The Truth About Aaron Swartz's "Crime"(unhandled.com)
unhandled.com
The Truth About Aaron Swartz's "Crime"
http://unhandled.com/2013/01/12/the-truth-about-aaron-swartzs-crime/
93 comments
Not only that but the actual trespassing charge was dropped. So it wasn't even part of the case!
I didn't even realize that. The most salacious and unsympathetic of the allegations is how Swartz got physical access...othherwise, how different is what he did than what people who go to Starbucks and torrent illegally? Just magnitude?
It's that the U.S. got their asses handed to them in a previous case involving PACER, and were out for blood.
Sadly, that's what they got.
Sadly, that's what they got.
I'm not seeing any reference to PACER in any obit articles and in a lot of the stuff on reddit and elsewhere. This is a very important point. Essentially, Aaron had already defeated the feds for open access and was trying again. I imagine the petty bureaucrats burned by PACER really were out for blood this time.
Apparently, our government's mission is to destroy young people over petty grievances its employees have with American citizens. Christ, there are so many levels of wrong here its unbelievable. I just wish Aaron's case got more attention before he died. There was next to nothing about it, but jerks like Kim Dotcom seem to have articles and public sympathy locked, while real heros like Aaron were margalized because he was working on a level more much complex than "herp derp free moviez" and didn't have the crass marketing and bullshitting skills guys like Dotcom have.
We live in a very unfair world. Whatever American exceptionalism I believed in was steadying chipped away by the horrid Bush years and Obama's bizarre assault on medical marijuana, patent violators, and now 20 somethings downloading lots of PDFs.
I was just thinking how well a young Bill Gates or a young Bill Joy or whoever would fare in 2013 America? These guys have all admitted to doing stuff like stealing mainframe time, ripping off code, causal hacking, pushing around the old guard, violating all manner of rules, etc. Its just back then you didn't go to jail for it. I imagine most of them would have gotten crushed somehow, just like Aaron.
I know I am being dramatic, but this whole thing is very upsetting. The worst is, there is no reform over the horizon. Whatever reformist potential Lessig and the EFF and others had in the late 90s and early 2000s is long dead. If anything, things have somehow gotten worse for those who believe in open information and sensible prosecution of computer crimes since the Bush years. How did we get here? Why is Aaron dead? Why is my side always losing? This is too fucking much.
Apparently, our government's mission is to destroy young people over petty grievances its employees have with American citizens. Christ, there are so many levels of wrong here its unbelievable. I just wish Aaron's case got more attention before he died. There was next to nothing about it, but jerks like Kim Dotcom seem to have articles and public sympathy locked, while real heros like Aaron were margalized because he was working on a level more much complex than "herp derp free moviez" and didn't have the crass marketing and bullshitting skills guys like Dotcom have.
We live in a very unfair world. Whatever American exceptionalism I believed in was steadying chipped away by the horrid Bush years and Obama's bizarre assault on medical marijuana, patent violators, and now 20 somethings downloading lots of PDFs.
I was just thinking how well a young Bill Gates or a young Bill Joy or whoever would fare in 2013 America? These guys have all admitted to doing stuff like stealing mainframe time, ripping off code, causal hacking, pushing around the old guard, violating all manner of rules, etc. Its just back then you didn't go to jail for it. I imagine most of them would have gotten crushed somehow, just like Aaron.
I know I am being dramatic, but this whole thing is very upsetting. The worst is, there is no reform over the horizon. Whatever reformist potential Lessig and the EFF and others had in the late 90s and early 2000s is long dead. If anything, things have somehow gotten worse for those who believe in open information and sensible prosecution of computer crimes since the Bush years. How did we get here? Why is Aaron dead? Why is my side always losing? This is too fucking much.
Steve Jobs and Steve Wozniak would have been persecuted for the Blue Box if they did it today.
The government has been like this for a long time. But it sure feels like they have accelerated on behalf of their corporate paymasters.
The government has been like this for a long time. But it sure feels like they have accelerated on behalf of their corporate paymasters.
The Internet Archive's obituary makes prominent note of Aaron's volunteer work in creating RECAP, which is what Aaron helped create / used in the PACER incident.
http://blog.archive.org/2013/01/12/aaron-swartz-hero-of-the-...
http://blog.archive.org/2013/01/12/aaron-swartz-hero-of-the-...
I'm upset as well. It just all seems so absurd and unnecessary, like a cruel game.
>We live in a very unfair world.
I thought I already understood this. Today puts it in even sharper focus.
>We live in a very unfair world.
I thought I already understood this. Today puts it in even sharper focus.
The difference in this case is that it could reasonably be argued he had an implied license to all the content he downloaded.
The millions of kids downloading music have done more wrong by the letter of the law than Aaron did.
The millions of kids downloading music have done more wrong by the letter of the law than Aaron did.
Starbucks torrenters generally don't cause a community of 20,000 scholars to lose access to a major journal archive for days at a time. And they generally don't require university staff to burn hours trying to hunt down hidden machines that are disrupting their network.
Apparently, the MIT and/or JSTOR staff took down the service themselves when they detected the mass downloads. It was not Aaron's "attack" that brought down the access.
That is not correct. He launched what amounted to a DoS against JSTOR:
" the strain it put on JSTOR’s servers was enough to have impaired other research institutions attempting to access the materials."
"Together, Grace and Gary Host downloaded JSTOR articles at such an astounding pace that several of JSTOR’s servers crashed."
http://tech.mit.edu/V131/N30/swartz.html
" the strain it put on JSTOR’s servers was enough to have impaired other research institutions attempting to access the materials."
"Together, Grace and Gary Host downloaded JSTOR articles at such an astounding pace that several of JSTOR’s servers crashed."
http://tech.mit.edu/V131/N30/swartz.html
Every journal database I have done bulk downloads from (sometimes constantly) over a week requires a cookie and sends you a polite message (via http no less) asking you to put in a few seconds pause between each request.
It would not have occurred to me that they haven't configured their servers to handle the load. Once again - Aaron did nothing that I, and tens of thousands of people like me, haven't done many times.
