15 ms·

Prosecutor as bully

1200 points by guan 14y ago

pbateman 14y ago
From the link in the article: Depending on how many of the counts Swartz is found guilty of, the sentence could conceivably total 50+ years and fine in the area of $4 million. What an absurd and unreasonable level of punishment. Carmen Ortiz, the prosecutor who was behind this[1] needs to be publicly shamed. [1] (source: http://bits.blogs.nytimes.com/2011/07/19/reddit-co-founder-charged-with-data-theft/ http://bits.blogs.nytimes.com/2011/07/19/reddit-co-founder-c...)
- agwa 14y ago
  This is business as usual. Naming the prosecutor isn't going to accomplish anything - the whole system needs fixing. Just a week ago this was on HN: https://news.ycombinator.com/item?id=5003335 https://news.ycombinator.com/item?id=5003335 I don't think they seized Swartz' assets in this case but they didn't need to - they made his defense as expensive as possible and bled him dry.
  - olefoo 14y ago
    Make no mistake, this means she will always be facing serious opposition should she choose to run for public office. And since she was appointed by President Obama, it is entirely appropriate for those of us who feel strongly that she misused her position; to ask him to remove her from office for failing to exercise her discretion appropriately.
    - agwa 14y ago
      > Make no mistake, this means she will always be facing serious opposition should she choose to run for public office. Beware, given the people's love of tough-on-crime politicians, drawing any attention to her career as a prosecutor, even if negative, might only help her. Most people outside of HN probably see Aaron Swartz as a criminal and this tragedy isn't going to have serious sway. Consider that factually innocent people get convicted because of prosecutorial aggression and there are no public scandals. The public's attitude towards crime needs to change before naming and shaming prosecutors will be effective. We should try to change it - quote figures to show that people needn't fear being victims of serious crime, appeal to the American founding and the ideals of innocent until proven guilty, make economic arguments that locking people up for disproportionate amounts of time is costly and pointless. This approach will move the needle on the public's attitude and will slowly fix the system which did this to Aaron Swartz. It's more nebulous and less satisfying than trying to destroy the career of a bad prosecutor, but it won't be wasted effort.
      - AnthonyMouse 14y ago
        A huge part of the problem is that there is no lobby for largely innocent people who are stripped of all their assets and locked in prison indefinitely, but there are strong lobbies for "tough on crime": Police unions want more "resources" (i.e. cash in their members' pockets) for crime fighting, especially if the "crime" involves suspects who are very unlikely to harm investigators, like "computer" crimes. Private prisons want more prisoners so that they grow their "business" -- and if they're innocent all the better, because good, honest people are less violent inmates. Victims' groups suffer from "what have you done for me lately" disease, where to get support from their constituencies they need to continually be making it harder for anyone accused to not be convicted and anyone convicted to ever see the light of day again, with no real incentive to care whether those accused and convicted are guilty or innocent. And, of course, there are no strong "innocent convicts" special interest groups because their constituencies, though numbering in the millions, have no money and can't vote.
    - SoftwareMaven 14y ago
      Because Obama has shown so much interest in listening to those who voted him in, right? Copyright maximalists are exstatic about this prosecution, and that's the trough Obama feeds from. That slop doesn't smell any better than the Republican's trough. Also, remember that Swartz was a key player in the SOPA/PIPA campaign. Do you think anybody in the government is sad about this? There will be no support from Obama on this. I doubt you could get an acknowledgement of any kind out of him.
- jiggy2011 14y ago
  As a rule I find it difficult to justify a prison sentence (beyond perhaps a short "scare them straight" visit) to somebody who has committed a crime that isn't violent (or causing others to commit violence) or perhaps something that causes widespread distress (certain types of fraud). Of course this would make it difficult to jail alcapones perhaps.
  - AnthonyMouse 14y ago
    >Of course this would make it difficult to jail alcapones perhaps. I don't follow. Al Capone was convicted for tax evasion -- because he committed tax evasion. He also allegedly (and very likely actually) committed a whole list of other serious crimes they didn't prove. But tax evasion is an actual crime that should actually be prosecuted. If Al Capone had made all his money placing legal bets in Las Vegas and then failed to pay tax on the winnings, he could and should have been convicted just the same for failing to pay his taxes. He should also, if proved, be convicted of any murders or racketeering or other such things he participated in. What he shouldn't be is charged with a law that you could just as easily be charged with, with multi-decade prison sentences attached, just because law enforcement is too corrupt or incompetent to prove the real crimes that he actually committed.
    - jiggy2011 14y ago
      Oh, I agree. I suppose my point is that it might make it easier though for those who order violent crime to distance themselves from it enough that it becomes extremely difficult to every give them a custodial sentence.
- deleted 14y ago
  [deleted]
- waterlesscloud 14y ago
  She has been rumored as a candidate for Governor or Senator, but denies interest (such denials often mean nothing). http://bostonherald.com/news_opinion/local_politics/2013/01/carmen_ortiz_rules_out_gov_senate_run http://bostonherald.com/news_opinion/local_politics/2013/01/... The Boston Globe named her "Bostonian Of The Year" in 2011. http://www.boston.com/news/local/massachusetts/articles/2011/12/30/bostonian_of_the_year_carmen_ortiz_2011/ http://www.boston.com/news/local/massachusetts/articles/2011... Like most things, it seems complicated. She's done a lot of good for society, but it looks like she really screwed up in this particular case.
- Benferhat 14y ago
  The prosecutor's job is to charge you with the violation of every statute that the evidence indicates you violated, and use that breadth of charges as leverage in a plea negotiation. Don't hate the player, hate the game.
  - erichocean 14y ago
    People in power need to take responsibility for what they do. Claiming they're "just doing their job" is how the worst stuff that ever happens to humanity by other humans goes down. For more, check out The Lucifer Effect. Doing evil in the name of your "job" is a bug in the human psyche. We need to do everything we can to mitigate its effects, and that starts by not staying stupid shit like "Hate the game, not the player" that's intended to absolve people of the guilt and shame they should be feeling for acting immorally.
    - objclxt 14y ago
      Laws are meant to be beneficial to society as a whole. In the US, laws must be passed by a democratically elected body. The judicial system is one of the few areas where "just doing your job", no matter how 'evil' it may seem, is morally right. Even the most heinous and obviously guilty defendant deserves the best defence available. And similarly, is a prosecutor enforcing a law that society chose to enact inherently evil? It is far, far better to take all this outrage and anger and direct it towards changing the outdated laws that govern computer crime.
      - erichocean 14y ago
        > And similarly, is a prosecutor enforcing a law that society chose to enact inherently evil? That's not what happened here: society did not enact laws that made his actions illegal, and certainly did not inact punishments to the extent of a felony and 35 years in prison. This is perhaps the clearest case I've even seen for prosecutorial abuse (excepting situation where the prosecutions literally fabricates evidence). More info here: http://unhandled.com/2013/01/12/the-truth-about-aaron-swartzs-crime/ http://unhandled.com/2013/01/12/the-truth-about-aaron-swartz... Bottom line: in this case, society is not to blame and no, the prosecutors weren't just "doing their job".
- jfager 14y ago
  The prosecutors actually working the case were Scott L. Garland and Stephen P. Heymann. (source: http://ia600504.us.archive.org/29/items/gov.uscourts.mad.137971/gov.uscourts.mad.137971.docket.html http://ia600504.us.archive.org/29/items/gov.uscourts.mad.137...)
  - PrudenceYuris 14y ago
    Stephen P. Heymann deserves special attention. He worked for the "Security Division" of EMC. He may have a past record of inflating small exploits with no criminal intent into federal cases. We don't need lawyers like that practising tech law.
  - rdl 14y ago
    Even sadder is that Scott L. Garland is a MIT alum :(
miles 14y ago
if what the government alleged was true — and I say “if” because I am not revealing what Aaron said to me then — then what he did was wrong. And if not legally wrong, then at least morally wrong. Morally wrong to download taxpayer-funded research? I'm sorry Larry, you lost me. More on the academic publishing "industry": http://www.guardian.co.uk/technology/2012/apr/22/academic-publishing-monopoly-challenged http://www.guardian.co.uk/technology/2012/apr/22/academic-pu...
- apaprocki 14y ago
  Separate topic, but I'm curious if making a statement like that open up the possibility that one could be served a subpoena to testify what was said?
  - count 14y ago
    I believe Aaron had come to him under attorney/client privilege at that time. Just because Lessig had to step out due to a conflict doesn't change that fact.
  - guan 14y ago
