
U.S. Attorney issues statement defending prosecution of Aaron Swartz - Pr0
http://www.bizjournals.com/boston/blog/startups/2013/01/us-attorney-aaron-swartz-statement.html?page=all
======
AnthonyMouse
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
What do you think they should have charged him with, specifically?

~~~
supercanuck
Copyright infringment?

~~~
rayiner
He did access MIT's network after they tried to kick him off. That's not
nothing.

~~~
rhizome
If it's not nothing, what is it, exactly? Lori Drew? Worse?

------
tptacek
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
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
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
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
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.

~~~
shrughes
You can interpret a mac address ban that way, but you could also interpret it
as implying that you're using too much resources at once, so you can't do
that, but throttling your download rate might be okay.

------
A1kmm
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>), and under the sentencing
guidelines he would have fallen under Offence Level 6 (see
[http://www.ussc.gov/Guidelines/2012_guidelines/Manual_HTML/2...](http://www.ussc.gov/Guidelines/2012_guidelines/Manual_HTML/2b1_1.htm)).
Assuming no criminal history, the sentencing guidelines would dictate 0-6
months imprisonment and/or a $500-5000 fine.

~~~
rhizome
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
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-l...](http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-
losing-aaron-swartz-part-2)

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.

~~~
downandout
>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).

------
il
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.

~~~
philwelch
Plea bargaining is a form of negotiation.

~~~
mtgx
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.

~~~
philwelch
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.

------
sociotech
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?

~~~
droithomme
Welcome to Hacker News, SocioTech. I see you joined when the Swartz case news
broke and all of your posts so far have been to defend the actions of the
prosecution while demonizing Swartz and his advocates.

That's fine, but why not take a look at the front page of Hacker News? As a
tech guy and hacker, I'm sure there are lots of other topics that you as a new
member would enjoy discussing and not just this single topic.

~~~
lancewiggs
Yes - it has me wondering who SocioTech is, who he or she works for and what
their role is there. Arguably the behavior reflects someone who is PR,
political party or DA office, which in itself would be fairly big news.

~~~
sociotech
Reading about this case, I've seen lots of people called "shills" for the US
Atty's office or the DOJ. You probably won't (and maybe shouldn't) take my
word for it, but that's just not how these organizations work. It isn't even
close.

People in small communities often overimagine their own importance. That's not
an insult, just a psychological truth. The DOJ doesn't care what people here
write, and if you talked to people there, from political appointees down to
staffers, most of them would fall somewhere between (a) pleasure that the
democratic process is proceeding through random or organized discussion online
and (b) snide dismissal of hackers they don't understand. They don't hire PR
people to infiltrate discussion boards on general issues. (Of course, the FBI
does hire people to infiltrate criminal communities.) Think of any cases of
astroturfing that have come to light. It happens by hotels that want to post
undeserved reviews on TripAdvisor, startups (and even charities, as Aaron once
pointed out) that want to get attention, etc., etc. The DOJ and US Attys
aren't in the astroturfing business.

Another thing that should give people some perspective: It's laughable for
people to have suggested, as I think a dozen did, that the new limit for White
House petitions (100,000 instead of 25,000) had anything remotely to do this
this case. Most people in the administration haven't heard of it and never
will. There's a lot going on in the world. ;)

~~~
jlgreco
> _I've seen lots of people called "shills" for the US Atty's office or the
> DOJ._

I don't think you were just called a shill for either of those organizations,
but rather a shill for one or more of the _individuals_ involved.

~~~
sociotech
Well, it's not true either way. But that too is very rare. There's just too
much risk with it, and it's not how most nontechies think. Look what actually
happened in this case: Ortiz's husband issued an ill-thought-out, insensitive
statement in frustration on Twitter, and then eventually there was a calm,
rational press release from the office.

Then they'll move on. They've got thousands of other cases, many of which have
made other communities similarly angry. That we get 35,000 signatures for an
online petition mostly speaks to the fact that we're online.

------
DuskStar
"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
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
>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
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
>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.

------
joering2
> 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>

Nobody will live forever Ms. Ortiz. I hope Aaron will wait for you at Heaven's
gates and handle you a key... to hell.

------
eksith
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.

------
javajosh
_> 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
According to Aaron's lawyer, MIT demanded jail time, even if they dropped the
trespass charge.

~~~
hippee-lee
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
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.

------
TDL
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
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).

------
nlh
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.

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

~~~
tghw
" _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.

------
mtgx
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-...](https://petitions.whitehouse.gov/petition/fire-assistant-us-attorney-
steve-heymann/RJKSY2nb)

~~~
sociotech
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
I read the whole docket today, and most everything was signed by Stephen
Heymann and, less frequently, Scott Garland.

------
jeswin
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
_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
The problem is that the alternative to not accepting guilt is a ridiculously
lengthy prison sentence. What do you do then?

~~~
maxharris
You say it's "ridiculously lengthy," and I say it's not.

This is what we have procedures, judges and juries for.

~~~
jeswin
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
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.

~~~
jbp
So Aaron downloading JSTOR files is very similar to a murder?

~~~
maxharris
In the respect we're concerned with, which is that Swartz's particular crimes
and the crime of murder are _both criminal matters prosecuted in criminal
courts_ , yes.

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

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

------
rayiner
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
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.

------
ravenger00
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/>) 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
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.

------
noonespecial
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.

------
icepick
"personal financial gain"

No. You don't get it. Try again.

~~~
tghw
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
I misread it at first. Thanks for pointing that out.

