

How and why the US Justice Department over-prosecutes - antics
http://susiebright.blogs.com/susie_brights_journal_/2013/01/i-have-something-to-say-about-aaron-swartzs-suicide-and-the-special-way-the-us-justice-dept-hounds-p.html

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jamesaguilar
Slightly less sinister hypothesis: aaronsw turned down a slap on the wrist
plea bargain. The prosecutor charged the maximum because it is a waste of time
to take a guy to federal court over a $20k fine and a year of probation.

You know that maximum about malice, incompetence, etc.? I'm not saying I
_know_ for sure but it strikes me that most people think they are doing good
in the world and I don't get why this prosecutor isn't getting the same
benefit of doubt. Actually, I kind of do. Aaron was one of the community's
favorites and to some degree that trumps truth-finding.

~~~
drzaiusapelord
Why not just drop the fucking case then? Jesus, how many millions of our tax
dollars were spent doing our best to drive this kid to suicide?

JSTOR didn't want prosecution and arguably neither did MIT.

I can't stand these justifications that seem to make everyone a slave to the
machine. Heck, you and I break hundreds of laws a day, maybe even a felony or
two or three. Federal prosecutors can do whatever they want with us. We have
no power over them. We can at least expect them to go after real crime with
real victims instead of political activists.

If we lived by these "go by the letter of the law and prosecute everyone who
breaks any law" ideals then literally everyone except newborns would be in
prison.

~~~
rayiner
You're conflating two very different things. This was no case of overzealous
prosecution based on vague laws for the kind of activity that everyone does
every day. Swartz purposefully accessed a protected computer network without
permission, and purposefully copied a huge number of documents which he had no
right to copy. He did all of these things willfully, with no defense that he
was incapable of understanding the implications of his actions. It is
disingenuous to say that breaking into MIT's network to download millions of
documents illegally is no different than the kind of activity that you and I
might do every day that "technically" violate various laws.

Now, maybe you think "breaking in" to a poorly protected network should not be
a crime. Maybe you think mass copying of copyrighted materials should not be a
crime. But if you take action like Swartz did to protest these laws, you are
engaging in an act of civil disobedience and inviting prosecution. And
sometimes that's justified, but being prosecuted is part and parcel of civil
disobedience.

The rhetoric around this unfortunate incident borders on intellectually
dishonest. Our democratically-elected Congress has passed laws, and under
those laws breaking into a poorly-protected network isn't any less "hacking"
than breaking into a poorly-protected house is trespassing. Those laws also
say that scientists own the copyright to their papers, and can license them to
distributors, even when their research is paid for with public grant dollars.

The prosecutor in this case pursued her case according to the law. Not some
technical "letter of the law" definition of the law, but in response to
exactly the kinds of actions the laws were designed to address. Our
democratically-elected Congress chose to make those specific things that
Swartz did illegal.

That doesn't mean that no one is on the hook. But it's not the relatively
simple matter of stopping overzealous prosecution in one agency. The techie
community has a far bigger task: convincing elected officials and those that
vote for them that there are degrees to "hacking" and that publicly funded
research should be freely available. That's the root of the issue here.

~~~
drzaiusapelord
>Now, maybe you think "breaking in" to a poorly protected network should not
be a crime.

No one is saying that. If he was hit with trespassing then it would be a
different story. He was political target hit with the worst laws they could
find that remotely applied to his case.

>The rhetoric around this unfortunate incident borders on intellectually
dishonest.

The only dishonesty I'm seeing is from the aspie "law and order" types
screaming "off with his head" because they can't fathom that our world is far
from black and white.

>The prosecutor in this case pursued her case according to the law.

This is such a dishonest statement I'm not sure you really understand how the
politics of prosecution work. Just the idea that Ortiz and Heymann had no
choice but to hit Shwarz with these specific set of charges is absurd.
Railroading happens, accept it. Your black and white simplistic worldview only
exists in your head. Reality is messy.

~~~
rayiner
> No one is saying that. If he was hit with trespassing then it would be a
> different story. He was political target hit with the worst laws they could
> find that remotely applied to his case.

He was hit with the hacking equivalent of trespassing. The point is that the
fact that the network is unprotected or poorly protected doesn't make it any
less "hacking" than the fact that property is unprotected or poorly protected
makes it less "trespassing." What matters is whether Schwartz had permission
to access the network for the kind of activity he engaged in, and he did not
have such permission.

> No one is saying that. If he was hit with trespassing then it would be a
> different story. He was political target hit with the worst laws they could
> find that remotely applied to his case.