It would not have occurred to me that they haven't configured their servers to handle the load. Once again - Aaron did nothing that I, and tens of thousands of people like me, haven't done many times.
You've downloaded millions of articles from JSTOR? Or how MIT put it: "more than 100 times the number of legitimate JSTOR downloads at MIT during that time period"
So what? Aaron violated MIT's policies and JSTOR's policies and the result was that a large community of scholars lost access. Those scholars would have had access if Aaron hadn't done what he did.
The only harm was manufactured by the "victims". Were it not for the "victims" manufacturing this harm, they would not be called victims at all. They essentially bootstrapped their own victim-hood. If you don't see why that is relevant in an ethical consideration of his actions, then I cannot help you.
This is taking victim blaming to new heights. Is it now the victim's fault they don't acquiesce to a lawbreakers' demands? Doesn't MIT have the right to decide who is allowed to use their network and in what manner?
Can I break into your home and use your internet connection as I see fit without your complaint?
Can I break into your home and use your internet connection as I see fit without your complaint?
Is it similarly victim blaming when people call shit on the RIAA for claiming thousands of dollars of damages per mp3? Give me a break, and knock it off with the emotionally charged language. MIT isn't the victim of domestic abuse or sexual assault.
> Can I break into your home and use your internet connection as I see fit without your complaint?
They dropped the trespassing charges, the only charges that had merit.
> Can I break into your home and use your internet connection as I see fit without your complaint?
They dropped the trespassing charges, the only charges that had merit.
But if I broke into your house and used your internet connection, the only harm would come from you, the "victim", objecting to my behavior. You'd be bootstrapping your own victimhood, right?
If I were choosing to object to you on the grounds that you trespassed, then no.
If I were to drop the trespassing charges and choose to object on the grounds that I had to throw out my router because you used it, then I would indeed be manufacturing victomhood.
I'll repeat myself. They dropped the trespassing charges.
If I were to drop the trespassing charges and choose to object on the grounds that I had to throw out my router because you used it, then I would indeed be manufacturing victomhood.
I'll repeat myself. They dropped the trespassing charges.
[deleted]
He didn't break into anywhere.
MIT had an open network.
Can I use my neighbor's open wireless network without it being a crime?
All signs point to yes.
If violation of TOS'en was a crime (thankfully, courts so far have ruled it's not), we'd all pretty much be screwed.
the fact that someone did something dumb does not make it illegal.
If i buy so many lottery tickets that the state thinks it's fraudulent, and shuts down the lottery for a day, that doesn't make me guilty of anything.
(As I said, TOS violations are simply not crimes. No court has ever held otherwise)
the fact that someone did something dumb does not make it illegal.
If i buy so many lottery tickets that the state thinks it's fraudulent, and shuts down the lottery for a day, that doesn't make me guilty of anything.
(As I said, TOS violations are simply not crimes. No court has ever held otherwise)
[deleted]
Man! What a crime you describe! Do you think any of these scholars--very few of whom probably use JStor on a regular basis (even at a very good liberal arts school, Columbia, did I rarely use it)--would advocate a >$1.5*10^6 or jail time for their lost productivity (which, again, was likely negligible)?
He didn't cause anyone to lose access.
That's besides the point. I'm asking if in which way is the crime, as described in the official charges, different than the Starbucks scenario. The denial-of-service to MIT may have helped spur the case, but wire fraud doesn't seem to depend on whether a DoS happened (or at least from what I can tell)
"...an unlocked closet on an open campus, one which was also used to store personal effects by a homeless man."
MIT is very open. They just put ID card readers on the student center in the last month or so. I used to see homeless people in the computer labs around campus and the student center all the time.
There is something about this case that makes me feel an injustice has been done. Not by Aaron Swartz, but by the apparatus investigating and prosecuting this case.
Sadly, I wonder how frequent these witch hunts are in the USA. The Larsgard story is another, prime example of how misconstrued the narratives of prosecuting attorneys can get - without any risk to their own career.
(Edit:) This is just one out of a few, key reasons that I do not want to visit nor work in the USA. The risk that one may get to pay for some a..hole's political aspirations.
Sadly, I wonder how frequent these witch hunts are in the USA. The Larsgard story is another, prime example of how misconstrued the narratives of prosecuting attorneys can get - without any risk to their own career.
(Edit:) This is just one out of a few, key reasons that I do not want to visit nor work in the USA. The risk that one may get to pay for some a..hole's political aspirations.
[deleted]
To people wondering if prosecutors have a choice, they absolutely do. I was recipient of an NSF check of over $10,000 from a guy with a history of writing bad checks(a criminal offense). It is a clear cut case with ample proof and victims. Yet the DA's office in neither NYC or San Francisco has taken action against him for over a year.
Meanwhile the guy continues to scam more and more people, pushing one woman to brink of shutting down her business. I know because I made a site(http://cliffkaplanfraud.com) and the stories that trickle in are gut wrenching and infuriating.
So yes, the DA's office seems to have a lot of power to pursue someone unlike what some people here suggest.
Meanwhile the guy continues to scam more and more people, pushing one woman to brink of shutting down her business. I know because I made a site(http://cliffkaplanfraud.com) and the stories that trickle in are gut wrenching and infuriating.
So yes, the DA's office seems to have a lot of power to pursue someone unlike what some people here suggest.
1) A bad check is a state level offense, not a federal offense, and the discretion afforded to state and local prosecutors is far greater than the discretion afforded federal prosecutors (though federal prosecutors have broader powers).
2) They may have prioritized murders and rapes over crimes, such as bad-check-passing, that can be remedied in a civil courtroom. That's generally what happens when state and local budgets get cut. For example, in 2009 and 2010, San Bernardino and Riverside counties simply did not enforce drug possession charges for meth or marijuana for quantities below the dealer amount because they didn't have the prosecutorial resources to handle those cases after prioritizing violent crimes.
3) HIRE A LAWYER. Winning a case against him in civil court for passing a bad check is pretty much guaranteed to spawn a criminal case because you'll have handed the prosecutors their case; they won't have to redirect many resources away from serious crimes.
