> I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case.
That's why you assign investigations to independent entities, and that's why butchers aren't allowed to do their own health inspection.
Whether it was appropriate or not is not for Carmen Ortiz to say.
"The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases."
Is in direct conflict with Aaron's lawyer's account of the run up to last Saturday as well as other statements issued earlier, she may come to regret those words if he has documentation to prove his side of the story.
Aaron's lawyer claims they were threatening just the opposite if he did not take a guilty plea.
In particular:
"At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law."
Is a falsifiable claim. I'm looking forward to Aaron's lawyers' response to this statement.
> "At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law."
> Is a falsifiable claim. I'm looking forward to Aaron's lawyers' response to this statement.
I agree with previous posts on the matter, which argued that the system of insane maximum penalties + plea bargaining is the modern, "civilized" version of inquisition, i.e. producing guilty pleas under the prospect of torture.
If you translate Carmen Ortiz' statement to "At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – to break the defendant's kneecaps" (translation, not equation!), you may get a better idea of why her claim may be absolutely accurate, and still entirely missing the point.
Of course they will threaten him with it but did he really think, or did his lawyers really tell him he would serve long years of hard time?
I wonder if he ever considered the fact that even if he did serve time, he would always be seen as some kind of folk hero who would have been welcomed with open arms by all his peers upon release. It would have been a situation of him, all his peers and everyone he respects against the system, which imho is not that bad a situation. Still a much better situation than for example the one Assange find himself in.
If you look at other cases, from the Pirate Bay to Wikileaks, you'll see that there are always options. Aaron didn't see any. I'd find it almost disgusting to make a judgement. Abstract reasoning can completely break down when you're facing a concrete, threatening situation. And the prospect of becoming "some kind of folk hero" may look very different if that's supposed to be you.
One. It is a very serious mistake to deny someone the right to believe the correctness of their own opinions.
Two. People use leverage. They may or may not use it rightly but they do use it. Anyone who cannot set their opinion of the justice of that to one side, and get on to the business of the contest at hand, is not cut out for politics. Such people enter these contests at a great disadvantage and risk getting hurt.
If you cannot fight with your head then you really should not fight at all. You will very likely lose. You might get hurt, and you might get hurt badly. Politics ain't beanbag.
Three. If you think an attorney able to rise to the position US Attorney will be caught in a "falsifiable claim" on a matter of this prominence then you simply do not understand what you are talking about.
Ortiz is an Obama Administration appointee who wants to run for the Massachusetts governorship. She's making this argument to try to salvage her political career...it isn't a courtroom argument and it will be easy for her to trip up, she doesn't understand the dynamics of this firestorm.
As a foreigner (French) I'm surprised that Americans apparently don't get that mixing a career in politic with a career in justice is the open door to abuse, demagogy or conflicts of interests. This should not be allowed or even possible.
We understand it some. It is very, very rare for a judge to join the legislative or executive branches. I can't think of an example at all.
However, people moving between legislative and executive branches of the government is pretty common. State legislators become governors, governors become federal legislators, federal legislators run for president.
In the US, prosecutors are part of the executive branch. That's because their job is to represent the state. They are supposed to seek justice, but in the context of an adversarial system. Judges are nominally neutral umpires; prosecutors battle with defense attorneys. Both sorts of attorneys are expected to fight vigorously but fairly for their side. So the burden of fairness mainly falls on the system and the judges, not the partisans on either side.
But yes, that does produce a conflict of interest when deciding what crimes to prosecute. They have an incentive to pick cases that benefit both the state and themselves.
It is indeed very different than the rest of the world. In US, not only careers in politics and judicial system often mix, but often career in the judicial system IS career in politics directly. Many of the high level positions, district attorneys, judges (not federal) are elected positions, hence by definition political.
Note that the UK government is currently in the process of adopting such policies. If they're successful, look for this sort of arrangement to be proposed in other European countries as "reforms".
I didn't like the sound of that when I first heard about it. Now I am dead set against it. Politics and the justice system have no business being connected like this in any way.
The system is so horribly compromised in the US it's hard to see how it can be meaningfully fixed. What a mess.
> If you think an attorney able to rise to the position US Attorney will be caught in a "falsifiable claim" on a matter of this prominence then you simply do not understand what you are talking about.
Some choice samples: Nixon: I'm not a crook. Oliver North lying to congress and many many others besides.
Officials at all levels make falsifiable claims all the time and sometimes they trip themselves up. Ortiz is under extreme pressure at the moment and very likely to trip herself up.
Actually, email was exactly what tripped up Oliver North.
Even getting rid of incriminating emails is worse than keeping them for inspection. North and John Poindexter (sp?) exchanged emails, deleted them when they realized they were in hot water and those emails were subsequently recovered.
> One. It is a very serious mistake to deny someone the right to believe the correctness of their own opinions.
This becomes very tricky when you have the power to enforce your opinions on other people.
I think that knowing the letter of the law is not enough and people who work as judges or prosecutors should also have profound sense of justice - without it, any law can be twisted and tortured into unjust persecution when there is a will. Even the best humanly possible law is not immune to that. It's always easy to find a stick when you really want to beat the dog.
The way I see it, if Cameron Ortiz were to prosecute herself the same way she apparently prosecuted others, she would be facing death penalty right now. But I'm sure she would be offered some 'acceptable' deal.
In the we live in the real world sense, absolutely.
The US gets to enforce US law around the world because they have more guns. You'll notice that when the USSR was around there were a group of countries with a vastly different system because the USSR had enough guns to force the people of those countries to play along.
The International Criminal Court is an even better example, the US is not a signatory to the ICC but can recommend other non-signatories to be prosecuted by the ICC while at the same time denying the ICC rules apply to the US.
Might absolutely makes right because those with out might are unable to enforce their decisions. Ortiz lives by politics she can die by politics, I'm sure she's experienced enough to realize the realpolitik ways of the world. She's no innocent bystander in the corruption of the American justice system.
It's never new information. Reality has been a harsh, harsh mistress for decades and decades now.
It's what makes debating with ideological idealists so contentious IMO. There's no way to convince them to settle for anything other than "what's right", even if the only way to get to that state is to first settle for gradually less-wrong states in between.
Even RMS had the pragmatism to start developing GNU on a proprietary OS with proprietary tools.
You cannot overcome Might by convincing it to be Right. Not reliably.
You overcome Might with Might. If you are Right, that actually increases your strength. But you still have to win. You still have to fight. That means strategy and preparation and readiness for loss.
Anyone thinking anything else isn't thinking, they're dreaming. They're going lose, and the higher the stakes the more they'll get hurt.
Which brings even more headaches when it comes to US (hegemonic) supremacy. Who would disempower them? What would they replace it with? The sort of people who could responsibly do this are not the sort of people who would push it forward with enough force to do it successfully.
> Nothing in the wire fraud statute or the cases construing it provides constitutionally adequate notice that manipulating IP addresses, spoofing MAC addresses, and gaining access to a free electronic communications network (MIT's) for the purpose of accessing another website to download journal articles which are free to those with access to the website, and for which access MIT had already paid, constitutes a federal wire fraud felony carrying a potential penalty of 30 years.
> Defendant's research has located no reported wire fraud case which is even remotely comparable to this one.
The defence lawyers may have been talking in hyperbole but they had some reason to believe that it was potentially 30 years. Perhaps because they had heard nothing to contradict that impression.
It's probably just legalese that refers to the case being closed, but the placement of the all-caps word right under Aaron's name sent a chill down my spine.
Heaven forbid when someone 'kill's the Apache instance on aaronsw.com...
EDIT: Sorry, this might seem a bit harsh/shallow, but it was my attempt at pointing out that there is a reaction here that is, in parts, bordering on the hysterical - to use the parent example, "I'm sure the use of 'terminated' is probably just legal terminology"... as opposed to what, "Yeah, we got him, target terminated"?
The statement says as much: "Ultimately, any sentence imposed would have been up to the judge". However, it's a little bit of a stretch to say that the prosecutors were seeking 30 years from the statement (there may be other statements that give information to the contrary).
The prosecutors piled charge upon charge. If they didn't want 30 years, why pile on so much? If they wanted 6 months, they could have stuck with a charge whose sentencing wasn't so extreme.
They pile on charges so that they have options. They will throw every possible thing they can think of at you and all they need is a couple things to stick and they have their win. They can drop some during negotiations to appear to be working with you. If they come at you with one single charge, you have a greater chance of finding some technicality that gets you out of it. Defending yourself against one accusation is far easier than defending against 10.
Double jeopardy (the U.S. Constitutional guarantee against being charged with the same crime twice) basically requires that the prosecutors bring every viable charge that they feel they have the evidence to support for a given single crime.
The flip side to this is that sentences are normally given concurrently, or simply based on the most serious charge actually found guilty of during the trial.
Does some other body write laws? It's 100% justified to criticize congress if you actually want to change things; a prosecutor can only prosecute for violations of the law.
Prosecutors routinely use their own discretion in both deciding what to prosecute, and how severe of a sentence they will pursue. To say "Hey, the law is the law, I'm just doing my job by enforcing it" denies this reality, and serves to remove her own agency from her actions.
Six months in a minimum security jail seems perfectly reasonable to me for repeatedly breaking the law and in no way some sort of "overreach" or "witch hunt". Her job was to find a settlement acceptable to both parties.
In fairness to the prosecution, pushing for the same exact sentence that the defendant refused to accept on a "gracious" plea bargain is poor economic policy. If the plea bargain sentence is really sufficient then there needs to be incentive to take the plea.
7 years is far less than the maximum sentence so she's still correct in saying they didn't push for the maximum (pending other evidence that might come out).
Not doing it is poor strategy, yes, but that doesn't mean that we have to accept it as good public policy. I found the recently posted paper on the German system enlightening: http://news.ycombinator.com/item?id=5059044
The point is what should not be the punishment, namely locking him up with actual violent criminals, thus in turn subject to actual violence, rape, etc.
Your comment is correct, but it is incomplete and avoids the real issue with "actually changing things".
"Actually changing things" may involve "criticizing congress" but I expect it to be rather more complicated. I think that all of the players in this case should have exercised discretion. The fact that so many people (including the citizens of America) allowed this situation to occur is the tragedy.
I think that the Aaron Swartz tragedy is not an example of an acute failure in America's legal system that we can blame on any specific element: the prosecutor, the congress that passed the law, or the court system that allowed this legal case to proceed as long as it did. I think the legal case is an example of a complete breakdown of America's legal system. In America we have 3 general wings of government that all have a hand in the legal system:
Legislative (e.g. Congress) that writes the laws.
