Recently by William L. Anderson: Be Happy! Progressives Have Wonderful Plans for You!
When Aaron Swartz allegedly chose to end his life last week, he was facing federal criminal charges that a compliant federal jury almost certainly would have transformed into a conviction, with his facing many years in a federal prison. Other writers have spoken out about the case and how it ended tragically, and their knowledge of the Internet and its many nuances is much greater than my own, and I believe their tributes and personal statements are more insightful than anything I could say about Swartz's life and his many accomplishments. (Glenn Greenwald's tribute better sums up in a few words than I could say in 20 pages, so I encourage readers to read what Greenwald and others have to say in Swartz's defense.)
I will write, instead, on a subject on which I have better knowledge: the actions of federal prosecutors and how they are the natural offspring of the Progressive beliefs that so many Internet activists share. Yes, this is ironic, in that the civil religion of many people now mourning Aaron's death provided the fuel for the very fire that engulfed this brilliant young man. The unfortunate thing is that almost no one will recognize the connection and, thus, will continue to embrace the very religion that is strangling them and their creativity.
At this point, let me say that readers of my material surely are going to think that my attempts to draw the connections between Progressive thinking and the malicious prosecution of Aaron Swartz are a stretch. They are not. What happened to Swartz is a logical extension of a civil religion that holds the expansion state power and the employment of "experts" who wield it and make decisions about the use of force is what defines a truly civilized society. While I don't know what Swartz's politics were, I suppose that he, like most other intellectuals in the Harvard-MIT sphere, subscribed unknowingly to the very kind of thinking that ultimately would bring him to a ruinous end.
Federal prosecutors in Boston (who ironically are silent out of what they claim to be "respect" for Swartz's family, as though federal prosecutors give a damn about anyone but themselves) went after him for finding a way to download a number of files from JSTOR, the website that has archived millions of academic journal papers. One blogger put this into perspective:
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" u2014 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. (Emphasis his)
To say that the DOJ’s treatment of Swartz was excessive and vindictive is an extreme understatement. When I wrote about Swartz’s plight last August, I wrote that he was “being prosecuted by the DOJ with obscene over-zealousness”. Timothy Lee wrote the definitive article in 2011 explaining why, even if all the allegations in the indictment are true, the only real crime committed by Swartz was basic trespassing, for which people are punished, at most, with 30 days in jail and a $100 fine, about which Lee wrote: “That seems about right: if he’s going to serve prison time, it should be measured in days rather than years.”
He even speculates as to why the feds would seem to be so "over-zealous":
Nobody knows for sure why federal prosecutors decided to pursue Swartz so vindictively, as though he had committed some sort of major crime that deserved many years in prison and financial ruin. Some theorized that the DOJ hated him for his serial activism and civil disobedience. Others speculated that, as Doctorow put it, “the feds were chasing down all the Cambridge hackers who had any connection to Bradley Manning in the hopes of turning one of them.”
As correct as Greenwald might be, I think there is an even larger point that Greenwald and others miss precisely because they are Progressives themselves, and because they still subscribe to the political views that made this abusive prosecution possible. The heart of Progressive thinking is that state-sponsored "experts" should be given vast powers because they already know what needs to be done and how to do it.
During the Progressive Era of a century ago, the intellectuals pushing this way of thinking openly despised the U.S. Constitution and any idea that individuals should be free to think and act for themselves. From the belief in the primacy of Eugenics, held by people like Margaret Sanger, Justice Oliver Wendell Holmes, and others, to the idea that government could and should manipulate markets in order to obtain "socially-optimal outcomes," Progressives were united in their conviction that intellectuals and "experts" employed by the State could and should make decisions on how others — especially those who were "inferiors" — should live.
While today's Progressives do not openly espouse the overt racism held by most early Progressives (and especially Woodrow Wilson, who brought Jim Crow laws and policies to the federal government), nonetheless they still admire their intellectual forebears and they hold to the belief that State power guided by (of course) Progressives will ultimately produce the Good Society, whatever that may be. All one needs to do is to read the editorial page (and the front page, for that matter) of the New York Times to get a sense of how Progressives think, and how they utterly despise anyone who is not of their ilk.
