Swartz didn't face prison until feds took over case, report says(news.cnet.com)
news.cnet.com
Swartz didn't face prison until feds took over case, report says
http://news.cnet.com/8301-13578_3-57565927-38/swartz-didnt-face-prison-until-feds-took-over-case-report-says/
10 comments
I don't think that's accurate. The contents of the drive and what he intended to do with them could have easily led to stiffer penalties.
Imagine it was a $100 hard drive with a few dozen copies of newly released films. Or medical records from a hospital. Or credit card numbers.
This is a red herring.
Imagine it was a $100 hard drive with a few dozen copies of newly released films. Or medical records from a hospital. Or credit card numbers.
This is a red herring.
...But it wasn't those things. That's the whole point, isn't it?
Maybe the jstor articles were valued at what jstor charges for them individually. In that case you're talking about millions of dollars in value.
Another point: if you break into a house to steal a $5 watch you are looking at a lot more than just $5 theft. Aaron was charged with the equivalent of breaking and entering
Another point: if you break into a house to steal a $5 watch you are looking at a lot more than just $5 theft. Aaron was charged with the equivalent of breaking and entering
I'm wondering why no brave hacker finished Aaron's protest. Are those PDFs so well guarded?
Guarded by the threat of 35 years in prison, perhaps.
I thought the 35 years was false.
Sentences aren't cumulative like that... or was my understanding wrong?
Sentences aren't cumulative like that... or was my understanding wrong?
In the US, they are. People have been sentenced to 200+ years in jail.
But would have they been in this case?
The prosecution wanted something along 6-7 years, but it's the judge/jury who decide (not sure which in this case).
Judges are the ones with power over sentencing. But it should be noted that the overwhelming majority of the time the judge simply signs off on whatever sentencing recommendation is made by the prosecution.
The prosecution wanted 6-7 years if it went to trial. According to Jennifer Granick the sentencing guideline (assuming trumped-up loss calculations) would have been on the order of 1-2 years. There were a couple of plea bargains on offer, the worst of which was 6-8 months.
If it came to the judge+jury deciding it would likely have been on the order of 1-2 years.
If it came to the judge+jury deciding it would likely have been on the order of 1-2 years.
Thanks for your reply.
> According to Jennifer Granick the sentencing guideline (assuming trumped-up loss calculations) would have been on the order of 1-2 years. There were a couple of plea bargains on offer, the worst of which was 6-8 months.
I'm not that familiar with the US Justice process, and nothing in that sentence makes sense to me :-/
Didn't he plan to go to trial? I thought he did.
In which case would the 1-2 years have been recommended?
By "trumped up loss", do you mean that the prosecution exaggerated the loss of the MIT/JSTOR?
At last, why is the 6-8 months plea bargain offer the worse? I thought it was the best one offered...
> According to Jennifer Granick the sentencing guideline (assuming trumped-up loss calculations) would have been on the order of 1-2 years. There were a couple of plea bargains on offer, the worst of which was 6-8 months.
I'm not that familiar with the US Justice process, and nothing in that sentence makes sense to me :-/
Didn't he plan to go to trial? I thought he did.
In which case would the 1-2 years have been recommended?
By "trumped up loss", do you mean that the prosecution exaggerated the loss of the MIT/JSTOR?
At last, why is the 6-8 months plea bargain offer the worse? I thought it was the best one offered...
> I'm not that familiar with the US Justice process, and nothing in that sentence makes sense to me :-/
Basically in the U.S. justice system you have a right to trial by jury, but this is expensive for both sides, takes a lot of time (both for the prosecution and defense, but also for the jury itself), so typically both sides will engage in a process of plea bargaining.
This is where the prosecution gives up on some things (such as their recommended sentence) in order to convince the defense not to pursue the trial by jury. Depending on the evidence involved (which hasn't been thrown out by the judge at this point) it may even be advantageous for the defense to pursue a plea bargain to try to get a reduced sentence on what looks to be an almost certain conviction. In this case there was an offer by the prosecution for a 6-8 month prison sentence plea bargain.
However, if the prosecution really wants to avoid a jury trial then generally they'll argue for a longer-than-normal sentence should they win a conviction (because otherwise the defense would simply always settle for jury trial and hope for a "Hail Mary" that overturns the case on a technicality). So the prosecution had announced that they would argue for a sentence of 6-7 years (or so) should the trial go to a jury phase and convict Swartz.
The "fair sentence" is independent of what the defense and prosecution think, and is determined by the Federal Sentencing Guidelines. It is based on these guidelines that Jennifer Granick estimated a sentence of 1-2 years, if convicted.
In any event the actual sentence is determined by a judge, usually based on the sentencing guidelines (1-2 years) and biased up or down based on how convinced the judge is of the arguments presented by the prosecution and defense. It's hard to say exactly what the judge would do, it really just depends on the judge.