Executive (e.g. prosecutor) that prosecutes potential violations of the laws
Judicial (e.g. the court and judge) that decides whether potential violations of the law are actual violations
I think we can justifiably criticize Ortiz and congress and the judge and Aaron and The American People for their roles in this mess, and I expect that all of them will need to improve before the situation does.
All of the players had opportunities to exercise good judgement and they all failed when presented these opportunities.
> I think we can justifiably criticize [snip] Aaron [snip] for {his role} in this mess
Thank you! I think this is the first time I have read a comment on HN about this whole mess that actually puts some of the responsibility back on Aaron. He had several opportunities to exercise good judgement. Like the first time he had to alter his virtual appearance to regain access after he had been discovered and cut off. They didn't yet know who it was. That was a huge missed opportunity right there. It all would have been over.
Huh? She's talking about the fact that people claim her office was dangling 35 or even 50 years in jail over Aaron's head. But her office had extended a deal to Aaron which would involve only 6 month's jail time. They had even been open to one that involved no jail time, and JSTOR agreed but MIT did not. (Not that MIT can just tell the DA what to do, but if the DA presents a deal to the judge, and MIT doesn't back them up, that's more likely to be amended by the judge.)
He's not Godwinning this at all. Claiming superior orders is exactly what the Nuremberg defense was all about, it is simply an accurate association. Just because something happened in relation to WWII does not automatically mean that any reference to it invokes Godwin's law, that's for inappropriate comparisons. This one is entirely appropriate as far as I can see.
It is actually, because unlikely though the name may seem to you the Nuremberg defense is actually a lot older than WorldWar II and was historically invoked for lots of other things besides war crimes. The fact that during the Nuremberg trials it was used so frequently that it got named because of them does not detract from this.
Sure. But what Ortiz is pulling here is not a Nuremberg Defense ("I was aware of the injustice, but my hands were tied"). She clearly states that she's completely fine with "severe punishment" in "appropriate cases", just that with regards to Aaron, it seemed somewhat inappropriate to her and her office. (I agree that her role, and the role of her office, in Aaron's prosecution suggests the exact opposite, but that's an entirely different question.)
I agree that her role, and the role of her office, in Aaron's prosecution suggests the exact opposite, but that's an entirely different question.
It isn't, though. That she comes out with this attitude afterwards is absolutely self-serving and cannot be relied on as an accurate description of her motivations. The "hey, well, that was just the press release" claptrap should be completely disregarded as a mitigating rationale for the ass-covering bullshit that it is.
This leaves us with the "hey, Congress passed these laws, don't look at me," attitude that, as Jacques astutely points out, removes her agency from her actions.
The concept and practice of prosecutorial discretion, however, casts the lie to that position. Barthes and Derrida's "death of the author" is not a force in the law, so Ortiz attempting to play The Cog role should be seen as nothing more than sarcasm.
In this case Ortiz "I'm just following orders" warrants a reference to Nuremberg. It's insightful to realise that things can get badly out of hand, even if you follow the letter of the law. Aaron's case proves the point.
You seem to be operating under a popular misunderstanding of what Godwin said. Godwin said, merely, that if the discussion goes on long enough, eventually the nazi era will be mentioned.
He never said it was always inappropriate to mention it, nor that those who mention it are always wrong, etc.
The popularity of "Godwin's Law" (especially this incorrect interpretation) has lead to a lot of people denying that anything in the US (or any online discussion) could be accurately compared to anything that happened in Germany.
Which is silly, but just another case of "when america does it, it's different."
and they recognized that his conduct – while a violation of
the law – did not warrant the severe punishments authorized
by Congress and called for by the Sentencing Guidelines in
appropriate cases.
Ortiz on 9/2012, adding 9 counts to the conduct that we learn "did not warrant...severe punishment":
Federal prosectors added nine new felony counts against
well-known coder and activist Aaron Swartz, who was charged
last year for allegedly breaching hacking laws by
downloading millions of academic articles from a
subscription database via an open connection at MIT.
Ortiz today:
Ultimately, any sentence imposed would have been up to the
judge. At no time did this office ever seek – or ever tell
Mr. Swartz’s attorneys that it intended to seek – maximum
penalties under the law.
And here is Ortiz in her own press release telling the entire world the DOJ is threatening Swartz with a maximum penalty of 35 years and $1M in fines:
AARON SWARTZ, 24, was charged in an indictment with wire
fraud, computer fraud, unlawfully obtaining information
from a protected computer, and recklessly damaging a
protected computer. If convicted on these charges, SWARTZ
faces up to 35 years in prison, to be followed by three
years of supervised release, restitution, forfeiture and a
fine of up to $1 million.
It is completely disingenuous for Ortiz to maintain that 35 years/$1M wasn't the threat on the table, that we are rubes for thinking that this sticker price was material. That sticker price is exactly what gave her leverage over Swartz, leverage to make 6 months in federal prison and felon status (not to mention legal bankruptcy) seem reasonable by comparison!
Ultimately, any sentence imposed would have been up to the
judge.
Exactly, and this is why this random variable was so intimidating. Do you take a guarantee of 6 months in federal prison and permanent felon status? Or a risk of 7 years, or up to 35 years, plus total bankruptcy if you really try to fight?
"Ultimately any sentence imposed would have been up to the judge" and had the judge thrown the book at him Ortiz & Heymann would have washed their hands: "Oh well, maybe the judge shouldn't have given him 8 years rather than 3, but that's what he gets for not plea bargaining." This of course disavows Ortiz's and Heymann's own complicity in drumming up PDF downloading into a federal case.
This woman really feels like her office's actions were justified, and that's the scary part. You get a sense of what Aaron was up against. She needs to feel what it's like to be in a no-win situation herself, with the choice being resignation or getting fired. That is only way that prosecutors across the land will get the message: that this was wrong.
I generally agree with your analysis, however you will find that lawyers disagree on the threat assessment. A prosecuting lawyer always says "these are the charges [specific charges] which carry a maximum sentence of [worst possible sentence]" and rarely (and never that I can find for first time convictions) are those maximums given.
The implication in the press, and denied now by Orbitz, is that she told Aaron's lawyer that she was going to ask for, demand even, the maximum sentence. And she has denied that was ever the case. His lawyers can confirm or deny that.
There is more to hear about the intransigence of MIT in their willingness to accept a lesser sentence as well. As with many things, everyone reporting on this has reason to shade the words to advance their point of view, and so it takes a lot of work to be discerning.
Empty words from Carmen Ortiz, and quite Orwellian indeed. Adding 9 felony counts just about proves that the prosecutors were NOT measured in their approach. Whatever MIT's responsibility, it doesn't diminish how wrong the behavior of Ortiz et al was.
Erm, I can see a reasonable case for adding charges, even if you don't intend to ask for the maximum. You can only charge a defendant once for any given crime. You can't bring charges under different theories of guilt if your first attempt fails. So, no matter what sentence you are going for, you want to charge the defendant with all the crimes they could be guilty of. Otherwise, if they evade the largest charge, there is no way to ever punish them at all, even if you could have proven the lesser charges.
There's only one crime, but there are a number of statutes that add all kinds of "add-on crimes", with widely intersecting definitions. Doing just one thing, you can be guilty both in computer fraud, unauthorized access, copyright violation, etc., etc. These are routinely used to a) intimidate the defendants and b) mislead the jury into thinking the defendant is a serious criminal (not one, but 15 charges! he must be guilty of at least something!) and gives strong incentive to "split down the middle" and convict on at least some of the charges. It is a routine trick, which is routinely used by prosecutors, and they know exactly what they are doing. In this case their intimidation has gone further than they intended, but otherwise they are not fooling anyone talking about how they really just wanted a small punishment and always told so to everybody. They bullied Swartz just as they bully everybody.
Analysis on Volokh's blog: http://www.volokh.com/2013/01/16/the-criminal-charges-agains... shows the number of the charges probably would not influence the sentence much, but greatly increases chances of conviction and creates serious chance for a long prison term if unsympathetic judge happens to be sentencing.
Prosecutors are supposed to inform defendants of the sentencing guidelines, which are usually quite different from the maximum allowable penalties. I think the office must have done this. Whether that was shaded with "and that's what'll happen" or with "but you're an enemy of the state, and we might just press for the maximum" is directly addressed by this statement, but we've heard more-or-less the opposite from Aaron's counsel. At this point, we have some he-said/she-said, but on the whole, given the contradictions in the statements and actions from the US attorneys, Aaron's counsel seems more credible. It'll be interesting to see how this plays out...
"And here is Ortiz in her own press release telling the entire world the DOJ is threatening Swartz with a maximum penalty of 35 years and $1M in fines:
http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.....
AARON SWARTZ, 24, was charged in an indictment with wire
fraud, computer fraud, unlawfully obtaining information
from a protected computer, and recklessly damaging a
protected computer. If convicted on these charges, SWARTZ
faces up to 35 years in prison, to be followed by three
years of supervised release, restitution, forfeiture and a
fine of up to $1 million. "
That quote in no way says what you claim it does. It makes a comment (as every DOJ press release does) stating the material fact of the maximum penalties available based on the charges laid.
It doesn't say anything about "prosecutors are seeking..."
> It doesn't say anything about "prosecutors are seeking..."
Wrong. It's up to the prosecutor which charges are filed, which are dropped, which are pursued in court.
If they are taking those charges to trial, and they were in this case, it means they are seeking those penalties. Now, they may ask the judge for a lesser sentence ... everyone wants to appear merciful after you beat the guy down, but they most certainly were seeking them to begin with.
Also, this entire "judge decides" is absolute bullshit. And it smells like bullshit to anyone who has been in a court room.
Technically, even if you accept the plea bargain, after you stand in front of the judge and say "guilty" ... the judge can easily ignore your plea deal, accept your guilty plea, and sentence you to the maximum allowed. Now, that almost never happens, since that would undermine the whole system ... but it can, since it's up to the judge.
Judges, frequently, give deference to the prosecutor on sentencing matters, unless they feel the defendant deserves a break. That puts the onus on the prosecutor to act in a just manner, instead of saying "oh, it's up to the judge, don't look at me".
Is it productive to society to convict someone of, say, "hiding one's identity in furtherance of a computer crime" (or the actual legal equivalent of those made up words I just typed) if that "computer crime" wasn't proven?