2) They may have prioritized murders and rapes over crimes, such as bad-check-passing, that can be remedied in a civil courtroom. That's generally what happens when state and local budgets get cut. For example, in 2009 and 2010, San Bernardino and Riverside counties simply did not enforce drug possession charges for meth or marijuana for quantities below the dealer amount because they didn't have the prosecutorial resources to handle those cases after prioritizing violent crimes.
3) HIRE A LAWYER. Winning a case against him in civil court for passing a bad check is pretty much guaranteed to spawn a criminal case because you'll have handed the prosecutors their case; they won't have to redirect many resources away from serious crimes.
Please stop posting this misinformation about federal prosecutors lacking discretion. It is a completely false statement.
"The USA [US Attorney] is invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such authority."
http://www.justice.gov/usao/eousa/foia_reading_room/usam/tit...
"The USA [US Attorney] is invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such authority."
http://www.justice.gov/usao/eousa/foia_reading_room/usam/tit...
The United States Attorney, within his/her district, has
plenary authority with regard to federal criminal matters.
This authority is exercised under the supervision and
direction of the Attorney General and his/her delegates.
The statutory duty to prosecute for all offenses against
the United States (28 U.S.C. § 547) carries with it the
authority necessary to perform this duty. The USA is
invested by statute and delegation from the Attorney
General with the broadest discretion in the exercise of
such authority.
The authority, discretionary power, and responsibilities of
the United States Attorney with relation to criminal
matters encompass without limitation by enumeration the
following:
Investigating suspected or alleged offenses against the
United States, see USAM 9-2.010;
Causing investigations to be conducted by the appropriate
federal law enforcement agencies, see USAM 9-2.010;
Declining prosecution, see USAM 9-2.020;
Authorizing prosecution, see USAM 9-2.030;
Determining the manner of prosecuting and deciding trial
related questions;
Recommending whether to appeal or not to appeal from an
adverse ruling or decision, see USAM 9-2.170;
Dismissing prosecutions, see USAM 9-2.050; and
Handling civil matters related thereto which are under the
supervision of the Criminal Division.It is necessary for you to actually read the citations referred to by that page (which is just a general summation, not an authoritive declaration on the authority of federal prosecutors), since federal criminal statutes generally do not give "plenary discretion" to federal prosecutors. See ISAM 9-2.020 (The United States Attorney is authorized to decline prosecution in any case referred directly to him/her by an agency unless a statute provides otherwise.)
This is why the law is complicated: you cannot read a law in a vacuum; you must read it in conjunction with all other laws bearing upon the same issue.
This is why the law is complicated: you cannot read a law in a vacuum; you must read it in conjunction with all other laws bearing upon the same issue.
You said in many different posts that federal prosecutors in general lack discretion, that their hands are tied. This was a false claim. And you may be the only person in the world who holds this view; I don't think anyone else (Democrat, Republican, prosecutor, or defender) would make this claim.
Now you are arguing that the specific statute at issue did not allow Ortiz and Heymann to decline prosecution. That is a completely different contention, thought it is also false, as it is hard to think of something more subject to prosecutorial discretion than the 1984 CFAA:
http://www.jdsupra.com/legalnews/ninth-circuit-scales-back-c...
In short, you are just factually wrong here that the federal prosecutors have no discretion in general (your first claim), or that they had no discretion with respects to the statutes at issue here (your second claim).
Now you are arguing that the specific statute at issue did not allow Ortiz and Heymann to decline prosecution. That is a completely different contention, thought it is also false, as it is hard to think of something more subject to prosecutorial discretion than the 1984 CFAA:
http://www.jdsupra.com/legalnews/ninth-circuit-scales-back-c...
The Nosal opinion expresses grave concern that the broad
reading advocated by the government could criminalize much
innocuous activity. In particular, the Court notes that
the phrase "exceeds authorized access" appears in another
section of the CFAA, § 1030(a)(2)(C), which has no
requirement of fraudulent purpose, and requires only that
the person who "exceeds authorized access" has "obtain[ed]
. . . information from any protected computer" (i.e. any
computer that can connect to the Internet). The
government's view, the Court feared, could "make every
violation of a private computer use policy a federal
crime."
In short, you are just factually wrong here that the federal prosecutors have no discretion in general (your first claim), or that they had no discretion with respects to the statutes at issue here (your second claim).
3) HIRE A LAWYER. Winning a case against him in civil court for passing a bad check is pretty much guaranteed to spawn a criminal case because you'll have handed the prosecutors their case; they won't have to redirect many resources away from serious crimes.
1. Guaranteed? Man already has multiple suits and judgements against him in civil court in past few years in addition to having servdd time years ago for a similar crime. He even has a warrant out in another state AFAIK. No criminal charges in NY(where I am based) or California(where he and many of his victims are).
2. It's very hard collecting money from him even after you win the judgement, from my conversations with those who have. In the end, I risk taking an even bigger hit especially if he countersues(even the odd lawyer willing to work on contingency warns me that he will almost certainly countersue for which I will need to pay out of pocket)
My best option in light of these realizations was to build this site which seems to have at least made a dent in his ability to scam. For example, the guy has been playing with the spelling of his name, at least partially I'm guessing so my site does not pull up when his next victim googles.
1. Guaranteed? Man already has multiple suits and judgements against him in civil court in past few years in addition to having servdd time years ago for a similar crime. He even has a warrant out in another state AFAIK. No criminal charges in NY(where I am based) or California(where he and many of his victims are).
2. It's very hard collecting money from him even after you win the judgement, from my conversations with those who have. In the end, I risk taking an even bigger hit especially if he countersues(even the odd lawyer willing to work on contingency warns me that he will almost certainly countersue for which I will need to pay out of pocket)
My best option in light of these realizations was to build this site which seems to have at least made a dent in his ability to scam. For example, the guy has been playing with the spelling of his name, at least partially I'm guessing so my site does not pull up when his next victim googles.
If that's true, then I think you need to follow up with the authorities, i.e., by sending your website to the California state Department of Justice, which has the authority to investigate these matters, or else to the consumer protection agency.
