His family and lawyers have blamed the prosecution for contributing to Swartz’s death and said his offenses did not warrant jail time. Last week, Ortiz defended her office’s handling of the case, saying her review had determined it was “reasonably and appropriately handled.”
Some lawyers agreed that Swartz’s alleged actions were clearly criminal violations, and that prosecutors were justified in pursuing the case.
“This one fell squarely in the statute,” said Michael Sussmann, a Washington, D.C., lawyer who specializes in Internet-related crimes and former cybercrime prosecutor at the Department of Justice. “This is what the statute was written for. People who have data in computers want them to be confidential.”
But Ted Claypoole, a intellectual property lawyer in North Carolina, said that while the charges were legitimate, the prosecution’s insistence on a prison sentence for downloading scholarly articles was highly unusual.
“I don’t know anyone who has served time for releasing academic journals into the wild,” he said.
Claypoole and other lawyers said that Swartz’s reputation as an activist, particularly his previous downloading of millions of pages of court documents during a brief period in 2008 when they were available free of charge at public libraries, may have spurred prosecutors to take a hard-line stance.
“This is a guy who said ‘I’m going to do this on a massive scale,’ ” he said. “His approach was a direct challenge to law enforcement, and they went after him in a big way.”
Others saw the prosecution as a clear lapse of discretion.
“The premise for a prosecution shouldn’t be, ‘If you can indict you should,’ ” said Nancy Gertner, a former federal judge in Boston who retired in 2011. “You should look at whether the penalties are proportional to the charge.”
In announcing Swartz’s indictment in 2011, Ortiz said that “stealing is stealing, whether you use a computer command or a crowbar.” Gertner pointed to the remarks as evidence of Ortiz’s failure to weigh the individual circumstances of cases.
“There’s no sense of proportion. There’s no sense of when you use the extraordinary powers of the office and when you don’t.”
There have been at least a couple of cases before Ortiz took over the office in which plea deals were negotiated that allowed defendants accused of illegally accessing computers to plead guilty to a misdemeanor and receive probation. In one of those cases, the defendant agreed to cooperate with the government.
“While we will not comment on individual cases, it is important to understand that there are a variety of factors that go into both charging decisions and sentencing recommendations in every case,” said Christina DiIorio Sterling, a spokeswoman for Ortiz. “Every case is different and we try to take into account the variety of circumstances of each case in making decisions.”
The US attorney’s office in Boston created its cybercrimes unit in 2005, and it remains one of a handful of such units in the country. Three of the four lawyers have at least a decade of specialized training and experience in the investigation and prosecution of cybercrime, the office said.
Over the past four years, the unit has prosecuted 47 cases, including 16 last year.