Not really, but there are statutes - such as "unauthorized access" which become felonies if attached to any (even minor) other crime. So you can take two minor crimes, join them and get a felony. Moreover, if both are of such nature, you can have two felonies now, and if jury returns guilty on any of them, I understand you'd have felony conviction.
Presumably if that particular combination were in question, there would be no way to prove the former without the latter. That doesn't hold for all the combinations the prosecution filed.
To say that it "in no way" says that is simply incorrect.
It's quite clearly swinging around the threat of a big sentence. I can't see how that could possibly be more clear.
It's meant to intimidate and frighten, not just Swartz, but any one else who may come into conflict with the United States Attorneys. That's why it's there.
It's not merely a statement of fact, it's bragging and intimidation.
Do you take a guarantee of 6 months in federal prison and permanent felon status?
This was never a guarantee. As she said, the judge makes the final determination. The DA's suggestion has a lot of pull with a judge, but the DA can't promise anything.
Just happened in my small town. Mayor got caught falsifying documents in previous city job. Pled guilty, agreed to fine + resignation. Judge threw that out, added 15 days in jail. Mayor didn't resign till the DA filed suit to enforce the law.
Much popcorn was consumed watching theatrics in town of 1k people.
Yes, but when have you seen it happen the other way? Judge throws out the plea bargain and gives lesser sentence. I'd be shocked and amazed. Now reading about that case would require some popcorn.
Haven't seen that. But this is the third in a string of entertaining mayors we've had.
Previous mayor got into a fight about hours worked with the council, and then after passing a resolution, the council had a lawyer look at it and decide that they couldn't do what they just did.
Previous to that, the mayor used the word 'poopyhead' on a local internet forum, which was disbanded later due to the excessive flaming over land use regulations.
Small towns are lovely, except for the talent pool for leading them.
Does anyone here seriously believe that she's going to be fired? And that Carmen Ortiz is such an exceptional case?
There are hundreds of prosecutors in the US who routinely - even though against predominantly non-white and non-prominent defendants - seek much harsher sentences for much lesser "crimes", often with much more dubious evidence, and much lower chances for defendants to ever have their personal situation considered in a public forum like this one.
The need to "start somewhere" doesn't exempt you from seeing things in proportion. ("Proportion" with regards to Ortiz. Aaron's death must not enter equations or comparisons. It's absolutely out of proportion.)
Charles Pierce wrote an exceptional blog post on the issue of Aaron Swartz along those lines:
"Which brings me to my second conclusion — Aaron Swartz ran facefirst into a law-enforcement and prosecutorial culture that we have allowed to run amok for far too long. It began with drugs. It intensified with the "war on terror." Preventive detention — though they don't call it that — has been mainstreamed, due process sacrificed to efficiency. Investigation without cause has been normalized in our daily lives, through mandatory drug testing and roadblocks and a dozen other ways we barely think about any more. Personal privacy has been rendered less important than official secrecy in the general scheme of things. We want — nay, demand convictions, and all barriers to them be damned."
"Back when rogue prosecutor Mike Nifong went crazy and ginned up a rape prosecution against several members of the Duke lacrosse team, there was a great deal of horror at how "the system" could have gone so horribly wrong. But it didn't. It just got aimed for once at people with the financial and social wherewithal to fight back. There are minor-league Mike Nifongs in every precinct house and every federal law-enforcement operation and every DA's office and all throughout the branch offices of the Department Of Justice. There are "Duke rape cases" happening every day in alleys and on streetcorners of every city, and on the dusty backroads on the outskirts of nowhere."
2% of American men are currently in jail. Among black men 30 to 34, 7% are currently in jail. We just don't notice the vast injustice of our justice system until we think it might affect us.
Attacking a single prosecutor who was doing her job and obeying the law won't change anything. Attacking the laws she enforced will.
>Attacking a single prosecutor who was doing her job and obeying the law won't change anything.
That's definitely wrong.
Prosecutors go after crimes like this in a public way partly to deter others. The theory is that if they make a clear example of one transgressor, it will scare others into line.
If that theory is good enough for hackers, who aren't particularly good at responding to social pressure, I'm sure it's good enough for career federal employees, who are notoriously risk averse. And the government will certainly fire people who have attracted sufficient negative media attention; Shirley Sherrod is a clear example.
I'm with you on fixing the other injustices as well, but that's no reason not to go for a win with Ortiz. Indeed, getting a win here means you'll have a bunch of people feeling victorious who can be motivated to move to something bigger.
"Doing her job and obeying the law" is not an excuse. "Doing her job" would have been to tell MIT (or whoever was responsible for this affair to end up on her desk) to go away. Even though I am aware that's not how becoming a "career prosecutor" in the US justice system works.
Remains the fact that none of the bright minds that congregate under news.ycombinator.com seems to have the slightest idea how "attacking the laws" is supposed to work. Apart from maybe a vague theory of erosion that appears far less convincing than pretty much anything most people here would dare to argue in the context of, say, a business plan.
It's essentially a problem of corruption. If you want to 'beat the system from within', for instance by joining the political stage or by becoming insanely wealthy through some corporate scheme so you can use your power to lobby you will end up being such an integrated part of the system that arguing against it will argue to a large extent against your own interest. That's why the situation persists. If you could convince large numbers of voters to vote their own interests instead of being tricked into voting based on inconsequential talking points you'd end up with Ralph Nader for president instead of a democrat or a republican. Fix that and you can fix everything else with relative ease. But that's a very hard problem to fix, if it is even possible. So you get individual fighting windmills at a level that they can relate to instead.
So if that was the venture you wanted me to support ("convince voters to vote their interest, and thus for a very different type of president" - seems to be a venture with a "media" or "campaign funding" angle, and I agree, it's a hard problem), then my question would be:
How do you assure that president will not be corrupted or compromised as well? How will he be able to tell every single person who is invested in the laws you're trying to attack (from corporate interests that are so huge that they're usually awarded cabinet posts to the sheer drag of gigantic bureaucracies invested in existing career paths) to go away? How can he practically reach the most powerful political position without sacrificing this very ability?
Plus: Imagine what would be the smartest, most malicious attacks on your plan. How would you counter them?
(Edit: None of these are rhetorical questions, of course. I do believe these laws have to be attacked. But if you asked me, maybe I'd rather invest in something like the study of political tectonics, earthquakes. Why do they happen so rarely, what makes them so destructive, and how can one provoke them?)
It's not so much corruption as an inevitable extension of the incentive structure.
If you tried to change a DA's office from the inside, you'd get about as far as if you tried to change an investment bank from the inside: you'd be fired, because your moral approach would have a definite negative impact on the number they use to measure your productivity.
You'd never get past making copies unless you assimilated. And even if you went 'deep undercover' and didn't assert your morality until you reached a position of influence, you'd simply be bounced from that spot, as you (and now your entire office or division) continued to deliver 'worse' numbers than those who would replace you.
>Attacking a single prosecutor who was doing her job and obeying the law won't change anything.
I disagree, if Ortiz was looking for a future in politics, she's finished. At the very least, she'll have to change her party affiliation. This is a good thing. Otherwise she could've possibly carried on at a higher level.
Although the various public reactions have yet to make any change in law; recent events may discourage similar prosecutions, at least in the near term. Also, a good thing.
But just putting a temporary cap on Ortiz' career doesn't seem like a big win to me, in the grand scheme of things. I know nothing about Massachusetts politics. Who knows she's not the "good cop", compared to the person whose career, as a result, will advance faster?
I also know nothing about Massachusetts politics; and you're right, it is a small win. Perhaps she would have made a future in national politics. Now she probably won't.
How she compares to the next guy (who won't make the same mistakes) I can't say. There are an infinite number of possible outcomes.
She can be technically telling the truth if the maximum penalty was 50 years (based on maximum possible value of damage), and they were only seeking 7 years.
The maximum penalty was not 50 years. There are several criminal laws that overlap, and on act can lead to a defendant being charged with several overlapping crimes. If the defendant is convicted for multiple of these overlapping crimes, the Federal Sentencing Guidelines call for just sentencing based on one of the violations. In other words, it is essentially max(), not sum().
I'm surprised no-one else is commenting specifically on the use of these words. Forgive my lack of knowledge/experience but isn't the point of the courts etc to go through the process of 'innocent until proven guilty'?
If this basic premise is broken and no-one's talking about it then things must be in a really bad way.
Of the court - yes, absolutely. Every court case starts with the basic idea that the defendant did nothing wrong. That would be the judge that follows that principle. Is the prosecutor supposed to presume innocence ? No.
It's almost the opposite : the U.S. attorney is not an employee of the justice system, she's an employee of the executive (she represents Obama's interest as head of state - nothing else). She is a lawyer that is in the service of the white house and should therefore defend whatever opinion the executive has on the matter.
In simple terms : if the white house thinks you're guilty the attorney's job is to prove that beyond reasonable doubt. Assuming it goes to trial (which this case did not do) it seems extremely likely that the prosecutor thinks you're guilty, otherwise, why would she start a court case that's likely to publicly humiliate the executive ?
Please keep in mind that the opinion of Carmen Ortiz did not really come into the picture. Once the complaint was filed, and the complainant (MIT and JSTOR) demanded damages, her opinion did not matter in the least - her job is to find a settlement acceptable to all parties involved or bring the case to court (because it's a criminal case). She proposed a number of settlements, which were refused by either Aaron Swartz or MIT, and informed them she would bring the case to court, at which point she informed the defendant of the charges (and included the maximum penalty for them - maximum penalty seems unlikely to have been applied in this case, but that's of course my personal opinion, and I'm not the judge). After that the guy killed himself.
Of course, speaking in general, any attorney would probably like to have good relations with MIT, a place that trains more than a few people who later become judges.
> How is it you've determined that Ortiz is lying on multiple accounts
Where did it say that?
If Aaron's lawyers statement disagrees with Ortiz' then there will hopefully be some factfinding to determine who tells the truth and who does not. If they both agree then the falsifiable claim turned out to be true.
At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law.
The absolute dishonesty of this statement has only further convinced me that firing this political appointee to prevent her from further harming citizens is the only appropriate action for our government to take.
This 35 year (or 50 year) thing mentioned in many blogs might be questionable. To be frank I feel myself a bit fooled by this information, reading yesterday that 6 month have been proposed to Swartz. When talking about things as serious as death, we seem to assume that every information is depicted really carefully, but this is far from being true.
