It’s been just over a week since Swartz was driven to kill himself. He got prosecuted (persecuted?) for a ‘money-related’ crime that the ‘victim’ didn’t want to go further, while the bankers whose actions cost millions their homes and life savings got raises. Oh, sorry. I forgot. Aaron wasn’t wealthy and politically connected. My bad.
So what he actually intended the public cannot know. And if the public cannot know, the government certainly did not know. But that doesn’t matter under the law as it stands. All the government had to show to launch its witch hunt against this young activist was that he had violated JSTOR’s “terms of service” and taken (as in copied) something worth more than $5,000.
The “terms of service” (TOS) of any website are basically a contract. They constitute an agreement about what you can and can’t do, and what the provider can and can’t do. Not everything on a website is governed by contract alone: Copyright and privacy law can impose property-like obligations independent of a TOS. But the rules Aaron were said to have violated purported to limit the amount of JSTOR that any user was permitted to download. They were rules of contract. Aaron exceeded those limits, the government charged. He therefore breached the implied contract he had with JSTOR. And therefore, the government insists, he was a felon.
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.