On January 11th, 2013, internet activist, developer, writer and political organizer Aaron Swartz committed suicide. A veritable torrent of opinions and eulogies followed with regards to the short but illustrious life and career he had led. Those who were close to Swartz said that the pressure of the intense and drawn-out trial was what led him to take his own life (Swartz was facing prosecution for systematically downloading academic journals from JSTOR—charges of wire fraud that would equate to $1m (USD) in fines and 35 years in prison). The crux of the tragedy was articulated by professor Lawrence Lessig in his article for The Atlantic:
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. It is not a threat to the realm. If every breach of contract worth more than $5 000 (USD) were a crime, Manhattan wouldn't be the world's most amazing city. Manhattan would be a federal penitentiary, with every prominent Wall Street firm very well represented. Fail to execute a trade on time? Two years in jail. Back out on an acquisition? Thirty to life.
Computer law is different, however, because Congress didn't really understand this ‘wild west’ (as the network was called when Congress passed the Computer Fraud and Abuse Act in 1986), and because geeks make them uncomfortable. For 25 years, the CFAA has given federal prosecutors almost unbridled discretion to bully practically anyone using a computer network in ways the government doesn't like. It does that by essentially criminalizing the violations of a site's ‘terms of service’ in combination with obtain[ing] anything of at least $5 000 (USD) in value. And even if in the vast majority of cases prosecutors exercised that discretion, well, in this case the abuse of that discretion has ended in tragedy. As Tim Wu so brilliantly describes, we have built a system of criminal law that depends upon our trusting the government. Few civil libertarians from either the right or the left, though, will be surprised that it turns out that the bureaucrats manning the battle stations cannot be trusted.