The additional charges added later (after this press release) are the source of the 50 year estimate.
6 months was offered IF he agreed to plead guilty. If he went to trial, the prosecutors claim in the above press release that he faced 35 years; in private communications they have claimed they intended to press for 7 years.
There are exceptions, but most of the blog articles I have read on the subject have been extremely well sourced and well researched.
"We're not saying its going to happen to you, but these other three businesses have burned to the ground. If you give us 10%, we can make sure it doesn't happen to you."
At no point in this sentence did I say "If you do not pay us 10% we will burn down your business." However prosecutions have successfully argued, and any reasonable person would agree, that the first sentence is a threat, is coercive, and is criminal. Making a statement about what "could" happen can be interpreted (often correctly) as a threat. Making a statement about what could happen when the person making it is instrumental, even a required agent, in the future event, is most certainly evidence of a threat. Making such a statement while offering a lesser harm (or sentence) is most certainly a threat.
You may post as many replies on this thread that "threat" doesn't mean what we think it means but the law, common sense, and understanding of English, proves you wrong.
"I didn't intend to burn down their business, judge. I just pointed out that it could happen. Whether or not I would have intended to do so after they decided not to accept my plea-bargain^H^H^H pay my protection fee is immaterial to the case. You are conflating the two, a statement of intent verses a statement of fact. The fact is I did not burn down their business and you have no record of my saying that I intended to."
You state: "You may post as many replies on this thread that "threat" doesn't mean what we think it means but the law, common sense, and understanding of English, proves you wrong." however...
From United States v. Kelner (1975) -
"... the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution..."
The "threat" made by the prosecutor in Swartz's case wouldn't meet the conditions of unequivocal, unconditional, or immediate thereby rendering it not a threat. A layman may feel that they were threatened or that someone else would feel threatened by the statement in the press release, but the law does not consider it one.
I think you should read what that case was about (and that the US won and on appeal).
If I go on TV and make threats, then sure, the prosecution would have to meet that standard. If I meet you in dark alley with what you believe to be a gun (but aren't sure) and I make implied remarks about what might happen to you if you get caught wearing that watch, and maybe you can leave it with me and I'll be sure to return it to you when you're safe, then I'm going to jail. I don't have to say "Give me that watch or I will shoot you". If I imply that sleeping with me might get you that promotion, even without saying so, and I'm in a position to make it happen, then I'm guilty of sexual harassment. I don't have to say "If you fuck me I'll promote you".
Lets be clear. I'm not expecting Ortiz to be drawn up on extortion or racketeering charges. The examples were to demonstrate that a "true threat" does not require the defendant to say "I intend to X on date Y" for it to be taken as a threat or proof of intent.
I did read the case, and I do understand that the circumstances are different. The piece I wanted to draw attention to is that there are criterion for what constitutes a threat.
The examples you have provided in both of your posts include ominous characters and "dark alleys." More importantly, both of those situations involve an agent telling the other person they should take some action or there will be some consequence, implying that if the action is not taken, then there is a risk of the consequence. In the press release by the prosecutor, there was simply a statement of consequence, not a prescribed set of choices or a consequence if Swartz didn't take a certain action. There may have been threatening outside of the press release, but those facts are still murky and it is outside of the scope of what I am talking about.
If you are picking a bone with plea bargaining and how it is used to threaten people and coerce them into guilty pleas, then that is fine, I'm not arguing with you there - just with the perception that the prosecutor's statement was threatening.
Threat: "expression of intent to harm"=. Yes, I would say that it does.[1]
Stating "Charges X, Y, and Z could result in 35 years" is not a threat. Stating "Charges X, Y, and Z could technically result in 35 years, and I will seek at least 7 years" is a threat of 7 years. Stating "I am charging you with X, Y, and Z which could result in 35 years." and putting that out in a press release... that is threatening 35 years.
This. The press release simply stated the maximum penalty for the charges. A "threat" would have been a statement by the prosecutor saying what they intended to press for. Example - if someone were to state "I have a gun that could shoot you, leading to injury or death" that is a statement of fact, whereas if they said "I have a gun and I intend/will shoot you, leading to your injury or death" then they are making a threat. In this case the statement of fact was "If convicted on these charges, SWARTZ faces up to 35 years in prison..." the use of "IF" is very important.
Legal jargon is very specific and it may seem overly analytic to draw such a fine line, but that is exactly how law works and such specific distinctions must be drawn in order to understand exactly what is being said.
> Why are you hearing that Swartz faced 35 or 50 years if it was not true? First, government press releases like to trumpet the maximum theoretical numbers. Authors of the press releases will just count up the crimes and the add up the theoretical maximum punishments while largely or completely ignoring the reality of the likely much lower sentence. The practice is generally justified by its possible general deterrent value: perhaps word of the high punishment faced in theory will get to others who might commit the crime and will scare them away. And unfortunately, uninformed reporters who are new to the crime beat sometimes pick up that number and report it as truth. A lot of people repeat it, as they figure it must be right if it was in the news. And some people who know better but want you to have a particular view of the case repeat it, too. But don’t be fooled. Actual sentences are usually way way off of the cumulative maximum punishments.
It is a lawyer's statement. Absolutely true (probably) but completely beside the point because what they would seek in the event of a trial was still massively inappropriate (years of jail time).
Except that the statement is true. Even the worst case of actual sentencing threats that have come out so far have been in the range of 7 years if the case went to trial, not 35 or 50.
"...we would recommend to the judge of six months in a low security setting. ...his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge"
Little known fact here. When you accept a plea bargain you do not accept a sentence as part of that. Often times you agree to plea to lesser chargers which have a lower maximum penalty but you still run the risk of being sentenced to the max.
There is also the chance the judge will give a longer sentence with enhancements. It's possible you will have not been convicted, tried, or even charged for those enhancements. This has been ruled unconstitutional by the Supreme Court of the United States. However that doesn't stop judges from doing it anyway. When you are crushed, broke, and in jail what are ya gonna do, sue?
The plea bargain could have been capped at six months. US Attorneys do this all the time. There is much more that the office can do than just recommend a sentence to the judge. The defense attorneys may not have wanted to run the risk of consecutive sentencing. The probation office could easily have reached the conclusion that the property taken was valued at $5 million based on the FBI affidavit and at that point probation is not permitted under the Guidelines. Supervised release additionally would have prevented any computer use for 2-3 years. The defendant would have gotten low security anyway and that determination is not up to their office or even the sentencing judge--it is a determination made by the US Bureau of Prisons. The statement is misleading in more than one respect.
However in this case there were damages involved to outside parties - which meant they had to agree to any plea bargain if the US attorney wanted to present that to the judge.
Pollard has been transformed by opportunistic Israeli politicians into some kind of Israeli patriot. He's not. He did it for the money, selling secrets not only to Israel but to Pakistan (!) and South Africa as well.
Before this statement was issued, I didn't think we should be chasing them down to make an example of them[1]. Now that she is dishonest and trying to brush everything aside as 'business as usual', I am changing my stance. She needs to go. Not to make an example of her, but because we should not tolerate such dishonesty and smugness in our federal court system.
I've had a similar reaction to the Ortiz statement. Its self-aggrandizing tone of righteousness leaves me increasingly offended by her apparent lack of integrity and empathy in the ongoing pursuit of influence and power. This reveals such a striking contrast: Aaron's choices indicate he valued both integrity and empathy very highly.
Completely agree. There's no place for people like her in our society. I hope this kills her career, but I doubt it. Even if he gets fired she still will be corrupting the system in some capacity with her influence. But at least she won't end up with a job like Marsha Blackburn.
I think the collective HN IQ has dropped by about 40 points this week with all of these moronic statements.
She should get fired for doing exactly what she was put in to office to do? IE: Follow the federal sentencing guidelines like she should? In no way was there ever going to be some 30 year sentence. Six months maximum is not over reach.
While it is nice that she is passing blame to Congress, if it were only a "6 month low security setting" being discussed, why wouldn't Aaron have been told of this? Why the additional and ultimately 13 felony charges when he was MOST concerned with not being labled a felon. Why hold that 50 year sentence above his head with no HOPE in his own mind because he was left in the dark. "As a parent and sister", would you want your child to be stranded for two years with the full weight of the federal government and their impending punishment upon you hidden behind a dark veil? As a human, I both recognize that she is probably saddened and shocked that he took his life (and probably freaking out bc of the white house petition), but at the same time, it's clear that this shouldn't be allowed to happen, so if it means she loses her job - tough luck.
When cops come across otherwise nice young white guys who believe themselves invulnerable or above the law and are doing stupid, impulsive things, their usual practice is to "scare them straight." So they get tough on them, tell them all of the awful consequences they're in for, put them in a horrible, cramped cell, maybe throw them in with some real nasty characters, and, above all, get their parents involved.
It's a form of kindness. If you make them crush their self-confidence and make them feel like shit, they learn their lesson. They lose that blithe self-confidence and begin to realise they have to play by the same rules as everyone else. And then, they will hopefully turn into constructive, positive-minded members of society.
The practice varies with the character of the kid, the ugliness of their crime, etc. I'm not saying this is what Ortiz and co were thinking with Aaron necessarily but I wouldn't be surprised if it was an element. Aaron's behaviour was very removed from the situations I'm talking about, so the participants and response was very different. But he sounds like quite an... intense person, so maybe they decided they needed to put a lot of pressure on him to crush his spirit.
Of course, usually the kids don't kill themselves - but then usually it's not the justice department slapping them on the wrist. They should have realised that people like Aaron are very fragile. I won't apologise for that. A more delicate touch was required, because this outcome is just awful and a disaster for all parties. A real shame. But I do want to point out that their actions in frightening him were not necessarily without reason.
By the way, I have spent a night in a cold concrete cell sobering up and feeling like the world's biggest idiot. My escapade cost me $2700 and a lot of self-respect, and though it was awful at the time I am thankful and realise I learned my lesson very economically. Hearing Aaron's story is really painful.
Hey, I recognize what you're saying and agree with it. I too have been in that unfortunate and TERRIBLE cold cell once in my life and know what it feels like to have your freedom stripped from you (and mine ended up costing 10k+ in the end).
No one will ever know why Aaron killed himself fully, and that is unfortunate. Most of us only learned of him fully through his suicide. When I watch youtube videos of the guy, he seems so damn intelligent, eloquent, literate... It's hard to imagine that he wasn't smart enough or brave enough to truly ask the community for help.
