We The People

SONY DSCBroken trust leads to feelings of betrayal. Betrayed is the vague feeling I have sought to identify as I have read and thought about the incredibly tragic recent suicide of 26-year-old Aaron Swartz and the speculation that his suicide was the result of an over-zealous prosecution.

Aaron Swartz was a criminal defendant in a federal case because he downloaded massive numbers of academic research articles from JSTOR’s database using MIT’s network. JSTOR declined to press charges, but prosecutors moved the case forward. The main legal grounds for the federal indictments were violations of the Computer Fraud and Abuse Act of 1984 (CFAA).

Many writers have argued and analyzed whether the government ever would have won this case, in other words, whether the actions of Swartz, if proved at trial, would constitute a violation of the CFAA. Many other writers have explained how Swartz was a genius hero, writing computer code at a very young age, developing ways to share that information, and advocating for social justice, in part through providing free access to information. He saw the internet as a way to educate and empower people around the world and was a leader in defeating SOPA/PIPA, the Stop Online Piracy Act and Protect IP Act. Although I am no techie and never heard of Aaron Swartz before his suicide, I am saddened by the possibility that the Law failed him.

Aaron Swartz apparently understood and operated at the frontier of the internet, a place new to the law and lawyers. And lawyers are stewards of the Rule of Law. Our republic is rooted in the trust we the people relegate to our stewards of the Rule of Law. Prosecutors in particular are special stewards of the law with ethical obligations to seek justice, not merely convict. If and when they violate this duty, they break the bonds of trust implicit in a government by the people and for the people. I was struck by this realization again in reading the superseding indictment filed September 12, 2012. The caption reads: “United States of America vs. Aaron Swartz.” We are the United States of America. The prosecutors represent us.

That is why prosecutors are held to a higher ethical standard than lawyers who are not representing the people. The Rules of Professional Conduct set out special responsibilities of a public prosecutor, and the comment to the American Bar Association Model Rule of Professional Conduct 3.8 states, “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” The United States Supreme Court, in a 1935 opinion described the duty of a federal prosecutor:

“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed.” Berger V. United States, 295 U.S. 78, 88 79 L.Ed. 1314, 1321, 55 S. Ct. 629, 633 (1935)

My takeaway from all of the words that I have read on this topic over the past few weeks is that the people do not have confidence that the prosecutor’s obligations were faithfully observed. When that happens, we all are harmed.

Perhaps the bright spot in all of this is that lawyers are advocating for an investigation of the Justice Department’s prosecution. In addition, there is a movement to amend or scuttle the CFAA in favor of laws that better recognize the competing interests of protecting protectable rights, including free speech and copyright law, and reconsider the definition of crimes in the context of our ever-changing technologies. These are tough issues, Gordian knots. And we as lawyers and as concerned members of society must and can figure them out. That is a faithful exercise of our obligation, laid out in the Preamble to the Model Rules of Professional Conduct, to seek improvement of the law and the administration of justice.

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