
Aaron Swartz v. United States (2011) - DanielRibeiro
http://blogs.law.harvard.edu/sj/2011/07/24/aaron-swartz-v-united-states/
======
rdl
I hope this comes up in Congress. The United States never should have been a
party to this -- it should have been a civil issue between JSTOR, MIT, and
Aaron. (or criminal misdemeanor trespassing if they really wanted that.)

Carmen M. Ortiz, US Attorney, should be called before Congress to account for
this.

~~~
rprasad
_. The United States never should have been a party to this -- it should have
been a civil issue between JSTOR, MIT, and Aaron._

Except, you know...the fact that Congress passed a law a while ago that made
this a crime.

This _should_ come up in Congress because what Aaron did should not be a
felonious act. At best, it should be an infraction (i.e., the lowest type of
civil misconduct, like jaywalking).

But the fault lies with Congress for making this a crime, not Ms. Ortiz for
enforcing the laws is ethically and legally bound to enforce.

~~~
rdl
She went vastly beyond what was required of her in charging him with a whole
litany of offenses, several of which Congress most likely didn't intend to
apply to situations like this (CFAA to TOS violations).

This was because Aaron was a bit of a gadfly, and had gotten out of the PACER
situation earlier, so he was already on their enemies list.

Congress was also at fault for passing a bunch of stupid laws, but that
doesn't excuse Ortiz. It also doesn't excuse Aaron for killing himself and not
getting help. There's plenty of blame to go around.

~~~
rprasad
I don't know how much more simply to state this:

As a consequence of prosecutorial "discretion" exercised during the jim crow
days of the segregated South, federal prosecutors _do not have discretion
about which laws to prosecute_. Once they have been presented a case, they are
_required to prosecute_ if the presentation of evidence is sufficient to
suggest that a crime has been committed.

Only upper management of the DOJ (i.e., above Ms. Ortiz) or the president can
issue orders not to enforce certain laws.

Thus, this _does excuse Ms. Ortiz_. She's just doing her job. If you don't
like that, _change the scope of her job_ by getting her superiors to end
enforcement of the laws at issue.

~~~
rdl
You seem to be a lawyer, and I'm not, so thanks for your information. I know a
lot more about computer security theory and practice than the US federal laws;
there are pretty clear lines way before "crime" which I try to stay within,
myself.

As far as I can tell, CFAA was not violated, at least under the narrow (i.e.
correct) interpretation of the 9th circuit. There is a circuit split right
now. 1st hasn't ruled at all, so she could easily have looked to the 9th for
guidance on this and not included CFAA charges.

There was no "protection" at MIT or at JSTOR, so I don't see how fraud or
unauthorized access, etc. applied. He scraped a website. He may have
trespassed at MIT. If net-18 restriction is considered "protection", wtf
(certainly a server on a secure LAN is protected by being only on the secure
LAN, but a server limited to US-only access and accessed via a proxy is not.
IMO Net-18 is a lot closer to national restrictions at YouTube than a security
policy, since any guest could walk in and have access.

I don't see "recklessly damaging a computer" as applying at all. Wire Fraud is
essentially free always.

Turning these into multiple counts for the same offense is also BS.

~~~
temphn
He may be a lawyer, but he is completely wrong in this and most of his other
assertions.

Justice.gov. Verbatim quote "The USA is invested by statute and delegation
from the Attorney General with the broadest discretion in the exercise of such
authority."

[http://www.justice.gov/usao/eousa/foia_reading_room/usam/tit...](http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/2mcrm.htm)

    
    
      The United States Attorney, within his/her district, has 
      plenary authority with regard to federal criminal matters. 
      This authority is exercised under the supervision and 
      direction of the Attorney General and his/her delegates.
    
      The statutory duty to prosecute for all offenses against 
      the United States (28 U.S.C. § 547) carries with it the 
      authority necessary to perform this duty. The USA is 
      invested by statute and delegation from the Attorney 
      General with the broadest discretion in the exercise of 
      such authority.

------
mgunes
If you are unable to make the link between Swartz's absurd criminal indictment
and his suicide in the light of this post, and/or if after reading it, you
still view the possibility of his suicide being primarily linked to causes
other than the indictment as on par with it being linked to the indictment,
you should perhaps hear Jacob Appelbaum's recent C3 talk [1], where he details
the state oppression he, his mentally ill mother, and his various
acquaintances have been under due to his link with Wikileaks.

[1] <http://news.ycombinator.com/item?id=4977338>

~~~
rprasad
Aaron appears to have committed suicide as a result of a mental illness (i.e.,
clinical depression) which was exacerbated by the criminal case against him.
It wasn't the criminal case that killed him; it was his mental illness.