The aspies here are the techies who can't fathom why someone might
characterize Schwartz's actions as "hacking into MIT's network to steal
millions of scientific documents" and do so in good faith. It's aspies to not
see how most people would see the situation that way, and rage at the
prosecutor instead of acknowledging the larger task of changing people's
views.

> Just the idea that Ortiz and Heymann had no choice but to hit Schwarz with
> these specific set of charges is absurd.

I didn't say she had no choice, I said her case was within the scope of the
law. This is not a case where a prosecutor stretched obscure statute to
railroad an innocent victim. This case was based on laws that proscribed
exactly the kinds of activities the defendant undertook.

My point is that there are two very different kinds of "injustice" and people
are confusing them.

In some cases, prosecutors charge defendants with completely tangentially-
related laws in order to railroad them. But in this case the laws were on
point. The real injustice is that the laws regarding "hacking" make no
distinction between something like what Schartz did, and Russian mafia hacking
into Bank of America's network.

~~~
MichaelSalib
_But in this case the laws were on point._

Indeed. Perhaps it would clarify things if people who object to the Computer
Fraud and Abuse Act could stand up and say "the CFAA is wrong and should be
abolished; there should be no criminal penalty at all for unauthorized access
to a computer system"?

~~~
finnw
> "the CFAA is wrong and should be abolished"

> "There should be no criminal penalty at all for unauthorized access to a
> computer system"

These are not equivalent.

~~~
MichaelSalib
Without the CFAA, what criminal penalty would there be for unauthorized access
to a computer system?

~~~
nitrogen
At the least, there would still be criminal penalties for fraud, identity
theft, misappropriation of trade secrets, blackmail, espionage, sabotage, etc.

When practically everything is a computer, having laws that specifically
target computers seems unnecessary.

~~~
intended
From what the trend has been, it looks like there are going to be 2 different
lines of jurisprudence, one dealing with non digital works, actors and
actions, vs one for the digital world.

It is increasingly clear that many situations online bear superficial
similarity to real world analogues, and their edge cases make massive
deviations from their r/l counterparts.

So laws will have to include cases for digital/computer based actions, at the
very least as special cases.

~~~
AnthonyMouse
If you can articulate a specific reason why e.g. "identity theft with a
computer" requires different treatment than "identity theft" then we can
discuss making an appropriate amendment to the laws against identity theft.
But that is no excuse for the CFAA continuing to exist as written.

What I would be interested to hear is a valid argument for why "unauthorized
access to a computer" (whatever that actually means) should be a felony or
even a crime in cases when it doesn't occur in furtherance of any otherwise
illegal act.

People talk about computers like they're property, but if you're _accessing_
them then they're really like agents. Prohibiting "unauthorized access to a
computer" isn't like prohibiting trespassing, it's like prohibiting talking to
someone's agent without authorization. Which is silly. If your agent is stupid
and someone convinces it to hop around on one foot or do some other such
harmless thing, there is no reason for that to be illegal, you just train your
agent to not do that if you don't want it to. If your agent is stupid and
supplies foreign spies with copies of all your classified documents when they
lie to it in the right way, anyone who does that is (or should be) guilty of
espionage, and there is no utility in a separate law against "unauthorized
access to an agent."

But there is great harm in prohibiting it, especially if the penalties are
nontrivial, because depending on what "unauthorized" and "access" mean, we all
arguably do it on a regular basis without even realizing it, and it makes us
all subject to felony charges. So I'm waiting for someone to provide any good
justification for why we shouldn't just repeal it.

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mark_l_watson
I never thought about that but it does make sense: the prosecutors get
professional advancement based on numbers, not the quality of cases.

We had a dinner party last night and everyone at the table thought that the US
has serious citizen rights, etc. problems and the situation is getting worse.

~~~
mpweiher
And let's not even get started on the problems if you're _not_ a citizen.

Trivial example: at the 29c3, an NSA whistleblower was complaining that the
NSA was now eavesdropping on _US citizens_ , oh the outrage! And explicitly
listed the UN human rights conventions...forgetting that those same human
rights conventions apply to the people he'd been eavesdropping on for the last
30-40 years with no problems whatsoever, the very people he was giving this
presentation to.

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pasbesoin
A worthy lasting legacy would be for Mr. Swartz's story to shed an undeniable
and transforming light upon the farce that our "adversarial" justice system
has become.

It is all too seldom about "justice" and all too often about "career".

And... these prosecutors are public employees. _Our_ employees. We cannot and
should not divorce ourselves from their malicious malfeasance, when and as it
occurs.

Nor can we nor should we divorce ourselves from the system that creates it.

Swartz's case gains publicity through his prominence. But similar oppression,
often combined with a grinding and defining lack of opportunity, plays out
thousands of times every day, on the streets and in the families of this
country.

We can't make it perfect. But we should be trying a damned sight more to make
it better. If we are sincere about this.

