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U.S. Attorney issues statement defending prosecution of Aaron Swartz

43 points by Pr0 14y ago

LancerSykera 14y ago
"Had not sought the maximum penalty" and "offered a plea bargain" are two very different things.
- tghw 14y ago
  "That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct - a sentence that we would recommend to the judge of six months in a low security setting." It sounds like a plea bargain to me.
il 14y ago
If they were only looking for a 6 month sentence, why did they charge him with 11 counts of fraud? The judge is free to disregard the proscecution's recommendations and sentence the defendant to the full legal maximum. This is not common in federal cases, but it does happen.
- benatkin 14y ago
  Exactly my thought. Her statement is deliberately misleading.
  - sociotech 14y ago
    It really isn't. Talk to some lawyers. It's exactly what happens in criminal cases like this, and that's not obviously a bad thing. I'm glad lots of people are asking questions about the plea system, but it's worth getting informed before reaching simple conclusions. What happened here was a proposal where the US Atty. would agree to ask for six months in a minimum-security prison (where Aaron could have, for example, read whatever he wanted and had debates with financial criminals for six months), would agree to let Aaron's lawyers present an argument for a suspended sentence ("probation"), and let the judge decide. The judge here has a kind of harsh reputation, but, from talking to local lawyers, it seems that that mostly comes from being pro-government. Aaron would probably have gotten six months.
    - benatkin 14y ago
      This is the statement I take issue with: > At no time did this office ever seek - or ever tell Mr. Swartz's attorneys that it intended to seek - maximum penalties under the law. Emphasis on the "at no time" part, which includes after the plea bargain fell through. I repeat what il said. Why so many counts?
    - MisterBastahrd 14y ago
      Sorry, but we're overstocked on torches and pitchforks and need to move them. Can you come back and be reasonable at some other time?
    - bokonist 14y ago
      Let's say a person takes the deal, goes before the judge, the judge sides with the prosecutor, and the judge gives the defendant six months in prison. At that point can the defendant say, "actually, thanks but no thanks, I want a jury trial"? Or is the defendant bound to the sentence once he agrees to go before the judge?
      - rayiner 14y ago
        Once the defendant agrees, he agrees. But he can make the plea contingent. "I'll only plead guilty if the sentencing judge only gives me 6 months."
    - il 14y ago
      No, the it's highly uncommon for a proscecutor to refuse to drop any charges as part of a plea bargain. Not only would Aaron have been a convincted felon, but he would have had a dozen felonies on his record as priors. If the DA didn't want to make an example out of him, they would have dropped most charges and reduced the felony to a misdemeanor as is done in the vast majority of these cases.
- philwelch 14y ago
  Plea bargaining is a form of negotiation.
  - LancerSykera 14y ago
    About as much as putting a gun to one's head is a form of negotiation.
    - tghw 14y ago
      "While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge." This was not negotiation with a gun.
    - maxharris 14y ago
      Swartz was first to point a gun (i.e., initiate force). No one forced him to keep breaking into MIT's wireless networks and its wiring closet, nor did anyone force him to violate JSTOR's rules and copyrights. He chose to do all of those things, and the government was merely doing what it's supposed to do: retaliate.
  - mtgx 14y ago
    Choosing between serving more time and serving less time isn't much of a deal when you think what you did was right and you are innocent.
    - rayiner 14y ago
      Why does it matter what the defendant thinks is right?
    - philwelch 14y ago
      Doing what you think is right when you know it is probably illegal is called civil disobedience, and it usually entails a willingness to go to prison when done right.
  - 9oliYQjP 14y ago
- downandout 14y ago
  They charged him with that many counts because they wanted to extort him into signing a plea. That's pretty much how they work these things. It's standard operating procedure - overcharge, then sign the plea. The interesting part is that they wanted him to plead guilty to 13 felonies. That is relatively unusual, as in most cases they agree to drop all but one or two counts. In many states that deal would qualify him for a three strikes penalty if he were ever charged with a felony subsequent to this case (a state-based computer crime, for example). If he had taken the deal and were charged a few years later with any felony in Nevada, for example, he would be exposed to a life sentence.
rayiner 14y ago
The indictment doesn't say anything about the penalties sought. Anybody have handy the primary sources indicating what penalties the prosecutors were pushing for?
- cperciva 14y ago
  They weren't pushing for any penalties... yet. Sentencing comes after a finding of guilt. They did announce that the maximum sentence was 30 years, but that's just the statutory maximum; it says nothing about the plans of the prosecution.
TDL 14y ago
I'm impressed that a US Attorney is responding to criticism. I will remain cynical, however, because there are hundreds who are suffering from these types of tactics. I doubt we'll see this type of outpouring for all those who have been subjected to this type of prosecution.
- rayiner 14y ago
  Largely because the targets of such over prosecution are either unsympathetic (drug dealers, gang members) or because people are quite happy to join the "string him up!" Mentality when it's a bad guy they can't identify with (bankers).
DuskStar 14y ago
"As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible." Then why did you prosecute a terms of service violation? Or do you mean "protecting" the use of computers by restricting it to only those purposes you happen to like?
- sociotech 14y ago
  This "TOS" stuff is another red herring. Even the EFF said the new proposed change in that law wouldn't have stopped the charges in this case. This case was about more than doing something that JSTOR told users not to do. Yes, it involved that too, but it also involved taking materials that others had copyright to and threatening to make them publicly available, which could have disrupted many organizations' functioning. Would you be surprised if someone pulled four million videos off of YouTube (or books off of Google Books) and torrented them, and then was prosecuted and asked to serve six months?