Unfortunately, there have been a great many scams like this in the past 4 years and this guy may have just slipped through the cracks as a result of staff cutbacks.
The authorities will likely be grateful to you for any assistance you can provide them, i.e., by helping them locate other victims.
Unfortunately, there have been a great many scams like this in the past 4 years and this guy may have just slipped through the cracks as a result of staff cutbacks.
The authorities will likely be grateful to you for any assistance you can provide them, i.e., by helping them locate other victims.
Do you think authorities at the state level would be more receptive than at the county level?
Because I've been trying at the county and city level and after sending many victims to ring up the investigators, little has come out of it.
I always thought at the state level my chances are even bleaker of getting their attention.
Because I've been trying at the county and city level and after sending many victims to ring up the investigators, little has come out of it.
I always thought at the state level my chances are even bleaker of getting their attention.
"Hire a lawyer." To enforce criminal law and effective $10,000 theft. Do we no longer live in a civilized country anymore?
Meanwhile, what is the expected RoI on hiring a lawyer to recoup a $10,000 debt? Especially if the guy is a deadbeat? Probably somewhere around negative $50k, I'd wager.
Meanwhile, what is the expected RoI on hiring a lawyer to recoup a $10,000 debt? Especially if the guy is a deadbeat? Probably somewhere around negative $50k, I'd wager.
I very seriously considered MIT for my undergrad work, including doing the requisite alumni interview. I eventually decided the nation's 16th ranked computer science program was good enough, especially since they wanted to pay for me.
This whole time, I've had a piece of me that wished I'd done it (a very small piece, since 1/2 of my kids were born in that timeframe). Today is the first day when I can honestly say I'm glad I'm in no way associated with MIT.
This whole time, I've had a piece of me that wished I'd done it (a very small piece, since 1/2 of my kids were born in that timeframe). Today is the first day when I can honestly say I'm glad I'm in no way associated with MIT.
The only conclusion I can draw from his life and the events leading up to his demise is that he must have upset someone deeply entrenched in the circles of power. Otherwise the witch-hunt just doesn't make any sense. After all ask yourself what motive did the prosecutor possess for going after him like that?
Does the US Federal Court count as 'someone deeply entrenched in the circles of power'? They tried to go after him for freeing documents from PACER and failed, so they had to find some other way to get at him. And then when he committed the same crime (freeing information) again, the government had the perfect opportunity.
Yeh I have thought the same thing. So, who could it be?
I doubt it if we'll ever know. Where I'm from such influence is exercised discreetly in back rooms over bottles of blue label, and I have a feeling that the US isn't too different. It is not my intention to sound conspiratorial or expound conspiracy theories, I'm simply try to state the underlying truism that this world isn't as neat, fair or rational as we would like it to be. It feels very uncomfortable to admit this, but the harsh truth is that it isn't just about who you are, it's also about who you know.
In a just, rational world, Aaron would have been lauded as a hero, but our world isn't that world. Our world is one where influence carries more weight than the power of ideas and even though ideas may win in the long term, the effect of power wielded by certain individuals is more immediate and almost always more corrosive.
In a just, rational world, Aaron would have been lauded as a hero, but our world isn't that world. Our world is one where influence carries more weight than the power of ideas and even though ideas may win in the long term, the effect of power wielded by certain individuals is more immediate and almost always more corrosive.
No conspiracy, guys.
The prosecutor was just doing her job. A simple case like Aaron's probably took up less than 1% of her week. It may have been a big case to Aaron, but compared to their normal cases, it was a relative vacation for the prosecutors working on it.
The problem was not that Aaron "upset someone deeply entranched." The problem is that Aaron's activities fall into the definition of a particular form of electronic crime which may be overbroad. Federal prosecutors don't get to decide if laws are overbroad or unconstitutional and choose not to enforce the law (because this discretion was historically used to excuse many white defendants accused of lynching black men in the South). They enforce all of the laws on the books unless someone with legal discretion (i.e. ,the head of the DOJ or the president) issues an order telling them not to enforce a particular (set of) law(s).
The prosecutor was just doing her job. A simple case like Aaron's probably took up less than 1% of her week. It may have been a big case to Aaron, but compared to their normal cases, it was a relative vacation for the prosecutors working on it.
The problem was not that Aaron "upset someone deeply entranched." The problem is that Aaron's activities fall into the definition of a particular form of electronic crime which may be overbroad. Federal prosecutors don't get to decide if laws are overbroad or unconstitutional and choose not to enforce the law (because this discretion was historically used to excuse many white defendants accused of lynching black men in the South). They enforce all of the laws on the books unless someone with legal discretion (i.e. ,the head of the DOJ or the president) issues an order telling them not to enforce a particular (set of) law(s).
I think that the central assumption of your post is that I'm making the assumption that there was a systematic conspiracy to bring him to ruin. I am not alleging that. Neither am I stating anything towards the question whether or not his actions ran afoul of the spirit of the law. (indeed as this man asserts, there is reason to question that as well) I am simply stating an observation based upon the following;
a) the prosecutor's office has limited, finite resources to pursue cases
b) The prosecutor has discretion over the choice of cases
c) The office is judged by its record when it comes to the number of convictions and the quality of the cases pursued
d) It is reasonable to assume that the prosecutor acts as an agent, pursuing their own agenda versus the spirit of their duties. (the principal agent problem)
e) The legalities in Aaron's case are complicated and understood by a few.
f) It is also reasonable to assume that the case is inherently more risky than an open and shut guilty conviction, due to various factors such as, 1) the desire of MIT, JSTOR not to prosecute themselves, 2) expert witnesses such as the author of the article willing to provide testimony against the case, 3) the lack of a direct victim, and 4) questions over the inherent legality of the action itself.
g) In the above context it is reasonable to assert that the prosecutor without their well established tricks may have indeed lost this one if Aaron had the resources to have his day in court.
h) Aaron has a demonstrated previous track record of acting against the interests of the US govt. and the individuals it consists of.
i) Those individuals within the government have a social network
j) The said individuals are capable of and are willing to influence one another through this network
k) The prosecutor is a part of such a network by her very position within the government.
