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The Honorable Eric H. Holder, Jr. January 28, 2013 Page 2 whether you use a computer command or a crowbar, and whether you take documents, data or dollars.”

On July 14, 2011, federal prosecutors charged Mr. Swartz with four felony counts: Wire Fraud, Computer Fraud, Theft of Information from a Computer, and Recklessly Damaging a Computer. On September 12, 2012, prosecutors filed a superseding indictment with thirteen felony counts. It appears that prosecutors increased the felony counts by providing specific dates for each action, turning each marked date into its own felony charge, and significantly increasing Mr. Swartz’s maximum criminal exposure to up to 50 years imprisonment and $1 million in fines. A trial was scheduled for April 2013.

According to The Wall Street Journal, prosecutors reportedly offered a plea bargain to Mr. Swartz: if he pled guilty to the 13 felony counts, he would receive a sentence of 7-8 months in jail. According to press reports, prosecutors told Mr. Swartz’s attorney that if the case went to trial and Mr. Swartz was convicted, they would seek a prison sentence of 7-8 years. Mr. Swartz reportedly did not want to serve time in jail and declined to accept this deal.

Many questions have been raised about the appropriate level of punishment sought by prosecutors for Mr. Swartz’s alleged offenses, and how the Computer Fraud and Abuse Act, cited in 11 of 13 counts against Mr. Swartz, should apply under similar circumstances. For example, according to Marc Zwillinger, a former federal prosecutor familiar with cybercrime investigations, “[t]he question in any given case is whether the prosecutor asked for too much, and properly balanced the harm caused in a particular case with the defendant’s true culpability.”

Noting that this is no longer an active criminal case, we request a briefing from Department officials about the following questions: