
The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion - pdonis
http://www.volokh.com/2013/01/16/the-criminal-charges-against-aaron-swartz-part-2-prosecutorial-discretion/
======
temphn

      Swartz had something else in mind it seems; just taking 
      the law into his own hands
    

I think this is really one of the core reasons so many hackers disagree with
this lawyer mindset. A hacker or an entrepreneur is someone who breaks rules
to create something. Innovation and consensus are antonyms, not synonyms.
Innovation does not happen by committee. If you wait for a "democratic
process" that is bought and rigged by the copyright maximalists, you will wait
forever. The bold actions of individuals are the only way anything has ever
changed for the better.

As for the fetishization of "democracy" in Kerr's post, sometimes elections
produce good outcomes. But often the wisdom of crowds isn't so wise; I'd hate
to have the value of the gravitational constant or the next CEO of Google
determined by public plebiscite. And many times, perhaps most times, the crowd
votes after someone bold has already moved and shown the way. That's what
Swartz was doing. What is legal and what is moral are not the same thing, and
all those who argue "it's bad, but it was the law" are the moral inverses of
Swartz: "it's good even if it's not the law".

~~~
rayiner
I think there is a strong grain of truth to what you say. My politics are
fairly lawyerly,[1] and I find the anti-democratic sentiment on here
disquieting, especially the constant attempts to discredit the democratic
process at every turn by unsubstantiated hand waving about how the system is
"bought."

[1] I think the chicken came before the egg. The profession attracts people
who have a strong sense of order and continuity, it doesn't make them that
way. Though I think it's incorrect to juxtapose "innovation" so starkly with a
love of order. "Cowboy engineering" isn't universal even among technical
people. Lots of wonderful things are pyramids--created by armies of order-
loving engineers. 787's aren't built by rule breakers.

~~~
spin
> unsubstantiated hand waving about how the system is "bought."

On December 16, 2005, The New York Times reported that the Bush administration
was spying on American citizens without a warrant. Most of the major Telecoms
were participants in this massive, warrantless eavesdropping system. So the
EFF and the ACLU filed lawsuits against these telecoms. Federal courts began
ruling against the telecoms (Yay! Democracy in action!).

So the telecoms "bought" some lawmakers. In July, 2008, the senate passed H.R.
6304 which provided retro-active immunity to telephone companies that
participated in the Bush administration's warrantless surveillance program.

ie: This is not unsubstantiated. This is not hand-waving. The system was
"bought".

Since then, congress doesn't even bother with immunity any more. Both Cheney
and Bush have admitted on national television that they authorized torture.
(Torture is still illegal in the U.S.:
<http://www.law.cornell.edu/uscode/text/18/2340> \-- that's a specific law
passed by a democratic system.) And yet no one was ever investigated or
arrested or anything. Ho hum.

Obama now has a "kill list" that he personally signs. He can declare someone
to die, without a court or a trial. That sounds like "monarchy" to me, not
"democracy". ("Off with his head!")

Based on these and other events, as far as I can tell, at a federal level, we
don't really have a democracy anymore. There's no democracy to uphold or
respect. If you're a Washington insider, protecting Washington power, then
anything goes -- spying on American citizens, torture, invading countries,
killing people.

But if you threaten Washington power, then you will be hounded by prosecutors
in the name of "justice". It's too bad Aaaron Swartz couldn't buy himself some
retroactive immunity.

~~~
twoodfin
_On December 16, 2005, The New York Times reported that the Bush
administration was spying on American citizens without a warrant._

Unintentionally: Deliberately (albeit perhaps inadequately) avoiding purely
domestic intercepts and destroying them when found. Subsequent legislation has
attempted to make such intercepts even less likely and more transient.

That's a pretty important qualification. Why didn't you mention it? Your
phrasing could equally apply to a program targeted at phone calls between
California and New York.

~~~
spin
I don't see how that's relevant to my main point: Important People can
purchase immunity. The laws simply don't apply to them. The telecoms broke the
law, then purchased retroactive immunity after the fact.

------
rsingel
Orin is a good prosecutor (though retired). But let me drop two fine pieces of
evidence to refute his statement that Aaron was going to put all of JSTOR into
the public domain based on a manifesto.