As far as I know about Aaron, he wanted to plea bargain, but didn't want to plead to any charges that would make him a felon (but unfortunately the CFAA legal code is all "felonies" due to the way their maximum sentence is derived based on damages caused).
> By "trumped up loss", do you mean that the prosecution exaggerated the loss of the MIT/JSTOR?
It never got to that point, but basically the CFAA allows the victim to claim any costs that are reasonably associated with the crime committed by the suspect as damages. It's very open-ended, so you can claim damages even for functions you might ordinarily have been doing anyways.
For example, if MIT has 3 network techs looking into the network intrustion then their wages could be claims as damages, even if MIT would have had those 3 on work that day anyways. JSTOR shut off MIT's access for a few days while trying to block Swartz so MIT can not only claim the pro-rated value of their JSTOR contract for the time it was down, but they can also claim damages for all of their scientists and researchers who were delayed or otherwise affected by the loss of JSTOR services, even if it really could have waited a few days.
So that's what I mean by "trumped-up", the CFAA gives a very large book you can throw at the accused.
> At last, why is the 6-8 months plea bargain offer the worse? I thought it was the best one offered...
Way earlier in the case there had been a plea offer on the table that would have involved no jail time, but allegedly MIT did not buy off on that (this is kind of older data though I haven't seen anything refuting that).
At the time Aaron killed himself there was apparently two different pleas, one where the prosecution would ask for 8 months but the defense could argue to convince the judge to reduce it, and another where the sentence was more "dialed-in". It escapes me what the differences between the two would have been in practice though, I'm not familiar enough with the private discussions (at least until those details get leaked out too)
Basically in the U.S. justice system you have a right to trial by jury, but this is expensive for both sides, takes a lot of time (both for the prosecution and defense, but also for the jury itself), so typically both sides will engage in a process of plea bargaining.
This is where the prosecution gives up on some things (such as their recommended sentence) in order to convince the defense not to pursue the trial by jury. Depending on the evidence involved (which hasn't been thrown out by the judge at this point) it may even be advantageous for the defense to pursue a plea bargain to try to get a reduced sentence on what looks to be an almost certain conviction. In this case there was an offer by the prosecution for a 6-8 month prison sentence plea bargain.
However, if the prosecution really wants to avoid a jury trial then generally they'll argue for a longer-than-normal sentence should they win a conviction (because otherwise the defense would simply always settle for jury trial and hope for a "Hail Mary" that overturns the case on a technicality). So the prosecution had announced that they would argue for a sentence of 6-7 years (or so) should the trial go to a jury phase and convict Swartz.
The "fair sentence" is independent of what the defense and prosecution think, and is determined by the Federal Sentencing Guidelines. It is based on these guidelines that Jennifer Granick estimated a sentence of 1-2 years, if convicted.
In any event the actual sentence is determined by a judge, usually based on the sentencing guidelines (1-2 years) and biased up or down based on how convinced the judge is of the arguments presented by the prosecution and defense. It's hard to say exactly what the judge would do, it really just depends on the judge.
As far as I know about Aaron, he wanted to plea bargain, but didn't want to plead to any charges that would make him a felon (but unfortunately the CFAA legal code is all "felonies" due to the way their maximum sentence is derived based on damages caused).
> By "trumped up loss", do you mean that the prosecution exaggerated the loss of the MIT/JSTOR?
It never got to that point, but basically the CFAA allows the victim to claim any costs that are reasonably associated with the crime committed by the suspect as damages. It's very open-ended, so you can claim damages even for functions you might ordinarily have been doing anyways.
For example, if MIT has 3 network techs looking into the network intrustion then their wages could be claims as damages, even if MIT would have had those 3 on work that day anyways. JSTOR shut off MIT's access for a few days while trying to block Swartz so MIT can not only claim the pro-rated value of their JSTOR contract for the time it was down, but they can also claim damages for all of their scientists and researchers who were delayed or otherwise affected by the loss of JSTOR services, even if it really could have waited a few days.
So that's what I mean by "trumped-up", the CFAA gives a very large book you can throw at the accused.
> At last, why is the 6-8 months plea bargain offer the worse? I thought it was the best one offered...
Way earlier in the case there had been a plea offer on the table that would have involved no jail time, but allegedly MIT did not buy off on that (this is kind of older data though I haven't seen anything refuting that).
At the time Aaron killed himself there was apparently two different pleas, one where the prosecution would ask for 8 months but the defense could argue to convince the judge to reduce it, and another where the sentence was more "dialed-in". It escapes me what the differences between the two would have been in practice though, I'm not familiar enough with the private discussions (at least until those details get leaked out too)
So everyone should stop throwing around this 35 number... because it was 2. ?