    Ordinarily yes, but attorney–client privilege would apply here.
- Vivtek 14y ago
  What Lessig sees as the moral problem may not be the retrieval itself but the use of resources. I dunno, I'm just guessing.
- brianobush 14y ago
  Taxpayers fund my research, so can they just break in and steal "information" (code, plots, draft of papers, etc)? They paid for it, right? The academic publishing industry is not one of my favorites, but they do provide a service to the communities they represent. Circumventing them will eventually destroy the community unless another "open" organization is willing to step in. Many fields (mine included) are so arcane that very few would be interested in making an open publishing venue with the editorial quality we have now.
exit 14y ago
'prosecutor' is too abstract. specific names should be named.
- vertr 14y ago
  I agree, who is this prosecutor? http://www.justice.gov/usao/ma/contact.html http://www.justice.gov/usao/ma/contact.html
  - exit 14y ago
    pbateman linked to an nytimes article that names 'Carmen M. Ortiz'. http://bits.blogs.nytimes.com/2011/07/19/reddit-co-founder-charged-with-data-theft/ http://bits.blogs.nytimes.com/2011/07/19/reddit-co-founder-c... > Mr. Swartz was indicted last Thursday by the United States Attorney for the District of Massachusetts, Carmen M. Ortiz, and the indictment was unsealed Tuesday. The charges could result in up to 35 years in prison and a $1 million fine. there must be more people behind this though.
    - guan 14y ago
      Federal prosecutors have a lot of independence and discretion. She could easily have let Aaron go with a slap on the wrist or pursued lesser charges.
  - ole_korrect 14y ago
    Agreed. I'd imagine he'd appreciate hearing from you directly: Home: 23 Kenwin Rd Winchester, MA 01890-1309 (781) 729-4959 https://www.facebook.com/stephen.heymann https://www.facebook.com/stephen.heymann [544593576] Office: 1 Courthouse Way, Suite 9200 Boston, MA 02210 stephen.heymann@usdoj.gov (617) 748-3181 (ofc) (617) 748-3100 (ofc) (617) 748-3974 (ofc fax) (617) 223-4607 AMA01(SHEYMANN) And surely his friends and family care deeply as well... Philip Heymann https://www.facebook.com/profile.php?id=100004045145173 https://www.facebook.com/profile.php?id=100004045145173 Ann Heymann https://www.facebook.com/profile.php?id=100004049494750 https://www.facebook.com/profile.php?id=100004049494750 Becca Heymann https://www.facebook.com/profile.php?id=1243020036 https://www.facebook.com/profile.php?id=1243020036 Paul Heymann https://www.facebook.com/profile.php?id=213491 https://www.facebook.com/profile.php?id=213491 Jacqueline Barnett https://www.facebook.com/profile.php?id=1387024953 https://www.facebook.com/profile.php?id=1387024953 Ben Brewer https://www.facebook.com/profile.php?id=4205714 https://www.facebook.com/profile.php?id=4205714 Ovie Carroll https://www.facebook.com/profile.php?id=502888162 https://www.facebook.com/profile.php?id=502888162 Mitch Dembin https://www.facebook.com/profile.php?id=1041605240 https://www.facebook.com/profile.php?id=1041605240 David Duffy https://www.facebook.com/profile.php?id=100002032056701 https://www.facebook.com/profile.php?id=100002032056701 Judith Falk https://www.facebook.com/profile.php?id=100000492529826 https://www.facebook.com/profile.php?id=100000492529826 Jean Falk https://www.facebook.com/profile.php?id=100004733971567 https://www.facebook.com/profile.php?id=100004733971567 Andrew Falk https://www.facebook.com/profile.php?id=14232671 https://www.facebook.com/profile.php?id=14232671 Dorothy Falk https://www.facebook.com/profile.php?id=1518875044 https://www.facebook.com/profile.php?id=1518875044 Benjamin Falk https://www.facebook.com/profile.php?id=563015230 https://www.facebook.com/profile.php?id=563015230 Jenny Finkel https://www.facebook.com/profile.php?id=205334 https://www.facebook.com/profile.php?id=205334 Peter Garza https://www.facebook.com/profile.php?id=1250838479 https://www.facebook.com/profile.php?id=1250838479 David E. Green https://www.facebook.com/profile.php?id=674733985 https://www.facebook.com/profile.php?id=674733985 Gail Grunberg https://www.facebook.com/profile.php?id=1300305988 https://www.facebook.com/profile.php?id=1300305988 Stuart Harrison https://www.facebook.com/profile.php?id=1190476219 https://www.facebook.com/profile.php?id=1190476219 Peter Hermann https://www.facebook.com/profile.php?id=100000239474404 https://www.facebook.com/profile.php?id=100000239474404 Tamara Hunter Hermann https://www.facebook.com/profile.php?id=1038235478 https://www.facebook.com/profile.php?id=1038235478 Camilla Hermann https://www.facebook.com/profile.php?id=1233240296 https://www.facebook.com/profile.php?id=1233240296 Kate Hermann https://www.facebook.com/profile.php?id=1401535451 https://www.facebook.com/profile.php?id=1401535451 Howard Hermann https://www.facebook.com/profile.php?id=1474280711 https://www.facebook.com/profile.php?id=1474280711 Ellen Hirsch https://www.facebook.com/profile.php?id=100000665045848 https://www.facebook.com/profile.php?id=100000665045848 Caitlin Hogan https://www.facebook.com/profile.php?id=213492 https://www.facebook.com/profile.php?id=213492 Sally Schneider Huebscher https://www.facebook.com/profile.php?id=516995538 https://www.facebook.com/profile.php?id=516995538 Stephen Huggard https://www.facebook.com/profile.php?id=577192251 https://www.facebook.com/profile.php?id=577192251 Lesley Koenig https://www.facebook.com/profile.php?id=1473317935 https://www.facebook.com/profile.php?id=1473317935 Susannah Lewis https://www.facebook.com/profile.php?id=100000251989330 https://www.facebook.com/profile.php?id=100000251989330 Michael Lewis https://www.facebook.com/profile.php?id=1789216769 https://www.facebook.com/profile.php?id=1789216769 Peggy Falk Lipscomb https://www.facebook.com/profile.php?id=1767478405 https://www.facebook.com/profile.php?id=1767478405 Meimei Ma https://www.facebook.com/profile.php?id=1066522128 https://www.facebook.com/profile.php?id=1066522128 Laura Falk McCarthy https://www.facebook.com/profile.php?id=1317939935 https://www.facebook.com/profile.php?id=1317939935 Margot Moser https://www.facebook.com/profile.php?id=1286063406 https://www.facebook.com/profile.php?id=1286063406 Paul Nesline https://www.facebook.com/profile.php?id=1304233 https://www.facebook.com/profile.php?id=1304233 Ingrid Parl https://www.facebook.com/profile.php?id=1243020067 https://www.facebook.com/profile.php?id=1243020067 Steen Parl https://www.facebook.com/profile.php?id=1439593849 https://www.facebook.com/profile.php?id=1439593849 Michael S Pickett https://www.facebook.com/profile.php?id=100001757657625 https://www.facebook.com/profile.php?id=100001757657625 Lucille Pierce https://www.facebook.com/profile.php?id=1628690441 https://www.facebook.com/profile.php?id=1628690441 Philip Reitinger https://www.facebook.com/profile.php?id=637280654 https://www.facebook.com/profile.php?id=637280654 Ann Ross https://www.facebook.com/profile.php?id=1076564480 https://www.facebook.com/profile.php?id=1076564480 Matthew Shopsin https://www.facebook.com/profile.php?id=1007190 https://www.facebook.com/profile.php?id=1007190 Martha Stansell-Gamm https://www.facebook.com/profile.php?id=1292492918 https://www.facebook.com/profile.php?id=1292492918 Lindsay Hogan VII https://www.facebook.com/profile.php?id=1581030090 https://www.facebook.com/profile.php?id=1581030090 Anna Wilson https://www.facebook.com/profile.php?id=663036632 https://www.facebook.com/profile.php?id=663036632 John Yarbrough https://www.facebook.com/profile.php?id=794884761 https://www.facebook.com/profile.php?id=794884761 Ellie Falk Young https://www.facebook.com/profile.php?id=1660197742 https://www.facebook.com/profile.php?id=1660197742 Carry on, Internet. - O.K.
gosub 14y ago
I would like to live in a world where, what Aaron did, was neither immoral nor illegal.
- ChuckMcM 14y ago
  nor necessary.
  - brainless 14y ago
    I think not necessary is the stronger tool here.
    - wildmXranat 14y ago
      Indeed.
spindritf 14y ago
> architects of the financial crisis regularly dine at the White House Is this empty rhetoric really necessary? There were no architects. It took over two decades of government (mis)regulation, whole banking ecosystem of incentives and repackaging, not to mention plenty of people willing to take loans they knew they wouldn't be able to pay back to bring about the crisis. Same with some great moral wrong of downloading a stack of papers and making them public. Many paid for by the public or even already publicly available.
- lilsunnybee 14y ago
  Magnetar http://en.wikipedia.org/wiki/Magnetar_Capital http://en.wikipedia.org/wiki/Magnetar_Capital
  - JumpCrisscross 14y ago
    Asset managers wanted exposure to certain credits. CDOs created a liquid vehicle for those credit exposures. Because of market inefficiencies the prices of the liquid CDOs went much higher than the underlying mortgages (equivalent to you adding up the constituents of the S&P 500 and finding the index trades much dearer than the stocks because of, say, a financial transactions tax that makes trading the stocks individually difficult). Arbitrageurs attempted to correct/take advantage of the mis-pricing by turning the underlying assets into CDOs. Sometimes, due to the difficulty of procuring the underlying assets, synthetic CDOs were created that quacked like regular CDOs but were made of plastic. Synthetic CDOs use swaps to amplify the underlying assets' credit exposures - these swaps need two sides, a long and a short. In the midst of the housing boom it was difficult to find people willing to bet against the housing market. Issuers decided to let the short side help construct the reference portfolio of the synthetic CDO on the assumption that if houses are safe as houses it's the same as letting a gambler choose which of the casino-provided dice are rolled. It's easier to say Magnetar was evil, but as usual, the truth is substantially more nuanced (or, banal, from higher up - market inefficiencies and artificially advantaged participants, i.e. federally protected banks, mixed to produce enormous yet fragile superstructures).
