lessig on swartz

Lawrence Lessig has a good rundown of the Aaron Swartz death-by-prosecutor case.
First, there are theories about what Swartz planned to do with the scholarly articles he downloaded from JSTOR but we don't really know.
Second, his motives don't ultimately matter because it was a civil contract case -- for breach of JSTOR's terms-of-service -- and JSTOR said it had no intention of suing him.
So how did federal prosecutors get involved, hounding this poor guy to death?
Lessig explains:

...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. It is not a threat to the realm. [...]

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 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. [...]

Congresswoman Zoe Lofgren has introduced a bill that would de-criminalize contract breaches under the CFAA. Likely it won't pass because the movie and music monopolists need their prosecutors to scare people away from downloading, sharing, and other non-criminal activities.

More on this.