Aaron Swartz, a co-founder of Reddit, hanged himself Friday, Jan. 11, 2013, in New York City. In 2011, he was charged with stealing millions of scientific journals from a computer archive at the Massachusetts Institute of Technology in an attempt to make them freely available. He had pleaded not guilty, and his federal trial was to begin next month. In this photo, Swartz pictured at Boston Wiki Meetup, August 18, 2009. (ragesoss/flickr)

(Some will say this is not the time. I disagree. This is the time when every mixed emotion needs to find voice.)

Since his arrest in January, 2011, I have known more about the events that began this spiral than I have wanted to know. Aaron consulted me as a friend and lawyer. He shared with me what went down and why, and I worked with him to get help. When my obligations to Harvard created a conflict that made it impossible for me to continue as a lawyer, I continued as a friend. Not a good enough friend, no doubt, but nothing was going to draw that friendship into doubt.

The billions of snippets of sadness and bewilderment spinning across the Net confirm who this amazing boy was to all of us. But as I’ve read these aches, there’s one strain I wish we could resist:

Please don’t pathologize this story.

No doubt it is a certain crazy that brings a person as loved as Aaron was loved (and he was surrounded in NY by people who loved him) to do what Aaron did. It angers me that he did what he did. But if we’re going to learn from this, we can’t let slide what brought him here.

He was brilliant, and funny. A kid genius. A soul, a conscience … That person is gone today, driven to the edge by what a decent society would only call bullying.

First, of course, Aaron brought Aaron here. As I said when I wrote about the case (when obligations required I say something publicly), if what the government alleged was true — and I say “if” because I am not revealing what Aaron said to me then — then what he did was wrong. And if not legally wrong, then at least morally wrong. The causes that Aaron fought for are my causes too. But as much as I respect those who disagree with me about this, these means are not mine.

But all this shows is that if the government proved its case, some punishment was appropriate. So what was that appropriate punishment? Was Aaron a terrorist? Or a cracker trying to profit from stolen goods? Or was this something completely different?

Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its. MIT, to its great shame, was not as clear, and so the prosecutor had the excuse he needed to continue his war against the “criminal” who we who loved him knew as Aaron.

Here is where we need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of academic articles is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.

Aaron had literally done nothing in his life “to make money.” He was fortunate Reddit turned out as it did, but from his work building the RSS standard, to his work architecting Creative Commons, to his work liberating public records, to his work building a free public library, to his work supporting Change Congress/FixCongressFirst/Rootstrikers, and then Demand Progress, Aaron was always and only working for (at least his conception of) the public good.

He was brilliant, and funny. A kid genius. A soul, a conscience, the source of a question I have asked myself a million times: What would Aaron think? That person 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.

For remember, we live in a world where the architects of the financial crisis regularly dine at the White House — and where even those brought to “justice” never even have to admit any wrongdoing, let alone be labeled “felons.”

In that world, the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million dollar trial in April — his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge. And so as wrong and misguided and sad as this is, I get how the prospect of this fight, defenseless, made it make sense to this brilliant but troubled boy to end it.

Fifty years in jail, charges our government. Somehow, we need to get beyond the “I’m right, so I’m right to nuke you” ethics that dominates our time. That begins with one word: Shame.

One word, and endless tears.

A version of this piece was originally published on Lawrence Lessig’s tumblr page on Jan. 12, 2012, under the headline, “Prosecutor as bully.” Reposted with permission. 


Tags: Innovation, Law, Tribute

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  • Martian Minisculio

    Hear hear! And heartfelt condolences to you, Professor Lessig. I didn’t even know Aaron Swartz and I mourn him, liked him so much. I can only imagine the grief and fury of those he loved and knew.

  • Let’sMovingForward

    “.. a hacktivist is someone who uses technology hacking to effect
    social change.” From Jan. 13. 2013 NY Times Article by Peter

    Ludlow “What’s a Hacktivist?”

    First-my sincere condolences and prayers go out to Mr. Aaron Swartz’s parents, family, and friends. As a parent and sister who knows from personal experiences the pain and confusion that come with the loss of such a gifted young man. Yet there are many gifted, men of color –full of promise- jailed and awaiting trial on trumped-up charges, aggressively prosecuted—where is the public outrage and their high powered lawyers for them? Were Mr. Swartz’s experiences and treatment so exceptional given the American justice system?

    Next week the Nation celebrates Martin Luther King’s birthday. This holiday,
    for me, is a time for sober reflection on all the Civil Rights “activists” who
    fought the good fight in South (to free all of us). This was not a game; it was a grave struggle. These men and women (of many races) had the courage to risk arrests, beatings, and even death to stand tall and demand the basic rights of US citizenship for African-Americans. My children and I have benefited greatly from their sacrifices and are forever in their debt—as is this entire Nation.

    Any person who challenges the ‘system’ will always invite reprisals from that ‘system.’ Actions, however noble or just have consequences. The men and women of the recent Civil Right Era could not hide in Cyberspace. They had to deal up close and very personal.

    Our recent past offers many lessons (e.g., endurance, resilience)
    concerning the process of battling for social change that today’s social activists
    (including the “Occupy” movement) should study before challenging the
    ‘system.’ Going to jail CAN be the consequence of righteous, possibly
    destructive actions, but jail is

    not the end of
    dreams. Ask Nelson Mandela.

