“For example, acting with an intent to profit can turn a misdemeanor into a felony,” he says. “Also, acting as part of a broader criminal scheme can lead to a sentencing enhancement.”
Keys’s lawyers contended he was conducting “an undercover-type, investigative journalism thing” in an interview with the Huffington Post. They have also accused the Justice Department of pushing cases like Swartz’s and Keys’s too aggressively and threatening over-harsh sentences. The Justice Department has previously denied that type of allegation, saying in a statement after Swartz’s suicide that prosecutors only “enforc[ed] a law they had taken an oath to uphold” and blaming Congress for severe sentencing guidelines.
Since Swartz’s death, advocacy groups like the Electronic Frontier Foundation have rallied around sentencing reform, arguing that the maximum terms for computer crimes are not proportional to their damage. The news release that announced Keys’s indictment dramatically trumpeted a maximum term of 25 years. Swartz faced a maximum sentence of 35 years.
Receiving the maximum sentence is rare, of course. According to the the U.S. Sentencing Commission, the agency that makes sentencing policy for federal courts, almost 45 percent of convicted criminals serve sentences below the minimum guideline, to say nothing of the maximum. And a 2011 study by researchers at the Universities of South Georgia and Louisville found that the average term for a computer crime was just under three years — and even less, on average, for young men like Keys and Swartz.
But that hasn’t stopped Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation and a former public defender, from counting Keys as the latest victim of sentencing overreach. He argues that high maximum terms stretch the sentencing scale toward more severe penalties — and intimidate defendants into pleading out entirely.
“I’ve been to court, and I’ve seen the reaction when the judge reads [the maximum sentence],” Fakhoury says. “It can be a blunt instrument in deterring people from trying their luck at trial.”
But regardless of the calls for sentencing reform, few have supported Keys’s cause the way they did Swartz’s. That may have less to do with the legal issues at stake than with the public perception of Keys and his case.
“Don’t compare Matthew Keys to Aaron Swartz, even in their prosecution,” tweeted Tony Webster, a prominent engineer and open data researcher. “Keys: disgruntled loser. Swartz: genius, advocate for open knowledge.”
Asked if he felt the maximum sentence was too harsh, Webster wrote back: “Absolutely agree—nothing Keys allegedly did is worth absurd sentencing potential. Merely highlighting a difference in character.”