

Attorney General: Aaron Swartz Case Was a ‘Good Use of Prosecutorial Discretion’ - cyphersanctus
http://www.wired.com/threatlevel/2013/03/holder-swartz-case/

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mattmaroon
I know I'll be pilloried for saying this here, but I'm not sure it wasn't. If
one doesn't come at it from the stance of an anti-government idealogue (and if
one understands the difference between statutory maximums and threats) this
case is more complex than it's given credit for.

It's quite possible Ortiz was overzealous. It's quite possible (in fact to
some extent almost certain) that the system is broken and defines computer
crimes poorly, and Ortiz was doing her job well in a very tough spot. It's
possible we're better off with laws aimed to stop computer fraud, and that
prosecuting those who commit it (even if they happen to be people we generally
like) is a necessity in the 21st century.

At the end of the day we have to remember, we need laws to prevent computer
fraud, hacking, etc. Those laws will, almost by necessity, be written and
enforced by non-programmers.

Which is not to say Aaron deserved 17 felony charges. But it's overly simple
to vilify Ortiz or the AG's office.

~~~
AnthonyMouse
I think you can fairly argue that the prosecutors in this case, at the least,
didn't do anything _atypical_. The fact that this sort of behavior is par for
the course is a separate issue -- and one that deserves fixing, whether or not
the fix involves the prophylactic purging from the system of some high profile
participants.

However, the idea that the CFAA is the best we can do in the way of
legislation is just laughable. I really can't stand this futile notion that
because the law can't be totally perfect, we might as well just give up and
allow it to be catastrophically bad. No to that. We can't make it perfect but
we can make it a lot better than it is.

~~~
mpyne
> However, the idea that the CFAA is the best we can do in the way of
> legislation is just laughable. I really can't stand this futile notion that
> because the law can't be totally perfect, we might as well just give up and
> allow it to be catastrophically bad. No to that. We can't make it perfect
> but we can make it a lot better than it is.

You're exactly right but careful about what you're arguing against. I don't
think anyone is actually claiming that CFAA is the best achievable law we
could have, or that we shouldn't try to improve it (even if we accept that the
law will be mostly written and almost completely enforced by those without
technical training in computers and networking).

~~~
AnthonyMouse
The sense of the post I responded to was very much that what happened in this
case was acceptable or understandable because justice is complicated, which
implies that there is little to nothing that could or should be done about it.
But complexity doesn't excuse failure. Mistakes may be inevitable but that is
no excuse not to learn from them and do better next time.

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sneak
This is the same guy who thinks it's ok to assassinate US citizens with drones
without trial.

Despicable.

~~~
rayiner
It's never been not okay to kill people in other countries actively taking up
arms against you, U.S. Citizen or not. People are just riding Holder's ass
because it seems different to drone strike someone versus an American soldier
shooting a German-American who switched sides. E.g.
[http://journalstar.com/lifestyles/columnist-recounts-tale-
of...](http://journalstar.com/lifestyles/columnist-recounts-tale-of-german-
americans-fighting-for-
nazis/article_66492ff6-2d6c-5bf0-a1a4-4997e5b9d578.html)

~~~
PeterisP
USA is not in a war. There has been no declaration of war authorised by
Congress. Therefore there can be no 'enemy combatants' - as (legally and
officially) there are no war enemies; and drone-striking any US citizen is
simply murder.

~~~
anigbrowl
False. Public Law section 107-40, Section (2)(b)(1).

[http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/pdf/PLAW-107publ...](http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/pdf/PLAW-107publ40.pdf)

~~~
tptacek
It's weird that so many people believe we aren't at war, like they _really
can't get their heads around the fact that we declared war on a brand name_
and unlike the "war on drugs" it was an _actual war_.

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redthrowaway
I'm genuinely curious what the Obama Administration sees in Holder. He brings
no gravitas nor respect to the position; rather his role seems to be to
deflect blame from Obama for his unconstitutional and generally shit-headed
decisions.

~~~
sigzero
This is his role exactly.

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olefoo
This is the same attorney general who refuses to disclose the legal reasoning
behind the presumption that the president is entitled to kill American
Citizens at home or abroad without due process of law.

Also the same attorney general who has so far only prosecuted bit players in
the nationwide mortgage document fraud without even bringing charges against
executives whose name is on memos ordering the fraudulent practice.

