This article also appeared over on the “Opposing Views” website, with the byline “TechDirt” (rather than Mike Masnick’s name). Here’s the comment I posted there:

I’m now pushing 60 years old (to my chagrin, it’s probably worth adding); and I’ve been an IT professional and high-tech & general management consultant for going on 40 years (though my current thing in life is my now-nearly-full-time ministry of agency/advocacy to/for the homeless, disabled vets, the indigent elderly, the prostituted, recent parolees and others similarly in need). I was using what has become today’s Internet since before it was, technically, that; and I was right in the middle of alpha and beta testing stuff during the pioneering of what is, today, the “worldwide web” part of the Internet in the early 1990’s. And so I not only know Swartz’s kind, but have both worked with them, and had them work for me. I’m also, for whatever it’s worth, a fairly-far-left-leaning both socio-politically and theologically liberal/progressive lifelong Democrat; but I’m nevertheless assiduously law-abiding. I write all that, simply, to establish that I might actually know a teenie, tiny thing or two about all this — but, as my ex-wife would attest, probably ONLY a thing or two — to give what I write next a bit of context.

What Swartz did, bottom line, was unambiguously wrong. There’s just no question or doubt about that, and there’s no point in trying to sugar coat it or torture it to fit some open-source/hacker-type agenda. However, it’s all a very tricky thing, really; an example, if ever there were one, of how our laws, today, haven’t yet caught-up with the realities of an increasingly Internet/online-centric world; and how those who technically own all the intellectual property aren’t adjusting thereto with a reasonable operational model. And the whole thing gets exacerbated and the opposite site get their backs all up because the open-sourcers/hacker and the intellectual property owners, both, use take-no-prisoners, scorched-earth tactics which just make both sides dig-in their heels and want to draw blood from their opponents…

…hence, at least in part, the intransigence of the federal prosecutor. It says, here, that the article is by “TechDirt,” but, of course, it’s actually Mike Masnick, on that website, who wrote the piece; and though I don’t agree with EVERTHING he writes, he sure does know what he’s talking about, and I have utmost respect for him. The most cogent thing he wrote in this article was this:

“To argue that the prosecution was fair because they offered him a 6 month plea deal is complete and utter hogwash. As many have pointed out, it doesn’t appear that Aaron should have been facing any federal charges at all. The 35 years is completely relevant, because that’s part of the hammer that his wife was using to pressure him into taking the 6 month plea deal so that she and her assistant could get a big headline about another ‘guilty’ plea. To act like the 6 month offer is some sort of ‘leniency’ is insane when you know the details of the case and everything else that came with it.”

Amen! Swartz, I’m sorry, had become, as my ol man would have said, “too big for his britches” in any number of ways, as is common among child prodigies. The kid was beyond brilliant… the word “genius” doesn’t even cover it; but, sadly, he knew and understood that, and didn’t yet have the age, maturity and wisdom to properly parse and put into perspective what was going on. His lawyer probabaly tried to give Swartz the kind of perspective he needed to negotiate this mess, and maybe could have been better at it, who knows; but there is absolutely no question that the prosecutor, like most federal prosecutors (except, at least, my good buddy whom I won’t name but who’s a deputy US attorney in Indiana, and who’s deeply moral and ethical and is on the side of the angels; and whom I wish like hell had been the prosecutor in Swartz’s case) went too far; treated Swartz like she absolutely SHOULD treat some really egregious bad actor who really and truly DOES commit serious crimes that really and truly do harm people. Swartz was not such a criminal… and just how much of a criminal he ever really was is reasonably debatable.

Given those kinds of realities, the very least this prosecutor could have done is pause and reflect and research and learn; and consult with really smart people like, for example, Mike Masnick, just to name one, and try to get a feel for the realities of Swartz’s kind of acts in the context of a truly complex modern world where such as intellectual property rights, and Internet freedoms and access, are struggling against one another based on laws which, seriously, need to be updated. Even the argument is complicated, to wit: While it could, of course, be argued that if the open-sourcer/hackers, like Swartz, would just stop taking things, just because they can, then maybe the intellectual property owners would be more amenable to discussion; but the hard reality is that unless Swartz, et al, force the hand of said owners the way they do, then said owners won’t even come to the table. So, then, what to do, what to do. The prosecutor, et al, say that what to do is follow the law; but even some intellectual property rights owners say that said law needs updating to reflect the realities of the world in which we now actually find ourselves.

Oy. [sighs and shakes head in frustrated disappointment] It’s a mess. One thing’s for absolutey certain, though, and that’s that Aaron Swartz didn’t need to die for any of this. One of the greatest young minds in this nation — yes, you read that right — is now gone. Those of us who’ve been trained in suicide prevention and counseling know that no one — and I mean NO ONE — can ever be responsible for another person’s suicide; however, young Mr. Swartz had only BEGUN to contribute and innovate and, yes, knock the status quo back on its heels a bit along the way in order to disabuse it of its inherent misguidedness. So young! His contributions, by the time he finished his life, however many years from now would, I promise, have been downright legendary. The sheer and unmitigated tragedy of his death cannot be underestimated; and the prosecutor’s both ignorance of, and arrogance about that cannot be over-stated. Masnick really did say it best, to wit: “…it’s a bit simplistic to place the ‘blame’ for Aaron Swartz’s suicide on the federal prosecutors…” but, “it is still quite reasonable to question their activities,” yet “suicide is a complex thing and going all the way there may be going too far,” too.

Amen, again.

It’s very sad. I hope that, somehow, something good ultimately comes from all this. I won’t hold my breath, of course, but I’m just sayin’. And almost greater tragedy would be if the prosecutors, Ms Ortiz and Mr. Heymann, never even pause to rethink any of this… which, sadly, is the way it’ll likely be.

Pity.

Gregg L. DesElms
Napa, California USA
gregg at greggdeselms.com