- gammarator 14y ago
agwa 14y ago
From the article: For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million dollar trial in April — his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge. Remember, this was on HN just a week ago: https://news.ycombinator.com/item?id=5003335 https://news.ycombinator.com/item?id=5003335 Once again we see the true nature of criminal prosecutions: the prosecutor's tactic is to bring outrageous charges that could result in decades in prison, bankrupt the defendant one way or the other (seizing assets or making the case so complex it bleeds him dry), and then use that to coerce a guilty plea. It's no wonder that trials by jury are becoming so vanishingly rare that even the Supreme Court has written that "in today’s criminal justice system, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant." [1] Do we really want to live in a country where your right to a trial is an empty right? [1] http://www.supremecourt.gov/opinions/11pdf/10-444.pdf http://www.supremecourt.gov/opinions/11pdf/10-444.pdf Edited to add: many people in this thread want to name and shame the individual prosecutor in this case. That is seriously misdirected effort that is not going to solve the systemic problems. It may even exasperate them, as it falsely implies that the problem is with individual overstepping prosecutors rather than a system in which it's the norm.
- jdminhbg 14y ago
  I disagree with your edit. There's definitely a systemic problem, but it's a systemic problem with elected officials. Naming, shaming, and voting them out is the solution.
  - agwa 14y ago
    > it's a systemic problem with elected officials Federal prosecutors are appointed, not elected, which makes the effort to name and shame them even more tenuous. Trying to fight the culture of overzealous prosecution as a whole would make it more likely that the elected official who appoints them (the president) does a better job.
    - 14y ago
jmvoodoo 14y ago
This type of behavior makes me wonder what the incentive structure is (both financially and socially) for these prosecutors? IMO that's what needs to change if we are going to have any sort of real justice in the future. Going after individuals might make us feel better for a little while, but it won't save the next Aaron Schwartz from the same fate.
- rprasad 14y ago
  Prosecutors are self-selected to be zealous defenders of the rule of law as it is written. (Quite frequently, people who believe in the rule of law as it is intended choose to go into defense work.) Thus, they need no financial or social incentives; the work itself is their incenctive, much in the same way that tackling a hard programming program is incentive in itself for a talanted programmer.
- guan 14y ago
  Federal prosecutors are appointed politically and are political figures. This can sometimes be a good thing because they can be more accountable than a faceless bureaucrat—maybe this prosecutor won’t win her next election because of this—and because they might be more likely to reflect society’s values. For example a prosecutor can decide to be more lenient in some nonviolent drug cases: the police has to investigate and the judge has to convict, but a prosecutor has the discretion to just drop the case. Of course in Aaron’s case we see the dark side of the political nature of US attorneys. Fans of The West Wing may remember this quote from Robert Jackson: “The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. … While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. “Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done.” http://www.roberthjackson.org/the-man/speeches-articles/speeches/speeches-by-robert-h-jackson/the-federal-prosecutor/ http://www.roberthjackson.org/the-man/speeches-articles/spee...
PrudenceYuris 14y ago
Then do something about it. This prosecutor is quite the collector and displayer of awards: http://www.necc.mass.edu/wp-content/uploads/2010/08/Carmen-Ortiz-Bio-USA-Dec-2011.pdf http://www.necc.mass.edu/wp-content/uploads/2010/08/Carmen-O... She is a PR asset to this university: http://www.pr.com/press-release/366324 http://www.pr.com/press-release/366324 Evidently some people want her to run for higher office: http://bostonherald.com/news_opinion/local_politics/2013/01/carmen_ortiz_rules_out_gov_senate_run http://bostonherald.com/news_opinion/local_politics/2013/01/... Governor Ortiz? Make sure it isn't: http://www.bostonglobe.com/metro/2012/12/07/patrick-reportedly-cites-prosecutor-vying-for-governor/0aEpGj5QqjvJfgSwgFNc7H/story.html http://www.bostonglobe.com/metro/2012/12/07/patrick-reported... And if you are a big biotech company, you can readily negotiate a deal to avoid prosecution: http://www.justice.gov/opa/documents/gsk/plea-ex-k.pdf http://www.justice.gov/opa/documents/gsk/plea-ex-k.pdf Oh, and piling on in the JSTOR case, while pleading down to two years for an actual money-stealing ATM skimmer with real victims: http://www.bostonglobe.com/metro/2012/11/08/romanian-man-who-stole-financial-data-from-atms-gets-two-years-prison/aY7QPwebi3OdnXegU8AZsM/story.html http://www.bostonglobe.com/metro/2012/11/08/romanian-man-who... Make sure this black spot eclipses them all. Contact the organizations she is a member of and/or a recipient of some award. Make sure the leadership of that organization knows that she lacks a sense of proportion and that this tendency to overreach cost a good man his life. Make this an exercise in how to correct these injustices, and make her an example to other prosecutors.
- rprasad 14y ago
  This is quite possibly the worst idea ever. Let's not just go after one person, let's go after everyone she ever knows, even if they have no involvement in this particular incident? Are you going to suggest we tar, feather, and lynch them too? Make this an exercise in how to correct these injustices, and make her an example to other prosecutors. You do this by airing ads against her if she ever runs for office or seeks higher appointment. You do not attack other people associated with her; that crosses the line.
  - PrudenceYuris 14y ago
    You need to reread that. Contact her professional network, and let them know you don't approve of her actions. No tar. No feathers. Just make your own opinion known in the circles that matter to her career.
danso 14y ago
> Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its. MIT, to its great shame, was not as clear, and so the prosecutor had the excuse he needed to continue his war against the “criminal” who we who loved him knew as Aaron. Can someone expound on MIT's role or ability to impact the prosecutor's case against Aaron? Did they aggressively push for some kind of trial? Did they just wash their hands of it? What is the OP referring to?
- masklinn 14y ago
  From my reading of Lessig's words, it seems MIT just let the proc do its thing, which allowed said prosecutor to invoke the Computer Fraud and Abuse Act of 1984 (MIT's computer resources were the ones Aaron abused when he downloaded the articles from JSTOR) Although since procs do their own thing and the feds were probably out for his blood after his previous PACER stunt, I'm not sure even an express assertion from MIT that they wanted to let it go would have changed anything.
alan_cx 14y ago
I cant articulate it properly or fully, but it feels like there is an establishment jealousy or resentment of dot com type people. Kids making too much money and having too much power out side of the "norm" course of business.
- andrewtbham 14y ago
  haters
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sohamsankaran 14y ago
Someone should start a whitheouse petition to question the anachronistic laws that allowed the threat of this sort of ludicrous punishment to be within the realm of possibility....
andrewtbham 14y ago
I think we should start lobbying for a bill that makes copyright infringement a civil matter, not criminal. The Aaron Swartz bill.
- _delirium 14y ago
  Unfortunately, that was the case for noncommercial infringement, but public sentiment went the other way and the law was amended in the wrong direction: http://en.wikipedia.org/wiki/NET_Act http://en.wikipedia.org/wiki/NET_Act In Swartz's case, though, it seems he wasn't being prosecuted for copyright infringement: he never actually released the JSTOR documents. Instead he was being charged with unauthorized access to a computer system, and miscellaneous other related things.
josh_fyi 14y ago
We need a website to coordinate open sharing of all research papers and books. If Napster and Bittorrent could do it for music and movies, we can do it for research. Various technologies are possible, but the key point is to spread these publications as easily as possible. And regardless of what you think of "piracy," justice is all the more on our side with these government-funded, unremunerated publications which are part of humanity's drive to push forward the frontiers of knowledge.
MaysonL 14y ago
But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. Elsevier, Springer, Pearson et al. beg to differ. Which is probably the basis for the overdiligent prosecution.
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javajosh 14y ago
I am ashamed. I am ashamed that I didn't do more to help aaron when he was alive. I am ashamed that I didn't reach out to him, donate money, donate time. I am ashamed that I've allowed this to go on, to go on in my name as an American. I've always hated bullies, even as a kid. In elementary school I would come to the aid of those being abused. And over the years, I still get angry, but I so rarely do anything anymore. It's too big, too complex, too scary. No more. It is time to shine light into the dark corridors of American power, to get personally involved. The only way for the abuse of power to continue is for us to ignore it.