  - AnthonyMouse 14y ago
    >Would you be surprised if someone pulled four million videos off of YouTube (or books off of Google Books) and torrented them, and then was prosecuted and asked to serve six months? You're using the six months as though it wasn't the "coercive" part of a coercive plea bargain. When six months in prison and a felony record is supposed to be the carrot in a case of noncommercial copyright infringement, something malevolent is going on with the stick.
    - sociotech 14y ago
      Maybe. It's the administrative system we've got, though, and we should be talking about how to reform the whole thing. Note how much Orin Kerr recently agreed with the points I made days ago here on this subject.
      - AnthonyMouse 14y ago
        >It's the administrative system we've got, though, and we should be talking about how to reform the whole thing. I completely agree. The whole thing with the prosecutors is kind of a "they represent the part of what's broken that we can currently see" thing. Fixing the laws and the system is more important than fixing a few individuals. >Note how much Orin Kerr recently agreed with the points I made days ago here on this subject. I think most reasonable people end up coming to largely the same conclusions about all of this at the end of the day... which is actually kind of eerie. People who are normally at loggerheads continuously, now getting along and working together. It makes my brain hurt that it took for someone to die for this to happen and now I don't want to be happy about it even though it's seeming more likely that we may actually get something good to come out of this. I guess I don't know what to feel. So I just keep trying to figure out how to fix it and hope actually accomplishing something will make it feel different somehow.
Firehed 14y ago
This... is not going to end well. I wouldn't look forward to going in tomorrow if I worked in that office.
- DuskStar 14y ago
  Rule number 1 of surviving an internet storm: do NOT give extra ammunition to the enemy.
eksith 14y ago
Prosecutors routinely over-charge in an effort to intimidate defendants into plea deals. It's very effective on the vulnerable, often with tragic consequences. When justice is measured in the number of convictions and sentences handed out and not low crime-rates, this is what happens.
nlh 14y ago
I'm surprised by the level of "human-ness" the statement shows. It would have been very easily for the office to take a more empty position a la "we have nothing to say - we were doing our jobs." That being said, other than the unexpected personal touch, this is basically what we all assumed they'd say. "We're sorry. He broke the law - we were doing our job." So in the end, this doesn't change anything.
sociotech 14y ago
The statement makes clear what I had suspected, as a lawyer, from the outset: Lessig, some criminal defense attorneys, and a few other parties have mounted a witchhunt that has little to do with the case in hand. I should add that I'm not far from Lessig politically, and I don't have any strong disagreement with open-information advocates. But Lessig turned this case into something it shouldn't have been, and he benefits from that personally. Aaron's lawyer, a partner at a major firm, is using this case for his own personal publicity, and that is a shame too. "Follow the money" works for people who manipulate hackers too, not just those who oppose them. I've noticed a lot of legal mistakes in this forum. To start with, the attempt here wasn't "victimless," and the law routinely punishes unsuccessful attempts even when nobody is hurt. "Computer hacker offered plea deal of six-months in minimum-security prison after seeking to make an expensive archive that generates significant revenue public" wouldn't arouse anger among anyone except extremists. It might arouse political disagreement, or even a small protest, but not a call to fire prosecutors. What it aroused before Aaron's suicide was a small effort to raise money for his legal defense, which didn't really go anywhere. If we're going to be rational, that shouldn't change when a defendant commits suicide while the case is pending. There's other manipulative PR worth identifying. Aaron's lawyer said that he told the prosecutor his client was a potential suicide risk. How does anyone who reflects for a minute think that a prosecutor's office should respond to that. They did what they usually do, which is to tell the lawyer that they could revoke bail and monitor the client if that was what the client wanted. What else should they have done? Do we think all charges against suicidal people should be dropped?
- edsu 14y ago
  Who was the victim?
  - tptacek 14y ago
    MIT, JSTOR, and publishers with JSTOR contracts. Not liking the victim doesn't make them not a victim. I strongly disagree with the grandparent comment, for what it's worth.
    - 14y ago
AnthonyMouse 14y ago
I guess it's pretty much what you would expect them to say. I still don't think threatening to prosecute him with a charge that could put him in jail for multiple years for an act that should have had a maximum penalty of no more than 30 days is anything they should have done or been able to do, and the fact that they "offered" to make him a felon for the rest of his life and send him to prison for "only" six months if he would waive his right to bankrupt himself proving that he didn't do it is not exactly endearing. But it's what they do every day, so naturally they think it's normal. I've already lost count of how many times I've said this in the last few days, but we need to fix this. These laws have got to change so that this can't happen.
- rayiner 14y ago
  What do you think they should have charged him with, specifically?
  - supercanuck 14y ago
    Copyright infringment?
    - rayiner 14y ago
      He did access MIT's network after they tried to kick him off. That's not nothing.
      - rhizome 14y ago
        If it's not nothing, what is it, exactly? Lori Drew? Worse?
  - tptacek 14y ago
    Unlawfully Obtaining Information From a Protected Computer, and only the JSTOR counts. All the other counts --- wire fraud, reckless damage, CFAA offenses against MIT --- seem spurious.
  - AnthonyMouse 14y ago
mtgx 14y ago
Wasn't the assistant of the US attorney involved in this case, too, and people asked him to be fired as well? I could see why he's defending the case. https://petitions.whitehouse.gov/petition/fire-assistant-us-attorney-steve-heymann/RJKSY2nb https://petitions.whitehouse.gov/petition/fire-assistant-us-...
