… Swartz must be compared to two other eccentric geniuses, Steve Jobs and Steve Wozniak, who, in the nineteen-seventies, committed crimes similar to, but more economically damaging than, Swartz’s. Those two men hacked A.T. & T.’s telephone system to make free long-distance calls, and actually sold the illegal devices (blue boxes) to make cash. Their mentor, John Draper, did go to jail for a few months (where he wrote one of the world’s first word processors), but Jobs and Wozniak were never prosecuted. Instead, they got bored of phreaking and built a computer. The great ones almost always operate at the edge.

That was then. In our age, armed with laws passed in the nineteen-eighties and meant for serious criminals, the federal prosecutor Carmen Ortiz approved a felony indictment that originally demanded up to thirty-five years in prison. Worse still, her legal authority to take down Swartz was shaky. Just last year, the Ninth Circuit Court of Appeals threw out a similar prosecution. Chief Judge Alex Kozinski, a prominent conservative, refused to read the law in a way that would make a criminal of “everyone who uses a computer in violation of computer use restrictions—which may well include everyone who uses a computer.” Ortiz and her lawyers relied on that reading to target one of our best and brightest.

It’s one thing to stretch the law to stop a criminal syndicate or terrorist organization. It’s quite another when prosecuting a reckless young man. The prosecutors forgot that, as public officials, their job isn’t to try and win at all costs but to use the awesome power of criminal law to protect the public from actual harm. Ortiz has not commented on the case. But, had she been in charge when Jobs and Wozniak were breaking the laws, we might never have had Apple computers. It was at this moment that our legal system and our society utterly failed.

— Tim Wu

Full article in the New Yorker.

My friend David Isenberg cautions us not to think of this as Aaron encountering one bad apple in the system. Rather, says David, “The legal system was working just like it always works…The case of US v Swartz was business as usual.”

Categories: copyright, culture, open access dw