vermontdevil 14y ago
We need to stop glorifying the prosector by rewarding them with political victories. I don't believe being a good DA equals being a good governor or senator. These two roles are mutually exclusive. But I fear our citizenry is just too lazy to really understand all the different candidates and vote for the best one for the job. Instead they depend on abstract figures such as conviction rates, aggressive attitudes on crime, etc to determine who gets their vote. Can be frustrating at times. Additionally I just read that the prosector in Aaron's case, Carmen Ortiz, is being considered as a candidate for Governor of Massachusetts. It might be something for the hacker community in that state to organize and utilize the web (social media, etc) to make sure she does not go that far.
olefoo 14y ago
Petition to Remove United States District Attorney Carmen Ortiz for overreach in the case of Aaron Swartz https://petitions.whitehouse.gov/petition/remove-united-states-district-attorney-carmen-ortiz-office-overreach-case-aaron-swartz/RQNrG1Ck https://petitions.whitehouse.gov/petition/remove-united-stat... http://wh.gov/E3v1 http://wh.gov/E3v1 Needs 25,000 signatures by February 11. Please help us get it there. Thank you.
rossjudson 14y ago
If we can petition the White House for a Death Star, we can petition for Ortiz' removal.
csense 14y ago
Assuming he did it -- or he didn't but was going to be found guilty anyway -- wouldn't fifty years for this nonviolent crime, done in the Martin Luther King Jr. spirit of civil disobedience, by a person with (I assume) no prior criminal record, be Unconstitutional cruel and unusual punishment?
- mscarborough 14y ago
  MLK Jr. did his jail/prison time and he didn't pussyfoot around his civil disobedience. All the love for aaronsw, but he wasn't ever sentenced and if what he was alleged to do was a civil disobedience act, it was hidden behind his lawyers.
  - csense 14y ago
    Maybe aaronsw intended to, until he found that the rigors of the investigation and the length of the prison sentence were multiple orders of magnitude worse than he'd thought they would be.
- Kliment 14y ago
  Yes, but good luck getting a ruling saying that.
arbuge 14y ago
Well said. The prosecutor seems to be the party acting criminally in this case. What balance is there in the system to prevent such blatantly evil prosecutorial excess from occurring?
shuri 14y ago
An attempt to set academic knowledge free should be celebrated and commended not penalized. Certainly not used to bully people like this.
rayiner 14y ago
Man, if we could get this kind of outrage built up against over zealous prosecution when the defendant isn't a white techie, we might actually get some criminal justice reform in the U.S.
- AnthonyMouse 14y ago
  If we're lucky we can get this kind of outrage built up when it is, and then fix it for everyone. These laws get passed when the innocent victim is a sympathetic white girl, why can't they get repealed when the innocent accused is a sympathetic white boy?
  - mscarborough 14y ago
    No laws are being rewritten posthumously for 'sympathetic white girl'. There's really no need to inject 'prosecuted white guy' into the conversation.
    - AnthonyMouse 14y ago
      You're quite right that race shouldn't have anything to do with it; I shouldn't have written it that way. But this is clearly wrong: >No laws are being rewritten posthumously for 'sympathetic white girl'. We pass laws for specific sympathetic victims all the time. We often even name them after the victims. Megan's law, Amber alerts, etc. It isn't that they're white that matters, what matters is that they're sympathetic. At best, if we assume society is fairly racist, maybe we see them as more sympathetic because they're white. But let me admit that was a mistake and move past it, because it's going down the wrong path. The point is that most of the innocent accused in the existing justice system are poor, uneducated, largely unsympathetic urban youth who no one in power cares about. There is no powerful lobby to fix it for them. In this case we have a brilliant kid who everyone loved, who was subjected to the same injustice. This should never have happened -- not to him, not to the others. So we should rally behind this tragedy and while we have the support of public opinion, prevent it from happening again, to anyone.
    - jlgreco 14y ago
liber8 14y ago
In keeping with agwa's, and others', analysis that the system itself is broken, Aaron's thoughtful analysis of The Dark Knight is very interesting. Aaron concludes that, of the various desperate attempts to change Gotham's corrupt systems, the Joker ultimately has the most success by causing chaos. The eerie part is the last line: "Thus Master Wayne is left without solutions. Out of options, it’s no wonder the series ends with his staged suicide." http://www.aaronsw.com/weblog/tdk http://www.aaronsw.com/weblog/tdk
adammil 14y ago
I created a White House petition for this, please sign it: Terminate prosecutor Carmen M. Ortiz for overzealous prosecution of Aaron Swartz, leading to his suicide. http://wh.gov/EO5n http://wh.gov/EO5n
- PrudenceYuris 14y ago
  Duplicate. This one has 1500 signatures already: https://petitions.whitehouse.gov/petition/remove-united-states-district-attorney-carmen-ortiz-office-overreach-case-aaron-swartz/RQNrG1Ck https://petitions.whitehouse.gov/petition/remove-united-stat...
jacoblyles 14y ago
I object to the characterization of the government's prosecution as "overcharging". The correct punishment for Aaron's actions is not a smaller prison sentence, but a medal.
jacoblyles 14y ago
I take exception to Lessig's description of Aaron's behavior as "morally wrong". It was no more "morally wrong" than enabling a slave to escape his master's plantation. Property rights that have their basis in injustice are not valid.
mscarborough 14y ago
Nobody killed Aaron Swartz except Aaron Swartz. Not the prosecutor, nor the legal system, nor the copyright system. Completely useless as they all are. It's absolutely horrible how this happened and that we lost such a light in the web community. But stop the myth making and pretending that you cared the whole time, when really nobody did.
- darkarmani 14y ago
  Threatened with 35 years of jail time...
  - mscarborough 14y ago
    Yes, it was threatened. Not convicted or sentenced. Not held up on appeal, much less tested in court in the first place.
paulrademacher 14y ago
> unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge Can someone explain this statement? Can a person not raise a defense fund from the public?
paulrademacher 14y ago
Question for the legal experts: We've been reading potential jail time of 50 or 30 years, plus $millions+ in fines. Realistically, had he taken a plea bargain or gone to trial, what would he likely have wound up with?
- pseingatl 14y ago
  It's quite easy to calculate the likely sentence. The Federal Sentencing Guidelines provide for a base level of 6, plus an 18 step increase for fraud between $2,500,000 and $7,000,000. The sentencing range at this level assuming no criminal history is 57-71 months. Expect supervised release (no computers) for three years. The fine would be up to the sentencing judge within statutory limits. The government estimated the value of the JStor documents at $5 million. Even if the government's estimate was exaggerated, the documents were worth something--and this figure would drive the sentence to be imposed. The judge could also depart upward based on aggravating factors such as PACER and a lack of remorse. Swartz faced with no good choices. When he did not take the offered plea, they superseded and racheted up the counts. The number of counts doesn't really matter for Guidelines purposes but there is always the risk that the sentencing judge could impose the sentences for each count consecutively. My guess is that Heyman/Ortiz really didn't want to prosecute the case, afraid that it would become a political hot potato and controversial. They made him what they considered a reasonable offer in September--7 to 8 months federal prison, a fine (amount unknown) and two-three years of supervised release. The kicker is that he could not use computers until supervised release was finished. So for a decade or so, he would be cut off from the digital world entirely. (There are various reports about these negotiations but I have not seen an offer letter.) We know that Swartz did not accept the offer. What happened next is what prosecutors do in all sorts of cases: they superseded, that is, replaced the indictment with a new one, adding new charges and new counts. Perhaps they withdrew their plea offer as well, or put a deadline on acceptance. With a trial date of this week, and advice from his lawyers that he very well could lose (whatever the facts, the hiding his face with a mask would be a prominent feature of the trial, and mummery by the prosecutors just as the glove in the OJ case). I do not know what his attorneys told him; but from their pleadings they seem to be competent, professional federal defense attorneys, so they would have told him realistically what his chances were. Criminal defendants in these circumstances often take very drastic action. Someone was pressing this case. It could have been Ortiz. It could have been the case agent. It could have been Heyman. In state court a case like this would almost certainly have resulted in probation. Someone, somewhere wanted Swartz' head on their pike.
noonespecial 14y ago
As citizens, there should be a way to collect enough signatures to pronounce the professional death penalty(1) on a prosecutor who fails adequately represent the wishes of the people. They do ostensibly represent the people, prosecuting those who harm the public. If they fail this duty and harm the public instead... (1) Never be allowed to serve in the role of prosecutor at any level again.
michaelfeathers 14y ago
What would reform look like?