- sociotech 14y ago
  The "assistant" US Attorneys are lawyers, not what you'd think of as "assistants." The "US Attorney" is a politically appointed senior executive, while the "Assistant US Attorneys" are career staff lawyers. The "US Attorney" signs most filings, but the career staff does the significant legal groundwork on almost everything.
  - tptacek 14y ago
    I read the whole docket today, and most everything was signed by Stephen Heymann and, less frequently, Scott Garland.
tptacek 14y ago
They didn't threaten him with the maximum sentence allowed by the law. They also didn't duct tape him to a chair and electrocute him. The two statements are approximately as meaningful, since Swartz was charged with 13 felony counts and the maximum penalty for his case would have been longer than the base penalty in California for murdering a police officer during the commission of a felony. What they did instead was threaten Swartz with a calamitous 6-7 year sentence if he exercised his right to a jury trial, demanding instead that he testify under oath that he was guilty of 13 felonies and accept 4-6 months in prison.
- javajosh 14y ago
  6mo in federal prison and labelled as a felon for downloading journal articles. You think that was a fair deal, and he should have taken it?
  - rayiner 14y ago
    He didn't say that. Also, for the sake of accuracy--it wasn't just downloading journal articles. It was downloading copyrighted journal articles while using someone's network and evading their attempts to kick you off.
    - sherjilozair 14y ago
      Any public visitor can download articles using the MIT network. Aaron dis just that, but he downloaded more than one articles. Perfectly legal. He didn't evade anything. He just used MAC address spoofing. That's not illegal either. There was no attempt to kick him off.
      - rayiner 14y ago
        MIT allows people to use their network, but that doesn't mean they give up the right to revoke permission. MIT took multiple measures to get block Aaron. There is nothing illegal about spoofing your MAC ID, but spoofing your MAC ID to get around a ban suggests that you know your permission to access a network has been revoked, yet you continue to do so. That's the illegal part.
javajosh 14y ago
>I must, however, make clear that this office's conduct was appropriate in bringing and handling this case. The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably. No, it wasn't appropriate. Both MIT and JSTOR had declined to continue prosecution. Her office over charged to force a plea bargain with 6mo of prison time and would have turned Aaron into a felon. This is so much CYA bullshit from the government. It's time to stand up to these bullies.
- rayiner 14y ago
  According to Aaron's lawyer, MIT demanded jail time, even if they dropped the trespass charge.
  - hippee-lee 14y ago
    Why? How does jail time protect and improve our society when there are more appropriate forms of punishment like community service. They could have had him clean up trash on campus or use find use his computer skill to pay his debt to society. Does some one who did what he did really need to go to jail on the first offense with circumstances and evidence like these?
    - rayiner 14y ago
      I think it's ridiculous that MIT demanded jail time, if what Aaron's lawyer says is true. But the idea that both JSTOR and MIT were like "oh, it's harmless, don't prosecute" seems to be inaccurate.
icepick 14y ago
"personal financial gain" No. You don't get it. Try again.
- tghw 14y ago
  Try quoting the whole thing: "The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct - while a violation of the law - did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases."
  - icepick 14y ago
    I misread it at first. Thanks for pointing that out.
ravenger00 14y ago
It would be interesting to see what she, or some AUSAs, have told the courts in their pleadings. I'm not sure if PACER (http://www.pacer.gov/ http://www.pacer.gov/) has all the criminal pleadings, but it might have those. Its another thing in the long list of items that should be completely free to access.
- sociotech 14y ago
  Archive.org has the whole docket. It used to be a reference on his Wikipedia page, but it looks like it's not there anymore. You can find it in the history.
A1kmm 14y ago
Carmen Ortiz's defence is an attempt to shift the Overton window. Her argument is that he was charged with so many charges that if he was given the maximum sentence on all of them he would have been put in prison for a very long time. That sets the upper limit of the Overton window. Instead of that upper limit, she is quick to point out that he was offered six months imprisonment if her admitted to the charges. But taken without context, six months imprisonment for non-violent activities that, even if they had been successful, would have been very unlikely to have had a significant adverse impact on anyone is extremely disproportionate. The other problem with her 'maximum sentence' argument is that it was the USAG office that decided to charge him with multiple charges all relating to the same events. If they had just charged him with "access[ing] a computer without authorization or exceeding authorized access" and no other charges, the maximum sentence allowed under 18 USC 1040 would have been 10 years (see http://www.law.cornell.edu/uscode/text/18/1030 http://www.law.cornell.edu/uscode/text/18/1030), and under the sentencing guidelines he would have fallen under Offence Level 6 (see http://www.ussc.gov/Guidelines/2012_guidelines/Manual_HTML/2b1_1.htm http://www.ussc.gov/Guidelines/2012_guidelines/Manual_HTML/2...). Assuming no criminal history, the sentencing guidelines would dictate 0-6 months imprisonment and/or a $500-5000 fine.
- rhizome 14y ago
  She (along with Heymann) is an inveterate authoritarian who deigned to offer him a break from her ridiculously overcharged case, calling it a favor. She's mentally ill, that one.
droithomme 14y ago
