Carmen Ortiz: A Case Of Prosecutorial Diligence Or Legal Overreach?(radioboston.wbur.org)
radioboston.wbur.org
Carmen Ortiz: A Case Of Prosecutorial Diligence Or Legal Overreach?
http://radioboston.wbur.org/2013/02/20/carmen-ortiz
5 comments
This story and the interview had so much potential but Ortiz just hides behind legal sequester and refuses to answer the majority of the host's soft questioning.
She has prosecutorial immunity, she's not going to stick her neck out.
The most hilarious bit is towards the end. Ortiz wanted a drug company lawyer taken to court. She's got some odd logic - when she screws up, it's an adversarial process (and it's her job to gun down anyone she can indite); but a lawyer on the other side is somehow fair game if they get in her way.
The Carmen Ortiz interview begins at around 20 mins in. Nothing much to hear though, she refuses to talk about anything of importance other than claiming "mental illness" in the Aaron Swartz case.
Given that the vast majority of people on Federal charges don't commit suicide, including persons facing much stricter punishments than Aaron Swartz, I'd be interested in hearing why a mental illness of some sort would not be the primary suspect.
The motel owner fighting against Ortiz to keep his property out of the hands of the Feds didn't kill himself. Did Ortiz just screw up her methods when she failed to drive him to suicide?
The motel owner fighting against Ortiz to keep his property out of the hands of the Feds didn't kill himself. Did Ortiz just screw up her methods when she failed to drive him to suicide?
In regards to the US Attorney's behavior, Swartz's mental state and actually his suicide in general is irrelevant. He could be alive today and Ortiz's actions would be just as wrong.
That may be, but I don't recall seeing any outrage to speak of when he was still alive.
In fact, it was quite the opposite around here. A submission asking to contribute to his defense fund had a top post saying essentially "Man up and deal with the consequence of your actions". The community is general has been very inconsistent and reactionary around this issue.
I'm going to go out on a limb and state a preference for Aaron to have been able to "man up and deal with the consequences of his actions" than to have killed himself.
It's a coarse phrasing[0], but think the sentiment is and was a valid and reasonable one for the HN zeitgeist to have espoused given what we knew and thought we knew. At the time of that request for donations, Aaron himself was writing "a series of pieces on getting better at life" including such advice as "Look at yourself objectively"[1] and "Lean into the pain"[2]. These are not obviously the writings of someone who will shortly commit suicide, and those closest to him have been vocal about how well he seemed to the end.
Maybe there is a lesson that we should be nicer to everyone in general, but I have a really hard time feeling like there should be some kind of communal shame over having drawn imperfect conclusions from incomplete information.
[0] With the benefit of hindsight, I might phrase it as "I wish that he had been emotionally equipped to handle the situation he was in". [1] http://www.aaronsw.com/weblog/semmelweis [2] http://www.aaronsw.com/weblog/dalio
It's a coarse phrasing[0], but think the sentiment is and was a valid and reasonable one for the HN zeitgeist to have espoused given what we knew and thought we knew. At the time of that request for donations, Aaron himself was writing "a series of pieces on getting better at life" including such advice as "Look at yourself objectively"[1] and "Lean into the pain"[2]. These are not obviously the writings of someone who will shortly commit suicide, and those closest to him have been vocal about how well he seemed to the end.
Maybe there is a lesson that we should be nicer to everyone in general, but I have a really hard time feeling like there should be some kind of communal shame over having drawn imperfect conclusions from incomplete information.
[0] With the benefit of hindsight, I might phrase it as "I wish that he had been emotionally equipped to handle the situation he was in". [1] http://www.aaronsw.com/weblog/semmelweis [2] http://www.aaronsw.com/weblog/dalio
I believe no-one here at the time knew how aggressively he was being treated. If we had known I'd like to think people would have been more supportive.
Well, "how aggressively he was treated" was within 1 delta or so of how the average CFAA case is handled, so I don't think that's the reason either, unless this is the first CFAA case that has ever become known to the majority of the hackers on HN.
In fact I think the notable thing was how very quiet the reaction had been. A lot of CFAA cases that did acquire wide acclaim (including places like HN) were for things like accessing the "wrong" publicly-accessible URL, or finding security vulns and getting in trouble for just trying to let the organization know that they were vulnerable.
In this case it seemed to me there was a strong sense of "huh, this guy [Swartz] actually did break into a network, and server closet too" and therefore there was not nearly the outcry as we'd seen for most.
In fact I think the notable thing was how very quiet the reaction had been. A lot of CFAA cases that did acquire wide acclaim (including places like HN) were for things like accessing the "wrong" publicly-accessible URL, or finding security vulns and getting in trouble for just trying to let the organization know that they were vulnerable.
