The criticisms of the Swartz prosecution concern two different questions. The first question is the law. Were the charges against Swartz based on a fair reading of the laws? Or was the prosecution being overly aggressive or relying on strained theories in charging Swartz as it did? The second question is discretion and judgment. The DOJ has the discretion to charge cases or not, and prosecutors can agree to different plea deals or even agree to have charges dismissed. Were the prosecutors in this case unfair in how they exercised discretion, or did they act irresponsibly in the case in how they exercised the discretion that the law grants them?
I hope to answer these questions in two posts. In the first post, I’m going to try and answer the first question — the law — as informed by my background as a specialist in this particular area of law who has testified on these statutes before Congress, defended computer crime cases involving these statutes, and helped prosecute them, too. In a subsequent post, I’ll try to answer the second question, the exercise of prosecutorial discretion.
This is going to be a long post, so here’s the summary of my conclusion on the first question: I think the charges against Swartz were based on a fair reading of the law. None of the charges involved aggressive readings of the law or any apparent prosecutorial overreach. All of the charges were based on established caselaw. Indeed, once the decision to charge the case had been made, the charges brought here were pretty much what any good federal prosecutor would have charged. This is different from what a lot of people are hearing on the Internets, so I realize this post isn’t going to be popular. But I’ll explain my position in some detail, starting with the facts and then turning to the law, and then I’ll open it up for comments. And in a subsequent post, I’ll take on the second question of whether prosecutors properly exercised their discretion in the decision to charge the case and during plea negotiations.