The 35 number was invalidated awhile ago anyways once the amended charges were filed (when the maximum sentence would theoretically be 50 years). So if you see 35 without qualification then they don't know what they're talking about.
The judge could assign more than 2 years (if convicted on all or most charges) so I'd be careful against suggesting that was the likely sentence. Given that the prosecution had mentioned pushing for 6-7 years I'd use that as the worst-case upper bound with 1-4 being the most probable band. However, both previous cases involving CFAA and the particulars of Aaron in particular (who had no malicious intent toward MIT) seem to argue against prison sentences as long as 4 years being a possibility in this case, but that's just my opinion.
The judge could assign more than 2 years (if convicted on all or most charges) so I'd be careful against suggesting that was the likely sentence. Given that the prosecution had mentioned pushing for 6-7 years I'd use that as the worst-case upper bound with 1-4 being the most probable band. However, both previous cases involving CFAA and the particulars of Aaron in particular (who had no malicious intent toward MIT) seem to argue against prison sentences as long as 4 years being a possibility in this case, but that's just my opinion.
Thanks a lot!
If we're going to use IRL analogies then what's the legal penalty for repeatedly breaking&entering 3-4 different times, and then for each time he broke the lock, { trespassing more a 100,000+ times, and stealing an item of little to no cash value 100,000+ times }?
People keep acting like this was simply and only about some JSTOR articles, but this was about more than that, he was on a network that he didn't have permission to be on, and used the cloak of that network access to grab things of little to no value without permission, and he did this over a long period of time.
People keep acting like this was simply and only about some JSTOR articles, but this was about more than that, he was on a network that he didn't have permission to be on, and used the cloak of that network access to grab things of little to no value without permission, and he did this over a long period of time.
Incorrect. He was welcome on the network, as is everyone on MIT's public network. His specific downloading activity was unwelcome.
His IP address and later his MAC address were blocked. The situation was analogous to walking into a public mall and then specifically being kicked out and told to not come back. Should you come back anyways it is trespassing despite being a public space.
Unfortunately, this comment will probably get filtered to the bottom but this has to be said:
Since the story of Aaron's passing, this site has been home to a lynch-mob asking for Ortiz's head on a plate. I wish I knew enough about federal prosecutions to say whether or not this one was far different from the norm - hell, I wish I knew enough about depression and suicide to say whether or not the prosecution was the primary reason for this sad turn of events - but, regardless, the users HN have been relentless ... almost as if they wished harm on Carmen Ortiz.
I'm pointing that out for a reason. Bullying and outright harassment come in many forms. The end result of these actions are at times not the result that anyone truly intended even if they imply it with their words/actions. You can't on one hand accuse the feds of being overly aggressive while simultaneously doing the same to Ortiz and her family.
Let the law and the current investigations run their course before there are more unwanted consequences of this tragedy.
Since the story of Aaron's passing, this site has been home to a lynch-mob asking for Ortiz's head on a plate. I wish I knew enough about federal prosecutions to say whether or not this one was far different from the norm - hell, I wish I knew enough about depression and suicide to say whether or not the prosecution was the primary reason for this sad turn of events - but, regardless, the users HN have been relentless ... almost as if they wished harm on Carmen Ortiz.
I'm pointing that out for a reason. Bullying and outright harassment come in many forms. The end result of these actions are at times not the result that anyone truly intended even if they imply it with their words/actions. You can't on one hand accuse the feds of being overly aggressive while simultaneously doing the same to Ortiz and her family.
Let the law and the current investigations run their course before there are more unwanted consequences of this tragedy.
I suspect that nearly all of the people on HN would be happy if Ms. Ortiz simply resigned.
The worst-case for Ms. Ortiz, post-resignation, is that she gives up short-term gubernatorial aspirations and quits to take a $1,500,000-$2,000,000 a year gig as a partner at a large Boston law firm advising on white collar criminal defense.
This is not exactly a horrible fate. In fact, most people would consider trying to bring that about the opposite of "wish[ing] harm on Carmen Ortiz."
The worst-case for Ms. Ortiz, post-resignation, is that she gives up short-term gubernatorial aspirations and quits to take a $1,500,000-$2,000,000 a year gig as a partner at a large Boston law firm advising on white collar criminal defense.
This is not exactly a horrible fate. In fact, most people would consider trying to bring that about the opposite of "wish[ing] harm on Carmen Ortiz."
The problem is, some people here on HN have been very aggressive in their attacks over the past few weeks - far worse than simply saying "she should resign".
In addition to that, I've seen people sulk and get visibly agitated for long periods of time after poor performance reviews at work. Now, compound that by thousands in the public doing that - and then some. Think about the effect that has on someone's mental well-being.