In this case it seemed to me there was a strong sense of "huh, this guy [Swartz] actually did break into a network, and server closet too" and therefore there was not nearly the outcry as we'd seen for most.
You may well be right. I missed the first discussion when the appeal for legal funds was made.
It is disturbing that some are still claiming he broke into the closet when it was unlocked [1], and others here apparently believe that changing your MAC address should be enough to trigger federal charges.
[1] Swartz broke into a closet in the basement of a building at MIT http://www.volokh.com/2013/01/14/aaron-swartz-charges/
It is disturbing that some are still claiming he broke into the closet when it was unlocked [1], and others here apparently believe that changing your MAC address should be enough to trigger federal charges.
[1] Swartz broke into a closet in the basement of a building at MIT http://www.volokh.com/2013/01/14/aaron-swartz-charges/
Well Federal charges indicate not the severity, but the medium of the act in question.
As soon as the information was transferred over interstate communications channels to Boston the jurisdiction would have been properly Federal in nature.
If it is also a state crime than the attorney's offices can negotiate as to which (if any) will prosecute but the Constitution makes it very clear that the Federal government has primary jurisdiction in this situation.
It is true that most Federal crimes are more severe than state (since they necessarily tend to involve more serious offenses by their scope alone). But had a "misdemeanor-level" CFAA-like Federal law been available it is possible that it could have been used instead of the actual felony-level CFAA. I'm not aware of any though, as far as I can tell it's either CFAA, nothing, or the prosecutor can perhaps try to get extra-inventive with other law on the books.
Either way though, changing a MAC address was not the only thing Aaron did. Your point about the server closet not actually being locked is well-taken, but you bring discredit to your own plea for accuracy by implying that the MAC address is the only reason any sort of charges were levied on Aaron.
As soon as the information was transferred over interstate communications channels to Boston the jurisdiction would have been properly Federal in nature.
If it is also a state crime than the attorney's offices can negotiate as to which (if any) will prosecute but the Constitution makes it very clear that the Federal government has primary jurisdiction in this situation.
It is true that most Federal crimes are more severe than state (since they necessarily tend to involve more serious offenses by their scope alone). But had a "misdemeanor-level" CFAA-like Federal law been available it is possible that it could have been used instead of the actual felony-level CFAA. I'm not aware of any though, as far as I can tell it's either CFAA, nothing, or the prosecutor can perhaps try to get extra-inventive with other law on the books.
Either way though, changing a MAC address was not the only thing Aaron did. Your point about the server closet not actually being locked is well-taken, but you bring discredit to your own plea for accuracy by implying that the MAC address is the only reason any sort of charges were levied on Aaron.
Sorry, you misunderstood me on the MAC address point. I was saying only that some here have stated that this should be illegal, which I found a surprising attitude for a technical community.
Thank you for the explanation of the difference between Federal and State offences though.
Thank you for the explanation of the difference between Federal and State offences though.
That's unsurprising; people are much more concerned with actual harm than potential harm. A teenager driving badly does not generate the same outrage as when a teenager driving badly kills someone.
Even worse, claiming that the problem is that they didn't know that he was at risk from mental illness. Swartz's lawyer claims to have told the prosecutor directly:
> The thing that galls me is that I told Heymann the kid was a suicide risk,” Good told me. “His reaction was a standard reaction in that office, not unique to Steve. He said, ‘Fine, we’ll lock him up.’
> The thing that galls me is that I told Heymann the kid was a suicide risk,” Good told me. “His reaction was a standard reaction in that office, not unique to Steve. He said, ‘Fine, we’ll lock him up.’
Yeah, just like every Samurai developed serious mental illness just when he had to commit suicide.
http://www.wbur.org/2013/02/20/carmen-ortiz-investigation
Not a full transcript, but a long form article on Ortiz's history.
edit: A key passage that will interest some here, particularly the ones who believe that assistant DA Stephen Heynmann is the one to blame:
> A former federal prosecutor who worked alongside Ortiz for several years and did not want to be identified for fear of reprisal said Miner’s assessment is spot on.
“She is totally hands off and defers to her staffers more than any other U.S. attorney I have seen,” the lawyer said of Ortiz. “There are some [AUSAs] who have been in the office for a long time who have developed these little fiefdoms and are basically able to push her around. That’s just wrong for a whole host of reasons.”
One of those reasons, according to Miner, is that line prosecutors have an incentive to return indictments to keep their numbers up and often lack perspective when assessing the strengths and weaknesses of their own cases. It is the job of the U.S. attorney and her hand-picked supervisors to question the decisions of the AUSAs and to set the tone for the office.