1) Aaron's previous escapade was making PACER file available through huge
downloads. Those files were all non-copyrightable and have become the basis of
awesome open-source systems including RECAP and Justia.

2) Aaron had also downloaded some 400,000 Westlaw legal articles and then
analyzed them to figure out which were sponsored. The resulting study was
published in the Stanford Law Review in 2008.
[http://www.stanfordlawreview.org/sites/default/files/article...](http://www.stanfordlawreview.org/sites/default/files/articles/BardayPD.pdf)

A very large percentage of the files Aaron downloaded were out of copyright.
Other than a manifesto, what proof did the prosecutors put forward that Aaron
was going to publish in-copyright material?

Furthermore, without any evidence, Kerr says Aaron broke into the networking
closet. It had no lock and no sign saying no entry.

But Kerr's clearly in prosecutorial mode. I much preferred his mindset when he
was fighting the feds abuse of the CFAA in the Lori Drew case.

~~~
tptacek
The docket suggests that 300,000 of those files were out of copyright. He
downloaded over 4 million, didn't he?

The prosecution did in fact offer evidence that Aaron knew he was trespassing.
The closet didn't have a sign, but the building had many.

------
fatbird
Kerr does a good job reminding readers that what happened to Swartz was
absolutely standard for federal prosecutors, and the outrage is triggered
largely because he has a powerful constituency looking for redress on his
suicide. The important takeaway from this, though, isn't about the injustice
that happened to Swartz as much as the ongoing injustice of a _system_ of
federal prosecution that does this to many, many more defendants who are far
less powerful and connected than Swartz.

~~~
SoftwareMaven
I think a lot (most?) people understand that. Aaron is the rallying cry to
spark action. Ortiz is an initial heading to point that action. And while I
hope Ortiz does pay (see <https://news.ycombinator.com/item?id=5071218> for
hope it might be), I hope even more that it doesn't stop there.

The value in Ortiz "paying" is to show other prosecutors what can happen when
they get over zealous. There is only value in that if it is continually
monitored and other prosecutors are "punished" when they do the same.

To that end, it would be nice to have a way to monitor that activity, because
it is nigh impossible to change what you can't measure, if the problems are
systemic enough (as I believe this one is).

~~~
andylei
> The value in Ortiz "paying" is to show other prosecutors what can happen
> when they get over zealous

what i got from the article is that Ortiz was not overzealous. she was doing
what most prosecutors do all the time. why should we single her out? if we
wanted to fire all prosecutors that used her tactics, we'd probably have to
fire the majority of federal prosecutors.

~~~
SoftwareMaven
Without involving Ortiz, what could we do that would get as much press as this
has gotten? If the media has no interest, your cause is going nowhere, and the
media won't be interested without names and faces to talk about.

Besides, it is completely logical to believe she was overzealous _and_ every
other prosecutor is doing it. Just because everybody else is speeding, too,
doesn't mean I won't get the ticket. Ortiz happens to be the one who got
pulled over.

