sociotech

The statement makes clear what I had suspected, as a lawyer, from the outset: Lessig, some criminal defense attorneys, and a few other parties have mounted a witchhunt that has little to do with the case in hand.

I should add that I'm not far from Lessig politically, and I don't have any strong disagreement with open-information advocates. But Lessig turned this case into something it shouldn't have been, and he benefits from that personally. Aaron's lawyer, a partner at a major firm, is using this case for his own personal publicity, and that is a shame too. "Follow the money" works for people who manipulate hackers too, not just those who oppose them.

I've noticed a lot of legal mistakes in this forum. To start with, the attempt here wasn't "victimless," and the law routinely punishes unsuccessful attempts even when nobody is hurt. "Computer hacker offered plea deal of six-months in minimum-security prison after seeking to make an expensive archive that generates significant revenue public" wouldn't arouse anger among anyone except extremists. It might arouse political disagreement, or even a small protest, but not a call to fire prosecutors. What it aroused before Aaron's suicide was a small effort to raise money for his legal defense, which didn't really go anywhere. If we're going to be rational, that shouldn't change when a defendant commits suicide while the case is pending.

There's other manipulative PR worth identifying. Aaron's lawyer said that he told the prosecutor his client was a potential suicide risk. How does anyone who reflects for a minute think that a prosecutor's office should respond to that. They did what they usually do, which is to tell the lawyer that they could revoke bail and monitor the client if that was what the client wanted. What else should they have done? Do we think all charges against suicidal people should be dropped?

Remember, Lessig's point was that Aaron SHOULD have been punished but that the sentence was disproportionate.

And we can rise above our prejudices and instinctive "identifications." I don't accept that we have to follow our instinctive "psychology" (which is quite more nuanced than you are suggesting) instead of something more logical.

Regarding legal costs, Lessig has made up the $1MM figure apparently based on nothing, or (at best) his intuition. He also didn't say the defense would cost $1MM. He said Aaron could have feared it would cost that much.

As for sentencing, in cases like this, the sentences for the different charges would almost always run concurrently. We're talking a few years of imprisonment upon actual conviction, and reportedly the government offered to settle. Aaron could very likely have gotten a suspended sentence ("probation") upon settling. The judge in the case is known for harsh sentencing and favoring the government, but even then, it's hard to predict what he'd have gotten even if he had been convicted. My best guess, as a techie lawyer, is 12-18 months. The rhetoric here is all just Lessig's attempt to get people like us riled up, and I'm tired of that.

Not that I'm defending the government either. I don't like the law here. I'm asking only for some perspective. A rich or at least middle-class white kid knowingly and purposely engaged in an act of civil disobedience and got caught. If he'd looked different, the state trespassing charge probably wouldn't even have been dropped.

I'm genuinely perplexed by the ongoing coverage of this story and many of the comments here.

First, the discussion of the legal situation lacks any perspective. Only people who spend all their time focused on technology policy would interpret Aaron's death as a call for technology-crime reform. Compared to the rest of the western world, the US has longer sentences for crimes across the board. Every day, people get sentenced to many years in prison (and it's disingenuous of Lessig to suggest Swartz would have gotten anything close to decades in prison for these charges) for nonviolent drug offenses, get life imprisonments for mere possession of child pornography often downloaded without plausibly motivating any child abuse, and so on. Even violent crimes in the US lead to sentences that in Europe seem inhumane to most people. I don't mean to sound insensitive to the recently departed here, but Aaron was a very lucky person who had significantly more opportunity to comply with the law than many. Civil disobedience can be great, but regardless of whether it is or not in any particular case, it usually comes with penalties. It's very hard to see Swartz as a victim of the United States Attorney's Office nearly as much as whole swaths of poor people and African American communities, for example, are victimized by laws and by simple situation. Again, perspective is important. What's happening here seems very much like an insular group of people like us, some of whom (like Lessig) happen to be connected with some journalists, understandably upset about the death of a friend and lashing out. But that is irresponsible, and I don't just mean politically; it is very likely also unfair to the family, who are probably not in a great position at the moment to assess how public they'd prefer their son's death to be (even if they know they are angry at the people who prosecuted him).

Second, and related, the message of Lessig and of many others seems to be "don't turn the death of my friend into a discussion of mental illness; turn it into a discussion of my pet causes." But it obviously has a profound connection to mental illness and also to the social and psychological pressures that people who seek "fame" in the technology community seem routinely to experience. That is a far better subject for critique, in response to this kind of heartbreaking tragedy, than US sentencing policy writ large (a topic about which few programmers have significant experience). There's a whole online subculture that feeds off people's insecurities and need for attention, their desire to feel "influential" or "famous" in a tiny but vocal community of like-minded people. I am virtually certain that that subculture hurt Aaron as much as any prosecutorial discretion did here. It is worth reminding everyone that a vanishingly small number of criminal defendants in the US commit suicide, despite whatever injustice they feel about their charges and despite any accusations of prosecutorial overreach.

Third, there is a significant overemphasis in the press of the "debate" among a relatively small but vocal community of people like, frankly, us. The NY Times confidently reported today that Swartz's death triggered a widespread debate, when the political debate really is just among people who were already activists, most of whom knew Aaron personally. Just because someone is friends with journalists and people like Lessig does not imply that that person's tragic death is the subject, much less the proper subject, for a public debate, unless of course what we're really talking about is a self-styled internet "high society" that wants to turn one of its own into a martyr. But that would be manipulative and shortsighted, and it is hard to see how it could possibly be a praiseworthy method for achieving social change. Lessig's immediate, political response to Aaron's death took him down a significant notch in my view.

Fourth, but less important, as with many deaths and many suicides in particular, there is very little realism in the discussion of the recently dead. As most people do, Aaron touched many. That should be praised and discussed, but the rest should not be inflated. It would be insensitive to point out particular inaccuracies in the coverage of him, but a big part of me does think that truth is more important than whitewashing memory. Remembering people for what they were is a far better honor than remembering grandiose caricatures of them.

The response I urge for those who knew him personally is private grief and personal reflection, though perhaps that is suited to a different age in which the goal of motivated people is not to attract as much personal attention on the internet as possible. And yes, sentencing in the US should eventually be totally reformed, but technology crimes are hardly the most important or most pressing piece of that puzzle. It's easy for us to forget that just because it interests us.