1200 points by guan 14y ago

From the link in the article: Depending on how many of the counts Swartz is found guilty of, the sentence could conceivably total 50+ years and fine in the area of $4 million. What an absurd and unreasonable level of punishment. Carmen Ortiz, the prosecutor who was behind this[1] needs to be publicly shamed. [1] (source: http://bits.blogs.nytimes.com/2011/07/19/reddit-co-founder-charged-with-data-theft/ http://bits.blogs.nytimes.com/2011/07/19/reddit-co-founder-c...)

agwa 14y ago
This is business as usual. Naming the prosecutor isn't going to accomplish anything - the whole system needs fixing. Just a week ago this was on HN: https://news.ycombinator.com/item?id=5003335 https://news.ycombinator.com/item?id=5003335 I don't think they seized Swartz' assets in this case but they didn't need to - they made his defense as expensive as possible and bled him dry.
- olefoo 14y ago
  Make no mistake, this means she will always be facing serious opposition should she choose to run for public office. And since she was appointed by President Obama, it is entirely appropriate for those of us who feel strongly that she misused her position; to ask him to remove her from office for failing to exercise her discretion appropriately.
  - agwa 14y ago
    > Make no mistake, this means she will always be facing serious opposition should she choose to run for public office. Beware, given the people's love of tough-on-crime politicians, drawing any attention to her career as a prosecutor, even if negative, might only help her. Most people outside of HN probably see Aaron Swartz as a criminal and this tragedy isn't going to have serious sway. Consider that factually innocent people get convicted because of prosecutorial aggression and there are no public scandals. The public's attitude towards crime needs to change before naming and shaming prosecutors will be effective. We should try to change it - quote figures to show that people needn't fear being victims of serious crime, appeal to the American founding and the ideals of innocent until proven guilty, make economic arguments that locking people up for disproportionate amounts of time is costly and pointless. This approach will move the needle on the public's attitude and will slowly fix the system which did this to Aaron Swartz. It's more nebulous and less satisfying than trying to destroy the career of a bad prosecutor, but it won't be wasted effort.
    - AnthonyMouse 14y ago
      A huge part of the problem is that there is no lobby for largely innocent people who are stripped of all their assets and locked in prison indefinitely, but there are strong lobbies for "tough on crime": Police unions want more "resources" (i.e. cash in their members' pockets) for crime fighting, especially if the "crime" involves suspects who are very unlikely to harm investigators, like "computer" crimes. Private prisons want more prisoners so that they grow their "business" -- and if they're innocent all the better, because good, honest people are less violent inmates. Victims' groups suffer from "what have you done for me lately" disease, where to get support from their constituencies they need to continually be making it harder for anyone accused to not be convicted and anyone convicted to ever see the light of day again, with no real incentive to care whether those accused and convicted are guilty or innocent. And, of course, there are no strong "innocent convicts" special interest groups because their constituencies, though numbering in the millions, have no money and can't vote.
  - SoftwareMaven 14y ago
    Because Obama has shown so much interest in listening to those who voted him in, right? Copyright maximalists are exstatic about this prosecution, and that's the trough Obama feeds from. That slop doesn't smell any better than the Republican's trough. Also, remember that Swartz was a key player in the SOPA/PIPA campaign. Do you think anybody in the government is sad about this? There will be no support from Obama on this. I doubt you could get an acknowledgement of any kind out of him.
jiggy2011 14y ago
As a rule I find it difficult to justify a prison sentence (beyond perhaps a short "scare them straight" visit) to somebody who has committed a crime that isn't violent (or causing others to commit violence) or perhaps something that causes widespread distress (certain types of fraud). Of course this would make it difficult to jail alcapones perhaps.
- AnthonyMouse 14y ago
  >Of course this would make it difficult to jail alcapones perhaps. I don't follow. Al Capone was convicted for tax evasion -- because he committed tax evasion. He also allegedly (and very likely actually) committed a whole list of other serious crimes they didn't prove. But tax evasion is an actual crime that should actually be prosecuted. If Al Capone had made all his money placing legal bets in Las Vegas and then failed to pay tax on the winnings, he could and should have been convicted just the same for failing to pay his taxes. He should also, if proved, be convicted of any murders or racketeering or other such things he participated in. What he shouldn't be is charged with a law that you could just as easily be charged with, with multi-decade prison sentences attached, just because law enforcement is too corrupt or incompetent to prove the real crimes that he actually committed.
  - jiggy2011 14y ago
    Oh, I agree. I suppose my point is that it might make it easier though for those who order violent crime to distance themselves from it enough that it becomes extremely difficult to every give them a custodial sentence.
deleted 14y ago
[deleted]
waterlesscloud 14y ago
She has been rumored as a candidate for Governor or Senator, but denies interest (such denials often mean nothing). http://bostonherald.com/news_opinion/local_politics/2013/01/carmen_ortiz_rules_out_gov_senate_run http://bostonherald.com/news_opinion/local_politics/2013/01/... The Boston Globe named her "Bostonian Of The Year" in 2011. http://www.boston.com/news/local/massachusetts/articles/2011/12/30/bostonian_of_the_year_carmen_ortiz_2011/ http://www.boston.com/news/local/massachusetts/articles/2011... Like most things, it seems complicated. She's done a lot of good for society, but it looks like she really screwed up in this particular case.
Benferhat 14y ago
The prosecutor's job is to charge you with the violation of every statute that the evidence indicates you violated, and use that breadth of charges as leverage in a plea negotiation. Don't hate the player, hate the game.
- erichocean 14y ago
  People in power need to take responsibility for what they do. Claiming they're "just doing their job" is how the worst stuff that ever happens to humanity by other humans goes down. For more, check out The Lucifer Effect. Doing evil in the name of your "job" is a bug in the human psyche. We need to do everything we can to mitigate its effects, and that starts by not staying stupid shit like "Hate the game, not the player" that's intended to absolve people of the guilt and shame they should be feeling for acting immorally.
  - objclxt 14y ago
    Laws are meant to be beneficial to society as a whole. In the US, laws must be passed by a democratically elected body. The judicial system is one of the few areas where "just doing your job", no matter how 'evil' it may seem, is morally right. Even the most heinous and obviously guilty defendant deserves the best defence available. And similarly, is a prosecutor enforcing a law that society chose to enact inherently evil? It is far, far better to take all this outrage and anger and direct it towards changing the outdated laws that govern computer crime.
    - erichocean 14y ago
      > And similarly, is a prosecutor enforcing a law that society chose to enact inherently evil? That's not what happened here: society did not enact laws that made his actions illegal, and certainly did not inact punishments to the extent of a felony and 35 years in prison. This is perhaps the clearest case I've even seen for prosecutorial abuse (excepting situation where the prosecutions literally fabricates evidence). More info here: http://unhandled.com/2013/01/12/the-truth-about-aaron-swartzs-crime/ http://unhandled.com/2013/01/12/the-truth-about-aaron-swartz... Bottom line: in this case, society is not to blame and no, the prosecutors weren't just "doing their job".
jfager 14y ago
The prosecutors actually working the case were Scott L. Garland and Stephen P. Heymann. (source: http://ia600504.us.archive.org/29/items/gov.uscourts.mad.137971/gov.uscourts.mad.137971.docket.html http://ia600504.us.archive.org/29/items/gov.uscourts.mad.137...)
- PrudenceYuris 14y ago
  Stephen P. Heymann deserves special attention. He worked for the "Security Division" of EMC. He may have a past record of inflating small exploits with no criminal intent into federal cases. We don't need lawyers like that practising tech law.
- rdl 14y ago
  Even sadder is that Scott L. Garland is a MIT alum :(

miles 14y ago

if what the government alleged was true — and I say “if” because I am not revealing what Aaron said to me then — then what he did was wrong. And if not legally wrong, then at least morally wrong. Morally wrong to download taxpayer-funded research? I'm sorry Larry, you lost me. More on the academic publishing "industry": http://www.guardian.co.uk/technology/2012/apr/22/academic-publishing-monopoly-challenged http://www.guardian.co.uk/technology/2012/apr/22/academic-pu...

apaprocki 14y ago
Separate topic, but I'm curious if making a statement like that open up the possibility that one could be served a subpoena to testify what was said?
- count 14y ago
  I believe Aaron had come to him under attorney/client privilege at that time. Just because Lessig had to step out due to a conflict doesn't change that fact.
- guan 14y ago
  Ordinarily yes, but attorney–client privilege would apply here.
Vivtek 14y ago
What Lessig sees as the moral problem may not be the retrieval itself but the use of resources. I dunno, I'm just guessing.
brianobush 14y ago
Taxpayers fund my research, so can they just break in and steal "information" (code, plots, draft of papers, etc)? They paid for it, right? The academic publishing industry is not one of my favorites, but they do provide a service to the communities they represent. Circumventing them will eventually destroy the community unless another "open" organization is willing to step in. Many fields (mine included) are so arcane that very few would be interested in making an open publishing venue with the editorial quality we have now.

