month. Ortiz’s critics accuse her of prosecutorial overreach for heaping multiple felony charges on Swartz, who was accused of downloading millions of academic articles with the intent to distribute them online at no cost.

The charges against Swartz carried a maximum sentence of more than 50 years in prison and fines in the millions of dollars, a greater punishment than many murderers and rapists receive. The victim in the theft, the academic database JSTOR, released a statement after Swartz was charged, saying that the indictment was entirely the government’s decision and that they had no interest in pursuing charges.

Days after Swartz’s suicide, Ortiz issued her own statement expressing sympathy for Swartz’s family and asserting that her prosecutors handled the matter “reasonably.” She said her office recognized that Swartz was not acting for personal financial gain and told Swartz’s lawyers that it “sought an appropriate sentence that matched the alleged conduct — a sentence that we would recommend to the judge of six months in a low security setting.”

“At no time did this office ever seek — or ever tell Mr. Swartz’s attorneys that it intended to seek — maximum penalties under the law,” the statement said.

But Ortiz’s first message to the public wasn’t so reserved. When she initially charged Swartz in 2011, her office released a statement that the “alleged hacker … faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.” Ortiz would later add nine felony counts to the indictment, boosting the potential prison term and fines.

“Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars,” Ortiz said in the statement. “It is equally harmful to the victim whether you sell what you have stolen or give it away.”

A White House petition demanding Ortiz’s removal from office for overprosecution of Swartz has nearly 50,000 signatures.

Overly Broad Computer Laws?

U.S. attorneys enjoy broad discretion in their selection of cases and charges, and it’s clear from Ortiz’s statements that she felt Swartz’s offense was worthy of prosecution despite his victim’s wishes that the matter be dropped. And as we reported earlier on Lawyers.com, computer crime expert Orin S. Kerr points out that Swartz clearly violated the Computer Fraud and Abuse Act (CFAA).

But Kerr also argued that the 1984 law is outdated and overly broad, criminalizing behavior as benign as violating a website’s terms of service. In response to Swartz’s case, California Representative Zoe Lofgren authored a bill called “Aaron’s Law” that amends the CFAA and wire fraud laws to exclude such minor infractions from the sweeping statutes.

Scott Bielicki

Swartz’s supporters say that Ortiz was trying to make an example of him, targeting him harshly for his activist support for freedom of information and an unregulated Internet. But New York prosecutor Scott Bielicki says that Ortiz is just following the letter of the law.

“Either the evidence supports the charges or it does not,” Bielicki said. “If it does not, then defendants go to trial and they are acquitted. The potential sentence is based upon the counts that are proven. If she was overreaching, then she doesn’t get the convictions and the potential sentence is meaningless.”

“With good time, he would have been out of prison in about 120 days. What is blown out of proportion is the belief that Swartz had a real possibility of serving anything near the maximum sentence. That was never going to happen.”

Officials Demand Answers

There will likely be more details to come about Ortiz’s prosecution of Swartz, as California Representative Darrell Issa has launched an official investigation into her office’s conduct.

Congressman Darrell Issa

“I’ll make a risky statement here: Overprosecution is a tool often used to get people to plead guilty rather than risk sentencing,” Issa added. “It is a tool of question.”

Texas Senator John Cornyn is also demanding answers, asking Attorney General Eric Holder to further explain Ortiz’s defense of the prosecution. Noting that Ortiz had publicly declared her office’s conduct “appropriate,” Cornyn requested copies of any reports related to any internal reviews.