When I read the obituary for Aaron Swartz on Saturday, it was with a sinking feeling of déjà vu. Mostly I was sad, of course, because a talented young man was dead (I didn’t know him, but I’ve worked with his partner, Taren Stinebricker-Kauffman on several of her environmental projects). But sadness is sadness. Anger is something else—it was clear he died under tremendous, needless, pressure, of a kind all too familiar to people who peacefully challenge the system.
Hounded by Boston prosecutor Carmen Ortiz, Swartz was facing 32 years in federal prison—a term six years longer than his life. His dubious “crime” was liberating the contents of the academic database JSTOR so that everyone could read it. I don’t really understand his reasoning, since anyone with a library card already could already get at the stacks of scholarly papers. But I get his basic motive—he seems to have spent most of his life trying to speed the flow of information around the world, in the idealistic and maybe even correct assumption that it would do some good.
JSTOR didn’t press charges, but that didn’t stop Ortiz. Her reasoning for bringing down the hammer of federal prosecution: “Stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars.” That’s ridiculous. If you take something with no eye to financial gain, it’s clearly not the same—this wasn’t a jewel heist. Given the stories circulating about Swartz’s computer prowess, he could easily have been a real criminal if he wanted to—it sounds as if it would have taken him 10 minutes on an iPhone to collect half the credit cards in the nation. He never did anything even remotely like that.
But the reason Ortiz could charge Swartz so heavily is because she pretended he’d committed a financial crime. Her criminal complaint notes that JSTOR’s computers were “used in and affected interstate and foreign commerce,” and that Swartz had “devised a scheme to defraud and for obtaining property,” and on and on. Just reading the charge sheet you understand that none of the laws under which he was indicted were germane (though academics everywhere are grateful for the sweet notion that their old papers are valuable merchandise). You may think he shouldn’t have done it, but if you’re in your right mind you don’t think he’s the guy our society had in mind when it passed these laws—and if you want to understand the pressure he felt, just read the indictment, with its conclusion that he should apparently forfeit every penny he ever came across “up to the value of the property” he’d “stolen.”
Almost exactly the same thing happened in Utah in 2008 when another idealistic young man, Tim DeChristopher, went to a Bureau of Land Management auction and on the spur of the moment bid on 14 tracts of wilderness about to be leased for oil and gas exploration. He didn’t have the $1.4 million he’d bid, and so the auction was disrupted. He’d clearly done something “wrong”—an inspired act of civil disobedience. But he was charged, absurdly, with violating something called the Federal Onshore Oil and Gas Leasing Reform Act—and much like Swartz, was charged as if he’d committed a financial fraud.
DeChristopher is alive, thank heaven. And back in Salt Lake City. But under house arrest after 18 months in a federal penitentiary. I went to see him in federal prison in California, in a desolate desert outpost where at one point he was held in solitary confinement for a lengthy stretch. The whole affair, just like the persecution of Aaron Swartz, was a disgrace.
People who are trying to change systems can be punished—hell, I helped lead the largest civil disobedience action in 30 years in this country in 2011, when 1,253 were arrested trying to slow down the Keystone Pipeline. We sat down where we weren’t allowed in front of the White House, and for that I spent three days in the D.C. City jail. It wasn’t fun (and if I’d had thought it was going to last 32 years I don’t know what I would have done) but it was not absurdly unreasonable. We’d committed a symbolic political crime, and we were punished in a more or less symbolic way—three days of one’s life is a reasonable trade for making a fair point. That’s how it should work.
And that’s how it could work if men like Attorney General Eric Holder were willing to apply even a modicum of common sense to these situations. He should know about this stuff—George Wallace stood in the door of the University of Alabama to keep Holder’s sister-in-law from registering for classes simply because of her race. The same George Wallace who was forever arresting Martin Luther King on charges that his auto insurance wasn’t up to date and such. And yet Holder does nothing, nor does Obama—never a word. They just stand by as federal prosecutors play Sheriff of Nottingham. Here’s what the U.S. attorney’s office said when DeChristopher was convicted: “To be sure, a federal prison term here will deter others from entering a path of criminal behavior.” Applied to men like Swartz or DeChristopher that’s simply grotesque, and it would be even if they were also—for starters—prosecuting real criminals like the ones on Wall Street.
There are big intractable problems on this earth—climate change, say—that will take endless effort to solve. But teaching federal prosecutors not to harass noncriminals is not one of them. You’d almost think they were trying to send a message: don’t challenge the system.
Carmen Ortiz should not have go to jail or forfeit her property—the worst fate one could conceivably imagine will be that she has to go to work for a white-shoe Boston firm and make a small fortune. But on the principle, familiar—apparently—to her, that “you’ve got to teach these people a lesson,” she shouldn’t have a public job that comes with power and discretion. There’s a petition circulating demanding that she be fired from her prosecutor’s post, and if she is, maybe her colleagues would think twice before harassing people for what are essentially thought crimes. It won’t bring Swartz back or return DeChristopher his 18 months, but I’m willing to bet, or at least to hope, that there are more out there like them.