Carmen Ortiz's Case Didn't 'Kill' Aaron Swartz

Reject her legal rationale. Question her prosecutorial discretion. But let’s stop the slander that U.S. Attorney Carmen Ortiz has blood on her hands for the suicide of Aaron Swartz.

Isn’t the death of the troubled 26-year-old Internet visionary tragedy enough without the reflexive assignment of blame to the federal prosecutor doing her job? Whether she was doing it wisely or overzealously is a legitimate topic for public debate. Not so his father's charge that she, on behalf of the government, “killed” a young man who wrote candidly about his long struggle with chronic pain and deep depression.

Isn’t the death of the troubled 26-year-old Internet visionary tragedy enough without the reflexive assignment of blame to the federal prosecutor doing her job?

It is understandable for those who loved and admired the prodigy at the forefront of programming innovations from RSS to Reddit to want a simple answer for their loss. But self-inflicted death is rarely simple. Pretending it is helps nothing, including the cause for which some have glibly labeled Swartz a “martyr.”

Swartz was no more martyr than he was dangerous felon. He was a mentally fragile political activist who engaged in an illegal act of civil disobedience to dramatize his belief that information should be free. But, as Henry David Thoreau taught us long ago, civil disobedience has a cost. Paying it is the price of the bold gesture. Presumably, Swartz knew that when he donned a bike helmet to hide his face, broke into a computer closet at MIT and downloaded millions of academic articles from JSTOR, liberating information from the subscription service that usually charges $19 per article.

He made his point. He got arrested. He was awaiting trial at the time of his death, having rejected a plea offer from Ortiz that would have had him serve only six months under the Computer Fraud and Abuse Act (CFAA) for crimes that can carry a maximum penalty of more than 30 years in prison.

Are those maximum sentences too great? Yes. Is there a solution? Change the law. In the wake of Swartz’s suicide, proposals are now being introduced on Capitol Hill to reduce penalties for digital piracy. Neither the Ortiz prosecution nor the Swartz suicide created that opportunity; it has been available to critics of the law for 25 years. If calling a long-overdue amendment “Aaron’s Law” is supposed to be the “good” that comes out of this tragedy, where are the advocates for a comparable legislative effort to devote more public resources to the mental health issues that contributed to his death?

In grief-stricken blog postings memorializing Swartz, Harvard Law School Professor Lawrence Lessig begs the public not to pathologize his young friend’s suicide but to see it, instead, as the byproduct of prosecutorial bullying. “It angers me that he did what he did,” Lessig writes. “But if we’re going to learn from this, we can’t let slide what brought him here.”

But no one can read Swartz’ blog post from 2007 and not wonder whether Lessig has his emphasis in exactly the wrong place, and whether the strain of his impending trial only exacerbated the more pronounced, underlying causes of Swartz’ suicide.

“I have a lot of illnesses. I don’t talk about it much, for a variety of reasons. I feel ashamed to have an illness. (It sounds absurd, but there still is an enormous stigma around being sick.),” he wrote of the migraines and depression that plagued him.

Surely there have been times when you’ve been sad. Perhaps a loved one has abandoned you or a plan has gone horribly awry. Your face falls. Perhaps you cry. You feel worthless. You wonder whether it’s worth going on. Everything you think about seems bleak — the things you’ve done, the things you hope to do, the people around you. You want to lie in bed and keep the lights off. Depressed mood is like that, only it doesn’t come for any reason and it doesn’t go for any either. Go outside and get some fresh air or cuddle with a loved one and you don’t feel any better, only more upset at being unable to feel the joy that everyone else seems to feel. Everything gets colored by the sadness.

At best, you tell yourself that your thinking is irrational, that it is simply a mood disorder, that you should get on with your life. But sometimes that is worse. You feel as if streaks of pain are running through your head, you thrash your body, you search for some escape but find none. And this is one of the more moderate forms.

Swartz’ family and friends want us to discount his emotional turmoil to focus our anger at prosecutorial overreach (an online petition calling for Ortiz’ ouster already has more than 40,000 signatures). “Somehow, we need to get beyond the “I’m right so I’m right to nuke you” ethics that dominates our time,” Lessig writes. “That begins with one word: Shame.”

But Aaron Swartz knew too well about another sort of shame.

“Sadly, depression (like other mental illnesses, especially addiction) is not seen as “real” enough to deserve the investment and awareness of conditions like breast cancer (1 in 8) or AIDS (1 in 150),” Swartz wrote of the one in six Americans suffering as he was. “And there is, of course, the shame.”

Maybe he would want us to do something about that, too.

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