The statement contains no new news, it was already reported that there was an ultimatum from the prosecution for him to either plead guilty to all 13 counts, or go to trial where he faced a sentence of up to 50 years in prison. Attorney Jennifer Granick, the Director of Civil Liberties at the Stanford Center for Internet and Society, pointed out that plea offers are not binding on the court and are presented as optional suggestions for the judge to consider during sentencing. Normally the judge goes with the "neutral" sentencing guidelines, regardless of any deals. http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-losing-aaron-swartz-part-2 http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-l... In this case, neutral guidelines are capped at 5 years per count, for a potential sentence of 65 years in prison, with the guilty plea deal. As Granick states: > [T]he court is not constrained to sentence as the government suggests. Rather, the probation department drafts an advisory sentencing report recommending a sentence based on the guidelines. The judge tends to rely heavily on that "neutral" report in sentencing. If Aaron pleaded to a misdemeanor, his potential sentence would be capped at one year, regardless of his guidelines calculation. However, if he plead guilty to a felony, he could have been sentenced to as many as 5 years, despite the government's agreement not to argue for more. Each additional conviction would increase the cap by 5 years, though the guidelines calculation would remain the same. No wonder he didn't want to plead to 13 felonies. Also, Aaron would have had to swear under oath that he committed a crime, something he did not actually believe. Those who argue that Swartz should have plead guilty to all 13 counts are either unaware of these facts, or choose to present their opinion in a way designed to mislead the public that the prosecutor's deal was reasonable.
- tedunangst 14y ago
  Something's not adding up for me. If he were convicted at trial of all 13 counts the most he could face is 50 years but if he plead guilty the max is raised to 65? How does that work?
- downandout 14y ago
  >plea offers are not binding on the court and are presented as optional suggestions for the judge to consider during sentencing That's not entirely true. There are two basic types of pleas. One is a sentence recommendation - the government recommends a sentence, but the court is free to do what it wants and the defendant cannot withdraw the plea if they are unhappy with the sentence. However, rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure allows for plea agreements under which the court may only either accept or reject the plea and the stipulated sentence; it cannot change the sentence. If the court rejects a plea made under this rule, the defendant is free to withdraw their plea and go back to square one (face a trial). The Rule that the plea is being made under is always specified in the plea agreement in writing. I don't know which type they were discussing, but he would have had to be insane to plead guilty to 13 felonies and not insist on an 11(c)(1)(C) plea. He may have been stressed not over the initial sentence, but over the the consequences. For one thing, he would have been under federal Supervised Release for a period of either 3 or 5 years, during which a judge could have barred him from using a computer or the Internet. Any violation of these rules could have then yielded an instant sentence of up to the length of supervision - either 3 or 5 years - even if the violation occurred on the last day of his supervision. These types of restrictions are put in place all the time. Finally, pleading guilty to 13 felonies may have been problematic from a criminal history point of view. If he were ever charged with anything in the future, the judge or prosecutor would be unlikely to show mercy on someone that has 13 felonies on their record. In some states, any prosecution for a felony subsequent to this deal would have qualified him for a three strikes/habitual offender status and an accompanying life sentence (Nevada being one, for example, that does not distinguish between violent and non-violent felonies for purposes of three strikes sentences - a felony DUI in Vegas after this plea would have earned Aaron a life sentence).
noonespecial 14y ago
It sounds like the response is trying to say without saying that there was no great big fateful choice of "plead guilty to something you think wasn't wrong and do 6 months or probably get 30 years." I suspect everything they said to Aaron without saying in their dealings with him attempted to convince him that was his choice exactly.
jeswin 14y ago
So these were the choices they offered him: - Plead guilty and become a felon (even if he believed otherwise, and clearly against his conscience.) - Or face 13 felony counts, potentially leading to a very lengthy prison sentence. The prosecutors were trying to make sure the case never goes to court. This is disgusting!
- maxharris 14y ago
  even if he believed otherwise, and clearly against his conscience So you're saying that a man who steals a car shouldn't face felony charges as long as he claims that his conscience is clear? The law must be objective, not based on whim.
  - jeswin 14y ago
    The problem is that the alternative to not accepting guilt is a ridiculously lengthy prison sentence. What do you do then?
    - maxharris 14y ago
      You say it's "ridiculously lengthy," and I say it's not. This is what we have procedures, judges and juries for.
      - jeswin 14y ago
        7 years (which is what I read) is a "ridiculously lengthy" prison term for downloading papers from the internet for no financial gain. How can one see it any other way? This isn't about the judge and jury. 7 years is what the prosecutors would have asked, and we are discussing the fairness in their approach.
        maxharris 14y ago
        It's not about who gains. His actions violated the rights of all of the people at JSTOR and MIT. In a murder trial, you can't properly argue that the killer ought to face lighter charges because his crime was not motivated by personal financial gain. This is relevant here because we're talking about criminal court. I'm not saying that what Swartz did is the same as murder. However, the same concept applies in both cases.
joering2 14y ago
> I know that there is little I can say to abate the anger felt by those who believe that this office's prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life If MIT asked to drop the charges, then you not only wasted taxpayers money but whats more importantly, as a result, you've helped young man to take his life. > The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably. Yes of course Ms. Ortiz; so were those military and political leaders in Germany circa 1939 and see how they ended: http://en.wikipedia.org/wiki/Nuremberg_Trials http://en.wikipedia.org/wiki/Nuremberg_Trials Nobody will live forever Ms. Ortiz. I hope Aaron will wait for you at Heaven's gates and handle you a key... to hell.

