Law and Order

Former Federal Prosecutor Calls Tweets Attacking Swartz Family ‘Mind-Boggling Offensive’

"For the US attorney’s spouse to get out there, in a way that can only be viewed as acting as her agent, is a complete and utter lack of judgment."

aaronswartzIt seems we’ve reached a Les Miserables moment in the government’s war on cyber crime, one in which a government fearful of preserving order would seek to sentence a young man to decades in prison for the digital equivalent of stealing a loaf of bread.

At least, that’s the feeling that we’re left with in the wake of news last week that the 26-year-old Internet activist Aaron Swartz had hung himself at home in Brooklyn.

Mr. Swartz, as you likely know by now, was facing data theft charges that could have landed him up to 35 years in a federal penitentiary.  In the days since his tragic death, the web has been awash with recriminations. The most strident complaints have been aimed at the federal prosecutors bent on imprisoning Mr. Swartz for actions one security expert deemed not “wrong,” but merely “inconsiderate,” and at MIT, widely blamed for enabling the government lawyers.

MIT has launched an investigation into its own role in Mr. Swartz’s suicide. For its part, the U.S. attorney’s office has removed itself from the fray, dropping charges against Mr. Swartz, as is customary following the death of a defendant, and keeping its own counsel on the matter. Not everyone has remained quiet. Yesterday, the husband of U.S. Attorney Carmen M. Ortiz, who oversaw Mr. Swartz’s prosecution, took to Twitter, bashing the family of Mr. Swartz for laying blame with prosecutors.

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It was the height of bad taste. “The impropriety and lack of judgment of criticizing the family of a young kid who just killed himself is so mind-boggling offensive to me,” one former federal prosecutor told Betabeat, adding that the tweets were so bad that he didn’t want to discuss them on the record.

It wasn’t just Mr. Dolan’s nerve in confronting mourning family members that offended the former prosecutor. It was the notion that the U.S. Attorney’s spouse would discuss plea negotiations—best kept private in under any circumstances—that was particularly galling.

“When you’re a U.S. attorney, your opinion about your cases shouldn’t be shared with a hell of a lot of people,” the former prosecutor said. “Do spouses share information about their day at work? Of course. But for the US attorney’s spouse to get out there, in a way that can only be viewed as acting as her agent, is a complete and utter lack of judgment.”

(Betabeat called Ms. Ortiz’s office for comment, and we’ll update if we get one. Mr. Dolan, meanwhile, has deleted his Twitter account since.)

Meanwhile, we can’t help reading a certain recklessness in Mr. Dolan’s ill-considered comments, perhaps borne out of the same self-righteousness that may have lead prosecutors to press the case against Mr. Swartz in the first place.

As Mr. Swartz’s lawyer Elliot Peters told the Boston Globe:

“There was such rigidity with the people we were dealing with,” Peters said. “I couldn’t find anyone in that office to talk about proportionality and humanity. It was driven by a desire to turn this into a significant case, so that some prosecutor could put it in his portfolio.”

Nor do we fail to note that that Mr. Swartz’s alleged crimes were comprised of actions that others commit each day. As cyber-security expert Robert Graham put it, “Aaron Swartz was charged with wirefraud for concealing/changing his “true identity”. It sent chills down my back, because I do everything on that list (and more).” Mr. Graham continued:

As Arthur C Clarke puts it, “Any sufficiently advanced technology is indistinguishable from magic”. Here is my corollary: “Any sufficiently technical expert is indistinguishable from a witch”. People fear magic they don’t understand, and distrust those who wield that magic.

Perhaps it goes too far to equate the former stubbornness to the latter. But in Mr. Dolan’s reckless comments, we see a prosecutor’s office that was desperate and confused, driven to tame to the wilds of an Internet it didn’t completely understand, eager, in the name of order, to seek a punishment that didn’t fit the crime.

Even after Mr. Swartz’s lawyers told prosecutors they believed their client to be a suicide risk, prosecutors continued to press for a draconian punishment. Perhaps it goes too far to equate Mr. Dolan’s stubbornness with the government’s insistence that Mr. Swartz serve time. But in his impromptu defense of his wife, Mr. Dolan may have shown the prosecutor’s office in the truest light: desperate and confused, driven to tame to the wilds of an Internet it didn’t completely understand, eager, in the name of order, to seek a punishment that didn’t fit the crime.

Follow Patrick Clark on Twitter or via RSS. pclark@observer.com