exit 14y ago

'prosecutor' is too abstract. specific names should be named.

vertr 14y ago
I agree, who is this prosecutor? http://www.justice.gov/usao/ma/contact.html http://www.justice.gov/usao/ma/contact.html
- exit 14y ago
  pbateman linked to an nytimes article that names 'Carmen M. Ortiz'. http://bits.blogs.nytimes.com/2011/07/19/reddit-co-founder-charged-with-data-theft/ http://bits.blogs.nytimes.com/2011/07/19/reddit-co-founder-c... > Mr. Swartz was indicted last Thursday by the United States Attorney for the District of Massachusetts, Carmen M. Ortiz, and the indictment was unsealed Tuesday. The charges could result in up to 35 years in prison and a $1 million fine. there must be more people behind this though.
  - guan 14y ago
    Federal prosecutors have a lot of independence and discretion. She could easily have let Aaron go with a slap on the wrist or pursued lesser charges.
- ole_korrect 14y ago
  Agreed. I'd imagine he'd appreciate hearing from you directly: Home: 23 Kenwin Rd Winchester, MA 01890-1309 (781) 729-4959 https://www.facebook.com/stephen.heymann https://www.facebook.com/stephen.heymann [544593576] Office: 1 Courthouse Way, Suite 9200 Boston, MA 02210 stephen.heymann@usdoj.gov (617) 748-3181 (ofc) (617) 748-3100 (ofc) (617) 748-3974 (ofc fax) (617) 223-4607 AMA01(SHEYMANN) And surely his friends and family care deeply as well... Philip Heymann https://www.facebook.com/profile.php?id=100004045145173 https://www.facebook.com/profile.php?id=100004045145173 Ann Heymann https://www.facebook.com/profile.php?id=100004049494750 https://www.facebook.com/profile.php?id=100004049494750 Becca Heymann https://www.facebook.com/profile.php?id=1243020036 https://www.facebook.com/profile.php?id=1243020036 Paul Heymann https://www.facebook.com/profile.php?id=213491 https://www.facebook.com/profile.php?id=213491 Jacqueline Barnett https://www.facebook.com/profile.php?id=1387024953 https://www.facebook.com/profile.php?id=1387024953 Ben Brewer https://www.facebook.com/profile.php?id=4205714 https://www.facebook.com/profile.php?id=4205714 Ovie Carroll https://www.facebook.com/profile.php?id=502888162 https://www.facebook.com/profile.php?id=502888162 Mitch Dembin https://www.facebook.com/profile.php?id=1041605240 https://www.facebook.com/profile.php?id=1041605240 David Duffy https://www.facebook.com/profile.php?id=100002032056701 https://www.facebook.com/profile.php?id=100002032056701 Judith Falk https://www.facebook.com/profile.php?id=100000492529826 https://www.facebook.com/profile.php?id=100000492529826 Jean Falk https://www.facebook.com/profile.php?id=100004733971567 https://www.facebook.com/profile.php?id=100004733971567 Andrew Falk https://www.facebook.com/profile.php?id=14232671 https://www.facebook.com/profile.php?id=14232671 Dorothy Falk https://www.facebook.com/profile.php?id=1518875044 https://www.facebook.com/profile.php?id=1518875044 Benjamin Falk https://www.facebook.com/profile.php?id=563015230 https://www.facebook.com/profile.php?id=563015230 Jenny Finkel https://www.facebook.com/profile.php?id=205334 https://www.facebook.com/profile.php?id=205334 Peter Garza https://www.facebook.com/profile.php?id=1250838479 https://www.facebook.com/profile.php?id=1250838479 David E. Green https://www.facebook.com/profile.php?id=674733985 https://www.facebook.com/profile.php?id=674733985 Gail Grunberg https://www.facebook.com/profile.php?id=1300305988 https://www.facebook.com/profile.php?id=1300305988 Stuart Harrison https://www.facebook.com/profile.php?id=1190476219 https://www.facebook.com/profile.php?id=1190476219 Peter Hermann https://www.facebook.com/profile.php?id=100000239474404 https://www.facebook.com/profile.php?id=100000239474404 Tamara Hunter Hermann https://www.facebook.com/profile.php?id=1038235478 https://www.facebook.com/profile.php?id=1038235478 Camilla Hermann https://www.facebook.com/profile.php?id=1233240296 https://www.facebook.com/profile.php?id=1233240296 Kate Hermann https://www.facebook.com/profile.php?id=1401535451 https://www.facebook.com/profile.php?id=1401535451 Howard Hermann https://www.facebook.com/profile.php?id=1474280711 https://www.facebook.com/profile.php?id=1474280711 Ellen Hirsch https://www.facebook.com/profile.php?id=100000665045848 https://www.facebook.com/profile.php?id=100000665045848 Caitlin Hogan https://www.facebook.com/profile.php?id=213492 https://www.facebook.com/profile.php?id=213492 Sally Schneider Huebscher https://www.facebook.com/profile.php?id=516995538 https://www.facebook.com/profile.php?id=516995538 Stephen Huggard https://www.facebook.com/profile.php?id=577192251 https://www.facebook.com/profile.php?id=577192251 Lesley Koenig https://www.facebook.com/profile.php?id=1473317935 https://www.facebook.com/profile.php?id=1473317935 Susannah Lewis https://www.facebook.com/profile.php?id=100000251989330 https://www.facebook.com/profile.php?id=100000251989330 Michael Lewis https://www.facebook.com/profile.php?id=1789216769 https://www.facebook.com/profile.php?id=1789216769 Peggy Falk Lipscomb https://www.facebook.com/profile.php?id=1767478405 https://www.facebook.com/profile.php?id=1767478405 Meimei Ma https://www.facebook.com/profile.php?id=1066522128 https://www.facebook.com/profile.php?id=1066522128 Laura Falk McCarthy https://www.facebook.com/profile.php?id=1317939935 https://www.facebook.com/profile.php?id=1317939935 Margot Moser https://www.facebook.com/profile.php?id=1286063406 https://www.facebook.com/profile.php?id=1286063406 Paul Nesline https://www.facebook.com/profile.php?id=1304233 https://www.facebook.com/profile.php?id=1304233 Ingrid Parl https://www.facebook.com/profile.php?id=1243020067 https://www.facebook.com/profile.php?id=1243020067 Steen Parl https://www.facebook.com/profile.php?id=1439593849 https://www.facebook.com/profile.php?id=1439593849 Michael S Pickett https://www.facebook.com/profile.php?id=100001757657625 https://www.facebook.com/profile.php?id=100001757657625 Lucille Pierce https://www.facebook.com/profile.php?id=1628690441 https://www.facebook.com/profile.php?id=1628690441 Philip Reitinger https://www.facebook.com/profile.php?id=637280654 https://www.facebook.com/profile.php?id=637280654 Ann Ross https://www.facebook.com/profile.php?id=1076564480 https://www.facebook.com/profile.php?id=1076564480 Matthew Shopsin https://www.facebook.com/profile.php?id=1007190 https://www.facebook.com/profile.php?id=1007190 Martha Stansell-Gamm https://www.facebook.com/profile.php?id=1292492918 https://www.facebook.com/profile.php?id=1292492918 Lindsay Hogan VII https://www.facebook.com/profile.php?id=1581030090 https://www.facebook.com/profile.php?id=1581030090 Anna Wilson https://www.facebook.com/profile.php?id=663036632 https://www.facebook.com/profile.php?id=663036632 John Yarbrough https://www.facebook.com/profile.php?id=794884761 https://www.facebook.com/profile.php?id=794884761 Ellie Falk Young https://www.facebook.com/profile.php?id=1660197742 https://www.facebook.com/profile.php?id=1660197742 Carry on, Internet. - O.K.

gosub 14y ago

I would like to live in a world where, what Aaron did, was neither immoral nor illegal.