It is therefore reasonable to assume from the above assertions that it is likely the prosecutor was influenced to pursue the case with more rigour than necessary.
a) the prosecutor's office has limited, finite resources to pursue cases
b) The prosecutor has discretion over the choice of cases
c) The office is judged by its record when it comes to the number of convictions and the quality of the cases pursued
d) It is reasonable to assume that the prosecutor acts as an agent, pursuing their own agenda versus the spirit of their duties. (the principal agent problem)
e) The legalities in Aaron's case are complicated and understood by a few.
f) It is also reasonable to assume that the case is inherently more risky than an open and shut guilty conviction, due to various factors such as, 1) the desire of MIT, JSTOR not to prosecute themselves, 2) expert witnesses such as the author of the article willing to provide testimony against the case, 3) the lack of a direct victim, and 4) questions over the inherent legality of the action itself.
g) In the above context it is reasonable to assert that the prosecutor without their well established tricks may have indeed lost this one if Aaron had the resources to have his day in court.
h) Aaron has a demonstrated previous track record of acting against the interests of the US govt. and the individuals it consists of.
i) Those individuals within the government have a social network
j) The said individuals are capable of and are willing to influence one another through this network
k) The prosecutor is a part of such a network by her very position within the government.
It is therefore reasonable to assume from the above assertions that it is likely the prosecutor was influenced to pursue the case with more rigour than necessary.
So you're an up and coming prosecutor and handed the punk kid that took all those federal court documents and gave your colleagues a big middle finger when they tried to stop him.
Then JSTOR tells you to knock it off, but you proceed anyway.
And all this happens without Ortiz having any idea? Come on.
No one is saying Obama would know about this, but a bureaucrat on Ortiz's level does because its her job.
Then JSTOR tells you to knock it off, but you proceed anyway.
And all this happens without Ortiz having any idea? Come on.
No one is saying Obama would know about this, but a bureaucrat on Ortiz's level does because its her job.
Ortiz not only knew about it, but was rather zealously in favor of prosecuting Aaron (see the NYT article for more details).
She's at least as guilty as the actual prosecutors on the case.
She's at least as guilty as the actual prosecutors on the case.
Federal prosecutors do have a lot of discretion. I don't disagree with much of what you say, but this is just out of control and the only way for it to even start to get fixed is for heads to roll.
> The prosecutor was just doing her job.
If that is the case, then she is BAD at her job. You can't have it both ways. Either way, let everyone know that she is either bad at her job or overzealous.
If that is the case, then she is BAD at her job. You can't have it both ways. Either way, let everyone know that she is either bad at her job or overzealous.
As a former criminal defense attorney, I will say that based on what has been published about her on HN and other websites she's actually very good at her job as a prosecutor, precisely because she is overzealous. In fact, if her fellow prosecutors are to be believed, she's one of the best federal prosecutors still working for the government--after all, she runs the Boston federal prosecutor's office, easily one of the top 4 most prestigious postings a lawyer can hold in the executive branch of the federal government.
From my point of view, she is no different from Jack Dorsey, or Steve Jobs, or all those other techheads who are revered for their overzealous and overbearing behavior. The difference is that most people on HN don't, can't, or refuse to understand what her job is and the legal and ethical obligations that come with it.
To put things in perspective: you probably feel the same way about this prosecutor as I feel about the guys running AirBnB.
From my point of view, she is no different from Jack Dorsey, or Steve Jobs, or all those other techheads who are revered for their overzealous and overbearing behavior. The difference is that most people on HN don't, can't, or refuse to understand what her job is and the legal and ethical obligations that come with it.
To put things in perspective: you probably feel the same way about this prosecutor as I feel about the guys running AirBnB.
> To put things in perspective: you probably feel the same way about this prosecutor as I feel about the guys running AirBnB.
You feel like the guys running AirBnB are destroying people's lives?
You feel like the guys running AirBnB are destroying people's lives?
Just out of curiosity, what are the other three of the top 4 most prestigious postings a lawyer can hold in the executive branch of the federal government?
Of course, Dorsey, Jobs, and the founders of AirBnB have produced products that millions of people use voluntarily and find useful. Ortiz and Heymann by contrast decided to threaten a kid with 35 years in jail for downloading pdfs, bankrupting him and driving him to suicide. The repeated claims that there is no such thing as "prosecutorial discretion" (!) and that they were just doing their "job" (!!) are just ludicrously false and Kafkaesque. The US Attorneys in this "prestigious office" knew well what they were doing. They chose to bring this case -- they could well have chosen to dismiss it and focus on one of the many serious violent crimes that happen in MA every year -- and they must be dismissed if there is to be any justice.
Somehow one is supposed to be outraged about someone renting out their spare bedroom to make ends meet, but not disturbed by an unelected official railroading and bankrupting Swartz? Indeed, to even defend this lack of accountability while attacking or derailing any measures to hold them accountable? This worldview is absolutely topsy-turvy and incomprehensible; insofar as it has any consistency, it seems to be pure apologia for untrammeled state power, obedience to authority, and rule by lawyers.
Somehow one is supposed to be outraged about someone renting out their spare bedroom to make ends meet, but not disturbed by an unelected official railroading and bankrupting Swartz? Indeed, to even defend this lack of accountability while attacking or derailing any measures to hold them accountable? This worldview is absolutely topsy-turvy and incomprehensible; insofar as it has any consistency, it seems to be pure apologia for untrammeled state power, obedience to authority, and rule by lawyers.
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> she's actually very good at her job as a prosecutor, precisely because she is overzealous.
While we're on the topic of things HN participants have trouble understanding, you may have a perspective on the legal system to add to the discussion, but you've apparently got something of a blind spot toward what the case you're building looks like outside that perspective.
At least, insofar as you're arguing that the legal system respects and the political system advances the careers of prosecutors who are overzealous (which, by definition, is disproportionate zeal).
> Jack Dorsey, or Steve Jobs, or all those other techheads who are revered for their overzealous and overbearing behavior.
This is like arguing that because some drug addicts are great artists, people should respect drug addicts.
