7 ms·

> he was facing 13 felony charges and up to 50 years in prison[0] Pretty hard slap, that. [0]https://www.rollingstone.com/politics/politics-news/why-did-the-j

by senko 5y ago

> he was facing 13 felony charges and up to 50 years in prison[0] Pretty hard slap, that. [0]https://www.rollingstone.com/politics/politics-news/why-did-the-justice-system-target-aaron-swartz-106848/ https://www.rollingstone.com/politics/politics-news/why-did-...

tptacek 5y ago
He faced nothing resembling 50 years, even on paper, even in the least charitable plausible analysis. You get to these nosebleed sentences by assuming that there are no sentencing guidelines, and no grouping of charges, and that instead you're likely to serve the sum of the maximum sentences spelled out in the statutes you violated. That makes no sense even as a story: the CFAA statutes capture behavior ranging from abusing a login you were given legally to snoop on your coworkers performance evaluations to coordinating a multinational multi-billion-dollar heist by penetrating financial services firms. What actually happens in sentencing is that you look up the relevant sentencing guidelines in the (public, easily downloaded) federal sentencing guidelines. The guidelines are broken up by groups of statutes. They establish offense levels, from 1 (jaywalking) to 43 (mass murder). You take the offense level and look it up on a chart against your offender history (Swartz had no criminal history) and get a sentencing range. Each guideline starts with a (usually low) base offense level, and then a series of clauses that adjust that level upwards or downwards based on the conduct charged. For CFAA, modifiers include stuff like using sophisticated means to evade detection, or making a bunch of money, or putting critical systems in danger. The actual sentencing is a phase of the trial, occurring after conviction. The court has the probation office write a PSR, which is a confidential memo suggesting a sentence based on the guidelines. The prosecution argues for upwards departures for the PSR; the defense does the opposite; the judge ultimately decides. Crucially: the sentencing guidelines generally don't work by multiplying the number of counts against the suggested offense level. Rather: like charges group, and you're generally sentenced based on the highest offense level of the group. We don't really have to guess about what Swartz faced. We don't just have this New Yorker article to go on; Swartz's own attorney discussed the likely sentencing ranges. This article suggests that prosecutors were looking for 6 months on a guilty plea (they seemed hell-bent on coming up with some custodial sentence for Swartz; there seems to be something to the idea that they had a grudge against Swartz). More importantly, though, we have some of their rationale for the supposed 80 month sentence they said they'd seek if Swartz went to trial: they intended to argue that Swartz incurred 2 million dollars worth of losses. That's a self-evidently stupid argument, because there's no plausible way Swartz could have recouped even $1 from his offense, let alone $2,000,000. The documents he hoped to release had virtually no commercial value. Any damage (ie: worker hours burned cleaning up for what he did) he caused was incidental, and likely well below six figures. But the guideline offense level modifier implies the opposite of this fact pattern. Swartz's attorney believed it was likely that had Swartz gone to trial and lost on all counts, his ultimate sentence would still could have come in below the level at which the guidelines recommend straight probation; that is: he believed Swartz could have gone to trial, lost, and still did better than the plea deal offered by the prosecutors. It's not really the fault of anyone on HN that these lurid potential sentences get tossed around in discussions, because federal prosecutors issue press releases that discuss the maximum possible sentence in those terms. The media abets that dishonesty by repeating the claim, or by doing insufficient homework and using the same math. You should be irritated when you read written sources that talk about naive maximum sentences this way. At any rate: there is no chance Swartz was unaware of any of this. Not just because he had an excellent attorney who no doubt explained all of this stuff very early on in the process, but because Swartz was exactly the kind of nerd who would have had the federal sentencing guidelines bookmarked somewhere in his browser.
- tiahura 5y ago
  Thank you 10,000x over. The reporting about this aspect really couldn’t have been any worse and drove too many equally misinformed opinion pieces. And agree completely with your assessment of prosecutors and press releases - I told my US Attorney that I only wanted to see him on TV after a conviction. Alas, I hate defending prosecutors, but it seems completely unfair to blame her for his death. As you suggest, my guess was that the sentence was largely going to be driven by the damages. My understanding is that the “victims” had been sufficiently browbeat into being reluctant witnesses and as you suggest, it would have just been cleanup costs.
  - tptacek 5y ago
    This, to be fair, is the biggest problem with the CFAA. It's sort of an inchoate statute (you generally use computers as a means to conduct other offenses --- in fact, some of the reason we have a CFAA in the first place is that legislators felt that there weren't statutes that addressed computer crimes that didn't have immediate financial benefits, which themselves could be charged as fraud). The major sentencing knob CFAA comes with is 2B1.1(b), which is a table of offense level by dollar loss incurred. There are crimes where I think 2B1.1(b) probably makes sense (like, if you're literally stealing, or deliberately incurring monetary damage --- remember, your intent in committing a crime is extremely important, despite a common message board belief that it is somehow unknowable and a non-factor in legal decisions). But in a lot of cases, it's literally just the induction variable in a loop, and it makes no sense to boost an offense by 10 levels because you wrote "2000" in your for-loop instead of "20". It's 2B1.1(b) that takes you from offense level 8 (0-6 months, probation eligible) to level 24 (5 years) based on 2 million dollar of incurred loss. Again, though: the 2 million dollar figure is highly implausible. Prosecutors could have argued for it (they can argue anything they want), but it's hard to see them getting it for a non-remunerative crime that involved publishing academic journal articles. Swartz's attorney was probably a bit rosey-eyed here, though: figure any charged computer offense probably incurs losses at least in the mid-5 figures (almost mechanically, because real companies have insurance obligations to conduct external forensic investigations when incidents like this happen), and you get to a year and change sentence pretty easily.
ModernMech 5y ago
The article says they offered a 6 month jail time plea bargain though. It sounds like from his own writing that he was cognizant of the fact he broke the law, but didn’t agree the law should have been a law in the first place. It also sounds like he didn’t really expect there would be any consequences whatsoever. Look at this from the prosecutors point of view. They have hard evidence of a crime. They have evidence of consciousness of guilt from the perpetrator. It’s a slam dunk at trial so why should it get to that point? It’s a waste of everyone’s time and money. That’s why the plea deal was so generous compared to the downside of taking it to court. You want to entice them to take a slap on the wrist plea deal so everyone can avoid the cost of forestalling the eventuality of the jury’s verdict. It’s true that prosecutors can be overzealous in their prosecutions, but 6 months does not sound like the disproportionate punishment many make it out to be.
- skinnymuch 5y ago
  The statement is made by the prosecutor though. They could be saying the truth. It is a very biased person’s word to go off though.
  - ModernMech 5y ago
    What statement? You mean they could have been lying about the plea deal?
    - skinnymuch 5y ago
      If I recall the prosecutor’s future political ambitions got derailed because of this. That makes it even more likely to not believe anything they are saying without more to go on. So yes. Not just the plea deal and not just this case. In any situation, if the only evidence of something is the word of the state prosecutor, that only means so much.
  - mcguire 5y ago
    "The prosecutor, Stephen Heymann, told Swartz’s lawyer, Elliot Peters, that if Swartz pleaded guilty to all counts he would spend six months in jail; if he lost at trial, it would be much worse." The prosecutor made the offer of a 6-month plea deal to Swartz's lawyer. Who presumably discussed it with Swartz, who seems to have decided not to accept it. Possibly, if you accept the analysis above, on the advice of his lawyer.