43 points by Pr0 14y ago

LancerSykera 14y ago

"Had not sought the maximum penalty" and "offered a plea bargain" are two very different things.

tghw 14y ago
"That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct - a sentence that we would recommend to the judge of six months in a low security setting." It sounds like a plea bargain to me.

il 14y ago

If they were only looking for a 6 month sentence, why did they charge him with 11 counts of fraud? The judge is free to disregard the proscecution's recommendations and sentence the defendant to the full legal maximum. This is not common in federal cases, but it does happen.

benatkin 14y ago
Exactly my thought. Her statement is deliberately misleading.
- sociotech 14y ago
  It really isn't. Talk to some lawyers. It's exactly what happens in criminal cases like this, and that's not obviously a bad thing. I'm glad lots of people are asking questions about the plea system, but it's worth getting informed before reaching simple conclusions. What happened here was a proposal where the US Atty. would agree to ask for six months in a minimum-security prison (where Aaron could have, for example, read whatever he wanted and had debates with financial criminals for six months), would agree to let Aaron's lawyers present an argument for a suspended sentence ("probation"), and let the judge decide. The judge here has a kind of harsh reputation, but, from talking to local lawyers, it seems that that mostly comes from being pro-government. Aaron would probably have gotten six months.
  - benatkin 14y ago
    This is the statement I take issue with: > At no time did this office ever seek - or ever tell Mr. Swartz's attorneys that it intended to seek - maximum penalties under the law. Emphasis on the "at no time" part, which includes after the plea bargain fell through. I repeat what il said. Why so many counts?
  - MisterBastahrd 14y ago
    Sorry, but we're overstocked on torches and pitchforks and need to move them. Can you come back and be reasonable at some other time?
  - bokonist 14y ago
    Let's say a person takes the deal, goes before the judge, the judge sides with the prosecutor, and the judge gives the defendant six months in prison. At that point can the defendant say, "actually, thanks but no thanks, I want a jury trial"? Or is the defendant bound to the sentence once he agrees to go before the judge?
    - rayiner 14y ago
      Once the defendant agrees, he agrees. But he can make the plea contingent. "I'll only plead guilty if the sentencing judge only gives me 6 months."
  - il 14y ago
    No, the it's highly uncommon for a proscecutor to refuse to drop any charges as part of a plea bargain. Not only would Aaron have been a convincted felon, but he would have had a dozen felonies on his record as priors. If the DA didn't want to make an example out of him, they would have dropped most charges and reduced the felony to a misdemeanor as is done in the vast majority of these cases.
philwelch 14y ago
Plea bargaining is a form of negotiation.
- LancerSykera 14y ago
  About as much as putting a gun to one's head is a form of negotiation.
  - tghw 14y ago
    "While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge." This was not negotiation with a gun.
  - maxharris 14y ago
    Swartz was first to point a gun (i.e., initiate force). No one forced him to keep breaking into MIT's wireless networks and its wiring closet, nor did anyone force him to violate JSTOR's rules and copyrights. He chose to do all of those things, and the government was merely doing what it's supposed to do: retaliate.
- mtgx 14y ago
  Choosing between serving more time and serving less time isn't much of a deal when you think what you did was right and you are innocent.
  - rayiner 14y ago
    Why does it matter what the defendant thinks is right?
  - philwelch 14y ago
    Doing what you think is right when you know it is probably illegal is called civil disobedience, and it usually entails a willingness to go to prison when done right.
- 9oliYQjP 14y ago
downandout 14y ago
They charged him with that many counts because they wanted to extort him into signing a plea. That's pretty much how they work these things. It's standard operating procedure - overcharge, then sign the plea. The interesting part is that they wanted him to plead guilty to 13 felonies. That is relatively unusual, as in most cases they agree to drop all but one or two counts. In many states that deal would qualify him for a three strikes penalty if he were ever charged with a felony subsequent to this case (a state-based computer crime, for example). If he had taken the deal and were charged a few years later with any felony in Nevada, for example, he would be exposed to a life sentence.

rayiner 14y ago

The indictment doesn't say anything about the penalties sought. Anybody have handy the primary sources indicating what penalties the prosecutors were pushing for?

cperciva 14y ago
They weren't pushing for any penalties... yet. Sentencing comes after a finding of guilt. They did announce that the maximum sentence was 30 years, but that's just the statutory maximum; it says nothing about the plans of the prosecution.

TDL 14y ago

I'm impressed that a US Attorney is responding to criticism. I will remain cynical, however, because there are hundreds who are suffering from these types of tactics. I doubt we'll see this type of outpouring for all those who have been subjected to this type of prosecution.

rayiner 14y ago
Largely because the targets of such over prosecution are either unsympathetic (drug dealers, gang members) or because people are quite happy to join the "string him up!" Mentality when it's a bad guy they can't identify with (bankers).

