Aaron Swartz’s “Crime” and the Business of Breaking the Law

by James Allworth  |  10:30 AM January 14, 2013

It would have been almost impossible to miss the outpouring of grief that accompanied the news over the weekend that Aaron Swartz had committed suicide. If you didn’t know him, Swartz was the founder of Infogami, (later Reddit), one of the creators of the RSS specification (at the age of 14, no less), was deeply involved in the creative commons, and started up the digital activist group Demand Progress (among his other achievements). Tributes flowed in far and wide, and fittingly so — Swartz had accomplished more in his short 26 years than many of us will manage in a lifetime. At the time of his death, he was fighting criminal charges being brought by the Government for downloading academic articles from the online scientific journal store, JSTOR. Such cases are never cheap to defend; one estimate pegged the cost at $1.5M. If found guilty, he could have served as many as 35 years in prison and faced up to $1m in fines.
It was hard to think about this sad turn of events without wondering why the government decided to seek up to 35 years of prison time for a 26-year old who JSTOR had decided to drop charges against, and who, in the words of an expert witness, had done nothing more than be “inconsiderate.” There were a number of very powerful articles written on Swartz and the charges that he faced, and as I read many of them, that question only grew stronger in my mind. The closest I could come to a reasonable explanation was in a tribute written by Swartz’s friend, Professor Lawrence Lessig. Lessig characterized what had happened as a legal and societal form of bullying:
“[Swartz] is gone today, driven to the edge by what a decent society would only call bullying. I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.”
That explanation — of an over-zealous prosecutor — certainly seems reasonable at face value. But something kept gnawing at me about that word: “proportionality.” What does it say about us — about what we value — if this is exactly the proportionality of the legal system we have created?
In the past couple of months, there’s been reporting on a pair of crimes in the business world so flagrant as to literally take the breath away. The first of these wasn’t actually that widely reported on — in fact, I only know about it because a friend in the healthcare industry sent along an article on it. It’s a long read, but it’s worth taking the time to do so. It details how a medical device company decided to bypass FDA clinical trials and use bone cement in the spines of humans. Given that the cement wasn’t properly tested, it should come as no big surprise that a number of people died as a result. In sentencing the executives responsible for what happened, the judge described how “what has occurred in this case, in terms of wrongfulness — it’s 11 on a scale of 10.” In fact, the judge, for “the first time in his 25-year career… sentenced someone above the federal guidelines.”
That executive, for his role in what happened, received nine months in jail. (The federal guidelines actually suggested six months for this type of offence, which was not even a felony, but a misdemeanor). One of his fellow executives received a lesser sentence of five months.
And then there’s a case that was much harder to miss: that of HSBC, and their foray into the world of money laundering for drug cartels:

Despite the fact that HSBC admitted to laundering billions of dollars for Colombian and Mexican drug cartels (among others) and violating a host of important banking laws (from the Bank Secrecy Act to the Trading With the Enemy Act), Breuer and his Justice Department elected not to pursue criminal prosecutions of the bank, opting instead for a “record” financial settlement of $1.9 billion, which as one analyst noted is about five weeks of income for the bank.

Lay those two cases down beside that of a 26-year old kid who did the online equivalent of checking out too many books out of the library. For doing that, Aaron Swartz was initially charged with four felonies. The prosecutors in the Synthes case agreed to charge the executives only with one misdemeanor each. In the instance of HSBC, they used their discretion to avoid pursuing criminal charges altogether. In Swartz’s case, the government decided to use that same discretion to bolster its initial four felony charges with a further nine — hence the possibility of over three decades of jail time and a $1M fine. Now, Aaron had only been charged — if justice had prevailed, it could have all been thrown out in court — but even in that circumstance, he would have still been roughly $1.5 million out of pocket just defending himself. Those HSBC executives never even got to that point.
I actually had the opportunity to talk with Aaron online a few weeks ago; partly as a result of an article that I wrote for HBR about corruption and its effect on innovation. Looking at the three cases above, I can’t help but see similar symptoms seeping into the justice system. I simply don’t know how else to explain the huge disparity in how justice was sought in these very different cases — other than regulatory capture. It seems you can get away with laundering money for the drug cartels, so long as you’ve been generous with the those responsible for appointing district attorneys; or better yet, if your industry has paid to undo all the regulation that prevents you from getting too big to fail. Similarly, when your lobby has been helping Congress draft the laws that govern food, drugs, and cosmetics, you can make sure that the federal sentencing guidelines are only six months should you breach the responsible corporate officer doctrine. This in turn means you can inject unsafe cement into people’s spines with relative impunity (apparently, those in the healthcare industry were actually surprised when the officers were sentenced to jail, even if it was for only a few months. One of the convicted executives went so far as to ask the judge to delay the beginning of his sentence until after the holidays). But woe betide you if, in the name of openness and sharing human knowledge, you decide to download academic journals. Because that sounds a lot like piracy — and we all know how much has been spent to stamp that scourge out.
It seems to me that there’s a new way of thinking about proportionality. Unfortunately, it’s being determined much less by any notion of justice than it is by a broken political system corrupted by the influence of money.
I really don’t like it, but I just can’t see any other way of explaining how else it could happen.
I’d like to take this opportunity to extend my heartfelt condolences to the family and friends of Aaron Swartz. If you’re interested in doing something to fix some of these problems, I’d encourage you to find out more about Rootstrikers and Demand Progress, two organizations that Aaron was deeply involved in.