~~~
regnum
Check out Errol Morris' documentary The Thin Blue Line. It really makes
evident the "career" climbers in the justice system and how they can spoil
freedom for those who they target.

[http://movies.netflix.com/WiMovie/The_Thin_Blue_Line/6003493...](http://movies.netflix.com/WiMovie/The_Thin_Blue_Line/60034937?locale=en-
US)

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michaelfeathers
How can it be fixed?

~~~
wissler
At root this is a philosophical problem. The professional philosophers have
created a disarray in the field of values, claiming that they are subjective
and arbitrary, and that's resulted in the inability of people to rally around
common, objective values of right and wrong. And when you say something like
this, you generally just get what these philosophers have said repeated back
to you, and some weak-kneed alternative to saying "this is right, that is
wrong", which is precisely why we are where we are.

~~~
michaelfeathers
No offense, but I think I'll listen to systems thinkers and legal experts
rather than philosophers for a little while.

~~~
wissler
I am of course in the minority, but it's not the minority who's created these
major systemic problems. We try to point them out and are ignored (and here,
downvoted), and you bumbling fools keep doing things that wreck civilization.
Inadvertently of course. But good intentions count for zero, you still bear
partial responsibility for widespread injustice.

~~~
Yaa101
The problem lies in Democracy, it is not for nothing that it is called the
least worst ruling system.

The difference between most democracies and dictatorships is that a
dictatorship is despotism by minority and most democracies despotism by
majority, not often are democracies systems of fairness.

~~~
wissler
No, it's not with democracy, it's with the values of the populace. If you have
a predominately good people, then many political systems can work; if you have
a predominately duped and corrupt people, no system can work.

~~~
dinkumthinkum
If you think that the problem with the U.S. is that everyone is hopelessly
enamored with Rorty or other postmodernists, then, I think maybe you are out
of touch with "reality" just a little bit. :) I don't think the NRA is going
to start quoting Derrida any time soon.

~~~
wissler
No, I don't think that. If you think that I do based on so little evidence,
then you're clearly out of touch with reality, a lot.

~~~
dinkumthinkum
But you're not making any sense.

~~~
wissler
To you. Ergo you ask questions, you don't insert your premises where you fail
to comprehend mine.

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mieubrisse
Though the article brings up an interesting point for consideration, I found
it relying more on inflammatory statements than anything else.

"The Justice Department was bagging obscenity law trophies by going after the
poor, the suicidal, the insane, the cognitively impaired— because that's the
way they rack up numbers and status. That's the way their fuel their careers
at the Justice Department— not by taking on constitutional issues, or
injustice, or fat cats who believe they're above the law."

I'd be interested in seeing numbers on whether defendants convicted of
obscenity charges really do have a higher incidence rate of poverty, mental
illness, etc. to back the author up.

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guard-of-terra
What I didn't understand from the article is: Do they have death sentence for
obscenity?

~~~
rprasad
In some countries they do (take a guess), but not in the West.

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thenetwork
The presence of a quota system that requires that the government bring a
certain number of cases and provides bonuses and rewards connected to
"bringing more cases" means that honorable and honest prosecutors fall behind
and cannot compete and dirty and heartless prosecutors are able to meet their
goals and get ahead. It is not possible to fight the federal government, only
a man of enormous strength and enormous balls can successfully do this. Most
capitulate, the others lose because the government burden of proof is a joke.

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dlss
Why is this on the front page? This is barely even about Aaron Schwartz -- he
wasn't disabled, friendless, or prone to drooling for example. Less of these
kinds of posts, please.

That said, I'm glad it was here if only to read jamesagilar's pointing out
that "aaronsw turned down a slap on the wrist plea bargain". Thanks James!

~~~
smsm42
It is on the front page because this is happening in the USA every day, every
hour. But we usually hear about it only when somebody high-profile enough is
hurt by the criminal prosecution machine. But make no mistake of thinking the
same machine doesn't hurt people 24/7 - we just don't hear about it often.
Maybe if we did, we could get some way to fix it or at least make it less
cruel and inhumane. Most of the readers here, I presume, are lucky enough to
have very small chance of being pulled into the criminal prosecution machine
unless they do something out of the ordinary - like Aaron Swartz did. But it
still exists right next to us and we better not forget about it.

