It's that last step that is so odd within the tradition of American law. Contracts are important. Their breach must be remedied. But American law does not typically make the breach of a contract a felony. Instead, contract law typically requires the complaining party to prove that it was actually harmed. No harm, no foul. And in this case, JSTOR -- the only plausible entity "harmed" by Aaron's acts -- pled "no foul." JSTOR did not want Swartz prosecuted. It settled any possible civil claims against Swartz with the simple promise that he return what he had downloaded. Swartz did. JSTOR went away.
But the government did not. In the weeks before his death, the government reaffirmed what they had been insisting upon for the 18 months before: jail, a felony conviction, and a bankrupting fine, or else Swartz was going to face a bankrupting trial.
This rule of American law is absurd -- especially in a world where prosecutors can't be trusted to make reasoned and proportionate judgments about who should be labeled a felon and who should not. A breach of contract is a breach of contract. It is not an act of treason. It is not a threat to the realm. If every breach of contract worth more than $5,000 were a crime, Manhattan wouldn't be the world's most amazing city. Manhattan would be a federal penitentiary, with every prominent Wall Street firm very well represented. Fail to execute a trade on time? Two years in jail. Back out on an acquisition? Thirty to life.
Computer law is different, however, because Congress didn't really understand this "wild west" (as the network was called when Congress passed the Computer Fraud and Abuse Act in 1986), and because geeks make them uncomfortable. For 25 years, the CFAA has given federal prosecutors almost unbridled discretion to bully practically anyone using a computer network in ways the government doesn't like. It does that by essentially criminalizing the violations of a site's "terms of service" in combination with obtain[ing] anything of" at least $5,000 in value. And even if in the vast majority of cases prosecutors exercised that discretion, well, in this case the abuse of that discretion has ended in tragedy. As Tim Wu so brilliantly describes, we have built a system of criminal law that depends upon our trusting the government. Few civil libertarians from either the right or the left, though, will be surprised that it turns out that the bureaucrats manning the battle stations cannot be trusted.
Aaron Swartz is dead -- in my view, as a friend who knew him well for more than a decade --at least in part because of this breach of its duty by the government. Carmen Ortiz, the U.S. Attorney overseeing the prosecution, demonstrated that breach with the ignorance she displayed when this indictment was announced. As she said then, "Stealing is stealing, whether you use a computer command or a crowbar," -- demonstrating she knows nothing about computers, and apparently nothing about crowbars. And the line prosecutor working for her breached that trust when he made it clear that his first priority was not decency or proportionality but one more notch on his prosecutor's belt, for a prosecution that had nothing to do with keeping America safe from "criminals."