DuskStar 14y ago

"As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible." Then why did you prosecute a terms of service violation? Or do you mean "protecting" the use of computers by restricting it to only those purposes you happen to like?

sociotech 14y ago
This "TOS" stuff is another red herring. Even the EFF said the new proposed change in that law wouldn't have stopped the charges in this case. This case was about more than doing something that JSTOR told users not to do. Yes, it involved that too, but it also involved taking materials that others had copyright to and threatening to make them publicly available, which could have disrupted many organizations' functioning. Would you be surprised if someone pulled four million videos off of YouTube (or books off of Google Books) and torrented them, and then was prosecuted and asked to serve six months?
- AnthonyMouse 14y ago
  >Would you be surprised if someone pulled four million videos off of YouTube (or books off of Google Books) and torrented them, and then was prosecuted and asked to serve six months? You're using the six months as though it wasn't the "coercive" part of a coercive plea bargain. When six months in prison and a felony record is supposed to be the carrot in a case of noncommercial copyright infringement, something malevolent is going on with the stick.
  - sociotech 14y ago
    Maybe. It's the administrative system we've got, though, and we should be talking about how to reform the whole thing. Note how much Orin Kerr recently agreed with the points I made days ago here on this subject.
    - AnthonyMouse 14y ago
      >It's the administrative system we've got, though, and we should be talking about how to reform the whole thing. I completely agree. The whole thing with the prosecutors is kind of a "they represent the part of what's broken that we can currently see" thing. Fixing the laws and the system is more important than fixing a few individuals. >Note how much Orin Kerr recently agreed with the points I made days ago here on this subject. I think most reasonable people end up coming to largely the same conclusions about all of this at the end of the day... which is actually kind of eerie. People who are normally at loggerheads continuously, now getting along and working together. It makes my brain hurt that it took for someone to die for this to happen and now I don't want to be happy about it even though it's seeming more likely that we may actually get something good to come out of this. I guess I don't know what to feel. So I just keep trying to figure out how to fix it and hope actually accomplishing something will make it feel different somehow.

Firehed 14y ago

This... is not going to end well. I wouldn't look forward to going in tomorrow if I worked in that office.

DuskStar 14y ago
Rule number 1 of surviving an internet storm: do NOT give extra ammunition to the enemy.

eksith 14y ago

Prosecutors routinely over-charge in an effort to intimidate defendants into plea deals. It's very effective on the vulnerable, often with tragic consequences. When justice is measured in the number of convictions and sentences handed out and not low crime-rates, this is what happens.

nlh 14y ago

I'm surprised by the level of "human-ness" the statement shows. It would have been very easily for the office to take a more empty position a la "we have nothing to say - we were doing our jobs." That being said, other than the unexpected personal touch, this is basically what we all assumed they'd say. "We're sorry. He broke the law - we were doing our job." So in the end, this doesn't change anything.

sociotech 14y ago

The statement makes clear what I had suspected, as a lawyer, from the outset: Lessig, some criminal defense attorneys, and a few other parties have mounted a witchhunt that has little to do with the case in hand. I should add that I'm not far from Lessig politically, and I don't have any strong disagreement with open-information advocates. But Lessig turned this case into something it shouldn't have been, and he benefits from that personally. Aaron's lawyer, a partner at a major firm, is using this case for his own personal publicity, and that is a shame too. "Follow the money" works for people who manipulate hackers too, not just those who oppose them. I've noticed a lot of legal mistakes in this forum. To start with, the attempt here wasn't "victimless," and the law routinely punishes unsuccessful attempts even when nobody is hurt. "Computer hacker offered plea deal of six-months in minimum-security prison after seeking to make an expensive archive that generates significant revenue public" wouldn't arouse anger among anyone except extremists. It might arouse political disagreement, or even a small protest, but not a call to fire prosecutors. What it aroused before Aaron's suicide was a small effort to raise money for his legal defense, which didn't really go anywhere. If we're going to be rational, that shouldn't change when a defendant commits suicide while the case is pending. There's other manipulative PR worth identifying. Aaron's lawyer said that he told the prosecutor his client was a potential suicide risk. How does anyone who reflects for a minute think that a prosecutor's office should respond to that. They did what they usually do, which is to tell the lawyer that they could revoke bail and monitor the client if that was what the client wanted. What else should they have done? Do we think all charges against suicidal people should be dropped?

edsu 14y ago
Who was the victim?
- tptacek 14y ago
  MIT, JSTOR, and publishers with JSTOR contracts. Not liking the victim doesn't make them not a victim. I strongly disagree with the grandparent comment, for what it's worth.
  - 14y ago

AnthonyMouse 14y ago

I guess it's pretty much what you would expect them to say. I still don't think threatening to prosecute him with a charge that could put him in jail for multiple years for an act that should have had a maximum penalty of no more than 30 days is anything they should have done or been able to do, and the fact that they "offered" to make him a felon for the rest of his life and send him to prison for "only" six months if he would waive his right to bankrupt himself proving that he didn't do it is not exactly endearing. But it's what they do every day, so naturally they think it's normal. I've already lost count of how many times I've said this in the last few days, but we need to fix this. These laws have got to change so that this can't happen.

rayiner 14y ago
What do you think they should have charged him with, specifically?
- supercanuck 14y ago
  Copyright infringment?
  - rayiner 14y ago
    He did access MIT's network after they tried to kick him off. That's not nothing.
    - rhizome 14y ago
      If it's not nothing, what is it, exactly? Lori Drew? Worse?
- tptacek 14y ago
  Unlawfully Obtaining Information From a Protected Computer, and only the JSTOR counts. All the other counts --- wire fraud, reckless damage, CFAA offenses against MIT --- seem spurious.
- AnthonyMouse 14y ago

mtgx 14y ago

Wasn't the assistant of the US attorney involved in this case, too, and people asked him to be fired as well? I could see why he's defending the case. https://petitions.whitehouse.gov/petition/fire-assistant-us-attorney-steve-heymann/RJKSY2nb https://petitions.whitehouse.gov/petition/fire-assistant-us-...