I think it's pretty rare that you find people revered for overbearing and overzealous behavior itself -- when you find that behavior alone, in fact, you find people generally recognized as "assholes."
It's the other stuff that people like Jobs and Dorsey bring to the table that earns them respect and gets people lining up to work with them.
So if you want to make a comparison here that's going to hold up to any real scrutiny, you'd better be able to hold up to the world what Ortiz and her fellow overzealous prosecutors are contributing to the world besides their inordinate zeal -- what their singular gifts and rare qualities are.
Particularly in the moment when the most high profile product of that zeal is that seems to have contributed to someone's death.
You spent most of your comment defending that zeal instead, though. I don't know what that says about the strength of the case you hinted could be made about the details of a prosecutor's job and the legal and ethical obligations that come with it.
While we're on the topic of things HN participants have trouble understanding, you may have a perspective on the legal system to add to the discussion, but you've apparently got something of a blind spot toward what the case you're building looks like outside that perspective.
At least, insofar as you're arguing that the legal system respects and the political system advances the careers of prosecutors who are overzealous (which, by definition, is disproportionate zeal).
> Jack Dorsey, or Steve Jobs, or all those other techheads who are revered for their overzealous and overbearing behavior.
This is like arguing that because some drug addicts are great artists, people should respect drug addicts.
I think it's pretty rare that you find people revered for overbearing and overzealous behavior itself -- when you find that behavior alone, in fact, you find people generally recognized as "assholes."
It's the other stuff that people like Jobs and Dorsey bring to the table that earns them respect and gets people lining up to work with them.
So if you want to make a comparison here that's going to hold up to any real scrutiny, you'd better be able to hold up to the world what Ortiz and her fellow overzealous prosecutors are contributing to the world besides their inordinate zeal -- what their singular gifts and rare qualities are.
Particularly in the moment when the most high profile product of that zeal is that seems to have contributed to someone's death.
You spent most of your comment defending that zeal instead, though. I don't know what that says about the strength of the case you hinted could be made about the details of a prosecutor's job and the legal and ethical obligations that come with it.
> Particularly in the moment when the most high profile product of that zeal is that seems to have contributed to someone's death.
No offense to Aaron (who is by all accounts even smarter than I) but many, many people get charged with Federal crimes (even those with 30 year sentences) and don't go and kill themselves. Especially when they're as innocent as everyone describe him to be.
In some of those cases the defendant gets to use it as an opportunity to thumb their nose at the prosecution the entire way along (a kind of "reverse bully-pulpit"). It really sounded to me that Aaron had built a good case for himself once they dropped the trespassing charge, especially in light of everything that's come out since his suicide. So I don't understand it...
No offense to Aaron (who is by all accounts even smarter than I) but many, many people get charged with Federal crimes (even those with 30 year sentences) and don't go and kill themselves. Especially when they're as innocent as everyone describe him to be.
In some of those cases the defendant gets to use it as an opportunity to thumb their nose at the prosecution the entire way along (a kind of "reverse bully-pulpit"). It really sounded to me that Aaron had built a good case for himself once they dropped the trespassing charge, especially in light of everything that's come out since his suicide. So I don't understand it...
It may have been a big case to Aaron, but compared to their normal cases, it was a relative vacation for the prosecutors working on it.
This makes it even sadder then.
This makes it even sadder then.
Federal prosecutors don't get to decide if laws are
overbroad or unconstitutional and choose not to enforce the
law...They enforce all of the laws on the books unless
someone with legal discretion (i.e. ,the head of the DOJ or
the president) issues an order telling them not to enforce
a particular (set of) law(s).
"The USA [US Attorney] is invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such authority."
http://www.justice.gov/usao/eousa/foia_reading_room/usam/tit...
The United States Attorney, within his/her district, has
plenary authority with regard to federal criminal matters.
This authority is exercised under the supervision and
direction of the Attorney General and his/her delegates.
The statutory duty to prosecute for all offenses against
the United States (28 U.S.C. § 547) carries with it the
authority necessary to perform this duty. The USA is
invested by statute and delegation from the Attorney
General with the broadest discretion in the exercise of
such authority.
The authority, discretionary power, and responsibilities of
the United States Attorney with relation to criminal
matters encompass without limitation by enumeration the
following:
Investigating suspected or alleged offenses against the
United States, see USAM 9-2.010;
Causing investigations to be conducted by the appropriate
federal law enforcement agencies, see USAM 9-2.010;
Declining prosecution, see USAM 9-2.020;
Authorizing prosecution, see USAM 9-2.030;
Determining the manner of prosecuting and deciding trial
related questions;
Recommending whether to appeal or not to appeal from an
adverse ruling or decision, see USAM 9-2.170;
Dismissing prosecutions, see USAM 9-2.050; and
Handling civil matters related thereto which are under the
supervision of the Criminal Division.Right right she was forced to do it.
Of all the great stories and memories on Aaron that have been shared all day today, I believe this story is the one that the general public should really read. Until yesterday, most Aaron vs USA stories had a negative angle on Aaron, and this one really shines a light on the ridiculous witch-hunt lead by the US Attorney.
"I know a criminal hack when I see it, and Aaron’s downloading of journal articles from an unlocked closet is not an offense worth 35 years in jail."
Prosecutors regularly ask for outrageous sentences which from my observation are rarely granted.
Here is the case of Mark Drier. Government asked for 150 years, he got 20 years:
http://blogs.wsj.com/law/2009/07/13/breaking-marc-dreier-sen...
Michael Miliken theoretically could have faced 520 years:
http://www.nytimes.com/1989/03/30/business/junk-bond-leader-...
This is what happened (he got 10 and that was reduced):
http://www.nytimes.com/1992/08/06/business/milken-s-sentence...
Prosecutors regularly ask for outrageous sentences which from my observation are rarely granted.
Here is the case of Mark Drier. Government asked for 150 years, he got 20 years:
http://blogs.wsj.com/law/2009/07/13/breaking-marc-dreier-sen...
Michael Miliken theoretically could have faced 520 years:
http://www.nytimes.com/1989/03/30/business/junk-bond-leader-...