ChuckMcM 14y ago
nor necessary.
- brainless 14y ago
  I think not necessary is the stronger tool here.
  - wildmXranat 14y ago
    Indeed.

spindritf 14y ago

> architects of the financial crisis regularly dine at the White House Is this empty rhetoric really necessary? There were no architects. It took over two decades of government (mis)regulation, whole banking ecosystem of incentives and repackaging, not to mention plenty of people willing to take loans they knew they wouldn't be able to pay back to bring about the crisis. Same with some great moral wrong of downloading a stack of papers and making them public. Many paid for by the public or even already publicly available.

lilsunnybee 14y ago
Magnetar http://en.wikipedia.org/wiki/Magnetar_Capital http://en.wikipedia.org/wiki/Magnetar_Capital
- JumpCrisscross 14y ago
  Asset managers wanted exposure to certain credits. CDOs created a liquid vehicle for those credit exposures. Because of market inefficiencies the prices of the liquid CDOs went much higher than the underlying mortgages (equivalent to you adding up the constituents of the S&P 500 and finding the index trades much dearer than the stocks because of, say, a financial transactions tax that makes trading the stocks individually difficult). Arbitrageurs attempted to correct/take advantage of the mis-pricing by turning the underlying assets into CDOs. Sometimes, due to the difficulty of procuring the underlying assets, synthetic CDOs were created that quacked like regular CDOs but were made of plastic. Synthetic CDOs use swaps to amplify the underlying assets' credit exposures - these swaps need two sides, a long and a short. In the midst of the housing boom it was difficult to find people willing to bet against the housing market. Issuers decided to let the short side help construct the reference portfolio of the synthetic CDO on the assumption that if houses are safe as houses it's the same as letting a gambler choose which of the casino-provided dice are rolled. It's easier to say Magnetar was evil, but as usual, the truth is substantially more nuanced (or, banal, from higher up - market inefficiencies and artificially advantaged participants, i.e. federally protected banks, mixed to produce enormous yet fragile superstructures).
gammarator 14y ago

agwa 14y ago

From the article: For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million dollar trial in April — his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge. Remember, this was on HN just a week ago: https://news.ycombinator.com/item?id=5003335 https://news.ycombinator.com/item?id=5003335 Once again we see the true nature of criminal prosecutions: the prosecutor's tactic is to bring outrageous charges that could result in decades in prison, bankrupt the defendant one way or the other (seizing assets or making the case so complex it bleeds him dry), and then use that to coerce a guilty plea. It's no wonder that trials by jury are becoming so vanishingly rare that even the Supreme Court has written that "in today’s criminal justice system, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant." [1] Do we really want to live in a country where your right to a trial is an empty right? [1] http://www.supremecourt.gov/opinions/11pdf/10-444.pdf http://www.supremecourt.gov/opinions/11pdf/10-444.pdf Edited to add: many people in this thread want to name and shame the individual prosecutor in this case. That is seriously misdirected effort that is not going to solve the systemic problems. It may even exasperate them, as it falsely implies that the problem is with individual overstepping prosecutors rather than a system in which it's the norm.

jdminhbg 14y ago
I disagree with your edit. There's definitely a systemic problem, but it's a systemic problem with elected officials. Naming, shaming, and voting them out is the solution.
- agwa 14y ago
  > it's a systemic problem with elected officials Federal prosecutors are appointed, not elected, which makes the effort to name and shame them even more tenuous. Trying to fight the culture of overzealous prosecution as a whole would make it more likely that the elected official who appoints them (the president) does a better job.
  - 14y ago

jmvoodoo 14y ago

This type of behavior makes me wonder what the incentive structure is (both financially and socially) for these prosecutors? IMO that's what needs to change if we are going to have any sort of real justice in the future. Going after individuals might make us feel better for a little while, but it won't save the next Aaron Schwartz from the same fate.

rprasad 14y ago
Prosecutors are self-selected to be zealous defenders of the rule of law as it is written. (Quite frequently, people who believe in the rule of law as it is intended choose to go into defense work.) Thus, they need no financial or social incentives; the work itself is their incenctive, much in the same way that tackling a hard programming program is incentive in itself for a talanted programmer.
guan 14y ago
Federal prosecutors are appointed politically and are political figures. This can sometimes be a good thing because they can be more accountable than a faceless bureaucrat—maybe this prosecutor won’t win her next election because of this—and because they might be more likely to reflect society’s values. For example a prosecutor can decide to be more lenient in some nonviolent drug cases: the police has to investigate and the judge has to convict, but a prosecutor has the discretion to just drop the case. Of course in Aaron’s case we see the dark side of the political nature of US attorneys. Fans of The West Wing may remember this quote from Robert Jackson: “The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. … While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. “Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done.” http://www.roberthjackson.org/the-man/speeches-articles/speeches/speeches-by-robert-h-jackson/the-federal-prosecutor/ http://www.roberthjackson.org/the-man/speeches-articles/spee...

PrudenceYuris 14y ago

Then do something about it. This prosecutor is quite the collector and displayer of awards: http://www.necc.mass.edu/wp-content/uploads/2010/08/Carmen-Ortiz-Bio-USA-Dec-2011.pdf http://www.necc.mass.edu/wp-content/uploads/2010/08/Carmen-O... She is a PR asset to this university: http://www.pr.com/press-release/366324 http://www.pr.com/press-release/366324 Evidently some people want her to run for higher office: http://bostonherald.com/news_opinion/local_politics/2013/01/carmen_ortiz_rules_out_gov_senate_run http://bostonherald.com/news_opinion/local_politics/2013/01/... Governor Ortiz? Make sure it isn't: http://www.bostonglobe.com/metro/2012/12/07/patrick-reportedly-cites-prosecutor-vying-for-governor/0aEpGj5QqjvJfgSwgFNc7H/story.html http://www.bostonglobe.com/metro/2012/12/07/patrick-reported... And if you are a big biotech company, you can readily negotiate a deal to avoid prosecution: http://www.justice.gov/opa/documents/gsk/plea-ex-k.pdf http://www.justice.gov/opa/documents/gsk/plea-ex-k.pdf Oh, and piling on in the JSTOR case, while pleading down to two years for an actual money-stealing ATM skimmer with real victims: http://www.bostonglobe.com/metro/2012/11/08/romanian-man-who-stole-financial-data-from-atms-gets-two-years-prison/aY7QPwebi3OdnXegU8AZsM/story.html http://www.bostonglobe.com/metro/2012/11/08/romanian-man-who... Make sure this black spot eclipses them all. Contact the organizations she is a member of and/or a recipient of some award. Make sure the leadership of that organization knows that she lacks a sense of proportion and that this tendency to overreach cost a good man his life. Make this an exercise in how to correct these injustices, and make her an example to other prosecutors.

rprasad 14y ago
This is quite possibly the worst idea ever. Let's not just go after one person, let's go after everyone she ever knows, even if they have no involvement in this particular incident? Are you going to suggest we tar, feather, and lynch them too? Make this an exercise in how to correct these injustices, and make her an example to other prosecutors. You do this by airing ads against her if she ever runs for office or seeks higher appointment. You do not attack other people associated with her; that crosses the line.
- PrudenceYuris 14y ago
  You need to reread that. Contact her professional network, and let them know you don't approve of her actions. No tar. No feathers. Just make your own opinion known in the circles that matter to her career.

danso 14y ago

> Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its. MIT, to its great shame, was not as clear, and so the prosecutor had the excuse he needed to continue his war against the “criminal” who we who loved him knew as Aaron. Can someone expound on MIT's role or ability to impact the prosecutor's case against Aaron? Did they aggressively push for some kind of trial? Did they just wash their hands of it? What is the OP referring to?

masklinn 14y ago
From my reading of Lessig's words, it seems MIT just let the proc do its thing, which allowed said prosecutor to invoke the Computer Fraud and Abuse Act of 1984 (MIT's computer resources were the ones Aaron abused when he downloaded the articles from JSTOR) Although since procs do their own thing and the feds were probably out for his blood after his previous PACER stunt, I'm not sure even an express assertion from MIT that they wanted to let it go would have changed anything.

alan_cx 14y ago

I cant articulate it properly or fully, but it feels like there is an establishment jealousy or resentment of dot com type people. Kids making too much money and having too much power out side of the "norm" course of business.

andrewtbham 14y ago
haters

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sohamsankaran 14y ago

Someone should start a whitheouse petition to question the anachronistic laws that allowed the threat of this sort of ludicrous punishment to be within the realm of possibility....

andrewtbham 14y ago

I think we should start lobbying for a bill that makes copyright infringement a civil matter, not criminal. The Aaron Swartz bill.

_delirium 14y ago
Unfortunately, that was the case for noncommercial infringement, but public sentiment went the other way and the law was amended in the wrong direction: http://en.wikipedia.org/wiki/NET_Act http://en.wikipedia.org/wiki/NET_Act In Swartz's case, though, it seems he wasn't being prosecuted for copyright infringement: he never actually released the JSTOR documents. Instead he was being charged with unauthorized access to a computer system, and miscellaneous other related things.

josh_fyi 14y ago

We need a website to coordinate open sharing of all research papers and books. If Napster and Bittorrent could do it for music and movies, we can do it for research. Various technologies are possible, but the key point is to spread these publications as easily as possible. And regardless of what you think of "piracy," justice is all the more on our side with these government-funded, unremunerated publications which are part of humanity's drive to push forward the frontiers of knowledge.

MaysonL 14y ago

But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. Elsevier, Springer, Pearson et al. beg to differ. Which is probably the basis for the overdiligent prosecution.