In addition to that, I've seen people sulk and get visibly agitated for long periods of time after poor performance reviews at work. Now, compound that by thousands in the public doing that - and then some. Think about the effect that has on someone's mental well-being.
Threats of violence or physical harm, if any were posted, are wrong and beyond the pale.
But some of the comments you criticized above are far tamer than much of what passes for discourse in American politics nowadays: "Someone needs to be held accountable. Ortiz is someone." "Carmen Ortiz needs to go. She's a publicity hound" "Someone needs to be held accountable. Ortiz is someone."
Nothing wrong with saying any of those things. If you have a high-profile position in the U.S. government (Ortiz was confirmed by the Senate), you should expect scrutiny if you screw up. If Ortiz wants to restore her "mental well-being," one option would be to resign and take that lucrative law firm gig. That she has not done so suggests she assumes she can weather this storm and criticism of her will eventually die down. HN readers have the right to challenge that assumption.
But some of the comments you criticized above are far tamer than much of what passes for discourse in American politics nowadays: "Someone needs to be held accountable. Ortiz is someone." "Carmen Ortiz needs to go. She's a publicity hound" "Someone needs to be held accountable. Ortiz is someone."
Nothing wrong with saying any of those things. If you have a high-profile position in the U.S. government (Ortiz was confirmed by the Senate), you should expect scrutiny if you screw up. If Ortiz wants to restore her "mental well-being," one option would be to resign and take that lucrative law firm gig. That she has not done so suggests she assumes she can weather this storm and criticism of her will eventually die down. HN readers have the right to challenge that assumption.
Oh horrors, what if she got depressed and killed herself.
If calling for resignation or a firing is bullying, then democracy is dead.
Next, the power she wields is magnitudes greater than an on line "lynch mob". There for the words like bullying cant apply. She is not a lonesome hacker. She is a very powerful person who can destroy lives.
My problem is that focusing on this person misses the entire point, which is that the system allows, no, encourages this sort of thing.
In short, even if she is fired and marched out at gun point, others will just do the exact same thing, over and over again.
Next, the power she wields is magnitudes greater than an on line "lynch mob". There for the words like bullying cant apply. She is not a lonesome hacker. She is a very powerful person who can destroy lives.
My problem is that focusing on this person misses the entire point, which is that the system allows, no, encourages this sort of thing.
In short, even if she is fired and marched out at gun point, others will just do the exact same thing, over and over again.
> Since the story of Aaron's passing, this site has been home to a lynch-mob asking for Ortiz's head on a plate.
I've said it before, I'll say it again.
Generally when people draw comparisons to a certain European government in the early 20th century, others freak out, trotting out old usenet quotes and declaring that the person has "lost" the argument for making such offensively hyperbolic comparisons.
Why then does this same community seem so accepting of comparisons between calls for resignation of a government official, and the practice of barbaric humiliating murder without trial of underprivileged minorities?
This is hyperbolic bullshit.
I've said it before, I'll say it again.
Generally when people draw comparisons to a certain European government in the early 20th century, others freak out, trotting out old usenet quotes and declaring that the person has "lost" the argument for making such offensively hyperbolic comparisons.
Why then does this same community seem so accepting of comparisons between calls for resignation of a government official, and the practice of barbaric humiliating murder without trial of underprivileged minorities?
This is hyperbolic bullshit.
So, clearly you're someone who doesn't use any hyperboles in his
day-to-day life ... Anyway, here's just a sample of the comments about Ortiz here on HN:
"Great to see Ortiz's office crash and burn"
"Carmen Ortiz needs to go. She's a publicity hound"
"Do not google "site:nl 2 girls 1 cup". Should you so google, do not click. You have been warned. But I should add, even if you so click, the result is less obscene than Carmen Ortiz!"
"This woman has ZERO principle or sense of morality"
"Someone needs to be held accountable. Ortiz is someone."
"Ortiz is obviously disgusting"
"It's unfortunate that by demonizing Ortiz, we play right into the hands of those who appointed her"
"I support the demonization of Ortiz purely on the level of revenge."
"Great to see Ortiz's office crash and burn"
"Carmen Ortiz needs to go. She's a publicity hound"
"Do not google "site:nl 2 girls 1 cup". Should you so google, do not click. You have been warned. But I should add, even if you so click, the result is less obscene than Carmen Ortiz!"
"This woman has ZERO principle or sense of morality"
"Someone needs to be held accountable. Ortiz is someone."
"Ortiz is obviously disgusting"
"It's unfortunate that by demonizing Ortiz, we play right into the hands of those who appointed her"
"I support the demonization of Ortiz purely on the level of revenge."