This is what happened (he got 10 and that was reduced):
http://www.nytimes.com/1992/08/06/business/milken-s-sentence...
So in a best case scenario, let me repeat that - best case scenario, here we're going to take a delicate genius and put him into jail where there's a 7% chance of being sexually assaulted for about 5-10 years?
Look, you can judge him how you please, but don't tell me about about how horribly Turing was oppressed if you won't accept guys like Swartz got the same treatment.
Can you imagine working on a startup, clearing a couple mil, spending your life fighting for your ideals to only have EVERYTHING taken away by some overzealous prosecutor? Can you imagine watching your 2 million dollar nest egg go to lawyers who tell you that you probably will need to serve time? Can you imagine waking up and knowing that in 6 months you'll be telling everyone you know that you will be going away for 10 years? That all you've done will be taken from you? Or how utterly demoralizing it must be to realize that Ortiz cannot be stopped because of how powerful the federal government is? The level of defeat here and the stakes involved? That your reputation and the reputation of everyone and everything you touched will be destroyed the day you take the plea bargain? Knowing the coming storm will hit you soon and there's nothing you can do to stop it?
If there's any justfiable reason for suicide in this crazy world its being railroaded by a government with infinite resources and knowing that by the time you get out of prison you'll be 10 years older, never allowed to touch a computer, be seen as a horrible felon on par with Charles Manson, and come out deeply in debt and completely dead inside.
Look, you can judge him how you please, but don't tell me about about how horribly Turing was oppressed if you won't accept guys like Swartz got the same treatment.
Can you imagine working on a startup, clearing a couple mil, spending your life fighting for your ideals to only have EVERYTHING taken away by some overzealous prosecutor? Can you imagine watching your 2 million dollar nest egg go to lawyers who tell you that you probably will need to serve time? Can you imagine waking up and knowing that in 6 months you'll be telling everyone you know that you will be going away for 10 years? That all you've done will be taken from you? Or how utterly demoralizing it must be to realize that Ortiz cannot be stopped because of how powerful the federal government is? The level of defeat here and the stakes involved? That your reputation and the reputation of everyone and everything you touched will be destroyed the day you take the plea bargain? Knowing the coming storm will hit you soon and there's nothing you can do to stop it?
If there's any justfiable reason for suicide in this crazy world its being railroaded by a government with infinite resources and knowing that by the time you get out of prison you'll be 10 years older, never allowed to touch a computer, be seen as a horrible felon on par with Charles Manson, and come out deeply in debt and completely dead inside.
I really don't like this argument. Being a delicate genius.
, or head of a startup, doesn't mean you get a "get out of jail free" card. It should be completely irrelevant.
Now, I don't think the laws Swartz broke are fair. But you seem to be implying he should of hot special treatment because he was special. That is not how the law should work.
Now, I don't think the laws Swartz broke are fair. But you seem to be implying he should of hot special treatment because he was special. That is not how the law should work.
I don't think you undersstood my post. Its a justification for suicide, not a plea for special treatment.
There are few scenarios where I imagine killing myself and being given a long jail sentence is one of them. While this sounds dramatic, I have given this a lot of thought and accept it as something I would do.
>That is not how the law should work.
Lots of judges consider the crime and background of the convicted. There's a reason why a lot of white collar crime guys get minimum security or home incarceration.
There are few scenarios where I imagine killing myself and being given a long jail sentence is one of them. While this sounds dramatic, I have given this a lot of thought and accept it as something I would do.
>That is not how the law should work.
Lots of judges consider the crime and background of the convicted. There's a reason why a lot of white collar crime guys get minimum security or home incarceration.
Apparently he broke very minor laws, though, that don't even imply any jail time.
The prosecutor was seeking jail time.
Perhaps I've gone soft-European after living in Denmark for a bit now, but putting people in jail for double-digit numbers of years as the reduced sentences for nonviolent crimes seems bizarrely harsh. IIRC, studies don't find that particularly long sentences really increase the deterrent effect, either.
I can't remember a specific incident, but I'm fairly certain I've done things more "inconsiderate" than this.
Cripes, this reads like something Larry and Sergey would have done in the early days of Backrub (later Google), not something that you get prosecuted for and face the possibility of 35 years in jail for.
Cripes, this reads like something Larry and Sergey would have done in the early days of Backrub (later Google), not something that you get prosecuted for and face the possibility of 35 years in jail for.
The 9th circuit, followed by the 4th, has been limiting the CFAA's scope precisely due to the concern about prosecutorial abuse and criminalizing simple unauthorized system access. I wonder if this case would have moved forward if the alleged events happened in San Francisco.
From US v. Nosal, 676 F. 3d 854 (9th Cir.):
"The government assures us that, whatever the scope of the CFAA, it won't prosecute minor violations. But we shouldn't have to live at the mercy of our local prosecutor. Cf. United States v. Stevens, ___ U.S. ___, 130 S.Ct. 1577, 1591, 176 L.Ed.2d 435 (2010) ("We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly."). And it's not clear we can trust the government when a tempting target comes along. Take the case of the mom who posed as a 17-year-old boy and cyber-bullied her daughter's classmate. The Justice Department prosecuted her under 18 U.S.C. § 1030(a)(2)(C) for violating MySpace's terms of service, which prohibited lying about identifying information, including age. See United States v. Drew, 259 F.R.D. 449 (C.D.Cal.2009). Lying on social media websites is common: People shave years off their age, add inches to their height and drop pounds from their weight. The difference between puffery and prosecution may depend on whether you happen to be someone an AUSA has reason to go after.
In United States v. Kozminski, 487 U.S. 931, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988), the Supreme Court refused to adopt the government's broad interpretation of a statute because it would "criminalize a broad range of day-to-day activity." Id. at 949, 108 S.Ct. 2751. Applying the rule of lenity, the Court warned that the broader statutory interpretation would "delegate to prosecutors and juries the inherently legislative task of determining what type of ... activities are so morally reprehensible that they should be punished as crimes" and would "subject individuals to the risk of arbitrary or discriminatory prosecution and conviction." Id. By giving that much power to prosecutors, we're inviting discriminatory and arbitrary enforcement."
