The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Copyright and "I'm right to nuke you" ethics

January 21 2013 21 January 2013

Plenty has been written in the last week about the death of Aaron Swartz. Predictably, opinions tend to diverge sharply among supporters of content consumers vs. supporters of content owners (was Swartz hero or thief?)

But the more nuanced commentators are asking some rather pertinent questions about how our governments go about targeting alleged criminals and how they are prosecuting crimes. Food for thought for legal minds out there. Here’s Clive Crook in one of his last posts at the Atlantic:

By and large, American prosecutors no longer fight their cases at trial. The new dispensation is justice by plea bargain. The more savage the penalties prosecutors can threaten, the more likely the defendant (guilty or innocent) is to speed things along by pleading guilty and accepting a light penalty. According to the Wall Street Journal, Swartz was offered the choice of pleading guilty and going to jail for six to eight months, or else going to trial and taking his chances. The multiple counts and their absurdly savage sentences are best seen, just as the family said, as instruments of intimidation.

The prosecutor's bottom line, apparently, was that Swartz had to go to jail. In my conception of criminal justice, the prosecutor's role is to establish guilt, not pass sentence. Juries have already been substantially dispensed with in this country. (By substantially, I mean in 97 percent of cases.) If prosecutors are not only going to rule on guilt unilaterally but also, in effect, pass sentence as well, one wonders why we can't also dispense with judges.

Stephen Carter at Bloomberg calls the prosecution of Swartz ridiculous, but argues that the overly zealous lawmakers are the real problem. Drawing inspiration from Douglas Husak, author of the book Overcriminalization, he writes:

By one common estimate, Congress creates new federal felonies at the rate of one a week. Husak argues that criminal liability has become less the outcome of deliberation than a habit, a bizarre bit of boilerplate tacked onto the end of statutes or regulations without a second thought. Criminal defense lawyers are fond of claiming that the average American commits two or three punishable crimes every day.

[...] Here is the nub of the problem, as Husak describes it:

“Experts in the criminal law cannot make accurate predictions about potential offenders because the fate of such persons is not a function of the law at all. The real criminal law, as Holmes would construe it, is formulated by police and prosecutors. The realization that police and prosecutors wield such discretion is nothing new. What is new is the power to arrest and prosecute nearly everyone -- a power that derives from the ever-expanding scope of criminal statutes as written.”

The Computer Fraud and Abuse Act -- the principal statute under which Swartz was charged -- is a good example of Husak’s point. Enacted in the 1980s, before the Internet explosion, the statute makes a criminal of anyone who “intentionally accesses a computer without authorization or exceeds authorized access” and, in the process, obtains financial information, government information or “information from any protected computer.”

Simon Dumenco looks at some of the case law and gives his bottom line:

Bad laws can and will be used against you. All it takes is a prosecutor looking for a trophy case -- someone willing to swat a fly with a sledgehammer to make a point.

As Harvard Law professor Lawrence Lessig wrote of the prosecution of his friend Swartz, "Somehow, we need to get beyond the "I'm right so I'm right to nuke you' ethics that dominates our time."

We’ll give the last word to Ivor Torsell at the G&M, who has some thoughtful comments that ought to be taken into consideration, particularly in light of the recent TekSavvy illegal file sharing case:

Even Canada, after umpteen tries, has updated its copyright law, and already movie studios eager to sue are demanding that Internet providers fork over customer names. It’s hardly even news anymore.

It’s not simply enforcement. We got comfortable. The cacophony of independent blogs has given way to a handful of easy-to-use leviathans: Twitter and Facebook and Instagram, each presiding over hundreds of millions of voices with a Terms of Service that bears the gravity of a national constitution. Apps come through vetted App Stores, our music and movies through iTunes and YouTube, which these days will make you watch an ad for dish soap before letting you watch the cats. Lately, it’s become quite possible to live a very pleasant and respectable digital existence by spending just a few shekels. (For those who arrived on the Internet at a certain moment, the timing has all worked out very neatly: Napster in our starving years; Netflix now that we can pay.)

But comfort is beguiling. It gives the sense that the consensus is set, that the law has congealed, and that we’ve come as far as we need to. It makes it easy to write off his ideals as “youthful rubbish,” as one prominent columnist wrote this week. They’re not. Just as copyright is and always will be a balancing act between those who produce information and those who consume it, the Internet will always exist in tension between those who need to safeguard their investments by locking it down, and those who want to explore its potential by keeping it open – and occasionally playing havoc with established interests.

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