If you're wondering why justice in this country appears to be available only
to those who can afford it... He is the prime mechanism of failure.

~~~
aamar
Would appreciate a link to information about executives whose name is on memos
ordering the fraudulent practice.

I understand that there is evidence of fraudulent mortgages, and executives
involved in risky financial behavior, but I am not aware of something tying
the executives to the fraud.

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zeteo
A pretty clear case where the legal system and the people who run it are left
behind the times (and try to keep the times back with them). Changing your MAC
address, for instance, is no worse a threat to society than wearing a hoodie
in public, and threats of 35 year sentences are usually reserved for cases
such as murder or rape. But because hacking is such a novel kind of crime
that, if it spreads, will necessitate vast changes in the expertise and
structure of the law enforcement system, the powers that be feel a need to nip
it in the bud with excessive, well publicized punishments and threats.

~~~
rayiner
Don't be purposefully disingenuous. There is nothing wrong with wearing a
hoodie in public, but if you wear a hoodie to hide your face from security
cameras while you walk, without permission, onto a commercial building at
night, then the fact of your wearing the hoodie can be used to show that you
knew you were trespassing and trying to hide the fact. The same exact
reasoning can be applied to changing your MAC address while trespassing onto a
private network without permission. There is nothing wrong with doing it by
itself, but if you do it to get onto someone's network when they don't want
you on, that's something totally different.

As for "threats of 35 year sentences"--the statutory maximum is not a
"threat." If I punch you in a bar fight, causing no injury, and you press
charges, I'm theoretically facing the maximum sentence for assault in New
York, which is 25 years. But at no point does anybody think anyone will
actually get a 25 year sentence for a little bar fight. If I went apoplectic
about the grave injustices of "facing" 25 years in prison for a bruised chin,
people would point out the obvious: the statutory maximum is for people who
try to kill people, not people who get in bar fights. Similar common sense
should prevail in this discussion--the fact that it doesn't is because of
nothing more than grandstanding.

~~~
RyanMcGreal
> As for "threats of 35 year sentences"--the statutory maximum is not a
> "threat."

That's simply incorrect. It is absolutely a threat. As I recently argued:

> The prosecutor used the threat of 35-50 years in prison to get Aaron to
> accept a guilty plea. If he chose to plead not guilty and attempt to defend
> himself, it would cost well over a million dollars in legal fees, and if he
> were found guilty anyway, the judge would be strongly predisposed to make an
> example of him by giving him a very long, punitive sentence.

> A prosecutor forcing someone to admit guilt by threatening a life-destroying
> cruel and unusual punishment if they do not admit it - why, that is the very
> essence of using torture to extract a confession!

[http://quandyfactory.com/blog/103/on_crimes_and_punishments_...](http://quandyfactory.com/blog/103/on_crimes_and_punishments_the_cruel_and_unusual_threat_against_aaron_swartz)

~~~
rayiner
The trick is in the word "faces." If I went to trial for punching someone at a
bar, a jury _could_ decide that I was really trying to kill them and my ninja
hands were deadly weapons, etc, and a judge _could_ decide I'm a menace to
society and need to be put away and so in that sense I "face" 25 years in
prison. But that doesn't happen.

Yes, prosecutors offer lower sentences in exchange for guilty pleas, but the
lower sentence is relative to the sentencing guidelines, not the statutory
maximums. See: [http://www.volokh.com/2013/01/16/the-criminal-charges-
agains...](http://www.volokh.com/2013/01/16/the-criminal-charges-against-
aaron-swartz-part-2-prosecutorial-discretion/)

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thinkcomp
The video of Eric Holder is simultaneously baffling and revealing. The USDOJ
really thinks it did a good job. It's unbelievable. Holder's metric of success
is apparently (in this case) nothing but how little time Aaron could have
spent in jail. No other considerations seem to matter.

I'm not sure how people so ignorant and blind wind up in positions of
authority, but it scares me. Even scarier is the fact that I find myself
agreeing with the Republican Senator from Texas who is likely only pressing
the point with Holder to embarrass the Obama administration.

This microcosm encapsulates so well government doing all of the wrong things
for all of the wrong reasons. How did it come to this?

~~~
ihsw
> This microcosm encapsulates so well government doing all of the wrong things
> for all of the wrong reasons. How did it come to this?

It's always been like this, and the people pushing the political buttons and
pulling the political levers are patting the AG's back now. Special interests
have an iron grip on politics in Washington now and the only way to win is to
spend the most money.

Don't think this is limited to the Federal government, the States have been
infiltrated just as well. Money makes the world go around.

~~~
jisaacstone
You use of 'infiltrated' indicates that there was a time when money did not
drive politics.

There was no such time.

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javajosh
It's time to get beyond the shock and outrage at the stone-walling occurring,
now, at every level of government, and take a good hard look at what's
motivating Holder. We are asking him to empathize with us - the least we can
do is empathize with him.