by senko 5y ago

tptacek 5y ago

He faced nothing resembling 50 years, even on paper, even in the least charitable plausible analysis. You get to these nosebleed sentences by assuming that there are no sentencing guidelines, and no grouping of charges, and that instead you're likely to serve the sum of the maximum sentences spelled out in the statutes you violated. That makes no sense even as a story: the CFAA statutes capture behavior ranging from abusing a login you were given legally to snoop on your coworkers performance evaluations to coordinating a multinational multi-billion-dollar heist by penetrating financial services firms. What actually happens in sentencing is that you look up the relevant sentencing guidelines in the (public, easily downloaded) federal sentencing guidelines. The guidelines are broken up by groups of statutes. They establish offense levels, from 1 (jaywalking) to 43 (mass murder). You take the offense level and look it up on a chart against your offender history (Swartz had no criminal history) and get a sentencing range. Each guideline starts with a (usually low) base offense level, and then a series of clauses that adjust that level upwards or downwards based on the conduct charged. For CFAA, modifiers include stuff like using sophisticated means to evade detection, or making a bunch of money, or putting critical systems in danger. The actual sentencing is a phase of the trial, occurring after conviction. The court has the probation office write a PSR, which is a confidential memo suggesting a sentence based on the guidelines. The prosecution argues for upwards departures for the PSR; the defense does the opposite; the judge ultimately decides. Crucially: the sentencing guidelines generally don't work by multiplying the number of counts against the suggested offense level. Rather: like charges group, and you're generally sentenced based on the highest offense level of the group. We don't really have to guess about what Swartz faced. We don't just have this New Yorker article to go on; Swartz's own attorney discussed the likely sentencing ranges. This article suggests that prosecutors were looking for 6 months on a guilty plea (they seemed hell-bent on coming up with some custodial sentence for Swartz; there seems to be something to the idea that they had a grudge against Swartz). More importantly, though, we have some of their rationale for the supposed 80 month sentence they said they'd seek if Swartz went to trial: they intended to argue that Swartz incurred 2 million dollars worth of losses. That's a self-evidently stupid argument, because there's no plausible way Swartz could have recouped even $1 from his offense, let alone $2,000,000. The documents he hoped to release had virtually no commercial value. Any damage (ie: worker hours burned cleaning up for what he did) he caused was incidental, and likely well below six figures. But the guideline offense level modifier implies the opposite of this fact pattern. Swartz's attorney believed it was likely that had Swartz gone to trial and lost on all counts, his ultimate sentence would still could have come in below the level at which the guidelines recommend straight probation; that is: he believed Swartz could have gone to trial, lost, and still did better than the plea deal offered by the prosecutors. It's not really the fault of anyone on HN that these lurid potential sentences get tossed around in discussions, because federal prosecutors issue press releases that discuss the maximum possible sentence in those terms. The media abets that dishonesty by repeating the claim, or by doing insufficient homework and using the same math. You should be irritated when you read written sources that talk about naive maximum sentences this way. At any rate: there is no chance Swartz was unaware of any of this. Not just because he had an excellent attorney who no doubt explained all of this stuff very early on in the process, but because Swartz was exactly the kind of nerd who would have had the federal sentencing guidelines bookmarked somewhere in his browser.