I have written many articles on federal criminal law for this page, and for other publications, such as The Freeman, Regulation, The Independent Review, and Freedom Daily, and the theme always has been the same: federal criminal law permits ambitious prosecutors (or even lazy career prosecutors) to shape just about any action one takes into a monstrous crimes that the Progressive media echoes as being a huge threat to the well-being of all. While some (including the bloggers and writers dealing with the Swartz case) seem to believe that this legal abuse is the result of "overzealousness" or "overcriminalization," I see it from a very different point of view.
Most federal crimes today do not involve actual theft or unwarranted actions of violence against others, but rather are the result of someone allegedly breaking a rule. Thus, what was "legal" on one day suddenly becomes illegal today, and as time goes on and people continue to break the rules, the penalties become increasingly draconian. (The Drug War and its escalation into the present-day situation in which U.S. police have become essentially paramilitary forces acting like occupying armies is the "gold standard" in understanding how the system metastasizes.)
With these points in mind, I examine the charges against Swartz to point out just how awful and just plain immoral they were. Of course, the standard federal charge of "fraud" is all through the 14 indictments, but it is questionable as to whether or not he actually "defrauded" JSTOR (which settled with Swartz later and the principals of JSTOR clearly did not want Swartz prosecuted). What he did was to devise a system to get around the blocks that JSTOR has in order to keep "unauthorized" users out.
While the feds in the indictment sheet point out that some universities pay up to $50,000 a year for JSTOR services, Swartz did not deprive other professors and researchers at MIT from using JSTOR (except for the brief time when MIT shut down the system to block Swartz, but that was MIT's choice, not Swartz's). He allegedly downloaded close to a million papers, but clearly could not have sold them, so they were not worth anything to him financially.
(The feds told the media that he "stole" material worth "millions of dollars," but there is a huge point that needs to be made: theft means that I have your material — and deprive you of the use of what is legitimately your property. No one at MIT or anywhere else where JSTOR is used was deprived of a single academic paper for their own research. The JSTOR system exists because of Intellectual Property rules, period, and IP rules have become increasingly artificial — and more draconian in the penalties — which is what we have come to understand is the hallmark of the growth of federal criminal law.)
Because he performed the "unauthorized" downloads more than once, the feds essentially repeat the same charges over and over again. Federal law encourages prosecutors to take a single act and fashion multiple charges from it, the feds were able to get 14 separate charges. Furthermore, because he was using a computer and the Internet, the feds could charge him with "wire fraud," which is nothing more than what Candice E. Jackson and I described as a "derivative crime" in which the act itself (using the Internet) is not criminal, but the charges are put together in a way to make an imaginary act a crime.
For example, the federal Racketeering Influenced and Corrupt Organizations Act (RICO) allows prosecutors to bundle sets of actions and declare them to be a single act of "racketeering." Now, no one "racketeers" anyone, and the "crime" is "derived" from other actions, but "racketeering" sounds quite onerous and has very stiff criminal penalties associated with it. Likewise, "wire fraud" is an imaginary crime that was created simply to allow prosecutors to pile on more charges in hopes of getting a plea bargain. In some cases, prosecutors are permitted to seize a defendant's assets even before a trial, making it virtually impossible for a defendant to pay for decent legal help, and the "indigent" lawyers provided by the government generally are people who mostly plead out drug cases. (American prosecutors have a saying that describes their goals when going after others: "Bleed u2018em and plead u2018em.")
Indeed, Swartz was bled dry. While federal prosecutors have near-unlimited resources, those charged must pay for a defense themselves, and federal prosecutions are extremely expensive. It is not unusual for defendants to have to come up with a million dollars or more. (In the Duke Lacrosse case — a state case — the three defendants had to spend about a million-and-a-half dollars apiece even though the case never came to trial and even though it was obvious from the start that the charges were false.)
As Swartz never had sought to use his abilities to become wealthy, he ran out of money and, according to one blogger, he was forbidden by the federal district judge in Boston from appealing to the public for legal funds. Thus, his attorneys were hamstrung by a lack of resources even before the case was scheduled to go to trial in April.
