Attorney General’s testimony on Aaron Swartz raises more questions than answers

U.S. Attorney General Eric Holder this week strained to convince Senators that federal prosecutors exercised “good prosecutorial discretion” in handling the indictment of 26-year-old Aaron Swartz. Yet his testimony before the Senate Judiciary committee raised more questions than it answered.

Sen. John Cornyn (R-Texas) drove home that point as he pressed the Attorney General about whether prosecutors had “bullied” Swartz with the threat of a long sentence for “rather minor” alleged crimes. Holder countered that a plea deal had been offered to Swartz — and rejected — in which Swartz would have had to serve just three months’ time.

At a broader level, the exchange between the Attorney General and the Judiciary Committee shines a spotlight on inconsistencies in the justice system. Cyber criminals seem to face disproportionately aggressive prosecution and sentencing — while major financial institutions that had a role in creating the financial crisis remain, by the attorney general’s own admission, untouchable.

Was the plea deal real?

Swartz took his own life last January after facing 13 felony charges in a Massachusetts federal court — including computer intrusion, wire fraud, and data theft — stemming from allegations that he stole millions of scholarly articles and documents from an MIT subscription-based service called JSTOR. He potentially faced 35 years of jail time, along with a fine of up to $1 million.

Holder defended the way U.S. Attorney Carmen Ortiz and her team handled the indictment against Swartz. He assured senators that Swartz had offered several different plea bargains, starting with one for a three-month sentence presenting Swartz with the indictment. “After … the indictment, an offer was made that he could plead and serve four months. Even after that, a plea offer was made of a range of from zero to six months that he would be able to argue for a probationary sentence. The government would be able to argue for up to a period of six months,” Holder said.

Holder’s testimony prompted Cornyn to ask one of the key questions of the entire case: “Does it strike you as odd that the government would indict someone for crimes that would carry penalties of up to 35 years in prison and million dollar fines and then offer him a three- or four-month prison sentence?”

Holder sidestepped the question, but he assured the committee that his office had performed a thorough investigation of how federal prosecutors handled the Swartz case. He said the prosecutors — who took over the case from the Middlesex County district attorney’s office — employed a “good use of prosecutorial discretion” in offering the various plea deals that were “consistent with what the nature of [Swartz’s] conduct.”

Why the ton of bricks? Holder’s assurances didn’t satisfy Cornyn, and understandably so. Consider what Swartz allegedly did: He entered a server room on the MIT campus, connected his computer to the network, and used his legitimate, unlimited access to JSTOR to download 4.8 million documents. He didn’t hack anything. He didn’t make and distribute illegal copies. The worst thing Swartz may have done is trespass.

Nevertheless, prosecutors piled up a mile-high stack of serious felony charges, then offered him several plea bargains “consistent with his conduct” that would have had him behind bars for a few months at most. Yet if a few months of jail time was a fitting punishment, why bury him with felony charges, rather than, say, slapping him with a misdemeanor for trespassing?

Cornyn opined that prosecutors may have piled on the charges to intimidate Swartz into accepting a plea. “I would suggest to you if you’re an individual American citizen and you are looking at criminal charges brought by the United States government with all of the vast resources available to the government, [the prosecution’s approach] strikes me as disproportionate and one that is basically being used inappropriately to try to bully someone into pleading guilty to something that strikes me as rather minor,” he said.

One inevitable question arises: Why didn’t Swartz accept a plea bargain? All he’d have had to do was maybe serve a little jail time — and be branded as a felon. That distinction would have haunted him for years, both professionally and personally. In short, the young man was facing a choice between pleading guilty, doing time, and being branded as a felon — or spending hundreds of thousands of dollars to take the case to a trial where, for all he knew, a judge would be swayed by the prosecution’s laundry list of impressive charges and throw the book at him.

Really, the point isn’t why Swartz chose to reject the plea so much as whether the government handled his case fairly. Cornyn made it quite clear that he was unconvinced. “I’m concerned that average citizens … like Aaron Swartz — people who don’t have status or power perhaps in dealing with the federal government — could be bullied,” he said.

Swartz certainly isn’t the first alleged cyber criminal to face arguably disproportionately harsh justice, either, a point laid out recently by InfoWorld Security Adviser blogger Roger A. Grimes. Alongside the Swartz case, Grimes cited such cases as a cellphone hacker sentenced to 10 years in prison and ordinary kids caught with illegal downloads are being fined tens of thousands of dollars. His solution to the problem: “Update Title 18, Section 1030 of the Computer Abuse and Fraud Act to include damage formulas for various types of computer crime, the intent of the computer hacker (degrees of maliciousness), and the number of victims. As the Swartz case highlights, prosecutors are being given way too much leeway in sentencing,” he wrote. “Given the technical nature of calculating the effect of cyber crime, perhaps we need narrow sentencing guidelines to ensure fairness.”

One final point in all this: Holder didn’t just spend his time before the Judiciary Committee this week defending prosecutors’ decision to indict a 26-year-old alleged cyber criminal with 13 felony charges for downloading a large quantity of digital content; he also explained why no criminal cases have been brought against any financial institutions that may have played a role in causing the financial crisis. “I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy,” he said, according to Forbes. “And I think that is a function of the fact that some of these institutions have become too large.”

This story, “Attorney General’s testimony on Aaron Swartz raises more questions than answers,” was originally published at InfoWorld.com. Get the first word on what the important tech news really means with the InfoWorld Tech Watch blog. For the latest developments in business technology news, follow InfoWorld.com on Twitter.