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Two things. Firstly, please spell his name correctly. It's Aaron Swartz. That respects him and makes sure that your audience isn't distracted by that tiny deta

Two things. Firstly, please spell his name correctly. It's Aaron Swartz. That respects him and makes sure that your audience isn't distracted by that tiny detail and can focus on your message. Secondly, the petition was too narrow and targeted the individual prosecutor for that case. Even if she was removed, it wouldn't prevent the same sort of thing happening again. The larger issue (and one closer to the point) is that the law is broken. - There are overlapping laws such that Swartz was charged with several distinct offences for what was fundamentally a single (though repeated) action. - Maximum sentences for such offences (crimes against property, in particular those that use technology, even crimes that are on the face of it relatively victimless) are grossly overstated when compared to violent crimes. - Prosecutors are permitted to present the charges in a way that maximizes the sentencing, by adding them consecutively. - All of the above points join together to maximize the number of cases where the defendant pleads guilty to avoid a court case, so there is a ridiculously small number of such cases that go to trial (and a correspondingly vast majority of cases of which the defendant is, as a result, convicted), even where the defendant is actually innocent of some or all charges, or when it is likely that a trial could result in a not guilty verdict. No reasonable person could say Swartz deserved 35 years in prison for what he is alleged to have done. The legal system that enabled Ortiz to present the charges as she did is much bigger than any prosecutorial overreach she is accused of in that petition. Let's not make it about one prosecutor. Let's make it about all of them.

tptacek 12y ago
I agree strongly with the first half of your comment, but the second half, from consecutive sentencing on, is simply incorrect. Swartz faced nothing resembling 35 years, because federal sentencing does not work by simply adding the counts up for every charged offense. Like charges "group", and the convicted are sentenced according to the most severe of those charges. The prosecutors threatened Swartz not with 35 years, but with ~7. 7 years is also a ludicrous sentence. But it was also an unrealistic sentence: under the sentencing guidelines, Swartz was likely to face (if convicted) a sentence denominated in months not years, and --- according to his own lawyer, and observable from the actual sentencing guidelines --- one that probably could have made the probation cutoff to avoid any custodial time. So, your third bulleted suggestion isn't valid: CFAA crimes are already not sentenced "consecutively". What seems clear now is that the prosecutors were determined to have Swartz sentenced for some amount of prison time (they offered a plea deal with a very short sentence, and rejected any deals that failed to put Swartz in prison at all). That is a problem. The first half of your comment captures it. Sentencing rules for individual CFAA charges scale up so rapidly, and people are so rarely charged under them, that CFAA cases are high-status vanity projects for the US Attorney's office. Obligatory: https://www.popehat.com/2013/02/05/crime-whale-sushi-sentence-eleventy-million-years/ https://www.popehat.com/2013/02/05/crime-whale-sushi-sentenc...
- jeremysmyth 12y ago
  Thanks for the popehat link. Very enlightening. From it: > When the government quotes the maximum sentence, they are trying to scare you. > When the press quotes it, they are uninformed or lazy. The first is what I intended to imply: Prosecutors are permitted to scare the bejaysus out of defendants by quoting statutory maxima (not, as could be inferred, that they can present that to the judge.) The second is what I was guilty of ;)
  - tptacek 12y ago
    OK, but Swartz wasn't scared by the 35 year number, for two reasons: first, despite what the press release said, they were overt with Swartz about what their worst-case sentence actually was (the 7 year figure was their threat about what would happen if the case went to trial and he lost), and second because Swartz had very good legal representation. A 1-2 year worst case sentence follows pretty straightforwardly from the actual sentencing guidelines if you look at them. However, there are mitigating factors in the Swartz case: first-time offender, non-remunerative offense, unenthusiastic victims. Probation was a real possibility. 7 years was not.
  - mikecb 12y ago
    And that's why it's important for defendants to have their own counsel, to inform them of how the system actually works, as Aaron's counsel would have done.
- dragonwriter 12y ago
  > Swartz faced nothing resembling 35 years, because federal sentencing does not work by simply adding the counts up for every charged offense. Like charges "group", and the convicted are sentenced according to the most severe of those charges. The Federal Sentencing Guidelines work that way, but the federal sentencing guidelines are not mandatory (due to U.S. v. Booker) and sentences which exceed what the guidelines allow but which are within the range specified in law for the specific crimes the defendant was convicted of are issued and upheld. So unless there is some mandatory requirement outside of the guidelines for concurrent sentencing or grouping, the maximum potential sentence is, in fact, not the maximum supported by the guidelines grouping rules, but the maximum supported by adding up the punishments for the individual offenses. The most likely sentence may be one within the range provided by the guidelines, but that's not the maximum potential.
rilita 12y ago
Minimum sentences for certain non violent IT related "crimes" are also excessively long. I've been told one of the things I did in the past that hurt absolutely no one and had almost zero effect is punishable by a minimum 1 year sentence...
- phaus 12y ago
  What exactly did you do? While I agree that the penalties under US law are often unrealistically severe, it is very likely that you caused unintended harm(Even if it was only money spent to investigate what you did.)
  - rilita 12y ago
    I confessed to the "crime" on the spot, and provided all proof that I did it immediately. There was a clear documented log of what I did. No "investigating" was necessary. I would have been chucked into jail for a year in theory, if they could get it past a grand jury, since there was/is sufficient evidence. The only reason it never went that far is because I cooperated with the FBI in other regards that I cannot disclose. I can assure you that no harm was done to anyone. It was/is a technical violation of the letter of the law.
crdoconnor 12y ago
>Secondly, the petition was too narrow and targeted the individual prosecutor for that case. Even if she was removed, it wouldn't prevent the same sort of thing happening again. Targeting the individual is crucial. Carmen Ortiz has already done significant damage to her career over this. She hasn't been fired (yet), but in all likelihood she is never going to rise above her current position. She's damaged goods. That's a good thing. Any future prosecutor is already likely to approach a similar case with trepidation instead as they weigh up the risks of the public backlash vs. the possibility of making some powerful friends. That's a (small) measure of success. >Let's not make it about one prosecutor. To be honest, this is probably the lever that is most likely to achieve results. Indeed, it probably already has. Muted grumbling about 'the system' does not achieve results anywhere close to making a powerful individual fearful of a ruined reputation.
joslin01 12y ago
Right, Swartz. Moving onto more important matters.. I don't agree with your general overtone. Is it fair that they can make an example out of us, but we can't make an example out of them? Should my ire really be with the law (a tool) or the person executing the law (using her tool) to aggressively vilify an innocent, bright kid? We're humans living amongst humans; let's not forget that. Your assertion that "the larger issue is that the law is broken" gives us nowhere to go, no way to express our discontent, and really just supports the perpetual armchair bravado. How is the law going to change if no one does anything about it? Do you think having an intelligent debate right now will solve anything? As if some senator is going to catch wind of our discussion, and think he's found himself a calling. No, the government doesn't do anything unless you make a scene; I learned that from Aaron and SOPA. Ortiz is not just some innocent victim who was blindly following the law. She made this her case and went after it vigorously. Ortiz is the representative we use to express our hatred on because it's impossible to "make it about all of them." There's plenty of good prosecutors out there who aren't scumbags who want to see a genius rot in jail to prove a point or make an example. What're we going to do? Point our finger at all prosectuors and say "Look what you did to Aaron!" No, there's one person here who's most responsible and all eyes are on her for a reason. I argue we want to use Ortiz the way they wanted to use Aaron. We make an example. Hopefully then, people will actually work on changing the law. EDIT: For what it's worth, I did still find your post very enlightening and informative. I'm just not convinced Ortiz is not to blame.
- sarciszewski 12y ago
  Do you prefer torches or pitchforks?