(FWIW, I'd much prefer we not have to drag her or, really, anyone down. She is
a real person with feelings and passions, and is, as you mention, acting
within SOP for her position. I just don't see a way to start affecting change
across the country without going _through_ her [I'm not convinced the change
can happen even doing that, but we need to try.]. I'm open to alternatives
that can realistically gain momentum.)

~~~
javajosh
You've managed, in two posts, to state almost precisely my own thoughts on
this matter. It is indeed something of a shame to hold Ortiz personally liable
for the system in which she learned her craft; and yet it seems that there is
no better way to signal a strong, popular desire for that system to change
than to end her (and Steve Hymann's) career. Given that their actions lead to
the death of Aaron Swartz, personally, I wouldn't feel too bad for them. No-
one is calling for disbarment, after all, so they have a cushy private
practice to look forward to.

------
btilly
I think it will take me a day or two to properly digest this article. That is
a good thing. Here are a few gut responses in semi-random order.

1\. I absolutely agree that the whole process of plea bargains, threats, etc
is unethical, immoral, etc. And we should object to it in all cases, not just
when it happens to someone like Aaron Swartz.

2\. I absolutely disagree that Aaron's actions would seriously threaten the
revenues for journals. Once a journal has been delivered, it has been paid
for. Retroactive access to past journals does not lessen the desire for
libraries to proactively gain access to future ones. The fact that journals
are willing to let articles onto JSTOR where they are often available for a
nominal (and in many cases a nonexistent) fee says very clearly that the
marginal value that Aaron would have taken would be miniscule.

3\. I strongly disagree that the process by which the USA acquires more laws
at this point can be fairly described as "democratic". There is a minimum
facade of democratic input, and in rare cases (eg SOPA) this can redirect the
system. But on the whole the system is not democratic, and describing it as
such tends to give people a false sense of complacency.

4\. That said, I agree with the general principle under which Orrin would have
recommended sentencing. But I emphatically disagree with the specific
conclusions there. We have ample evidence from, for instance, the ease with
which JSTOR got Aaron to back down and return materials before the prosecutors
arrived that he actually could be deterred. There was every reason to believe
that he found jail to be a very threatening prospect, and the plea bargain
suggested by his lawyer would have, in fact, deterred him from future action.
Given that, there was no need to seek large punishment.

5\. The specific suggestions on reforming the CFAA seem very good to me. If
we're optimistic that the Supreme Court will set precedent interpreting the
CFAA in a very good way, then we don't want Congress muddying the waters with
a provision that can confuse future courts about whether they should follow
the reasoning in precedent or guess at the intent of worse recent statutory
law. The ease of elevating crimes to a felony strikes me as a very clear
problem.

I could go on, but as I say it will take me some time to digest this article.

~~~
newman314
I'm a big fan of understanding motivations. Prosecutors try to go hard on
people so that they "look tough".

Think about how disgusting it is to build your career on how many wins you
have and fuck the collateral damage (pardon my French) which in this case was
Aaron.

Until prosecutors are not motivated to act this way, we will continue to see
excessive behavior from them.

------
pseingatl
Professor Kerr says we should forgive the prosecutors because “they all do
it.” This is hardly appropriate and a slur on the many professional federal
and state prosecutors who do not engage in these kind of tactics.

The fact of the matter is that in the United States a trial over a supermarket
slip and fall is more fair than a federal criminal trial. Federal trials are
trials by ambush. A defense lawyer has no opportunity to depose the witnesses
against his client and usually only learns of their identities after the jury
is empanelled. There is no way to determine if the witness has lied in the
past or has reason to tailor his testimony to the prosecution’s case. The war
on defense attorneys in the 1980’s was successful. Now almost all federal
defense attorneys are underfunded public defenders or panel attorneys. The
prosecutor has the resources not only of his own office, but of investigative
agencies as well. Panel attorneys have no one and not only that, often have to
finance the defense out of their own personal funds.

It is a pleasure to try a case against a federal prosecutor who is fair and
does not game the system. Based on the comments from Swartz’ defense
attorneys, that was not the situation in Ortiz’ office.

~~~
pdonis
He didn't say we should forgive the prosecutors. He said we should understand
that the way the prosecutors handled this case was not an isolated incident.
Maybe there are plenty of prosecutors that don't act this way, but there are
also plenty that do.

------
jacquesm
I love this George Bernard Shaw quote:

"The reasonable man adapts himself to the world; the unreasonable one persists
in trying to adapt the world to himself. Therefore all progress depends on the
unreasonable man."

Orin Kerr strikes me as a very reasonable man. There are lots of reasonable
men. They're all going to stand around and argue about how many legal angels
can dance on how many pins.

Meanwhile, unreasonable men are plotting on how to make progress. Aaron Swartz
struck me as a particularly unreasonable man. He made _lots_ of progress until
he ran into these artificial roadblocks.

Laws are there to benefit society, not as a brake on progress or as a way to
protect outdated business models against the greater common good, _especially_
when it comes to such things as access to knowledge.

~~~
karma_fountain
Orin did suggest quite a few ways in which the law could be changed to become
more reasonable.

------
bcoates
The one objection I have to Kerr's otherwise excellent article is that he
entirely ignores the _policy_ aspect of Prosecutorial discretion.

Lots of people openly violate federal criminal laws. An enormous number of
them, like Swartz in this case, do so non-openly but in a way that a trivial
amount of investigative effort would reveal. The vast majority of them are not
charged.

