Cyber Crime and PunishmentDate: January 21, 2013
The 26-year-old was awaiting trial for downloading 4.8 million articles from JSTOR, a proprietary database of academic journals. Boston U.S. Attorney Carmen Ortiz charged Swartz with 13 felony counts; he faced 35 years in prison and more than $1 million in fines. He killed himself over the weekend.
Swartz was an open-source activist who believed "information wants to be free"—and if it wasn't, he would liberate it. His evident plan was to release the JSTOR trove for users at no charge. "Sharing isn't immoral—it's a moral imperative," Swartz wrote in an online manifesto. "Only those blinded by greed would refuse to let a friend make a copy." JSTOR is a not-for-profit institution.
The ideology of e-vangelists like Swartz is oblivious to the economic realities that confront media companies (including this newspaper) or scholarly projects like JSTOR. It costs money to digitize and organize millions of files, and JSTOR charges universities and libraries a subscription fee as high as $50,000. Had Swartz succeeded, innovations like JSTOR may not exist for his successors to destroy.
The larger principle is that intellectual creation is legally protected, explicitly so in the Constitution, to promote scientific progress and the useful arts. Consumers are willing to pay for content they find valuable, and whether and how much to charge is for its owner—and ultimately the market—to decide.
Then again, Swartz wasn't charged with copyright infringement. He took the JSTOR documents (using a simple computer program) at the Massachusetts Institute of Technology, where he was not a student. MIT's public network is open to anybody on campus with few security controls, and MIT allowed anybody on its network to use JSTOR.
Swartz was mainly charged under a broad 1986 law known as the Computer Fraud and Abuse Act that makes it a crime to access a "protected computer" "without authorization," though without ever defining what either term means. Like the "honest services" fraud statute that the Supreme Court junked in 2010, this leaves too much power to ruin futures and fortunes to prosecutorial discretion.
Swartz was making a political statement about free digital information, and his offense was presuming to tell JSTOR what's best for its own property and business model. That was wrong but distinct from, say, the rogue piracy mills that only exist to steal via infringement—think of the tycoon called Kim Dotcom. Are decades of incarceration commensurate with the damage Swartz caused, if any? Or even the six-month plea deal that Ms. Ortiz reportedly offered if he copped to all 13 felonies? JSTOR itself settled with Swartz to its satisfaction.
If copyright can't safeguard an outfit like JSTOR and prosecutors can't distinguish real cyber crimes from an abortive political stunt, then it's another warning that the U.S. legal architecture for intellectual property is out of date. One irony is that Swartz was a leader of the digital insurrection against the modest Stop Online Piracy Act last year.
The Swartz family and others are blaming Ms. Ortiz for his death, which is unfair, given his history of depression. It is fair to say that she showed poor judgment and misused the awesome powers that the government vests in prosecutors.
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