That all said, one of the main things I've learned through my own past escapades and more so through tragic news like this, is that the justice system is inherently fucked up. It is designed to destroy the plaintiff. I have lived through this and it was the most miserable experience of my life (thanks ex gf I used to love for 5 years). Once you are in the 'system', or they are after you, if they have a reason (in their own mind), you are fucked.
Unless you are a multi-millionaire who can afford to pay your way out, and even still, you're most likely getting fucked from one direction or the other.
I think that is what this entire thing boils down to. Overreach of the Federal Government. Punishment does not fit the alleged and unconvicted crime.
Aaron might have had depression issues (a whole different beast in itself), but from all the empirical evidence available to the public, it seems like he was truly pushed into a corner and a high risk for suicide - and unfortunately he fulfilled that presumption.
Thanks for the thoughtful response. My experience is with the New Zealand legal system so I should probably not be commenting on the American situation in the first place. I'm sure you know these issues much better than me.
> If you make them crush their self-confidence and make them feel like shit, they learn their lesson. They lose that blithe self-confidence and begin to realise they have to play by the same rules as everyone else. And then, they will hopefully turn into constructive, positive-minded members of society.
I don't believe there's any evidence at all that this on average has the intended effect. If there is, I'd love it if someone has a reference.
USA requested the extradition of a young student[1] from UK over copyright laws, for sharing links. UK Home Secretary approved the order and the outrage ran the world. Without the attention the story got that young student would be in an American jail today.
Look, I guess you have no reason to believe me, but this is just not how the US government works. There's no staffer in the Administrative Office of the courts who's upset at Aaron and tells the United States Attorney for the District of Massachusetts to throw the book at him.
"If it were only a '6 month low security setting' being discussed, why wouldn't Aaron have been told of this?"
He was told. If you can even imagine that he wasn't, you need better news sources. This kind of anti-reality nonsense sounds an awful lot like Tea Party conspiracy crap. To effectively critique the law, everyone needs to learn how it works.
1) We put you away for the rest of your adult life.
2) You admit that you're a guilty son-ova-bitch and you do a small amount of time with a felony conviction that hangs around your neck forever.
3) ... There is no third option on the table. You don't go to trial on those odds and hope that the system decides in your favour, otherwise, LIFE (gavel drop).
They still believe that? Sorry but they're unfit for the job. They need to go. There was nothing reasonable about their actions on this case.
> a sentence that we would recommend to the judge of six months in a low security setting.
Six months in jail for downloading files that were accessible to him? All he did was violate terms of service! Are we going to start arresting under-age Facebook users or gamers that cheat next? Should they get six months too?
This statement is just icing on the cake that proves that Ortiz is inappropriate for that job/role.
Kerr does a textbook analysis of the facts, ignoring the particularities of this case. Not one but three (!) lawyers picked up Aaron's case, and all three failed to reach a plea bargain -- clearly the prosecution was more "motivated" than usual. Given this fact, the fact that in these circumstances a bargain is not actually binding for the judge, and the other fact that there was no interest in keeping Swartz happy post-sentence (no co-conspirators to turn, no further loot to recover etc), you can see why Swartz would not agree to just put himself in the hands of a Justice, and why the "six months" scenario was actually fairly unrealistic (and still disproportionate, regardless).
I also disagree with his view that (I paraphrase) "we shouldn't criticize special cases, we should criticize what goes on every day". Yes, we all agree that you shouldn't "be good" only at Christmas, but the reality of this world is that legislative bodies quite often (if not all the time) will only act on the impulse of particular cases. This is what is happening now, which is good. Also, I'm sure that not "every day" prosecutors callously dismiss proven suicidal tendencies in pursuit of career-enhancing convictions, if anything to avoid ending up in a mess like this -- except for Heymann, who clearly won't give two shits about the wellbeing of young hackers. One case is a mistake, two is a pattern, and Heymann and his boss should take responsibility for their behaviour.
Kerr, who has both prosecuted these kinds of cases and defended them, ignores none of what you're saying. He comes about as close as someone who might in the future need to deal with these specific prosecutors can come to saying that the prosecutors were exceptionally aggressive.
Further, while it is possible that circumstances could arise in which a 4 month plea from Swartz could be ignored by the judge, those circumstances are extremely unlikely. Not only do judges rubber stamp plea deals, but in a case involving 13 felonies, Swartz would very likely have arranged a Rule 11(c)(1)(C) plea in which the judge's refusal to accept the plea simply would have resulted in a trial.
You seem to be implying that if the prosecution doesn't offer a deal you like, you should just keep hiring new lawyers until they make a better offer. Sounds like a get out of jail for $(cost of X lawyers) card.
Lawyer-people are (usually) human beings. Despite all the appeals to "professionalism" between prosecution and defense, some of them just have a better relationship, trading favours and whatnot.
Most honest defense lawyers will really have the best interest of their client at heart, and just dismiss themselves if they feel they can't work with a certain prosecutor; they might even recommend their own replacement. After all, it's in their own best interest not to get what they feel is a sub-par result on their CV.
The fact that Swartz went through three lawyers, coupled with what the last one of them said, might as well indicate that all of them felt the prosecution was being unreasonable, and were hoping that a different person might have obtained better results.
>These two links will clear up a lot of misconceptions you seem to have about this case.
Do they? The first analyses the law given a stated set of assumptions about the facts. If Swartz was able to successfully dispute some of those alleged facts (many of which came from the indictment), it could completely change the outcome. And the second basically punts on the specific issue of whether the plea offered was appropriate or not, describing the legal standard but declining to apply it to the case.
Both posts are excellent if you want to get a feel for the law surrounding this case from someone who legitimately knows what he's talking about, but whether what the prosecutors did was appropriate depends substantially on the actual facts, which Kerr has no better access to than the rest of us.
To hear Aaron's defense counsel tell it, the facts show that he was completely innocent. And if you accept that version of the facts rather than the one in the indictment, it seems especially difficult to conclude that what prosecutors did was appropriate.
They should both be required reading for those interested in the aaronsw case IMHO. There's a reason the consensus about the case (even on HN!) before Aaron's suicide was so wildly different from the current witchhunt, and the reason is contained in those two Kerr writeups.
Downloading four million files, apparently. And if by breaking terms and services you mean illegally distributing protected content and threatening the business model of JSTOR then yes, I suppose that is true.
One, two, a million, four million, what difference does it actually make? The crime was violating the terms, it isn't relevant where the EOF bit was transmitted. If you made the same files half as big he would have "stolen" twice as many files, or twice as big then he would have done half the crime by your logic.
He never distributed anything. No clue where you got that from?
Additionally "threatening a business model" within its self isn't a crime. In fact one might argue that it is a very good thing. Monopolies have often fallen to disruptive technologies, should we go arrest the people behind VoIP because they went after the telecos? Or the inventors of the printing press because they put scribes out of business? Or the inventor of the light-bulb because nobody had to light all of those candles each night?
The only "crime" here was violating terms. For that they want to hit him with between six months and thirty five years of jail (plus costs, fines, and a criminal record). If this same over-reaction was applied to all terms violators we would have half the country in jail right now.
It makes a big difference. Four million is apparently the majority of JSTOR's database. Keep in mind that JSTOR doesn't own those articles, it just arranges approved access to paying institutions on behalf of the various journals which do own the articles. If Aaron had distributed them he might have damaged around a thousand different institutions involved in an important segment of the knowledge and innovation industry. You can argue that that industry should change but I am not sure I can agree that a brute force assault is a good way to create constructive change, especially in a relatively fragile and cash-strapped field like academia.
Anyway, I've used JSTOR a lot as a university student. It's a really good service. They don't create the economics of the journal industry, they just try to work within it.
And no, I disagree with you, Aaron's actions strike me as extreme and out of the ordinary.
Or his actions could have spread the wealth of information to many who lack access to it, facilitating further progress.
The notion that publicly funded research works are behind paywalls is absurd.
In any case, we will never know, because he never got around to actually distributing or doing anything with the downloaded products of public funding.
Are you sure that every article behind the JSTOR paywall was 100% publically funded? That's one question I've never heard the answer to.
Not to mention, let's say we're talking about stuff funded by the U.S. taxpayers... are you sure they would want those scientific articles to be freely available outside the U.S.? Similar questions apply to things funded by the U.K., France, etc.
Who gets to make that choice? In Aaron's world, he anointed himself Caesar and said that he gets to do so...
> Are you sure that every article behind the JSTOR paywall was 100% publically funded?
No, but we also don't know if his 'keepgrabbing' script was checking whether or not an article was in the public domain. This metadata is somewhat present on the JSTOR pages so it's conceivable that he might have been checking.... or not.
It is about extremely accomplished "young white men" deciding that unjust restrictions (not even rules, but terms of use of a website) should not be obeyed.
Terms of use are rules. Terms of use are the contract you establish with a party when they agree to render services to you. Just because it's "a website" doesn't mean shit.
Anyway, I don't care how accomplished you are, you don't get to decide that you don't like an arbitrary subset of the social contract and hence should be exempt from it. You are welcome to construct an argument against those rules and attempt to persuade others to your cause. But an argument for exceptionalism is no excuse for bypassing normal, democratic channels for political change.
Honestly I don't see why this point is so hard to understand. Aaron thought he had the answer to society's ills. You know what, everyone thinks that. Grumpy old men pissed off at immigration think they have the answer. The Unabomber thought he had the answer. It is one of the key advantages of democracy that we do not let individuals who think they have the answer just march in and change things as they see fit.
He didn't harm anyone in his violation of the website's terms.
Should the user of adblock be facing multiple criminal charges if they visit a website whose terms disallow its use? It's absolutely ridiculous to allow these terms to be used for criminal prosecution.
Civil disobedience is a valid form of protest, and such a minor act of disobedience is ridiculous to throw dozens of frivolous charges on.
The democratic process for change in the US is long dead. Aaron had powerful enemies in Washington.
What's to minimize, when the only potential victim of his actions said that were not harmed (and indeed they were not)?
What conflation? Do you think criminal charges for violating a website's terms are not ridiculous? Do you use adblock?
If you think democratic forces in the US are still working properly, I can see why you'd find realism to be melodramatic.
And finally, if you think powerful enemies in the US amount to nothing, you are again extremely naive.
In any case let's hope you aren't caught using adblock and violating a website's terms and being completely financially ruined in the pretrial stages of a frivolous prosecution.
