[governance] Bloomberg - The Overzealous Prosecution of Aaron Swartz

[Riaz K Tayob]

[The Panglossian world of US Exceptionalism.... of course these matters 
are discussed and debated, but dare to do anything about it and then 
those will be put in their place, or no?]

The Overzealous Prosecution of Aaron Swartz
By Stephen L. Carter 
<http://www.bloomberg.com/view/bios/stephen-carter/> Jan 18, 2013 1:30 
AM GMT+0200

The tragic suicide last week of Aaron Swartz, the visionary Internet 
activist who helped create Reddit, is being blamed in part on the zeal 
of the U.S. attorney whose office was prosecuting him for supposed 
computer crimes.

Professor Lawrence Lessig of Harvard Law School 
<http://topics.bloomberg.com/harvard-law-school/> described 
<http://lessig.tumblr.com/post/40347463044/prosecutor-as-bully> his 
close friend Swartz as having been "driven to the edge by what a decent 
society would only call bullying." Others pointed out that Swartz's 
alleged offense -- downloading scholarly papers without paying for them 
-- was essentially victimless. The owner of the database from which the 
papers were taken chose not to pursue the matter.


The critics have a point. The prosecution of Swartz was ridiculous. But 
it's a small part of a larger problem. There's far too much prosecution 
in the U.S. And as the philosopher Douglas Husak points out in his book 
"Overcriminalization 
<http://books.google.com/books/about/Overcriminalization_The_Limits_of_the_Cr.html?id=VM99sfBP9ZIC>," 
the reason we have too much prosecution is that we call too many things 
crimes.

By one common estimate, Congress creates new federal felonies at the 
rate of one a week. Husak argues that criminal liability has become less 
the outcome of deliberation than a habit, a bizarre bit of boilerplate 
tacked onto the end of statutes or regulations without a second thought. 
Criminal defense lawyers are fond of claiming that the average American 
commits two or three punishable crimes every day.


    Overbroad Statutes

Here is the nub of the problem, as Husak describes it:

"Experts in the criminal law cannot make accurate predictions about 
potential offenders because the fate of such persons is not a function 
of the law at all. The real criminal law, as Holmes would construe it, 
is formulated by police and prosecutors. The realization that police and 
prosecutors wield such discretion is nothing new. What is new is the 
power to arrest and prosecute nearly everyone -- a power that derives 
from the ever-expanding scope of criminal statutes as written."

The Computer Fraud and Abuse Act 
<http://www.law.cornell.edu/uscode/text/18/1030> -- the principal 
statute under which Swartz was charged -- is a good example of Husak's 
point. Enacted in the 1980s, before the Internet explosion, the statute 
makes a criminal of anyone who "intentionally accesses a computer 
without authorization or exceeds authorized access" and, in the process, 
obtains financial information, government information or "information 
from any protected computer."

What's wrong with this language? Consider: You're sitting in your 
office, when suddenly you remember that you forgot to pay your Visa 
bill. You take a moment to log on to your bank account, and you pay the 
bill. Then you go back to work. If your employer has a policy 
prohibiting personal use of office computers, then you have exceeded 
your authorized access; since you went to your bank website, you have 
obtained financial information.

Believe it or not, you're now a felon. The likelihood of prosecution 
might be small, but you've still committed a crime.

Aware of this risk, some federal courts have given the statute's 
language a narrow construction, but others have read it broadly, and the 
Obama administration has opposed efforts in Congress to narrow its 
scope. Alex Kozinski, chief judge of the U.S. Court of Appeals 
<http://topics.bloomberg.com/u.s.-court-of-appeals/> for the Ninth 
Circuit, warned in an opinion last spring that the government's position 
"would make criminals of large groups of people who would have little 
reason to suspect they are committing a federal crime."

The statute isn't unique, either in its vagueness or in its scope. In 
both parties there are people who believe that because they can make 
something illegal, they should; that somehow they're not showing how 
much they care unless they're thinking up new reasons to lock people up.


