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Prosecutorial Discretion in Charging and Plea Bargaining: The Aaron Swartz Case (B)

 Elizabeth Moroney, under the supervision of Adriaan Lanni and Carol Steiker  
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4 pages
Product Type:
Discussion-Based Case Study
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October 2014


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In September 2010, the online journal database JSTOR began experiencing sluggish downloads from a file “scraper” that was systematically downloading JSTOR’s entire database. For months, JSTOR monitored and blocked subsequent attempts, and traced the offender to a building on the MIT campus. With suspicions of cybercrime and disruptions to JSTOR servers and MIT journal access, police got involved.

In January 2011, MIT and Cambridge Police apprehended the suspect. The man was 24-year-old Internet prodigy Aaron Swartz, who had worked on the web feed known as RSS 1.0, the social news website Reddit, and other tech projects since his early teens. The case was tasked to an Assistant United States Attorney who led Massachusetts’ Internet and Computer Crimes Unit. The prosecution offered plea bargains, but Swartz refused to plead guilty to any felony counts. Pre-trial negotiations escalated when the prosecution learned of the Guerilla Open Access Manifesto, authored in part by Swartz, which declared that “we need to take information, wherever it is stored, make our copies and share them with the world.” Swartz was charged with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer; the defense argued that Swartz did not exceed his authorized access to the systems, and did not intend harm from his actions. A year later, a superseding indictment increased the counts. Other plea bargains were offered; the defense came back with different proposals; the negotiations reached a stalemate. Just over two years since the arrest, Swartz, who had a history of mental health concerns, committed suicide.

The A case considers the prosecutorial discretion throughout the case, from the decision to press charges to the plea bargains offered. Participants discuss the factors appropriate for prosecutors to consider when making decisions, analyzing prosecutorial manuals and legal statutes as both guidelines and foils to prosecution in practice. Participants also reflect on the role of the prosecutor, and to a lesser extent the defense attorney, in the United States’ system of criminal justice. The B case serves as an epilogue, discussing the public and governmental reactions to Swartz's death as well as the results of MIT's internal ethics review.

Subjects Covered

Criminal law, plea bargaining, charging, prosecutorial discretion, intellectual property, online databases, open access, technology, computer fraud, mental health

Learning Objectives

  • Explore and define the role of the federal prosecutor; consider who the client is and how the prosecutor role influences (or should influence) decisions and strategies.
  • Consider what factors prosecutors should (and should not) take into account when making decisions, including the suspect’s characteristics, the potential repercussions for the suspect, the nature of the crime, the law in violation, and the victim’s feelings and circumstances.
  • Discuss the ethical and legal bounds of prosecutorial discretion, such as the appropriate tactics for structuring and offering a plea bargain. Explore the grey area between the prosecutorial guidelines and prosecution in practice.
  • Understand the value and potential pitfalls of plea bargaining as a method of resolving criminal cases. 


Geographic: Cambridge, Massachusetts

Industry: Academic journals; technology

Event Start Date: 2010

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Additional Information

Do Prosecutorial Tactics Optimize Justice? Reconsidering Discretion in Charging and Plea Bargaining

5 Questions with Professor Adriaan Lanni

Ethics in Hindsight: The Nation Reflects on Aaron Swartz, Prosecutorial Discretion


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