The fact that he has a mentally ill mother is strong evidence of this, since
mental illness has a genetic component (especially depression and
schizophrenia).

~~~
mgunes
> _Aaron appears to have committed suicide as a result of a mental illness
> (i.e., clinical depression) which was exacerbated by the criminal case
> against him. It wasn't the criminal case that killed him; it was his mental
> illness._

His family and partner, perhaps the people who have been closest to him in
recent times, seem to disagree with you [1][2].

> _The fact that he has a mentally ill mother is strong evidence of this_

Is that indeed a fact, or did you just happen to incorrectly infer that from
my sentence? I was talking about Appelbaum's mother, not Swartz's. My point in
citing Appelbaum was to denote that Swartz is not an isolated case; the US
justice system has been systematically acting as an instrument of oppression
against dissidents (and increasingly more frequently, against those active in
the production and critique of technology) whom it perceives as adversaries of
its federal and corporate sponsors.

[1] <http://news.ycombinator.com/item?id=5049225>

[2] <https://news.ycombinator.com/item?id=5047398>

~~~
rprasad
I don't have time to go over the several dozen Aaron-related posts or HN
threads from today until tomorrow to provide cites, but many of Aaron's posts
linked to on HN (including, especially the Batman post) display many signs of
severe clinical depression. I'm not a doctor, so I'm not saying that he did
kill himself as a result of a medical illness with any degree of certainty.
But I am saying, based on my past experience representing defendants with
mental illness, that it probably played a role in his suicide.

Also, the family does not say anything that disagrees with what I said. They
state merely that the criminal case "contributed to" Aaron's death. That is an
actual quote from [1].

~~~
mgunes
> _merely_

That's some rather selective reading on your part. You ignore the context in
his mother's statement on HN that he was "depressed about the case and the
upcoming trial" (indicating perhaps that his depression and the pressure
brought by the indictment are inseparable), and cherry-pick a particular
sentence to support your own view, rather than try to _hear_ the tone and
spirit of the statement. The fact that the family chose to come forward with
such a clear and bold statement condemning particular institutions on the day
of their loss alone is proof enough that they strongly believe MIT and the
DA's office played a critical part in what happened.

~~~
rprasad
_The fact that the family chose to come forward with such a clear and bold
statement condemning particular institutions on the day of their loss alone is
proof enough that they strongly believe MIT and the DA's office played a
critical part in what happened._

Families usually say things like this the same day a loved one dies, so their
statements today are proof of nothing. It is their statements _next week_ or
next month that indicate how they feel about MIT and the USDOJ's role in
Aaron's death.

 _"depressed about the case and the upcoming trial" (indicating perhaps that
his depression and the pressure brought by the indictment are inseparable),_

Of course they are inseparable--most defendants do get at least a little
depressed when they are facing criminal charges. But the one thing that
99.9999% of defendants have in common is that they don't kill themselves,
especially not before they are convicted, unless they have a serious mental
illness. The number of white collar federal defendants who have committed
suicide prior to trial in the past decade can be counted on a single hand.

Let's get this straight: I do think that the criminal case pushed Aaron over
the edge and if you go far enough back in my posts I am usually blaming
prosecutors for the overzealous and unethical behavior. If this case had gone
to trial, I would probably be railing against the egregious prosecutorial
misconduct of the case. But I place the blame for Aaron's death solely on his
shoulders, because _he_ is the one who made the decision to kill himself.

~~~
mgunes
> _I do think that the criminal case pushed Aaron over the edge_

> _But I place the blame for Aaron's death solely on his shoulders_

Quoted for emphasis.

------
cbennett
the blog links through to this article, which I found quite insightful:
[http://www.litigationandtrial.com/2011/07/articles/series/sp...](http://www.litigationandtrial.com/2011/07/articles/series/special-
comment/aaron-swartz-computer-fraud-indictment/)