Forget same ballpark, those are not even in the same fucking sport as lynching.
Being mad and wanting someone to be fired are not even reprehensible in the slightest. In any other profession if you fuck up, that's just what you would expect, but apparently some of you people think anyone working for the government is an untouchable perfect angel who must never be insulted nor fired.
Being mad and wanting someone to be fired are not even reprehensible in the slightest. In any other profession if you fuck up, that's just what you would expect, but apparently some of you people think anyone working for the government is an untouchable perfect angel who must never be insulted nor fired.
What are you talking about?? You know what, I make a conscience effort not to engage in serious dialog with people who need to use swear words to make their point like a 14 year old on a schoolyard - especially those that ramble on about "the government". Relax, this is not about Uncle Sam.
What am I talking about? Your assertions of an " eye for an eye" reaction and lynch mobs are offensive and absurd. Actually offensive, not "offensive" like a mildly taboo word.
The "Ortiz is someone" quote may have been a paraphrase made as part of a complaint about some comments going too far.
You might also want to mention how many comments urged restraint in response to the most over-the-top attacks. Your sample is definitely not a random sample, but a curated set of some of the most excessive comments.
You might also want to mention how many comments urged restraint in response to the most over-the-top attacks. Your sample is definitely not a random sample, but a curated set of some of the most excessive comments.
I upvoted you. I agree that a lynch-mob has formed around calling for Ortiz's blood. I'm not sure if this is good or bad.
It's bad for exactly the reasons you say.
It's good for the same reasons that they came down so harshly on Aaron--to make an example. The thing is, she represents the old guard--the old "I'm not good with computers but boy am I afraid of them" lobby. There is real money behind the internet now, and one of the perks of that is you get to demand representation and power. Just as Aaron made the mistake of getting into politics, so has Ortiz. Some examples need to be set that if the government expects us to bail them out in the future, they need to stop trying to put the best of us in jail.
It's bad for exactly the reasons you say.
It's good for the same reasons that they came down so harshly on Aaron--to make an example. The thing is, she represents the old guard--the old "I'm not good with computers but boy am I afraid of them" lobby. There is real money behind the internet now, and one of the perks of that is you get to demand representation and power. Just as Aaron made the mistake of getting into politics, so has Ortiz. Some examples need to be set that if the government expects us to bail them out in the future, they need to stop trying to put the best of us in jail.
Fair point but although it's tempting to go an eye-for-an-eye with Ortiz (and the federal government) after learning of Aaron's fate, I'm just not in a position to judge her actions. This is not my "holier than thou" moment, it's just that these situations are often far more complicated than a 500 word opinion piece on a blog.
Eye for an eye? No one is suggesting locking her up for 35 years. How is it a lynch mob when the worst that would happen is that she loses her job??
Someone doxxed her right here on HN and suggested it would be a shame if people were to do something bad with that information. There's far worse than can happen as a result of this mob than losing her job.
"It's good for the same reasons that they came down so harshly on Aaron -- to make an example"
Making an example of someone in retribution for it happening to someone else is eye-for-an-eye.
Making an example of someone in retribution for it happening to someone else is eye-for-an-eye.
No, it really is not. The two are wildly out of proportion.
You can simplify any crime imaginable and any punishment imaginable to declare the combination of the two "an eye for an eye", as you have just done here, does not make such a declaration legitimate.
You can simplify any crime imaginable and any punishment imaginable to declare the combination of the two "an eye for an eye", as you have just done here, does not make such a declaration legitimate.
Let's see if it matches up:
1. We need to make an example out of him and try to lock him up for 35 years.
2. We need to make an example out of her and get her fired.
1. We need to make an example out of him and try to lock him up for 35 years.
2. We need to make an example out of her and get her fired.
Someone just down-voted this?! Really? I mean, really!? I post a polite, well-constructed, and well-reasoned opinion that's different from 99% of the opinions out there and instead of responding in a similar fashion, the best you could do is flag my comment? Very cowardly.
You said "Unfortunately, this comment will probably get filtered to the bottom but this has to be said:" and then when it actually happened you flip out? I wasn't one of the ones to downvote you, but after seeing your reaction, I would have to say you most definitely deserved it. Also, allow me to point you to the HN guidelines that specifically frown on these particular behaviors:
Resist complaining about being downmodded. It never does any good, and it makes boring reading.
Please don't bait other users by inviting them to downmod you.
http://ycombinator.com/newsguidelines.html
Resist complaining about being downmodded. It never does any good, and it makes boring reading.
Please don't bait other users by inviting them to downmod you.
http://ycombinator.com/newsguidelines.html
Getting filtered down to the bottom is not actually just a result of getting down-voted. Having a lack of activity (from people essentially ignoring your message) is actually the other reason why comments slowly trickle down to the bottom - and the one I suspected would happen as often does when people write-off your opinion.