tptacek 12y ago

I agree strongly with the first half of your comment, but the second half, from consecutive sentencing on, is simply incorrect. Swartz faced nothing resembling 35 years, because federal sentencing does not work by simply adding the counts up for every charged offense. Like charges "group", and the convicted are sentenced according to the most severe of those charges. The prosecutors threatened Swartz not with 35 years, but with ~7. 7 years is also a ludicrous sentence. But it was also an unrealistic sentence: under the sentencing guidelines, Swartz was likely to face (if convicted) a sentence denominated in months not years, and --- according to his own lawyer, and observable from the actual sentencing guidelines --- one that probably could have made the probation cutoff to avoid any custodial time. So, your third bulleted suggestion isn't valid: CFAA crimes are already not sentenced "consecutively". What seems clear now is that the prosecutors were determined to have Swartz sentenced for some amount of prison time (they offered a plea deal with a very short sentence, and rejected any deals that failed to put Swartz in prison at all). That is a problem. The first half of your comment captures it. Sentencing rules for individual CFAA charges scale up so rapidly, and people are so rarely charged under them, that CFAA cases are high-status vanity projects for the US Attorney's office. Obligatory: https://www.popehat.com/2013/02/05/crime-whale-sushi-sentence-eleventy-million-years/ https://www.popehat.com/2013/02/05/crime-whale-sushi-sentenc...