tiahura 5y ago
Thank you 10,000x over. The reporting about this aspect really couldn’t have been any worse and drove too many equally misinformed opinion pieces. And agree completely with your assessment of prosecutors and press releases - I told my US Attorney that I only wanted to see him on TV after a conviction. Alas, I hate defending prosecutors, but it seems completely unfair to blame her for his death. As you suggest, my guess was that the sentence was largely going to be driven by the damages. My understanding is that the “victims” had been sufficiently browbeat into being reluctant witnesses and as you suggest, it would have just been cleanup costs.
- tptacek 5y ago
  This, to be fair, is the biggest problem with the CFAA. It's sort of an inchoate statute (you generally use computers as a means to conduct other offenses --- in fact, some of the reason we have a CFAA in the first place is that legislators felt that there weren't statutes that addressed computer crimes that didn't have immediate financial benefits, which themselves could be charged as fraud). The major sentencing knob CFAA comes with is 2B1.1(b), which is a table of offense level by dollar loss incurred. There are crimes where I think 2B1.1(b) probably makes sense (like, if you're literally stealing, or deliberately incurring monetary damage --- remember, your intent in committing a crime is extremely important, despite a common message board belief that it is somehow unknowable and a non-factor in legal decisions). But in a lot of cases, it's literally just the induction variable in a loop, and it makes no sense to boost an offense by 10 levels because you wrote "2000" in your for-loop instead of "20". It's 2B1.1(b) that takes you from offense level 8 (0-6 months, probation eligible) to level 24 (5 years) based on 2 million dollar of incurred loss. Again, though: the 2 million dollar figure is highly implausible. Prosecutors could have argued for it (they can argue anything they want), but it's hard to see them getting it for a non-remunerative crime that involved publishing academic journal articles. Swartz's attorney was probably a bit rosey-eyed here, though: figure any charged computer offense probably incurs losses at least in the mid-5 figures (almost mechanically, because real companies have insurance obligations to conduct external forensic investigations when incidents like this happen), and you get to a year and change sentence pretty easily.

ModernMech 5y ago

The article says they offered a 6 month jail time plea bargain though. It sounds like from his own writing that he was cognizant of the fact he broke the law, but didn’t agree the law should have been a law in the first place. It also sounds like he didn’t really expect there would be any consequences whatsoever. Look at this from the prosecutors point of view. They have hard evidence of a crime. They have evidence of consciousness of guilt from the perpetrator. It’s a slam dunk at trial so why should it get to that point? It’s a waste of everyone’s time and money. That’s why the plea deal was so generous compared to the downside of taking it to court. You want to entice them to take a slap on the wrist plea deal so everyone can avoid the cost of forestalling the eventuality of the jury’s verdict. It’s true that prosecutors can be overzealous in their prosecutions, but 6 months does not sound like the disproportionate punishment many make it out to be.

skinnymuch 5y ago
The statement is made by the prosecutor though. They could be saying the truth. It is a very biased person’s word to go off though.
- ModernMech 5y ago
  What statement? You mean they could have been lying about the plea deal?
  - skinnymuch 5y ago
    If I recall the prosecutor’s future political ambitions got derailed because of this. That makes it even more likely to not believe anything they are saying without more to go on. So yes. Not just the plea deal and not just this case. In any situation, if the only evidence of something is the word of the state prosecutor, that only means so much.
- mcguire 5y ago
  "The prosecutor, Stephen Heymann, told Swartz’s lawyer, Elliot Peters, that if Swartz pleaded guilty to all counts he would spend six months in jail; if he lost at trial, it would be much worse." The prosecutor made the offer of a 6-month plea deal to Swartz's lawyer. Who presumably discussed it with Swartz, who seems to have decided not to accept it. Possibly, if you accept the analysis above, on the advice of his lawyer.