*disclaimer: I am not a lawyer
From US v. Nosal, 676 F. 3d 854 (9th Cir.):
"The government assures us that, whatever the scope of the CFAA, it won't prosecute minor violations. But we shouldn't have to live at the mercy of our local prosecutor. Cf. United States v. Stevens, ___ U.S. ___, 130 S.Ct. 1577, 1591, 176 L.Ed.2d 435 (2010) ("We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly."). And it's not clear we can trust the government when a tempting target comes along. Take the case of the mom who posed as a 17-year-old boy and cyber-bullied her daughter's classmate. The Justice Department prosecuted her under 18 U.S.C. § 1030(a)(2)(C) for violating MySpace's terms of service, which prohibited lying about identifying information, including age. See United States v. Drew, 259 F.R.D. 449 (C.D.Cal.2009). Lying on social media websites is common: People shave years off their age, add inches to their height and drop pounds from their weight. The difference between puffery and prosecution may depend on whether you happen to be someone an AUSA has reason to go after.
In United States v. Kozminski, 487 U.S. 931, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988), the Supreme Court refused to adopt the government's broad interpretation of a statute because it would "criminalize a broad range of day-to-day activity." Id. at 949, 108 S.Ct. 2751. Applying the rule of lenity, the Court warned that the broader statutory interpretation would "delegate to prosecutors and juries the inherently legislative task of determining what type of ... activities are so morally reprehensible that they should be punished as crimes" and would "subject individuals to the risk of arbitrary or discriminatory prosecution and conviction." Id. By giving that much power to prosecutors, we're inviting discriminatory and arbitrary enforcement."
*disclaimer: I am not a lawyer
It's even lower than what I expected. I remember having read one time there was allegedly a copied cookie involved (which already wasn't what I would call a hack), but it seems that's not even the case. I'm astonished how such a small offense could bring such huge charges.
Agreed, if that article is accurate those charges are ludicrous. There are plugins for every major browser that basically do the exact same thing, which any average layperson can use. What's next, claiming that AdBlock is inspecting and subverting Internet traffic, and hence a crime under the Wiretap Act?
The law is not interested in how easy a crime is technically to perform. Lots of crimes are serious and really easy. (This crime should still not have been charged, but do not say easy to commit crimes should have low penalties)
The other stories were sad, but this one is disgusting. I hope that Aaron's death actually changes things.
Many people have wondered who to point the finger at within MIT. I find it incredibly enlightening that he chooses to point a finger by linking to MIT's Office of the General Counsel.
The United States are broken beyond repair, this is just the beginning of the shitstorm of corruption that has been building up since the end of the 19th century.
This article misses the main point. Even if he did break locks and crack authentication, what he did would still be morally right.
Did Aaron release the articles, or just download them? If he released them, using what medium?
He returned all of the articles he downloaded to JSTOR when he was asked to. He did not distribute them.
UPDATE: Here's JSTOR's confirmation of the above: http://about.jstor.org/statement-swartz
UPDATE: Here's JSTOR's confirmation of the above: http://about.jstor.org/statement-swartz
How do you return something that was downloaded?
Since I have slightly trollish inclinations, I emailed JSTOR's customer service after they made that weird announcement about wanting files "returned", expressing my worry over which content was "missing", and when they expected it to be returned and available again. I got a short response claiming the media had misreported the situation:
Thank you for your message. Some of the media details about this incident have been a bit misleading. I can confirm that no content is missing from JSTOR as a result of the recent misuse case. Copies of the files were downloaded from the site, no content is unavailable as a result.
Thank you for your message. Some of the media details about this incident have been a bit misleading. I can confirm that no content is missing from JSTOR as a result of the recent misuse case. Copies of the files were downloaded from the site, no content is unavailable as a result.
You hand over the physical medium it is stored on and keep no copies.
> How do you return something that was downloaded?
In that case, if the trespassing charge was dropped, what was he being charged with? Sorry, I do not know a lot about this story.
I don't think he had a chance to distribute them, because the high volume of downloading was noticed and they tracked the computer down and then caught him. The plan was certainly to distribute them of he had not been caught, AFAIK.
Is this the reason why he committed suicide? As far as I understand, there really was no crime at all. Hell, by these standards, Mark Zuckerberg should get 70 years in prison for downloading some pictures. It's hard to believe he was persecuted for years because of that. Still, a part of me believes there had to be a stronger reason to commit suicide. I mean, we're not talking about a random stranger.. it's Aaron. He's fought all his life for things and menaces way bigger than that. This is odd.
I thought it was odd too, then I read his 2007 short story post "A Moment Before Dying" where he originally had the character's name as Aaron before changing it to Alex after concerned friends flooded in. It's a bizarre and quite frankly terrible piece where he repeats more than once the line "The day Aaron killed himself...".
It won't win any literary awards, but it indicates he could get himself caught in a dark place given circumstances. It's actually one of the more blatant "hey everyone I'm suicidal" messages I've heard of outside of actual self-harm from failed suicide attempts.
As always, friends can't be babysitting each other 24/7. He felt he should check out early, ok, well not easy to prevent people doing that if they're set in their ways.
It won't win any literary awards, but it indicates he could get himself caught in a dark place given circumstances. It's actually one of the more blatant "hey everyone I'm suicidal" messages I've heard of outside of actual self-harm from failed suicide attempts.
As always, friends can't be babysitting each other 24/7. He felt he should check out early, ok, well not easy to prevent people doing that if they're set in their ways.
>> The JSTOR application lacked even the most basic controls to prevent what they might consider abusive behavior
Was he allowed to download the documents? It doesn't matter what controls were in place. The question is basic, did he get something he was not authorized to take?
Was he allowed to download the documents? It doesn't matter what controls were in place. The question is basic, did he get something he was not authorized to take?
I remember reading about this 'hack' at the time.
I just can't believe that it ended in Aaron taking his own life. I'm sure anyone paying attention to this will be very angry and sad.
I just can't believe that it ended in Aaron taking his own life. I'm sure anyone paying attention to this will be very angry and sad.
I've been sad all morning. Reading this article just makes me angry.