Your theory is that a lot of libraries would suddenly stop subscribing to JSTOR because there's an old torrent of articles out there? That strikes me as ludicrous.
I believe there is no circumstance under which a release of the articles would have threatened JSTOR's business model in any significant way. And I think JSTOR believes that as well, which is why they told the feds not to pursue this.
Ah yes, the flipside of the normal rule of law, where it only gets directed at the poor. Now you're saying it's OK to mug someone, as long as they're rich and wouldn't have really needed the money anyways.
What a ridiculous thing to say. I never said it was ok to mug someone because they're rich.
(1) this is an organization, not a person
(2) they're not being 'mugged' (see below), it's us that are being mugged every time we want to read about some piece of research
(3) whether or not they 'need money' isn't a factor
(4) use of the word 'mugging' implies violence, which was not applicable here
The law has long recognized that there is such a thing as 'the public good' as well as 'the public domain'. That didn't stop Disney from getting rich over stories already in the public domain and it won't stop publishers from making money on content.
There is no innate right to wall off a chunk of human heritage and claim ownership, even though lobbying power and money have distorted the balance of power substantially.
> There is no innate right to wall off a chunk of human heritage and claim ownership, even though lobbying power and money have distorted the balance of power substantially.
That I agree with, along with our problems with the public domain and copyright reform. I just don't like the reasoning couched in language about how much benefit a particular party has obtained.
E.g. we might decide that copyright period of, say, a year is hurtful and should be extended because overall (or on average) not enough benefit is obtained overall for those with copyright protection, causing an overall hurtful effect to society. But we wouldn't base that decision just on party A or B.
I understand you may simply have been using a specific example to speak for the general principle though, and if that's the case I apologize for jumping on your argument like that.
There was a mix-up between academia and the publishers, with academia's financial issues used to bolster the case against sharing this data. But in actual fact the academic institutions pay the publishers and those publishers are very wealthy.
On another note, why is there only one 'kind' of copyright? Why do the same rules that apply to work written for profit apply to work written for scientific edification? Some differentiation there would go a long way towards solving these problems.
Don't get me wrong, I'm not at all a fan of the system setup by Elsevier et al. There's a lot that can and should be done to overhaul and scale back our system of copyright and other "intellectual property" to work better for the progress of society. I'm just also not a fan of the concept of "the ends justify the means".
"If Aaron had distributed them he might have damaged around a thousand different institutions involved in an important segment of the knowledge and innovation industry"
I know there is his manifesto from a couple of years ago but we can't be sure what he was going to do with them.
The most interesting thing is that the manifesto really walks a fine line. For example, here is one of the most relevant parts:
"We need to take stuff that’s out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks."
Now here's the funny thing: The first two arguably aren't illegal or infringing. If something is out of copyright then you can copy it. If you interpret buying a secret database as actually buying the distribution rights to it, neither is that. And if you read it in that context, you can imagine circumstances in which the same could be done to journals in specific circumstances, e.g. as a call for academics or their universities to retain their copyright so that they could do so with authorization, or with the subset of journals that charge for access but still allow liberal redistribution by those who have paid, etc. On the other hand, he's talking about civil disobedience, which implies lawbreaking. It's a conflicted piece.
So you have that, and then you have the fact that he was known to do work on text processing that may require a large corpus of articles for a database, which provides a rational alternative justification for downloading the articles other than to post them to file sharing networks -- or perhaps he intended to do that and also post that subset of the articles downloaded which could legally be posted, either because they're in the public domain or were appropriately licensed.
The point is we don't know, and the prosecution has the burden to prove it beyond a reasonable doubt. So even if you think it's more likely than not that he would have posted them all to Pirate Bay, do you think so beyond a reasonable doubt? Because if I was on the jury, to me, the above doesn't feel like beyond a reasonable doubt.
I keep on hearing this, and it continues to make no sense to me, so forgive me for reposting one of previous posts (s/commercial value/business model/ if it helps):
It seems implausible to me that publishing the contents of JSTOR in such a way would actually destroy any substantial amount of JSTOR's value. What university would actually drop their JSTOR subscription in favour of a bunch of unlicensed PDFs they torrented? JSTOR, in addition to keeping you on the right side of copyright law, gives you all their systems for querying their data, and keeps itself up to date.
Maybe a university in a developing country would drop their subscription, but any in the US? I find it unlikely.
Such a torrent would be far more useful to an individual who didn't have access to an organization that subscribed. However it seems these pay-per-download fees only account for a fraction of a percent of JSTOR's operating budget (http://news.ycombinator.com/item?id=5064408).
So it looks like there is some feasible harm there, but by no means destroyed commercial value.
Really? Not sure if it is just me but i found the JSTOR.torrent years ago and I always assumed it was from Aaron, the file was big like 35gb, I know there is another branded Aaron torrent floating around somehwere
It's sad that he committed suicide, but that is not a rational response to 6 months in a low security jail.
Conrad Black did 30+ months. Kevin Mitnick did several years. Even Martha Stewart managed 5 months.
Also, with his profile and past history, his felony conviction would not seriously impede any career he wanted to undertake.
Finally, the whole point of civil disobedience is to break a law, and get caught, punished and make (to a certain extent) a martyr of yourself to draw attention to your cause.
Except defending himself would have cost on the order of a million dollars (Per Lessig) - does he go to his family for that? Even if he turns out to be found completely innocent, him, his family, and those who he can turn to would have been wiped out financially. That part of the story doesn't get enough attention.
If he accepted the plea bargain of six months, then the case wouldn't have gone to trial, avoiding the excessive legal fees. I don't understand the timeline, but had he accepted the plea bargain, is it not possible that he would have already served his sentence by now?
Maybe. The point is that you shouldn't submit to 6 months of federal prison without trial or appeal, all the money loss for the two years in the case and your life ruined by the felony counts records for using a script to download files you already have legal access to.
At worst all there is to this is trespassing, on an open campus on an open network etc etc.
The american system is one of the worst in western society, granted, but the British one is not that much better at all.
Some claim is worst. I never had the misfortune of having to try that on my skin but heard from friends and family.
This article brings up an interesting point in general that paying for a lawyer by the hour doesn't align the incentives of the lawyer with the client. If I were going to hire a lawyer I'd want to do it on a salaried + bonus if you win basis.
Being with a gun pointed to your head for a long time kills the free spirits.
Imagine being a freedom fighter like no other, and the society reward for that being 35 years in jail and 1M fine kills any morale left.
The other side of the table are the banks, the military, dirty politicians, a propaganda machine, useless bureocrats and the science "industry"; all these have no morals, contribute to nothing and get the most rewards.
I can't even imagine how it would be like to live in Aaron shoes. Country with cowards in power.
>the whole point of civil disobedience is to break a law, and get caught, punished and make (to a certain extent) a martyr of yourself to draw attention to your cause.
This is assuming that his intent was actually civil disobedience -- what if he didn't think what he was doing was even illegal? His lawyers apparently didn't. And he wasn't even charged with copyright infringement, which is ostensibly the law he would have opposed.
I know from personal experience that the US Attorney's Office always states in their press releases the maximum penalty possible that the defendant is facing. Each charge has a maximum number of years and they state the number of possible consecutive years possible.
Had Aaron Swartz been found guilty, there is no way he was going to face the maximum penalty. There is a high probability that the penalties associated with the charges would have been run concurrently.
Once found guilty, US Probation writes a Pre-Sentencing Report which calculates the time the defendant is facing. This calculation is based upon numerous details, including but not limited to actual damages, criminal history, and offense level with points that range from from 1 to 43.
If a defendant agrees with the government that he or she is guilty and pleads accordingly, he or she will generally get fewer points for offense level. If a defendant contests the charges and exercises his or her constitutional right to have his or her case heard by a jury and is found guilty, US Probation will increase the number of points. (Imagine that. The government gives you more prison time for exercising your right to a trial under the Constitution). The more points calculated, the more time a defendant is facing.
Good time is applied to a sentence by the federal prison. An inmate is supposed to do 85% of their time if he or she has no infractions, but since the federal prison system has an interest in keeping people imprisoned, the bureaucracy has found a way to deliberately mis-read the good time statute and apply it in a way so that a defendant actually does 86.2% of their time. A sentence of one year or less will not have good time applied. Anything above one year and the good time calculation is applied.
The biggest risk in taking a case to trial are the members of the jury. The government educational system has done a great job of dumbing people down so that they follow the government's bidding. ie., "If he's on trial, he must be guilty." Few people actually think for themselves and question what is told to them by an authority figure.
So Ortiz' message is that - this is my job I fight for the law, and I agree that its over the top, but it is what it is. Change the framework and I'll do what it says.
The law (edit: and system ) is set up so that a "good prosecutor" would work to prove Aaron was guilty of breaking those laws.
The final sentence, which is the responsibility of the Judge would have to take account of everything especially his motivation, to give him an appropriate sentence.
"I'm just doing my job, and the final sentencing isn't in my hands"
---
Fine - that's her version, and frankly - its exactly as expected. There really are few if any other ways that Ortiz could explain her actions.
Strangely its also pretty much the exact defense that the Financial industry has used so far. AKA these are the rules, hate the game not the player.
Sometimes people from the outside are required to point out that somethings are obviously morally wrong. Especially when Insiders end up missing it.
There's an old saying that a good prosecutor will convict most guilty men, and a great prosecutor will convict a few innocent ones too. That's how these machines think. She's right only in that congress was stupid enough to give her any form of discretion at all.
I think this release is worded disingenuously. My understanding of this case is that the 6 month offer was only part of the plea deal the prosecutors held out if Aaron didn't go to trial. If he exercised his right to due process and went to trial, he did indeed risk the full 35 year penalty and no such sentence recommendation was on offer.
This is typical of many prosecutors in the US, unfortunately, who attempt to terrorize defendants into accepting their plea deals. It's not much different than the way torture was used in the Middle Ages to extract confessions and secure convictions.
It's pretty sad to see a press release that attempts to obfuscate the truth like this.
It's obvious that the investigation was a contributing factor to Aaron's decision to take his life, but to what extent? Was this at all investigated by the media, or have everyone just made the connection, because it was the easiest explanation?
Aaron killed himself two years to the day of this whole ordeal starting.
Either that's an incredible coincidence, or Aaron decided to take his life as a political statement. Given his past actions, that's an easy assumption to make.
Also, his request for a plea deal was denied in very harsh terms two days before Aaron took his own life, so even knowing just that and the fact that he really did not want to be labeled a felon, it's easy to make the connection.