sociotech 14y ago
The "assistant" US Attorneys are lawyers, not what you'd think of as "assistants." The "US Attorney" is a politically appointed senior executive, while the "Assistant US Attorneys" are career staff lawyers. The "US Attorney" signs most filings, but the career staff does the significant legal groundwork on almost everything.
- tptacek 14y ago
  I read the whole docket today, and most everything was signed by Stephen Heymann and, less frequently, Scott Garland.

tptacek 14y ago

They didn't threaten him with the maximum sentence allowed by the law. They also didn't duct tape him to a chair and electrocute him. The two statements are approximately as meaningful, since Swartz was charged with 13 felony counts and the maximum penalty for his case would have been longer than the base penalty in California for murdering a police officer during the commission of a felony. What they did instead was threaten Swartz with a calamitous 6-7 year sentence if he exercised his right to a jury trial, demanding instead that he testify under oath that he was guilty of 13 felonies and accept 4-6 months in prison.

javajosh 14y ago
6mo in federal prison and labelled as a felon for downloading journal articles. You think that was a fair deal, and he should have taken it?
- rayiner 14y ago
  He didn't say that. Also, for the sake of accuracy--it wasn't just downloading journal articles. It was downloading copyrighted journal articles while using someone's network and evading their attempts to kick you off.
  - sherjilozair 14y ago
    Any public visitor can download articles using the MIT network. Aaron dis just that, but he downloaded more than one articles. Perfectly legal. He didn't evade anything. He just used MAC address spoofing. That's not illegal either. There was no attempt to kick him off.
    - rayiner 14y ago
      MIT allows people to use their network, but that doesn't mean they give up the right to revoke permission. MIT took multiple measures to get block Aaron. There is nothing illegal about spoofing your MAC ID, but spoofing your MAC ID to get around a ban suggests that you know your permission to access a network has been revoked, yet you continue to do so. That's the illegal part.

javajosh 14y ago

>I must, however, make clear that this office's conduct was appropriate in bringing and handling this case. The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably. No, it wasn't appropriate. Both MIT and JSTOR had declined to continue prosecution. Her office over charged to force a plea bargain with 6mo of prison time and would have turned Aaron into a felon. This is so much CYA bullshit from the government. It's time to stand up to these bullies.

rayiner 14y ago
According to Aaron's lawyer, MIT demanded jail time, even if they dropped the trespass charge.
- hippee-lee 14y ago
  Why? How does jail time protect and improve our society when there are more appropriate forms of punishment like community service. They could have had him clean up trash on campus or use find use his computer skill to pay his debt to society. Does some one who did what he did really need to go to jail on the first offense with circumstances and evidence like these?
  - rayiner 14y ago
    I think it's ridiculous that MIT demanded jail time, if what Aaron's lawyer says is true. But the idea that both JSTOR and MIT were like "oh, it's harmless, don't prosecute" seems to be inaccurate.

icepick 14y ago

"personal financial gain" No. You don't get it. Try again.

tghw 14y ago
Try quoting the whole thing: "The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct - while a violation of the law - did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases."
- icepick 14y ago
  I misread it at first. Thanks for pointing that out.

ravenger00 14y ago

It would be interesting to see what she, or some AUSAs, have told the courts in their pleadings. I'm not sure if PACER (http://www.pacer.gov/ http://www.pacer.gov/) has all the criminal pleadings, but it might have those. Its another thing in the long list of items that should be completely free to access.

sociotech 14y ago
Archive.org has the whole docket. It used to be a reference on his Wikipedia page, but it looks like it's not there anymore. You can find it in the history.

A1kmm 14y ago

Carmen Ortiz's defence is an attempt to shift the Overton window. Her argument is that he was charged with so many charges that if he was given the maximum sentence on all of them he would have been put in prison for a very long time. That sets the upper limit of the Overton window. Instead of that upper limit, she is quick to point out that he was offered six months imprisonment if her admitted to the charges. But taken without context, six months imprisonment for non-violent activities that, even if they had been successful, would have been very unlikely to have had a significant adverse impact on anyone is extremely disproportionate. The other problem with her 'maximum sentence' argument is that it was the USAG office that decided to charge him with multiple charges all relating to the same events. If they had just charged him with "access[ing] a computer without authorization or exceeding authorized access" and no other charges, the maximum sentence allowed under 18 USC 1040 would have been 10 years (see http://www.law.cornell.edu/uscode/text/18/1030 http://www.law.cornell.edu/uscode/text/18/1030), and under the sentencing guidelines he would have fallen under Offence Level 6 (see http://www.ussc.gov/Guidelines/2012_guidelines/Manual_HTML/2b1_1.htm http://www.ussc.gov/Guidelines/2012_guidelines/Manual_HTML/2...). Assuming no criminal history, the sentencing guidelines would dictate 0-6 months imprisonment and/or a $500-5000 fine.

rhizome 14y ago
She (along with Heymann) is an inveterate authoritarian who deigned to offer him a break from her ridiculously overcharged case, calling it a favor. She's mentally ill, that one.