As for your point about the "don't complain about being downmodded" - fair enough, and I'm sure I'll earn a few more downvotes thanks to your due-diligence :)
At the same time, once in a while, you have to stand for something in your life. I made a serious point about a serious topic and some coward came along and decided to "down-vote" instead of having some dialog about it. I may lose digital karma but at least my conscience is clear for defending something I believe in.
As for your point about the "don't complain about being downmodded" - fair enough, and I'm sure I'll earn a few more downvotes thanks to your due-diligence :)
At the same time, once in a while, you have to stand for something in your life. I made a serious point about a serious topic and some coward came along and decided to "down-vote" instead of having some dialog about it. I may lose digital karma but at least my conscience is clear for defending something I believe in.
I down voted you, because I don't believe that folks want anything more than for Ortiz to resign. And you started the post talking about down voting, then you got upset when you got down voted.
"At the same time, once in a while, you have to stand for something in your life."
I agree with you there. A posting on a newsboard might not be the best way to show your principles, though.
I agree with you there. A posting on a newsboard might not be the best way to show your principles, though.
I agree with you there :) To be fair though, after seeing 2 weeks of posts on HN focused on demonizing an individual, I felt I needed to say something.
You really can't take downvotes on Hacker News so seriously. Heck, sometimes a downvote is just someone trying to scroll on their touchscreen and accidentally triggering the oversized hitbox for the downvote button (touchscreen browsers sometimes seem to expand the touchable area that will activate a link beyond the physical pixels occupied by that link).
As for your opinion, consider the possibility that you're overreacting to a few overreactions by emphasizing those comments that went too far and ignoring the ones that showed moderation.
As for your opinion, consider the possibility that you're overreacting to a few overreactions by emphasizing those comments that went too far and ignoring the ones that showed moderation.
I wonder about the reverse problem. Are there any worthy yet unpopular cases that Ortiz not take up while she was pursuing these ones?
[deleted]
This article linked from the parent actually seems a better explanation.
http://dankennedy.net/2013/01/24/the-swartz-suicide-and-the-...
http://dankennedy.net/2013/01/24/the-swartz-suicide-and-the-...
One only hopes that this will lead to wholesale reform of the US attorney office in Boston in particular, and the plea bargaining process in general. It is unfortunate that it took Aaron's sacrifice to make this happen if it does, but it would at least be something positive coming out of his tragedy.
How did it go from state/civil to a federal case?
But the sweeping nature of federal computer crime laws allowed Ortiz and Assistant U.S. Attorney Stephen Heymann, who wanted a high-profile computer crime conviction, to pursue felony charges. Heymann threatened the free-culture activist with over 30 years in prison as recently as the week before he killed himself...
The Boston U.S. Attorney's office was looking for "some juicy looking computer crime cases and Aaron's case, sadly for Aaron, fit the bill," Elliot Peters, Swartz's attorney at the Keker & Van Nest law firm, told the Huffington Post. Heymann, Peters says, thought the Swartz case "was going to receive press and he was going to be a tough guy and read his name in the newspaper."
The Boston U.S. Attorney's office was looking for "some juicy looking computer crime cases and Aaron's case, sadly for Aaron, fit the bill," Elliot Peters, Swartz's attorney at the Keker & Van Nest law firm, told the Huffington Post. Heymann, Peters says, thought the Swartz case "was going to receive press and he was going to be a tough guy and read his name in the newspaper."
That seems correct, but points to two fairy different issues: the breadth of the CFAA in (likely) making this incident into a federal crime, and the prosecutors' choice to pursue it. The former is what I'd really like fixed. I don't at all disagree with putting pressure on Ortiz and Heymann for choosing to pursue the charges, especially with the apparent vigor with which they did so. But the fundamental problem is the law. Ortiz and Heymann, I think, exercised their judgment poorly, but by the letter of the law they were in the right, because the person they were pursuing probably was guilty of a federal felony, as Congress defined it. So that's the more fundamental problem.
Put differently: if a prosecutor chooses not to pursue particularly stupid applications of a law, that's better than the opposite, so we should work to make sure our public prosecutors are as reasonable as possible. But that's a very weak kind of protection. Having very broad criminal laws where we rely on the wisdom of prosecutors not to charge the "bad" applications leaves defendants with basically no procedural protections, since not being charged when you violated the law as written isn't any kind of legal right.
Put differently: if a prosecutor chooses not to pursue particularly stupid applications of a law, that's better than the opposite, so we should work to make sure our public prosecutors are as reasonable as possible. But that's a very weak kind of protection. Having very broad criminal laws where we rely on the wisdom of prosecutors not to charge the "bad" applications leaves defendants with basically no procedural protections, since not being charged when you violated the law as written isn't any kind of legal right.