jeremysmyth 12y ago
Thanks for the popehat link. Very enlightening. From it: > When the government quotes the maximum sentence, they are trying to scare you. > When the press quotes it, they are uninformed or lazy. The first is what I intended to imply: Prosecutors are permitted to scare the bejaysus out of defendants by quoting statutory maxima (not, as could be inferred, that they can present that to the judge.) The second is what I was guilty of ;)
- tptacek 12y ago
  OK, but Swartz wasn't scared by the 35 year number, for two reasons: first, despite what the press release said, they were overt with Swartz about what their worst-case sentence actually was (the 7 year figure was their threat about what would happen if the case went to trial and he lost), and second because Swartz had very good legal representation. A 1-2 year worst case sentence follows pretty straightforwardly from the actual sentencing guidelines if you look at them. However, there are mitigating factors in the Swartz case: first-time offender, non-remunerative offense, unenthusiastic victims. Probation was a real possibility. 7 years was not.
- mikecb 12y ago
  And that's why it's important for defendants to have their own counsel, to inform them of how the system actually works, as Aaron's counsel would have done.
dragonwriter 12y ago
> Swartz faced nothing resembling 35 years, because federal sentencing does not work by simply adding the counts up for every charged offense. Like charges "group", and the convicted are sentenced according to the most severe of those charges. The Federal Sentencing Guidelines work that way, but the federal sentencing guidelines are not mandatory (due to U.S. v. Booker) and sentences which exceed what the guidelines allow but which are within the range specified in law for the specific crimes the defendant was convicted of are issued and upheld. So unless there is some mandatory requirement outside of the guidelines for concurrent sentencing or grouping, the maximum potential sentence is, in fact, not the maximum supported by the guidelines grouping rules, but the maximum supported by adding up the punishments for the individual offenses. The most likely sentence may be one within the range provided by the guidelines, but that's not the maximum potential.

rilita 12y ago

Minimum sentences for certain non violent IT related "crimes" are also excessively long. I've been told one of the things I did in the past that hurt absolutely no one and had almost zero effect is punishable by a minimum 1 year sentence...

phaus 12y ago
What exactly did you do? While I agree that the penalties under US law are often unrealistically severe, it is very likely that you caused unintended harm(Even if it was only money spent to investigate what you did.)
- rilita 12y ago
  I confessed to the "crime" on the spot, and provided all proof that I did it immediately. There was a clear documented log of what I did. No "investigating" was necessary. I would have been chucked into jail for a year in theory, if they could get it past a grand jury, since there was/is sufficient evidence. The only reason it never went that far is because I cooperated with the FBI in other regards that I cannot disclose. I can assure you that no harm was done to anyone. It was/is a technical violation of the letter of the law.

crdoconnor 12y ago

>Secondly, the petition was too narrow and targeted the individual prosecutor for that case. Even if she was removed, it wouldn't prevent the same sort of thing happening again. Targeting the individual is crucial. Carmen Ortiz has already done significant damage to her career over this. She hasn't been fired (yet), but in all likelihood she is never going to rise above her current position. She's damaged goods. That's a good thing. Any future prosecutor is already likely to approach a similar case with trepidation instead as they weigh up the risks of the public backlash vs. the possibility of making some powerful friends. That's a (small) measure of success. >Let's not make it about one prosecutor. To be honest, this is probably the lever that is most likely to achieve results. Indeed, it probably already has. Muted grumbling about 'the system' does not achieve results anywhere close to making a powerful individual fearful of a ruined reputation.

joslin01 12y ago

Right, Swartz. Moving onto more important matters.. I don't agree with your general overtone. Is it fair that they can make an example out of us, but we can't make an example out of them? Should my ire really be with the law (a tool) or the person executing the law (using her tool) to aggressively vilify an innocent, bright kid? We're humans living amongst humans; let's not forget that. Your assertion that "the larger issue is that the law is broken" gives us nowhere to go, no way to express our discontent, and really just supports the perpetual armchair bravado. How is the law going to change if no one does anything about it? Do you think having an intelligent debate right now will solve anything? As if some senator is going to catch wind of our discussion, and think he's found himself a calling. No, the government doesn't do anything unless you make a scene; I learned that from Aaron and SOPA. Ortiz is not just some innocent victim who was blindly following the law. She made this her case and went after it vigorously. Ortiz is the representative we use to express our hatred on because it's impossible to "make it about all of them." There's plenty of good prosecutors out there who aren't scumbags who want to see a genius rot in jail to prove a point or make an example. What're we going to do? Point our finger at all prosectuors and say "Look what you did to Aaron!" No, there's one person here who's most responsible and all eyes are on her for a reason. I argue we want to use Ortiz the way they wanted to use Aaron. We make an example. Hopefully then, people will actually work on changing the law. EDIT: For what it's worth, I did still find your post very enlightening and informative. I'm just not convinced Ortiz is not to blame.

sarciszewski 12y ago
Do you prefer torches or pitchforks?