droithomme 14y ago

The statement contains no new news, it was already reported that there was an ultimatum from the prosecution for him to either plead guilty to all 13 counts, or go to trial where he faced a sentence of up to 50 years in prison. Attorney Jennifer Granick, the Director of Civil Liberties at the Stanford Center for Internet and Society, pointed out that plea offers are not binding on the court and are presented as optional suggestions for the judge to consider during sentencing. Normally the judge goes with the "neutral" sentencing guidelines, regardless of any deals. http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-losing-aaron-swartz-part-2 http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-l... In this case, neutral guidelines are capped at 5 years per count, for a potential sentence of 65 years in prison, with the guilty plea deal. As Granick states: > [T]he court is not constrained to sentence as the government suggests. Rather, the probation department drafts an advisory sentencing report recommending a sentence based on the guidelines. The judge tends to rely heavily on that "neutral" report in sentencing. If Aaron pleaded to a misdemeanor, his potential sentence would be capped at one year, regardless of his guidelines calculation. However, if he plead guilty to a felony, he could have been sentenced to as many as 5 years, despite the government's agreement not to argue for more. Each additional conviction would increase the cap by 5 years, though the guidelines calculation would remain the same. No wonder he didn't want to plead to 13 felonies. Also, Aaron would have had to swear under oath that he committed a crime, something he did not actually believe. Those who argue that Swartz should have plead guilty to all 13 counts are either unaware of these facts, or choose to present their opinion in a way designed to mislead the public that the prosecutor's deal was reasonable.

tedunangst 14y ago
Something's not adding up for me. If he were convicted at trial of all 13 counts the most he could face is 50 years but if he plead guilty the max is raised to 65? How does that work?
downandout 14y ago
>plea offers are not binding on the court and are presented as optional suggestions for the judge to consider during sentencing That's not entirely true. There are two basic types of pleas. One is a sentence recommendation - the government recommends a sentence, but the court is free to do what it wants and the defendant cannot withdraw the plea if they are unhappy with the sentence. However, rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure allows for plea agreements under which the court may only either accept or reject the plea and the stipulated sentence; it cannot change the sentence. If the court rejects a plea made under this rule, the defendant is free to withdraw their plea and go back to square one (face a trial). The Rule that the plea is being made under is always specified in the plea agreement in writing. I don't know which type they were discussing, but he would have had to be insane to plead guilty to 13 felonies and not insist on an 11(c)(1)(C) plea. He may have been stressed not over the initial sentence, but over the the consequences. For one thing, he would have been under federal Supervised Release for a period of either 3 or 5 years, during which a judge could have barred him from using a computer or the Internet. Any violation of these rules could have then yielded an instant sentence of up to the length of supervision - either 3 or 5 years - even if the violation occurred on the last day of his supervision. These types of restrictions are put in place all the time. Finally, pleading guilty to 13 felonies may have been problematic from a criminal history point of view. If he were ever charged with anything in the future, the judge or prosecutor would be unlikely to show mercy on someone that has 13 felonies on their record. In some states, any prosecution for a felony subsequent to this deal would have qualified him for a three strikes/habitual offender status and an accompanying life sentence (Nevada being one, for example, that does not distinguish between violent and non-violent felonies for purposes of three strikes sentences - a felony DUI in Vegas after this plea would have earned Aaron a life sentence).

noonespecial 14y ago

It sounds like the response is trying to say without saying that there was no great big fateful choice of "plead guilty to something you think wasn't wrong and do 6 months or probably get 30 years." I suspect everything they said to Aaron without saying in their dealings with him attempted to convince him that was his choice exactly.

jeswin 14y ago

So these were the choices they offered him: - Plead guilty and become a felon (even if he believed otherwise, and clearly against his conscience.) - Or face 13 felony counts, potentially leading to a very lengthy prison sentence. The prosecutors were trying to make sure the case never goes to court. This is disgusting!

maxharris 14y ago
even if he believed otherwise, and clearly against his conscience So you're saying that a man who steals a car shouldn't face felony charges as long as he claims that his conscience is clear? The law must be objective, not based on whim.
- jeswin 14y ago
  The problem is that the alternative to not accepting guilt is a ridiculously lengthy prison sentence. What do you do then?
  - maxharris 14y ago
    You say it's "ridiculously lengthy," and I say it's not. This is what we have procedures, judges and juries for.
    - jeswin 14y ago
      7 years (which is what I read) is a "ridiculously lengthy" prison term for downloading papers from the internet for no financial gain. How can one see it any other way? This isn't about the judge and jury. 7 years is what the prosecutors would have asked, and we are discussing the fairness in their approach.
      - maxharris 14y ago
        It's not about who gains. His actions violated the rights of all of the people at JSTOR and MIT. In a murder trial, you can't properly argue that the killer ought to face lighter charges because his crime was not motivated by personal financial gain. This is relevant here because we're talking about criminal court. I'm not saying that what Swartz did is the same as murder. However, the same concept applies in both cases.

joering2 14y ago

> I know that there is little I can say to abate the anger felt by those who believe that this office's prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life If MIT asked to drop the charges, then you not only wasted taxpayers money but whats more importantly, as a result, you've helped young man to take his life. > The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably. Yes of course Ms. Ortiz; so were those military and political leaders in Germany circa 1939 and see how they ended: http://en.wikipedia.org/wiki/Nuremberg_Trials http://en.wikipedia.org/wiki/Nuremberg_Trials Nobody will live forever Ms. Ortiz. I hope Aaron will wait for you at Heaven's gates and handle you a key... to hell.