This selective prosecution is a de facto policymaking process. It's not enough
that the prosecution not be an abuse of discretion, it needs to also be good
policy. Saying that the law needs to be amended to stop enforcement might be
the technically proper thing to do but it's not the only option open to
opponents of the law.

~~~
mpyne
No offense but it's hard to call this "selective". If Aaron had simply given
up during one of the first few roadblocks put up that would have been the end
of it. No calls to the police, no charges, no _nothing_.

MIT didn't even _know_ it was Swartz until he stupidly _re_ -entered the
network closet for the second (or third?) time and finally got caught by the
police that MIT had to make special arrangement to have standing by.

If you make yourself the object of a inter-agency sting operation then it's a
pretty fair bet that there _might_ just be charges coming en route when you
get caught.

------
bambax
> _If we don’t want a world in which prosecutors have these powers, we
> shouldn’t just object when the defendant in the crosshairs is a genius who
> went to Stanford, hangs out with Larry Lessig, and is represented by the
> extremely expensive lawyers at Keker & Van Nest. We should object just as
> much — or even more — when the defendant is poor, unknown, and unconnected
> to the powerful. To do otherwise sends an extremely troubling message to
> prosecutors that they need to be extra sensitive when considering charges
> against defendants with connections._

This is exactly what bothers me with this whole affair. 4 million people are
behind bars in the US and no one cares; most of those people have committed
"crimes" with no victims but themselves (if even that)... and no one cares.

And suddenly the same prosecutorial tactics are used on one of us (one of us
hackers, not one of us geniuses, obviously) and ends in tragedy, and we ask
for the removal of the prosecutor.

This one prosecutor is not the problem; the US criminal system is the problem.

~~~
gknoy
Frankly, I do care that many people are jailed in a degree which I consider
excessive - and I imagine most of us here do as well. We just haven't had a
concrete rallying point until now.

~~~
mpyne
Yes we did. We had one when Aaron Swartz was still alive but on charges. The
consensus was pretty much that he'd finally _actually_ done something
legitmately illegal, so if people here really were that worried about felony
this vs. misdeameanor that, or the legal process in general, then they'd had
plenty of time to do something about it.

------
Tloewald
The article is excellent.

"Finally, I think the instinct to blame the prosecutors in this case should be
checked because it is fueled in significant part by a human but improper
motive: Making sense of Swartz’s suicide. When a young person commits suicide,
there is a natural instinct to restore a sense of order to the world by
finding someone to blame. We deal with the sense of shocking and unimaginable
and senseless loss by pinning the blame on someone to create a tidy narrative
of wrongful actor and wrongful act."

You can disagree with copyright law, mourn Aaron Schwarz, and yet not blame
prosecutors for Aaron's suicide and have a sense of proportion.

------
michaelfeathers
_I think it’s important to realize that what happened in the Swartz case
happens it lots and lots of federal criminal cases. Yes, the prosecutors tried
to force a plea deal by scaring the defendant with arguments that he would be
locked away for a long time if he was convicted at trial. Yes, the prosecutors
filed a superseding indictment designed to scare Swartz evem more in to
pleading guilty (it actually had no effect on the likely sentence, but it’s a
powerful scare tactic). Yes, the prosecutors insisted on jail time and a
felony conviction as part of a plea. But federal prosecutors use those tactics
all the time._

That doesn't make it right.

~~~
mtgx
Yeah, definitely agree there. Just because "everyone does it" doesn't make it
an excuse. Living in a country where bribing is pretty common, that's what you
here all the time about it, too - that everyone does it.

------
belorn
>When someone engages in civil disobedience and intentionally violates a
criminal law to achieve such an anti-democratic policy goal through unlawful
means — and when there are indications in both words and deeds that he will
continue to do so

I thought Swartz signed a deal with JSTOR that said that he was to never again
going to download more articles. What indications existed then that he was
going to continue with the specific crime he was charged with? The Manifesto,
while provocative, is generic in form and should not override a more specific
document stating a clear purpose of not continue with the violation of this
law in this case.

------
rhizome
It seems reasonable under Kerr's standards and interpretation that action
against USA Ortiz, MIT Pres. Reif, and AUSA Heymann, _special deterrence_ can
be used to take their jobs, disbar them, or otherwise affect their career
prospects in their current disciplines.