Finally, Aaron's own family, partner and legal representation believe they were related, i.e. those closest to Aaron believe the federal trial was a major cause.
Of course, he also had a history of dealing with depression; I don't think anyone's denying that.
There are people along history (and I mean specifically civil servants, like Thomas More -the first that comes to my mind but by no means the only one-) who have even given his life because they did not want to comply with 'the law'... This 'complying with the law' is fedding me up.
Someone has already noticed that bankers did also act 'with the law on their part'...
And all the rating agencies, they suddendly 'just offer counsel and advice', they are in no way suggesting that a product is fit for buying or selling...
In our opinion not, but the rules are that only money decides the rules.
And the rules are that other people are always to blame and that the law, no matter how corrupt, is the law.
The problem is that especially these people (civil cervants) are chosen on this fallacy, are only loyal to their families and peers, all others don't exsists or are there to pull a leg out.
There is a huge Us vs. Them attitude amongst most people (not all, gladly) serving any government.
> That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct – a sentence that we would recommend to the judge of six months in a low security setting. While at the same time, his defense counsel would have been free to recommend a sentence of probation.
That is terrible writing. Ms. Ortiz should be doubly ashamed.
> ALLEGED HACKER CHARGED WITH STEALING OVER FOUR MILLION DOCUMENTS FROM MIT NETWORK July 19, 2011
> AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.
Maybe us common folk don't understand that when the Department of Justice says 35 years they don't mean 35 years? Do the defendants in these cases understand how many years they are actually being expected to serve?
It is obvious from this press release from the formulation "faces up to 35 years in prison", that they are simply quoting the maximum penality for the charges.
The prosecutors press release says that they didn't intend to push for maximum penality.
These two statement are perfectly compatible with each other.
I think those two statements are in direct contradiction with each other, and Aaron's lawyer is on the record that they were putting up a > 10:1 ratio for a plea bargain.
So they may not have been seeking the technical maximum but they were definitely beating their drums quoting that maximum where ever they could. Now that that makes them look terrible they're backpedaling on that but there is enough documentation out there to make this look like what it is: full-on damage control.
The Aaron Swartz story is starting to get some serious play in mainstream media and that is something that worries people like Carmen Ortiz more than anything else.
The maximum was so high they didn't even need to go near it for the terrifying threats of the > 10:1 ratio. The talk is that the plea would have been 6 months and that at trial they would have asked for 6 years. 12:1 ratio and they can truthfully say that they weren't asking for the maximum. They can't truthfully say that they wouldn't seek the ridiculous though.
Likewise she focused on the plea bargain offer of side of 6 months but not on the fact that this would have involved admitting guilt to 13 felonies. For someone with honour who really believed themselves not guilty (at least of serious crime) that could be as much of an issue as 6 months low security detention. For lawyers it seems to be a game and the sentence and number of convictions is the score; unfortunately the victims of the law take it more seriously.
Always look at what isn't said not just what is said.
Ha. They're actually not contradictory, if you look at it like a lawyer. They never said to the court or to his lawyers that they'd seek maximum penalties. They said it to the press.
Jesus, that's slimy. I'd say Ortiz is still in denial about the fact that she just lost her chance at the governorship just for playing the game by the normal rules. Corruption sucks when it comes back to bite you.
Why would those be contradictory? If the prosecution charges a person with X, and the maximum penality for X is, say, 10 years then it seems perfectly reasonable to say that this person faces up to 10 years in prison.
In court the prosecution may well argue for, say, a 5 year penality under the given circumstances, and ultimately it's up to the judge.
It's obvious that the communication to Aaron was "up to 35 years", he wasn't told "up to 7 years" or "up to 3 years", the communication he received was "up to 35 years in prison".
To argue that the prosecutors didn't intend to push to maximum penalty would be to do so without any basis in fact - it would be mere speculation and of 0 value compared to the recorded facts as they stand.
From the very press release we are commenting on it is clear that this is not mere speculation but what the prosecutors office claims:
"Ultimately, any sentence imposed would have been up to the judge. At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law."
At best you could say that her statement contradicts the one of Aaron Swartz' lawyer (I don't know, I don't have a reference for his statement), but ignoring the existence of one statement while elevating the other one to the level of truth is dishonest.
what about the "to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million" ?
and adding to that, his legal fees would have also cost millions?
everything about their stance said "we are going to destroy you, grind you to bits", with all the "up to this" and "maximum that", it seems like only the very luckiest outcome would have left him with his life and that of his family somewhat in tact.
apart from the legal fees, those would go down the drain regardless, just for buying the chance to fight back.
can someone explain that to me btw, I've heard it a few times, but how can legal fees become so exorbitantly high? In other cases I've heard about numbers like $100k, which is also crazy high, but normal for the US, but for Aaron's case I've heard numbers quoted like "millions in legal fees", how is it possible that those legal fees are suddenly 10x more than the already high numbers I normally hear about? Does the price go up because he's rich? What happens to people that cannot buy justice?
Being forced to sink a million dollars will ruin most people's lives as well. The worst part is, as legal fees, it's not even part of the punishment, officially. As an individual, $100k is a tough pill to swallow, but a debt you can work yourself out of over the years.
The reason why those legal fees are so high is because you're not just hiring a lawyer to defend against a federal suit, the lawyer is just the point man. There is a whole army of support behind that point man working hard to supply him/her with relevant data. A missed detail can cost you the case. The other side in cases like this has a (from the point of view of a single defendant) unlimited budget to make something stick, so just like any other arms race your own resources (money, translated into legal time) will have to be brought up to match this or you will almost certainly lose, even if you are innocent.
There is something extremely wrong here but that is how it works at the moment.
...because the penalties are so high. That's the actual reason. Because when the maximum penalty after a trial is a 30 day misdemeanor, you hire a lawyer and pay them two months of your salary and you make your case, because that's about the point past where spending more money to defend the case is no longer worth it against the possibility of losing.
But when the maximum penalty is a 30 year felony, or even a 10 year felony, you spend every dime you have, because the penalties are that high. And then, because criminals are so consistently charged with enormous penalties like that, which makes them consistently go all out on their defenses, the prosecutors go to Congress and say "we don't have enough resources to fight these people who have these high priced defense attorneys" and they get multimillion dollar budgets for individual cases.
Which brings on the arms race. So now you're not just spending every dime you have, you're spending every dime your parents have, every dime your friends have to prove that you didn't do it, every cent you can borrow from a bank or a loan shark, because the alternative is even worse. And the more defendants spend, the more prosecutors get to outspend them, because "we can't have criminals with more resources than prosecutors."
Scale back the stakes and you scale back the resources needed to fight over them.
After the fact you can try to make it sound however you like. But when your option is to get off the lawn or get a bullet in the head, it sounds entirely different. The release is loaded with statements making it sound like he "deserved it" and some empty "didn't intend to" is worthless.
> AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.
We can compare this to United States Attorney Carmen Ortiz, who, facing the ruination of her career over her actions, says in this new announcement on Wednesday, "At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law." This new statement does not align with the documented history of statements made by the DOJ as evidenced in the above link. Perhaps though she is trying to argue that she, as the United States Attorney for the District of Massachusetts, is somehow not part of the United States Attorney's Office for the District of Massachusetts that issued the press release which says "SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million". This would be a difficult argument to make given that the press release itself specifically names U.S. Attorney Ortiz as the person who made the press announcement.
Isn't this just the way these things are done in the US?
America has an adversarial system of justice.
It also has a plea bargaining system.
Don't those two together naturally lead to situations where each side will threaten their worst in an effort to gain the best bargain they can from the other?
I agree that the "Statement" is misleading. If Ortiz really believed that a Guidelines sentence was inappropriate they could have offered a capped sentence of six months or stipulated to a lower financial valuation of the stolen documents to bring down the Guideline. Neither was done. A prosecutor's recommendation is useful, but it is not binding on the Court. They did not agree to dismiss the other counts of the indictment, and while this would not affect the Guidelines, the sentencing judge could decide to impose sentences consecutively. Swartz would have been without computer access during a two to three year term of supervised release as well. If Ortiz really believed what she wrote in her Statement her office would have limited Swartz' criminal exposure to six months. US Attorneys' offices do this all the time. Hers did not. Her statement is misleading.
The cover-up is always worse than the crime and this Statement only makes me wonder what else is out there. She should resign.
As damage control goes, Ortiz's statement is inadequate. There is a well-supported petition calling her out by name to be fired. There are major media outlets openly questioning not only her actions, but the fitness of the entire Justice Department to act appropriately. Not one or two media outlets, but dozens. The situation seems very serious indeed. This is the bloodless, half-assed kind of statement she makes in response? I don't get it.
That one word, "setting," puts her squarely in bullshitter territory. The obvious and honest word is "prison". But that's too dark a color for the painting she's holding up for us.
"Yesterday (as reported by the Wall Street Journal and elsewhere):
"At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law."
And July 2011 (as posted by justice.gov itself):
"SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million""
Stating that a person faces x amount of years is not the same as saying we are seeking to put you in jail for this many years.
Correct me if I am wrong, but this is how anyone who allegedly broke the law would be treated. The law you broke states you can face up to x, y, and z for breaking it, but hardly anyone gets that maximum sentencing. Hell, even murderers rarely get the maximum sentencing.
Ortiz is simply trying to undo the damage she has already done.
Well, Ortiz, lemme tell ya sumthin' -- it ain't gonna work.
First of all, the statement reeks of PR tinkering. When every single source points to Ortiz and her cronies pursuing maximum sentences and intimidating Swartz, she comes out with a sorry excuse of an apology that denies it. Also, the 6 months plea deal would be only under one condition, and that is if Swartz acknowledged everything that the gubmint charged him with, which was still a major tarnish to his rep. So what did Swartz do? He had integrity and stood up for what he believed in, and then Ortiz pushed on with defiance. I recommend watching this YouTube video -- seems like Swartz' position is eerily similar to the other protagonist's (and if you haven't watched the movie, you simply must): http://www.youtube.com/watch?v=TKAxnB6Ap4o
If only Aaron had Al Pacino standing up for him...
By the way, this isn't the first time Ortiz has been a major pain in the neck. A quick Google for "Tarek Mehanna" should be enough to affirm the opinion that Ortiz is a tyrant.
> "As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible."
Protecting? Just like they protect "free knowledge"?
