Jan 16, 2013

Prosecutorial Overreach?

When 26-year-old Internet prodigy Aaron Swartz committed suicide over the weekend, it sparked both grief and a lot of questioning.

Swartz, one of the creators of the RSS specification and a “digital activist,” was under indictment by the U.S. Justice Department for allegedly stealing more than 4 million academic articles from JSTOR, an archive of journals and papers, with an intent to distribute them for free. Although JSTOR chose not to press charges, federal prosecutors disagreed and charged Swartz, who struggled with depression, with multiple felonies. He faced the prospect of being released from prison after his 60th birthday.

One set of actors receiving extensive scrutiny at the moment are the attorneys within the Justice Department. Did they go too far in this case?

In a post at the HBR BlogJames Allworth, co-author of the book How Will You Measure Your Life?, sees a systemic problem. “It was hard to think about this sad turn of events without wondering why the government decided to seek up to 35 years of prison time for a 26-year old who JSTOR had decided to drop charges against,” Allworth writes.

By contrast, he notes, executives at a medical device company that caused patient deaths by choosing to bypass clinical trials were charged only with misdemeanors, and the bank HSBC, which helped launder money for drug cartels, escaped prosecution altogether. “It seems you can get away with laundering money for the drug cartels, so long as you’ve been generous with the those responsible for appointing district attorneys,” Allworth concludes, with prosecution being “determined much less by any notion of justice than it is by a broken political system corrupted by the influence of money.”

Peter Drucker wrote occasionally of bias in public policy. When it came to business, however, Drucker felt that big companies often were held to a higher standard than individuals. In The Changing World of the Executive, Drucker lamented that “acts that are not immoral or illegal if done by ordinary folk become immoral or illegal if done by business.” If a person is forced to pay off a mobster, it’s not a crime. “If a business submits to extortion, however, current business ethics considers it to have acted unethically,” Drucker wrote.

Image source: Hans Braxmeier

Image source: Hans Braxmeier

But we imagine that Drucker would also have appreciated the complementary point of view: that business shouldn’t escape accountability for acts that are immoral or illegal if done by ordinary folk. In Drucker’s view, holding both big and small, powerful and weak to one code was a cornerstone of a civilized society.

“A pagan could . . . hold that different rules of behavior apply to Jupiter from those that apply to the ox,” Drucker wrote. “A Jew or a Christian would have to reject such differentiation in ethics—and precisely because all experience shows that it always leads to exempting the ‘Jupiters,’ the great, powerful, and rich, from the rules which ‘the ox,’ the humble and poor, has to abide by.”

What do you think? Does the Aaron Swartz case suggest that the U.S. justice system is harder on individuals than on big business?

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