    Overzealous Prosecutors

A traditional check on the absurd breadth of the law has been the 
discretion of prosecutors not to prosecute. Yet as law Professor Angela 
J. Davis of the American University Washington College of Law notes, 
this discretion is too rarely exercised. In her thoughtful book 
"Arbitrary Justice 
<http://www.amazon.com/Arbitrary-Justice-Power-American-Prosecutor/dp/0195384733>," 
reflecting on her own days as a prosecutor, Davis writes that although 
some colleagues "saw themselves as ministers of justice and measured 
their decisions carefully, very few were humbled by the power they 
held." Further, she writes, there's no real check on abuse: "The 
judicial branch has failed to check prosecutorial overreaching, and the 
legislative branch traditionally has passed laws that increase 
prosecutorial power."

In a better world, prosecutors, like other functionaries of government, 
would indeed be humbled rather than emboldened by the authority placed 
in their hands. Too often, they're not. The question is what to do about 
it.

When corporate titans begin to swagger, the response of our political 
branches is to burden them with layer upon layer of regulation -- 
including, in many cases, criminal liability. When government officials 
abuse their authority, even when they cause enormous injury, the usual 
response is -- nothing. Errors of judgment by private citizens are 
occasion for new laws; errors by public servants, which can be equally 
if not more costly, are unfortunate incidents.

Here criminal prosecution presents a particular dilemma. On the one 
hand, prosecutors need to be able to do their difficult and often 
dangerous work without constantly looking over their shoulders, worrying 
about the legal consequences to themselves. On the other, given the 
penchant of government to criminalize more and more behavior, those who 
prosecute the law have to display enough common sense and humility to 
show that they remember they work for us -- not the other way around.

Uncontrolled prosecutors shouldn't necessarily be thrown in jail. But if 
we believe our own rhetoric about the treatment of others who abuse 
power, a heightened degree of civil liability would help them to do 
their jobs better. Right now, prosecutors are protected from most 
lawsuits by what's called qualified immunity. Prosecutors have to make 
hard decisions about going after dangerous people. They shouldn't have 
to worry overmuch about being sued. The immunity of prosecutors should 
indeed be high. It just shouldn't be as high as it is now.


    Unconcerned Judges

*And how high is that? High enough that the **Supreme Court 
<http://topics.bloomberg.com/supreme-court/>**recently **rejected 
<http://www.supremecourt.gov/opinions/10pdf/09-571.pdf>**a lawsuit 
against a prosecutor whose office deliberately failed to turn over 
exculpatory material to a defendant who was subsequently convicted 
twice, both times wrongly -- first of armed robbery, then of murder -- 
and came within a month of execution before the hidden reports turned 
up. Oh, well, wrote the justices: It was a single incident, not a 
pattern, and so didn't rise to a violation of the Constitution. *

Critics excoriated the decision, but the true problem isn't judicial. 
It's legislative. Congress could abrogate the immunity of federal 
prosecutors any time it likes; state legislatures could do the same for 
their own state's attorneys. Working out a more nuanced system, 
protecting discretion while allowing lawsuits in cases of clear abuse, 
would be difficult. But that's no excuse for not trying. Yes, the 
potential for liability would make the work of the prosecutor harder -- 
but surgeons and chief executive officers seem to manage.

Prosecutors do need immunity. They just need a little less of it.

(Stephen L. Carter is a Bloomberg View columnist and a professor of law 
at Yale University <http://topics.bloomberg.com/yale-university/>. He is 
the author of "The Violence of Peace: America's Wars in the Age of 
Obama," and the novel "The Impeachment of Abraham Lincoln 
<http://topics.bloomberg.com/abraham-lincoln/>." The opinions expressed 
are his own.)

To contact the writer of this article: Stephen L. Carter at 
stephen.carter at yale.edu or @StepCarter on Twitter.

To contact the editor responsible for this article: Michael Newman 
<http://topics.bloomberg.com/michael-newman/> at mnewman43 at bloomberg.net 
<mailto:mnewman43 at bloomberg.net>.

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