The problem with legalistic interpretations is that they presume validity of
the current laws as they stand, and that any change amounts only to a chipping
away at overreach. Frankly, I'd prefer a repeal of the CFAA until they can get
it right, citizens are not well-served when authoritarian lawmakers ask for
twice what they'll settle for and receive 150%.

------
tptacek
Interestingly, Kerr is apparently expecting to assist Aurenheimer at his
appeal for similar convictions under CFAA this year.

------
pdonis
Interesting follow-up by Orin Kerr. Brief summary of his summary:

[quote]

I’m going to break down the question into four different issues: First, was
any criminal punishment appropriate in the case? Second, if so, how much
criminal punishment was appropriate? Third, who is to blame if the punishment
was excessive and the government’s tactics were overzealous? And fourth, does
the Swartz case show the need to amend the Computer Fraud and Abuse Act, and
if so, how?

On the first question, I think that some kind of criminal punishment was
appropriate in this case.

On the second question...here’s the key question: What punishment was the
minimum necessary to deter Swartz from continuing to try to use unlawful means
to achieve his reform goals? I don’t think I know the answer to that question,
but that’s the question I would answer to determine the proper level of
punishment.

On the third question...I think it’s important to realize that what happened
in the Swartz case happens it lots and lots of federal criminal cases...If you
want to end these tactics, don’t just complain about the Swartz case. Don’t
just complain when the defendant happens to be a brilliant guy who went to
Stanford and hangs out with Larry Lessig. Instead, complain that this is
business as usual in federal criminal cases around the country — mostly with
defendants who no one has ever heard of and who get locked up for years
without anyone else much caring.

On the fourth issue, yes, the Swartz case does point to a serious problem with
the Computer Fraud and Abuse Act. But that problem is not the definition of
“unauthorized access,” as some people seem to believe...Rather, the problem
raised by the Swartz case is one I’ve been fighting for years: Felony
liability under the statute is triggered much too easily.

[/quote]

~~~
gnosis
_"What punishment was the minimum necessary to deter Swartz from continuing to
try to use unlawful means to achieve his reform goals?"_

Let's say no punishment would deter Swartz. Would that justify a sentence of
life in prison?

~~~
malandrew
Given that he, like many of us, lived his entire life on the internet, simply
taking away all computer and internet access for 12 months should be enough to
deter him. During those 12 months, if he violates that probationary periods he
could be automatically hit with 6 months of jail time.

For many of us, the possibility of being deprived the tool that gives most of
us the power we have should be enough to deter.

~~~
pseingatl
You're forgetting supervised release. This is mandatory even after a short
custodial sentence and could be for a period of up to three years. During this
time he could not have computer access; this is a standard condition. It was a
violation of this supervised release condition that sent the Egyptian national
who made a scandalous film about Islam back to prison.

------
jeswin
It doesn't say whether they are seeking 35 years. But this is from their
website:

If convicted on these charges, SWARTZ faces up to 35 years in prison, to be
followed by three years of supervised release, restitution, forfeiture and a
fine of up to $1 million.

[http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR....](http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.html)

------
cgio
I am especially concerned about the author's logic /q When the police catch
someone in the course of criminal conduct and intervene mid-way, the
punishment is properly based on what the person was in the course of doing
rather than how much he succeeded before he was caught.

Let's say I issue a manifesto where I support free food for all. Would me
picking up things in a store mean that I wanted to steal them or give them for
free? The association between the man's principles and his assumed purposes is
in direct contrast with the other author's argument on fighting lawfully. Even
if he downloaded one article he could share it. Should he not be allowed
access to information just because he was fighting for freedom of information?
Do laws now impose principles and beliefs? Or does a principle render us in
self-imposed seclusion until the relevant laws change? Highly problematic and
indicative of how prosecutors argue the cases. And this man is considered an
expert?

~~~
czr80
He just means that if you picked up food and walked out without paying it
wouldn't matter if you were caught in the parking lot while trying to
escape(and so could return the food immediately) or caught two weeks later at
home, long after the food has been eaten.

------
gavinlynch
"I think this is really one of the core reasons so many hackers disagree with
this lawyer mindset. A hacker or an entrepreneur is someone who breaks rules
to create something. Innovation and consensus are antonyms, not synonyms.
Innovation does not happen by committee."