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javajosh 14y ago

I am ashamed. I am ashamed that I didn't do more to help aaron when he was alive. I am ashamed that I didn't reach out to him, donate money, donate time. I am ashamed that I've allowed this to go on, to go on in my name as an American. I've always hated bullies, even as a kid. In elementary school I would come to the aid of those being abused. And over the years, I still get angry, but I so rarely do anything anymore. It's too big, too complex, too scary. No more. It is time to shine light into the dark corridors of American power, to get personally involved. The only way for the abuse of power to continue is for us to ignore it.

vermontdevil 14y ago

We need to stop glorifying the prosector by rewarding them with political victories. I don't believe being a good DA equals being a good governor or senator. These two roles are mutually exclusive. But I fear our citizenry is just too lazy to really understand all the different candidates and vote for the best one for the job. Instead they depend on abstract figures such as conviction rates, aggressive attitudes on crime, etc to determine who gets their vote. Can be frustrating at times. Additionally I just read that the prosector in Aaron's case, Carmen Ortiz, is being considered as a candidate for Governor of Massachusetts. It might be something for the hacker community in that state to organize and utilize the web (social media, etc) to make sure she does not go that far.

olefoo 14y ago

Petition to Remove United States District Attorney Carmen Ortiz for overreach in the case of Aaron Swartz https://petitions.whitehouse.gov/petition/remove-united-states-district-attorney-carmen-ortiz-office-overreach-case-aaron-swartz/RQNrG1Ck https://petitions.whitehouse.gov/petition/remove-united-stat... http://wh.gov/E3v1 http://wh.gov/E3v1 Needs 25,000 signatures by February 11. Please help us get it there. Thank you.

rossjudson 14y ago

If we can petition the White House for a Death Star, we can petition for Ortiz' removal.

csense 14y ago

Assuming he did it -- or he didn't but was going to be found guilty anyway -- wouldn't fifty years for this nonviolent crime, done in the Martin Luther King Jr. spirit of civil disobedience, by a person with (I assume) no prior criminal record, be Unconstitutional cruel and unusual punishment?

mscarborough 14y ago
MLK Jr. did his jail/prison time and he didn't pussyfoot around his civil disobedience. All the love for aaronsw, but he wasn't ever sentenced and if what he was alleged to do was a civil disobedience act, it was hidden behind his lawyers.
- csense 14y ago
  Maybe aaronsw intended to, until he found that the rigors of the investigation and the length of the prison sentence were multiple orders of magnitude worse than he'd thought they would be.
Kliment 14y ago
Yes, but good luck getting a ruling saying that.

arbuge 14y ago

Well said. The prosecutor seems to be the party acting criminally in this case. What balance is there in the system to prevent such blatantly evil prosecutorial excess from occurring?

shuri 14y ago

An attempt to set academic knowledge free should be celebrated and commended not penalized. Certainly not used to bully people like this.

rayiner 14y ago

Man, if we could get this kind of outrage built up against over zealous prosecution when the defendant isn't a white techie, we might actually get some criminal justice reform in the U.S.

AnthonyMouse 14y ago
If we're lucky we can get this kind of outrage built up when it is, and then fix it for everyone. These laws get passed when the innocent victim is a sympathetic white girl, why can't they get repealed when the innocent accused is a sympathetic white boy?
- mscarborough 14y ago
  No laws are being rewritten posthumously for 'sympathetic white girl'. There's really no need to inject 'prosecuted white guy' into the conversation.
  - AnthonyMouse 14y ago
    You're quite right that race shouldn't have anything to do with it; I shouldn't have written it that way. But this is clearly wrong: >No laws are being rewritten posthumously for 'sympathetic white girl'. We pass laws for specific sympathetic victims all the time. We often even name them after the victims. Megan's law, Amber alerts, etc. It isn't that they're white that matters, what matters is that they're sympathetic. At best, if we assume society is fairly racist, maybe we see them as more sympathetic because they're white. But let me admit that was a mistake and move past it, because it's going down the wrong path. The point is that most of the innocent accused in the existing justice system are poor, uneducated, largely unsympathetic urban youth who no one in power cares about. There is no powerful lobby to fix it for them. In this case we have a brilliant kid who everyone loved, who was subjected to the same injustice. This should never have happened -- not to him, not to the others. So we should rally behind this tragedy and while we have the support of public opinion, prevent it from happening again, to anyone.
  - jlgreco 14y ago

liber8 14y ago

In keeping with agwa's, and others', analysis that the system itself is broken, Aaron's thoughtful analysis of The Dark Knight is very interesting. Aaron concludes that, of the various desperate attempts to change Gotham's corrupt systems, the Joker ultimately has the most success by causing chaos. The eerie part is the last line: "Thus Master Wayne is left without solutions. Out of options, it’s no wonder the series ends with his staged suicide." http://www.aaronsw.com/weblog/tdk http://www.aaronsw.com/weblog/tdk

adammil 14y ago

I created a White House petition for this, please sign it: Terminate prosecutor Carmen M. Ortiz for overzealous prosecution of Aaron Swartz, leading to his suicide. http://wh.gov/EO5n http://wh.gov/EO5n

PrudenceYuris 14y ago
Duplicate. This one has 1500 signatures already: https://petitions.whitehouse.gov/petition/remove-united-states-district-attorney-carmen-ortiz-office-overreach-case-aaron-swartz/RQNrG1Ck https://petitions.whitehouse.gov/petition/remove-united-stat...

jacoblyles 14y ago

I object to the characterization of the government's prosecution as "overcharging". The correct punishment for Aaron's actions is not a smaller prison sentence, but a medal.

jacoblyles 14y ago

I take exception to Lessig's description of Aaron's behavior as "morally wrong". It was no more "morally wrong" than enabling a slave to escape his master's plantation. Property rights that have their basis in injustice are not valid.

mscarborough 14y ago

Nobody killed Aaron Swartz except Aaron Swartz. Not the prosecutor, nor the legal system, nor the copyright system. Completely useless as they all are. It's absolutely horrible how this happened and that we lost such a light in the web community. But stop the myth making and pretending that you cared the whole time, when really nobody did.

darkarmani 14y ago
Threatened with 35 years of jail time...
- mscarborough 14y ago
  Yes, it was threatened. Not convicted or sentenced. Not held up on appeal, much less tested in court in the first place.

paulrademacher 14y ago

> unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge Can someone explain this statement? Can a person not raise a defense fund from the public?

paulrademacher 14y ago

Question for the legal experts: We've been reading potential jail time of 50 or 30 years, plus $millions+ in fines. Realistically, had he taken a plea bargain or gone to trial, what would he likely have wound up with?

pseingatl 14y ago
It's quite easy to calculate the likely sentence. The Federal Sentencing Guidelines provide for a base level of 6, plus an 18 step increase for fraud between $2,500,000 and $7,000,000. The sentencing range at this level assuming no criminal history is 57-71 months. Expect supervised release (no computers) for three years. The fine would be up to the sentencing judge within statutory limits. The government estimated the value of the JStor documents at $5 million. Even if the government's estimate was exaggerated, the documents were worth something--and this figure would drive the sentence to be imposed. The judge could also depart upward based on aggravating factors such as PACER and a lack of remorse. Swartz faced with no good choices. When he did not take the offered plea, they superseded and racheted up the counts. The number of counts doesn't really matter for Guidelines purposes but there is always the risk that the sentencing judge could impose the sentences for each count consecutively. My guess is that Heyman/Ortiz really didn't want to prosecute the case, afraid that it would become a political hot potato and controversial. They made him what they considered a reasonable offer in September--7 to 8 months federal prison, a fine (amount unknown) and two-three years of supervised release. The kicker is that he could not use computers until supervised release was finished. So for a decade or so, he would be cut off from the digital world entirely. (There are various reports about these negotiations but I have not seen an offer letter.) We know that Swartz did not accept the offer. What happened next is what prosecutors do in all sorts of cases: they superseded, that is, replaced the indictment with a new one, adding new charges and new counts. Perhaps they withdrew their plea offer as well, or put a deadline on acceptance. With a trial date of this week, and advice from his lawyers that he very well could lose (whatever the facts, the hiding his face with a mask would be a prominent feature of the trial, and mummery by the prosecutors just as the glove in the OJ case). I do not know what his attorneys told him; but from their pleadings they seem to be competent, professional federal defense attorneys, so they would have told him realistically what his chances were. Criminal defendants in these circumstances often take very drastic action. Someone was pressing this case. It could have been Ortiz. It could have been the case agent. It could have been Heyman. In state court a case like this would almost certainly have resulted in probation. Someone, somewhere wanted Swartz' head on their pike.

noonespecial 14y ago

As citizens, there should be a way to collect enough signatures to pronounce the professional death penalty(1) on a prosecutor who fails adequately represent the wishes of the people. They do ostensibly represent the people, prosecuting those who harm the public. If they fail this duty and harm the public instead... (1) Never be allowed to serve in the role of prosecutor at any level again.

michaelfeathers 14y ago

What would reform look like?