"somehow led to the tragic result of him taking his own life" That "somehow" word really rings wrong with me. It is not that hard to understand how being under a federal indictment would contribute to depression and even eventually suicide.
So maybe people don't realize but there is a chart that is used for determining possible sentence for any given set of charges. I have seen this work sheet in process. The charges are listed. And there is a book (or document or something like that.. I forget) that explains the max jail time and fine for all these charges. and then there are "special circumstances" for some charges that can add on to the sentence. So if you have a list of 10 charges and you go through each one and examine the special circumstances and tally the whole thing up... you get you maximum (potential) sentence. That does not mean that is what will be sought. That does not mean that is what you will get. That just means that is the max you face.
" Ultimately, any sentence imposed would have been up to the judge. At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law."
I'm guessing this is a very carefully worded statement.
I have noticed that government agents are relatively quick to assign blame when there has been no conviction. The charges were filed & ultimately dropped, so there has been no determination by the government that this was a violation of the law. I've been a victim of this myself. When launching the first online notary service, the CA secretary of state published an erroneous notice that we had committed a crime. When we spoke with their office, they indicated that there was no evidence of any crime. It ultimately took 2 years, and the threat of a lawsuit, to remove the false statements.
What I find really sad about all of this is that it took a suicide for all of this news and outrage to surface. It's understandable but it's depressing. I think some people (not saying Swartz) considering suicide think, I'll show them, or this will make them sorry. This sort of supports that.
In Swartz's case the sad thing is he probably never expected this outpouring of support. To him it probably seemed as if the world either didn't care or didn't support him. Just read the old HN post he made for legal fund donations. It's unfortunate he can't realize how most people are on his side.
STATEMENT OF UNITED STATES ATTORNEY CARMEN M. ORTIZ
REGARDING THE DEATH OF AARON SWARTZ
As a parent and a sister, I can only imagine the pain felt by the family and friends of Aaron Swartz, and I want to extend my heartfelt sympathy to everyone who knew and loved this young man.[Sympathy - a good start but no apology.] I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life.[Acknowledges anger and public feeling. No comment on their actions.]
I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case.[States that they were correct to bring and handle the case. May be read as they handled the case correctly BUT does NOT actually state that.] The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably. [Claims the career prosecutors were reasonable. Were all involved 'career prosecutors' or is someone about to be hung out to dry? Alternative reading is that 'career prosecutors' is just trying to make them sound better.] The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases. [OK. Then why would they (note Ortiz is not taking responsibility for this judgement) want to seek 7 years if it went to trial] That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct – a sentence that we would recommend to the judge of six months in a low security setting. [not stated also admission of 13 felonies or that if he wanted a trial because he believed himself not guilty the appropriate sentence to seek would have been 7 years. Thats what you get for believing you have a right to a trial and not just doing what we say.] While at the same time, his defense counsel would have been free to recommend a sentence of probation. [Not stated: for 13 admitted felonies.] Ultimately, any sentence imposed would have been up to the judge. [Not our responsibility really.] At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law. [We were really generous and told Mr. Swartz's attourneys that we intended to seek something between the maximum and ten times what was appropriate (by our admission) if he didn't plead guilty]
As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible. [Sounds reasonable but does it match their actions?] We strive to do our best to fulfill this mission every day.[But we aren't commenting on the rest of our mission or how we have done matching this mission in this case.]
Regardless of time served, do federal prosecutors not realize what the scarlet letter of a FELONY carved on your chest does to your ability to lead a normal life? Coupled with occasionally absurd bans from using/owning a computer or similar device for years (see: Kevin Mitnick) for anyone seen as a 'hacker', this absolutely destroys a person's life.
I can't imagine how hard finding an apartment in SF (already hard) becomes if you have to disclose that you're a convicted felon with time spent.
> Our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible.
What were they protecting them against? That Knowledge might've been spread to those who hadn't the monetary resources to read a bunch of Journals?
Also, I don't think the law was enforced fairly and responsibly, and it was the exact opposite of what occurred -- A bunch of overzealous prosecutors at the helm pushing for a maximum sentence for civil disobedience.
Prosecutors (and lawyers in general) are all about drama and story. Everything is amplified. Reality is distorted. It's worse than cable television.
Ortiz framed a brilliant, selfless young man as a criminal who should be locked up behind bars. She and others inflicted mental torture on him until he couldn't bear to live any longer.
She is no doubt a wordsmith, but she is not a nice person, no matter what the gullible fools on HN say. She shouldn't be working with and against people anymore, or for the government.
To think that a carefully calculated statement could 'clear the deck' and make everything even-steven is ludicrous.
A sense of pride has long been important to Ortiz who “knew
all along [she] wanted to be a lawyer.”
“I never thought about doing anything else. Maybe it was
watching trials on TV, and thinking it was exciting to be
in front of a jury arguing a case. That fascinated me. (At
George Washington University Law School)
> She and others inflicted mental torture on him until he couldn't bear to live any longer.
That is an idiotic thing to say, and it only raises doubt about all of your other statements.
Aaron was chronically depressed for years. People who are chronically depressed tend to kill themselves, or at least try to. Their external circumstances are rarely the cause of their suicide. It's up to you to prove that this lawsuit caused him to commit suicide, and he wouldn't have otherwise.
For example, why did David Foster Wallace kill himself? He was at the top of his career, critically acclaimed author, had a loving partner, and yet he still took his own life.
1) his lawyer and his closest family seem to agree that the lawsuit was the driving force
2) he did it on the anniversary of the start of the lawsuit
3) the actual trial was to start shortly
4) So far when under outside pressure he held up pretty good, but this was pressure far exceeding his previous exposure
Now, none of that is conclusive proof. But I don't see any reason brought forward other than the lawsuit why he killed himself. Absent such proof I tend to believe strongly that this was the reason why he did it.
If you don't want to believe that then that's fine with me but it does mean that you are ignoring some evidence right in front of your eyes.
It's a lot easier to blame the attorney prosecuting your child for his suicide than to point to his chronic depression (which I've not really seen acknowledged by them)...
It's a lot easier to blame a defendants suicide on his mental state than on your prosecution.
Aarons parents are under no obligation to acknowledge their sons mental state because he has acknowledged so himself in lots of places. That does not mean that this absolves everybody else from blame.
He may well have done so, but it comes across as disingenuous to mention one very pertinent detail (a /highly/ aggressive prosecution), and leave out another (chronic depression going on for many years).
No-one is saying anyone is absolved of 'blame' or being a factor in Aaron's decision.
Aaron was indeed unusually vulnerable. This vulnerability does not excuse the prosecutorial overreach which triggered his suicide. This overreach would merely have been devastating and life-altering to a normal person, but for Aaron, it pushed him over the edge.
Consider a hypothetical example. I'm not sure if this ever really happened in the Civil Rights movement (or if it did, that it was reported), but you can imagine that a black man, on the brink of death, was refused care at a "white only" hospital. He dies on the way to the "negro hospital". The public, faced with this stark story, see the deep injustice of it, and clamor for segregation to end and for the resignation of the hospital personnel responsible for the man's death.
>Ortiz framed a brilliant, selfless young man as a criminal who should be locked up behind bars.
Law is about drama? There's plenty of drama and hyperbole in your post. He broke the law. Which means he is a criminal.
If you think the laws are retarded, then how you protest that is your prerogative. If you choose to protest by blatantly and purposely breaking the law, unless you are 99.999% certain that an obvious interpretation of the law violates the constitution, you should expect to get charged and convicted of breaking said law.
Prosecutors aren't hired to be nice, they are hired to represent the state and bring charges against people who violate the state's laws. If you seriously think that he shouldn't be charged with breaking the law because 'he didn't deserve it', 'he did not have malicious intentions' or 'the law is dumb', then by extension no one should be convicted of any crime, because there will always be some point of view where you could think that of anyone.
The prosecutor's case was pretty tenuous. Basically, by accessing a network that intentionally has no real access control in an unusual way, and accessing JSTOR in an unusual way through that network -- a network for which a JSTOR subscription is available -- Aaron supposedly committed a crime (or was it 13 crimes? Or 4 crimes?). Unless you want to make the argument that doing strange things is criminal, it is hard to see how exactly any law was broken here.
"If you seriously think that he shouldn't be charged with breaking the law because 'he didn't deserve it', 'he did not have malicious intentions' or 'the law is dumb', then by extension no one should be convicted of any crime, because there will always be some point of view where you could think that of anyone."
If you think every violation of the law should be prosecuted, prepare yourself for some jail time; it is a near certainty that you have committed at least one felony offense in your life, and it is likely that you have committed more. Can you seriously claim not to be a criminal -- have you actually read all laws that you are expected to follow?
This conservative "the law is right and absolute" perspective is truly scary. Laws are passed by people, and are often severely flawed. Laws are often misapplied -- laws meant to protect banks and the government from hackers are applied to people who download too much knowledge, laws meant to protect children from pedophiles are applied to comic book collectors, etc. The far-right law-and-order attitude is the reason America is the world leader in both arresting people and imprisoning them -- not just per-capita, but on raw numbers, we arrest and imprison more people than China, and that even accounts for the recent decline in the prison population.
He allegedly broke the law. According to network security expert Alex Stamos, an expert witness in the case, the worst thing you can say about Aaron's actions is that they were "inconsiderate", not criminal.
I've refrained from posting here as I'm in the UK, not my issue &c but I do work with young offenders and adults in retraining &c.
'criminal' is not a 'type' or irrevocable condition. It is a social status that exists in the mind of people and state records, especially in this case with little measureable damage to anything or anyone.
First of all, he hasn't been convicted of ANY law breaking. Secondly, if Ortiz wanted a lesser sentence and was 100% sure he was going to be convicted (the criminal part), she could have brought one count to avoid the stiffer sentencing.
"That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct – a sentence that we would recommend to the judge of six months in a low security setting....At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law."
Yeah, and you added another 9 felonies after he refused the felon label to help him out.
That's why you assign investigations to independent entities, and that's why butchers aren't allowed to do their own health inspection.
Whether it was appropriate or not is not for Carmen Ortiz to say.
"The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases."
Is in direct conflict with Aaron's lawyer's account of the run up to last Saturday as well as other statements issued earlier, she may come to regret those words if he has documentation to prove his side of the story.
Aaron's lawyer claims they were threatening just the opposite if he did not take a guilty plea.
In particular:
"At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law."
Is a falsifiable claim. I'm looking forward to Aaron's lawyers' response to this statement.