Honest question, curious about response: I get your general point about
"breaking rules", but do you think it needs to be taken literally to the point
of breaking laws? Is that an imperative call to action for all modern hackers?
And furthermore, would you recommend Aaron take this action again, if given
the choice? Would you recommend we all take similar actions?

~~~
ep103
Yes to all of the above questions. As to the specific one about breaking rules
vs laws, a moral or patriotic individual has a civic duty, in a democratic
society, to disregard or oppose rules and laws which they believe to be
immoral or wrong. Hackers, of all people, should know this.

~~~
mpyne
> a moral or patriotic individual has a civic duty, in a democratic society,
> to disregard or oppose rules and laws which they believe to be immoral or
> wrong

No offense but if you believe that only thing binding on people is moral
imperatives, then you don't believe in a democratic society, you believe in
something closer to an anarchical one.

The whole point to a democratic society is that the people set the rules, but
there are still rules. You're talking about something else.

------
subsystem
"I think that some kind of criminal punishment was appropriate in this case.
Swartz had announced his commitment to violating the law as a moral imperative
in order to effectively nullify existing federal laws on access to
information."

This seems to be the going mistake. I can understand if someone has the
opinion that the case should be tried in court or even that the charges were
correct. But stating that someone should be punished based on their previous
statements is dangerously close to political repression.

------
gadders
It's refreshing to read an article on the case that from a disinterested
expert on the law, rather than the two sides in the case.

Well worth a read.

------
gadders
One question that occurs to me - does a felony conviction prevent you from
taking political office in the US? Given Aaron's activism, might that be a
reason why that was a sticking point?

------
sjreese
The point Information is power. But like all power, there are those who want
to keep it for themselves. The world’s entire scientific and cultural
heritage, published over centuries in books and journals, is increasingly
being digitized and locked up by a handful of private corporations. Want to
read the papers featuring the most famous results of the sciences? You’ll need
to send enormous amounts to publishers like Reed Elsevier..

There are those struggling to change this. The Open Access Movement has fought
valiantly to ensure that scientists do not sign their copyrights away but
instead ensure their work is published on the Internet, under terms that allow
anyone to access it. But even under the best scenarios, their work will only
apply to things published in the future. Everything up until now will have
been lost.

That is too high a price to pay. Forcing academics to pay money to read the
work of their colleagues? Scanning entire libraries but only allowing the
folks at Google to read them? Providing scientific articles to those at elite
universities in the First World, but not to children in the Global South? It’s
outrageous and unacceptable.

“I agree,” many say, “but what can we do? The companies hold the copyrights,
they make enormous amounts of money by charging for access, and it’s perfectly
legal —there’s nothing we can do to stop them.” But there is something we can,
something that’s already being done: we can fight back.

Those with access to these resources — students, librarians, scientists — you
have been given a privilege. You get to feed at this banquet of knowledge
while the rest of the world is locked out. But you need not —indeed, morally,
you cannot — keep this privilege for yourselves. You have a duty to share it
with the world. And you have: trading passwords with colleagues, filling
download requests for friends.

Meanwhile, those who have been locked out are not standing idly by. You have
been sneaking through holes and climbing over fences, liberating the
information locked up by the publishers and sharing them with your friends.

But all of this action goes on in the dark, hidden underground. It’s called
stealing or piracy, as if sharing a wealth of knowledge were the moral
equivalent of plundering a ship and murdering its crew. But sharing isn’t
immoral — it’s a moral imperative. Only those blinded by greed would refuse to
let a friend make a copy.

Large corporations, of course, are blinded by greed. The laws under which they
operate require it — their shareholders would revolt at anything less. And the
politicians they have bought off back them, passing laws giving them the
exclusive power to decide who can make copies.

There is no justice in following unjust laws. It’s time to come into the light
and, in the grand tradition of civil disobedience, declare our opposition to
this private theft of public culture.

We need to take information, wherever it is stored, make our copies and share
them with the world. We need to take stuff that's out of copyright and add it
to the archive. We need to buy secret databases and put them on the Web. We
need to download scientific journals and upload them to file sharing networks.
We need to fight for Guerilla Open Access.

With enough of us, around the world, we’ll not just send a strong message
opposing the privatization of knowledge —we’ll make it a thing of the past.
Will you join us?

