osewalrus (osewalrus) wrote,

Aaron Scwartz and the Killer Stereotype

I may ultimately work this into a full post for Wetmachine, but all the debate around Aaron Scwartz's suicide and prosecutorial overreach has placed a few bug in my bonnet that need to get out.

I did not know Aaron personally, but we moved in overlapping circles. I share the pain -- and the anger -- around his loss.

I entirely support reforming the Computer Fraud and Abuse Act (Zoe Lofgren's proposed "Aaron's Law"). How this law has become outdated and is now subject to abuse has been a matter of considerable debate over the last few years. Efforts to reform the law last year as part of the Cybersecurity legislation failed. If Aaron's suicide becomes the impetus for members of Congress to recognize how destructive CFAA has become, then good. There are worse epitaphs.

What we need to recognize, however, is that Aaron's prosecution was not an exception to the rule. To the contrary, it is the rule for prosecutions generally, especially where (a) the case is weak; and/or (b) the accused fits a particular stereotype that inspires a prosecutor to make "an example."

Lets take (a) first. Multiple counts are a way to put pressure on an accused to plea bargin. Because the risk is huge, the accused has greater incentive to plea. It also gives the prosecutor greater flexibility in negotiating a plea deal. Pile on many dubious charges, and you have a lot more room to maneuver. Finally, if you go to trial, having a huge indictment can help persuade a jury that this is a bad/dangerous person and they ought to convict on *something*. (This last does occasionally backfire, but since the prosecution can always decide to drop charges at any stage, there is low risk of starting with a massive indictment.)

In theory, grand juries are supposed to filter this. But the threshold for indictment is very low. As on NY Appeals judge put it, you can get a jury to indict a ham sandwich.

None of this is a defense of the practice. This kind of strategic behavior does not comport with our ideals about the pursuit of justice. A key reason for investing prosecutors with discretion is precisely to find the proper balance between law and equity, to determine when the interests of society are not served. Or, as one person on Twitter quipped: "I assume when [U.S. Attorney] Carmen Oritz saw Les Miz, she thought 'Val Jean shouldn't have stolen that bread in the first place.'"

But perhaps more relevant here is the problem of the killer stereotype. The U.S. attorneys prosecuting the case insisted not merely on a confession of guilt, but jail time. Given the nature of the crime, the fact that JSTOR (one of the supposedly injured parties) not only declined to press charges, but asked that the matter be dropped, and the fact that Aaron demonstrated both remorse and a willingness to accept behavioral conditions (i.e., don't do anything like this again), why insist on jail time? "Theft is theft" is not an answer. And, in any event, Aaron was not being tried primarily for "theft" of JSTOR's copyrighted material but for electronic trespassing on MIT's computer (a good summary of the criminal charges can be found on Volkh Conspiracy). The question of "theft" is also a bit more complicated in the electronic sense in that Aaron did not actually distribute the downloaded copies and "returned" them (in the form of deleting the copies and not distributing them).

The entire basis for prosecutorial discretion (and sentencing discretion) is that while theft is generally wrong, not all thefts are the same. Whether our theory of punishment is retributive, rehabilitative or utilitarian, we have long recognized that our societal response should vary depending on the nature of the crime, the extenuating circumstances, and other factors. Had Aaron been arrested for physical trespassing and grabbing a physical hard drive, no one would have considered charges carrying a potential sentence of over 35 years reasonable, and it is unlikely the prosecution would have insisted on jail time (at least for a 1st offense).

Which brings us to the other problem of prosecutorial discretion, the Killer Stereotype problem. We are most familiar with this in the context of African American males. Study after study shows that throughout the justice chain, from decisions by police to arrest, decisions to prosecute, and sentencing, African American males are much more likely to get stern justice and the book thrown at them rather than a warning and a second chance. As Aaron Scwartz himself freely acknowledged, being a white middle class male generally gives you a leg up on things.

But there are a few exceptions, and one of them is The Evil Hacker. For the law, the Evil Hacker is the white male equivalent of being a black teenager with a hoodie, and Aaron Scwartz fit the profile of The Evil Hacker to perfection. Brilliant, young, white male, college drop out, justifying his actions with the language of activism and lionized by all those goddam activists who hate copyright and think "information ought to be free." What a prize! Add to that the fact that Aaron was plainly guilty on the face of the law, and unlikely to draw much sympathy from the average jury who also fervently believe The Evil Hacker stereotype made the temptation to demand jail time irresistible, the more so because Aaron was so plainly lionized by many as an activist and genius and treated his actions as civil disobedience.

The matter has been made worse of the years by the non-stop demonization by Hollywood around copyright infringement and the campaign to force DoJ to act as Hollywood's private law enforcement agency. We see precisely this kind of agressive action in criminal infringement cases, usually with little actual support in law or the facts. But how else are we to account for things like the swarm of paramilitary equipment used for the arrest of accused infringer Kim Dotcom?

So yes, at the end of the day I do not believe this was about justice. I believe it was about bagging the big bad hacker and teaching them damn "info hippies" a lesson to respect the law. But I also see this as a symptom of a larger problem, one which I do not know how to solve. In the late 1980s, when the issue of racism in sentencing was first raised, we tried to remove sentencing discretion. That produced its own problems, and did not really resolve the racial justice issue. I dearly wish we could all rise above our stereotypes and be entrusted with discretion, but we are all still human beings and subject, in various degrees, to human failing.

At a minimum, we can modernize the Computer Fraud and Abuse Act and other blatantly abusable statutes (like we did when we modified mandatory sentencing for crack possession). Perhaps that will have to be enough on the legal side. The solution on the stereotype side requires a morre systemic approach.

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