I agree that the prosecutor went too far. But there certainly seems to be a case if just a minor one. I hate to use the adage but if you don't want to deal with the prosecutors you shouldn't get caught.
On the case, I know a lot of technical people are responding that this case overreach on the prosecutor's side. I wish people would look at this from both sides. How does she know that Aaron was truly innocent? I bet she had expert witnesses on her side saying that Aaron was doing something illegal and excessive. Everyone is saying that he had access to download those files. But the prosecutor is looking at all of his seemingly suspicious behavior. 4 million downloads through a custom script. He walked into the computer closet to hard-wire in.
If you are looking at the Aaron case abstractly and comparing his behavior with other cases. I bet the prosecutor thought they had something with the case against Aaron. He certainly wasn't entirely innocent. He didn't download 4-5 documents through a browser like a typical user.
On the case, I know a lot of technical people are responding that this case overreach on the prosecutor's side. I wish people would look at this from both sides. How does she know that Aaron was truly innocent? I bet she had expert witnesses on her side saying that Aaron was doing something illegal and excessive. Everyone is saying that he had access to download those files. But the prosecutor is looking at all of his seemingly suspicious behavior. 4 million downloads through a custom script. He walked into the computer closet to hard-wire in.
If you are looking at the Aaron case abstractly and comparing his behavior with other cases. I bet the prosecutor thought they had something with the case against Aaron. He certainly wasn't entirely innocent. He didn't download 4-5 documents through a browser like a typical user.
One problem I have with the discussion around the Swartz case is the apparent assumption by prosecutors and/or the public that atypical equals wrong. It's a particularly offensive notion because I'd expect a huge chunk, maybe a majority, of geeks to be seen as highly atypical and maybe even suspicious by laypersons.
Welcome to the world of being an ethnic/racial/religious minority.
Geeks are one of those minorities that isn't even really recognized as a definite group, so while the persecution is usually much milder than ethnic/religious/orientation-driven persecution, the isolation can be worse.
I grew up knowing exactly what it's like to be bullied and severely beaten for being different, and the only thing different about me was that I was modestly intelligent and interested in computers. I'd be surprised if I was alone in my experiences among the HN crowd, but I was definitely alone in my small town. [I feel like even mentioning this is some kind of egregious faux pas.] Thank goodness for BBSes and IRC.
Not to diminish the suffering and needs of more visible and more historically persecuted minorities, but you'd think all the attention given to the "accepted" minorities would get people to generalize to accepting differences of any kind.
I grew up knowing exactly what it's like to be bullied and severely beaten for being different, and the only thing different about me was that I was modestly intelligent and interested in computers. I'd be surprised if I was alone in my experiences among the HN crowd, but I was definitely alone in my small town. [I feel like even mentioning this is some kind of egregious faux pas.] Thank goodness for BBSes and IRC.
Not to diminish the suffering and needs of more visible and more historically persecuted minorities, but you'd think all the attention given to the "accepted" minorities would get people to generalize to accepting differences of any kind.
> I wish people would look at this from both sides. How does she know that Aaron was truly innocent? I bet she had expert witnesses on her side saying that Aaron was doing something illegal and excessive. Everyone is saying that he had access to download those files. But the prosecutor is looking at all of his seemingly suspicious behavior.
It's condescending to say people aren't looking at both sides. You are actually now arguing that either she was incompetent because she picked bad expert witnesses or she had bad judgement in how hard she prosecuted. After she had all the facts in front of her, she threatened him with 35 years for it.
As someone else posted above, if he had stole the hard drive with the 4 million documents on it, it wouldn't be a felony.
It's condescending to say people aren't looking at both sides. You are actually now arguing that either she was incompetent because she picked bad expert witnesses or she had bad judgement in how hard she prosecuted. After she had all the facts in front of her, she threatened him with 35 years for it.
As someone else posted above, if he had stole the hard drive with the 4 million documents on it, it wouldn't be a felony.
"You are actually now arguing that either she was incompetent because she picked bad expert witnesses or she had bad judgement in how hard she prosecuted."
I didn't say that or imply it. On the other side. I have heard that Aaron had access to the documents. I have heard that MIT is an open access type of campus. I have heard things that claim that the prosecutor's case was in error. But, I have heard little about the validity of the case. I guess that the prosecutors reviewed the CFAA laws and other similar cases.
I am saying that the case should have proceeded forward. I would have liked have heard from both sides. Others say she should be fired and that the case was invalid.
I didn't say that or imply it. On the other side. I have heard that Aaron had access to the documents. I have heard that MIT is an open access type of campus. I have heard things that claim that the prosecutor's case was in error. But, I have heard little about the validity of the case. I guess that the prosecutors reviewed the CFAA laws and other similar cases.