    • nicci meadow

      Agreed. The book titled “The New Jim Crow” speaks to the tragedy of racism in the US and the “justice system” that places black men behind bars disproportionately to their crimes. Now if allies can somehow be created between the hackivists and the anti-racism activists, and the feminists and the occupiers…….maybe we can make some progress in a liberal capitalist individualist sense (though at some point there needs to be a radical future if humans are to survive in an environment that supports life) Not everyone can pursue civil disobedience. One needs to assess her/his personal “constitution” to assess if they can handle the prospect of arrest, trial, jail time, etc. and if not, don’t play with matches and only get as close as comfortable. I wish Mr. Swartz had known his own personal limits… we are not all Rosa Parks’, Martin Luther King’s, Gandhi, Moses, etc. and yet there is an important role for others in social change who cannot handle the risks and costs- as heavy as they will be. Maybe it’s just youth and naivete and it’s always been this way….. to go up against the government- corporations, the power elite … is dangerous- always has been and always will be- fight it at own’s peril- some can handle the peril better than others. It’s knowing that makes all the difference. My condolences as well to all who knew Mr Swartz and to the loss society, especially information technology, will feel without his future.

  • Frank Willwerth

    Why am I supposed to feel sorry for Mr Swartz for being prosecuted for a crime he more or less admitted to?? I can’t get those articles without paying for them, why does HE get to Break into a secured computer system and steal them?? What about the people who were sued for downloading songs and their appeals were denied?? HIS own actions put him in the trouble he faced, he wanted to MAKE a point well he got his attention…

    • Barry Kort

      He was entitled to access to the JSTOR archive because he was affiliated with an educational institution that had a paid subscription to JSTOR.

  • Andrew Page

    “I’m right, so I’m right to Nuke you.” An ironic statement. Mr Shwartz’s crime seems have been premised on, “I think I’m right, therefore I can do whatever I deem necessary and capable of.” Which is the same excuse used by many a terrorist. He thought the information he stole should have been offered for free, so he used his access to MIT and his talent as a technologist to steal it so that he could give it away. He did commit a crime. He planned and executed it with a requisite malice of forethought.

    That said, I do however agree that the prosecution was overzealous Seems like the word had been given to make an example out of Mr Schwartz, perhaps influenced by the activities of the traitor Bradley Manning.

    Punishment needs to fit the crime. The actual crime in this case had been thwarted and the persons that would have been most victimized declining to prosecute. At the same time, Swartz had used his position as a luminary in the tech community to perpetrate and justify his crime. Still, 35-50 years in prison would have been excessive not to mention a ban on using a computer(however unenforceable that may be … currently) seeming to be thrown in for nothing else than to be unnecessarily cruel to someone who’s life work was computers and information science.

    He shouldn’t have been offered a ‘boys will be boys’ finding but at the same time he shouldn’t have been threatened to have his life ended either.

    To me, I think the prosecutor had a mind to make him squirm just as much as she could to demonstrate if not the state’s wrath and power then hers.

    • Foridin

      I just feel I should point out, before the federal persecutors came in, the expected penalty was a strict warning and a slight fine, and assuming no criminal activity for 6 months, no criminal record.

      • Andrew Page

        I’d rate that slightly above the “boys will be boys” finding.

  • Barry Kort

    We need a national dialogue on the practice of piling on charges to coerce defendants into accepting unjust plea bargains.

    The prosecution was apparently in the business of annihilation. Swartz faced spiritual annihilation and financial annihilation, with no viable means of escape. To my mind, our justice system is out of control. The prosecution inexplicably took leave of their senses. Unfortunately, this kind of tragedy is all too commonplace, and most of the time goes unreported.

    The suicide of Aaron Swartz in the face of the appalling over-reach of unchecked discretionary prosecutorial power highlights a much larger problem that pervades our legal system.

    The entire US legal system (including criminal, civil, and family court divisions) is routinely used in an outrageously abusive manner.

    Those who are traumatized, stigmatized, or victimized by such shenanigans within the legal system may suffer what has come to be called Legal Abuse Syndrome.

    In the field of Medicine, every proposed treatment or cure has to be carefully studied and reviewed to ensure that it has demonstrated therapeutic value, and does not inadvertently spread, exacerbate, or even cause the malady it sets out to treat. In the medical literature, a treatment is called “iatrogenic” if it is counter-productive to the primary objective of curing disease.

    The field of Law does not employ such safeguards, and as a result a substantial fraction of our public policies and practices, operating under the color of law, turn out to be iatrogenic — ineffective at best and counter-productive at worst.

    Alan Simpson, the retired Senator from Wyoming, spent some three decades in Congress, during which time he helped craft and enact a great deal of legislation. But after he retired, he remarked that during his tenure in Washington politics, he discovered a law, the way a scientist would discover a natural law. Simpson said he discovered the Law of Unintended Consequences, meaning that the actual outcome of legislation, passed in good faith with an expectation of curing one of society’s ills, frequently turned out to have unanticipated, unexpected, and undesirable consequences. In science, if one is relying on a theoretical model, and the actual outcome of an experiment does not jibe with that predicted by the model, one is obliged to discard the model as unreliable.

    Our governmental systems are rife with unreliable models which give rise to unwise practices, many of which are ineffective at best and counter-productive at worst. We have built governmental systems that lack viable safeguards against iatrogenic treatments of many of our most problematic social ills.

    Here is an example of the kind of scholarly article one might find on JSTOR (which recently relaxed its policies to make many more of them freely available without a costly institutional subscription).

    Punishment and Violence: Is the Criminal Law Based on One Huge Mistake? by James Gilligan, Harvard University; published in the Journal of Social Research, Fall 2000.