More on the Aaron Swartz story
Posted by Charles II on January 31, 2013
We previously covered the tragic story of Aaron Swartz, who was hounded to his death by a prosecution that seemed malicious and disproportionate, charging him with 13 felonies for downloading publicly-accessible files from MIT’s JSTOR account–even though JSTOR refused to say Swartz had stolen data. It is increasingly evident that the prosecution was completely wrong-headed. Scott Horton:
The flaw in Ortiz’s posture has been laid bare by Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals. In United States v. Nosal, he dismissed the theory Ortiz used to go after Swartz, saying it would potentially criminalize “everyone who uses a computer in violation of computer use restrictions — which may well include everyone who uses a computer.” Kozinski was born and raised in Communist Romania, and knows a thing or two about totalitarian states — and he knows that prosecutorial overbreadth is their leitmotif. If conduct can be charged so broadly as to cover virtually everyone, then prosecutorial discretion effectively becomes a license to persecute anyone who stands in the state’s way. Radley Balko and Clive Crook have each focused on this concern about the Swartz case. I share the essence of their analyses.
The Ninth Circuit is California, whereas Boston is First Circuit. So an opinion by Kozinski isn’t binding on whoever would have tried the case in Massachusetts District Court. But Ortiz would have done well to consider what he said, which is (in my layman’s interpretation) computers aren’t somehow special. Just because you do something using a computer does not automatically convert what would otherwise be a civil wrong (tort) or infraction of institutional rules into espionage, treason, or some other arcane crime. If you take confidential information from your employer, it shouldn’t matter whether it was in a filing cabinet or on a computer. It’s wrong, but probably not a felony.
Maybe someday enough prosecutors and judges will understand computers to get this simple idea: there’s nothing special about them.
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