Then there was stress, and I don't think people can imagine the stress one is under when facing a criminal trial. I have seen good people fall apart under the pressure, and it is that pressure that leads one to plead out just to get things over and done. Because prosecutors are permitted by judges to engage in misconduct (and most judges sympathize with their employer, the government, of course) and because juries generally don't care, the odds of even innocent people prevailing at trial are astronomically small.
I have serious doubts that even with the best of legal help, Aaron Swartz would have prevailed at trial, and that is because federal criminal law does not hold to the mens rea standard. (Under the ancient Anglo-American doctrine of mens rea, a defendant must have intended to commit a crime. Today, the courts interpret that doctrine in a much different way: one must have intended to commit the act that the feds claim is criminal.) Furthermore, as I have written before, federal cases differ from typical state cases in another important way: the action itself.
Assume, for example, that someone is accused of murdering a store clerk during a robbery. One can see on the video the person taking something at gunpoint and then shooting the clerk. No one disputes that an actual robbery and murder took place; what is decided is whether or not the person in the dock is the one who committed the crime.
In federal cases, however, people may well agree on the act itself — Swartz did not deny using a computer to hack into the JSTOR system — but a jury is supposed to decide whether or not the act itself is criminal. Because the laws themselves can be confusing and because certain technical issues might be introduced (one can imagine the terminology that was to be used at Swartz's trial), jurors tend to give up and just assume that the fact that someone is on trial is proof of guilt. I have seen situation after situation in which jurors clearly did not understand what was happening, so they took the default position of "guilty."
I suspect that federal prosecutors would have likened Swartz to a computer hacker who breaks into financial accounts and steals money or someone who creates a malicious virus for the fun of it. By lumping him into a category of real criminals, the feds would have been able to obscure the fact that no one was deprived of any particular good, which clearly would have set him apart from someone who illegally drains the bank account of someone else. Even though Swartz would have gained no material wealth from the downloads, nor could he have sold these papers at any price, the feds still were accusing him of stealing "millions of dollars" of material. That was nonsense, but most federal criminal charges are nonsense.
Federal juries, as most court observers will note, rarely are able to differentiate between real crimes and federal rule-breaking. The difference is huge, but after more than a century of Progressivism, Americans have come to see arbitrary rules having the same moral and legal structure as what historically has been regarded as law. Thus, a jury would convict attorney Johnny Gaskins of "structuring" because he deposited cash holdings at his home in amounts under $10,000. He had obtained the money legally, had reported it to the IRS and paid taxes, but still he was convicted because he broke a rule that had an arbitrary number — $10,000 — attached.
(I also note that when Elliott Spitzer was a U.S. attorney and the governor of New York, he also engaged in "structuring" withdrawals in order to evade the law, as he was visiting prostitutes. Despite the clear evidence against him, the government failed to file charges, as those who are politically-connected have insurance policies when they are caught breaking the law.)
Before the proliferation of federal criminal laws, at worst Swartz would have been charged with trespassing (had it even come to criminal proceedings), and most likely the matter would have been handled privately. However, federal prosecutors had different ideas, and while Greenwald notes that there likely could have been other factors — such as his activism in undermining what he believed to be immoral aspects of IP law — I will claim ignorance here.
Over the years, I have found that federal prosecutors don't need to have any particular reason to go after essentially innocent people. For them, it is fun to destroy others, and they relish the "hunt" and the "chase" as much as anything else. Because prosecutors rarely are disciplined for misconduct, this is a profession that attracts bullies, mediocre attorneys who love to stick it to others, and ambitious but dishonest people. Aaron Swartz fell victim to that state of affairs, and the fact that this kind of malicious prosecution is the direct result of the Progressive mentality means that only those who are not part of the Progressive mindset — a very few number of people, indeed — really will understand what is happening.
Progressives believed (and still believe) that unlimited executive power placed in the hands of "experts" and "good government" types will produce the Good Society. Because of the reality of human nature, political and legal power in the hands of people who believe themselves invincible and righteous always will turn into the worst kind of tyranny. There is no exception.
William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute. He also is a consultant with American Economic Services. Visit his blog.