I am saying that the case should have proceeded forward. I would have liked have heard from both sides. Others say she should be fired and that the case was invalid.
Heymann, Peters says, thought the Swartz case "was going to receive press and he was going to be a tough guy and read his name in the newspaper."
The Law of Unintended Consequences strikes again...
EDIT: The notion I was trying to capture is perhaps better expressed by saying, "Be careful what you wish for." Heymann got all the things Peters accuses him of wanting, just not exactly in the form he was presumably hoping to receive them.
The Law of Unintended Consequences strikes again...
EDIT: The notion I was trying to capture is perhaps better expressed by saying, "Be careful what you wish for." Heymann got all the things Peters accuses him of wanting, just not exactly in the form he was presumably hoping to receive them.
Why do you take Peters' claims about Heymann's motives seriously?
I think you might be reading more into my beliefs wrt Heymann than is warranted, given what I said. (N.b., "Peters accuses him of wanting"; "the form he was presumably hoping to receive them.") I don't pretend to have any direct knowledge of Steve Heymann.
That said, based on what knowledge I do have of him, his being a notches-on-the-belt and consequences be damned type of Federal prosecutor fits the facts well enough — in fact, better-enough than all the other alternatives combined — to consider my opinion accurate enough for an internet forum.
That said, based on what knowledge I do have of him, his being a notches-on-the-belt and consequences be damned type of Federal prosecutor fits the facts well enough — in fact, better-enough than all the other alternatives combined — to consider my opinion accurate enough for an internet forum.
The shoe fits? It makes sense, and I have been given absolutely no reason to doubt it.
Unintended how? The prosecutor decided he wanted to ruin Aaron's life. He succeeded.
The prosecutor wanted another feather in his cap. I doubt he held animosity towards Aaron in particular, any more than a mugger would towards someone wearing an expensive watch.
His name ended up on the newspaper in a manner different than that he expected.
The US attorneys office has a dude just sitting around in Boston PD waiting for fun cases to show up?
The CFAA covers cases where the alleged computer crime involves a computer system that is involved in interstate commerce or communication. So basically, any alleged computer crime involving a computer connected to the Internet could be prosecuted by the federal government.
can't help wondering to what extent the government's war on Manning, Wikileaks, Anonymous was related to Swartz's harsh treatment, whether he was perceived as working with groups actively opposing government policies, and therefore as a hacktivist in the same category as enemies of the state.
All the available evidence says "no". This is just how our our system treats absolutely anyone who presents a prosecutor with a chance to shine up their resume.
The only reason we seem to be hearing about Swartz, Manning, the Duke Lacross Team, et al. is that they have a socio-economic standing that most of the victims of this particular brand of "justice" do not.
The only reason we seem to be hearing about Swartz, Manning, the Duke Lacross Team, et al. is that they have a socio-economic standing that most of the victims of this particular brand of "justice" do not.
Manning is a Private First Class (E-3) in the U.S. Army, he's better off than someone in a ghetto I guess but he had no better socioeconomic standing than many other individuals who can commit computer crime.
His infamy is due to the particulars of his case and because the hacktivists have latched onto him as a rallying point because of the association with WikiLeaks.
His infamy is due to the particulars of his case and because the hacktivists have latched onto him as a rallying point because of the association with WikiLeaks.
I was considering Manning's association with WikiLeaks and thus the larger 'free information' [1] online concern as part of his social standing. Because as soon as he became the name behind that leak, it was.
As opposed to, say, the less-visible alleged members of Anonymous and Lulzsec who are likely facing the same exact sort of prosecution 'strategy' as Swartz [2], but because they aren't or are lesser parts of those crowds, no-one's paying much attention. Even though, criminals though they may be, it's just as likely their prosecutors are pursuing their cases with that same lack of justice or proportionality.
[1] in the FOIA sense, not in the piracy sense.
[2] I definitely draw a distinction between Manning and Swartz's prosecutions, as Manning being enlisted, gives the prosecution a distinct ability to go so much further with it.
As opposed to, say, the less-visible alleged members of Anonymous and Lulzsec who are likely facing the same exact sort of prosecution 'strategy' as Swartz [2], but because they aren't or are lesser parts of those crowds, no-one's paying much attention. Even though, criminals though they may be, it's just as likely their prosecutors are pursuing their cases with that same lack of justice or proportionality.
[1] in the FOIA sense, not in the piracy sense.
[2] I definitely draw a distinction between Manning and Swartz's prosecutions, as Manning being enlisted, gives the prosecution a distinct ability to go so much further with it.
[deleted]
If this doesn't illustrate how messed up the system is, I don't know what will.