First things first: Swartz is small potatoes. Holder deals with a lot of
things, not the least of which is fielding questions about the legality of
drone strikes on US soil [1], or writing memos about Gitmo or torture [2]. The
handling or mis-handling of a single case is nothing to Eric Holder,
especially since his boss is not up for reelection.

Second thing: the default position for any government leader is to back up
your people. It's easier that way. If everyone in government backs up their
people, coupled with unapologetic denials of wrong-doing, you have a much more
comfortable government for one and all - at least between elections. But hey,
4 years of total autonomy is far better than suffering constant public
scrutiny and having to react to it. This is even more powerful if you have the
judiciary on your side and, since you're all on the same team, that's more
likely than not.

In summary, Eric Holder doesn't care about this case, and has assumed the
default position of someone in his station: deny-everything. It would have
been quite remarkable, in hindsight, for him to have done anything else.

Clearly this is not a good outcome: we want an Attorney General who shares our
sensibilities, and in this case, we wanted someone in that role who perceives
the fact that the federal prosecutor overstepped their bounds and drove a
sensitive soul into oblivion for actions which caused no-one any harm. We want
someone who understands that _merely to be prosecuted_ is a severe punishment
in time and treasure. We want someone who understands the difference between
someone who breaks the law out of a heartfelt spirit of doing the right thing,
and someone who breaks the law out of malicious, selfish intent.

Sadly, I can think of no other way to address this problem than to keep this
in mind for the next election.

[1] [http://www.npr.org/blogs/thetwo-
way/2013/03/05/173572444/pre...](http://www.npr.org/blogs/thetwo-
way/2013/03/05/173572444/president-could-in-theory-order-drone-strike-inside-
u-s-holder-says)

[2] [http://www.guardian.co.uk/world/2013/mar/06/pentagon-
iraqi-t...](http://www.guardian.co.uk/world/2013/mar/06/pentagon-iraqi-
torture-centres-link?CMP=twt_gu)

EDIT: P.S. I really like looking at inexplicable/horrible things like a
software bug. Rather than indulge in pointless, impotent anger, treat the
anger as a signal that your understanding of the system is flawed, and think
through the forces at work. It's hard to get in the head of an insider,
especially right after they pissed you off - but chances are they didn't
_want_ to piss you off. They didn't care about you at all.

Then, when your cogent analysis is through and you understand the system and
how it can be fixed, you turn your anger back on a little and RIP THAT SHIT
APART AND FIX IT.

~~~
georgemcbay
"Sadly, I can think of no other way to address this problem than to keep this
in mind for the next election."

Even more sadly is I can think of no rational practical way to address this
problem, period.

What does keeping it in mind for the next election do? When the election rolls
around you basically have the choice between an asshole owned by the corporate
lobbyists and another asshole owned by the same corporate lobbyists but who
doesn't mind if gay people get married and women have abortions. Neither is
going to fix this shit.

The only way this changes is if the election system changes to instant-runoff
or another system that breaks down the two-party system, but guess how popular
that idea is with the people whom the current system put into power?

~~~
javajosh
We could introduce popular control of government between elections. I believe
this is called "direct democracy". (It may introduce other problems, of
course.)

Our election process is totally broken. The parties are the kingmakers. They
have vast fundraising and promotional networks that extend into every state
and key regions of each state, with powerful connections to incumbent
governments. Which is kind of surprising because it seems like neither party
is very good.

The only other network that has that kind of reach is the Internet. think it's
worth thinking about the possibility that the internet could displace
traditional political parties.

~~~
gamblor956
Given the average education and intelligence of most Americans, you most
certainly do _not_ want a nuclear-capable nation run by direct democracy.

We have legislators for a reason: to act as a _brake_ on the mob, not to echo
it.

~~~
javajosh
I hate it when people disparage the average American. What makes you think
you're in a position to do that? And more to the point, why do you assume that
politicians are _better_ than the average American? I'd argue that they are
actually worse. I reckon that my housekeeper would take the job of governing
far more seriously and show far more common sense than a politician.

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AutoCorrect
of course he also believes in using drones to hunt and kill US Citizens,
whether they are within our without our borders. A bad person can do terrible
damage, if left to run free (speaking about the AG here).

~~~
likpok
Do you think the military would not shoot down a hijacked airliner heading
towards New York?

With that in mind, how is using a drone any different?

------
rdavl
So nobody argues that scientific papers should be free for everyone to use?

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badgar
3 months sounds like a reasonable deal to offer.

~~~
rosser
From my understanding, it wasn't the prison term that caused Swartz to reject
the plea; it was the felony conviction.

~~~
logn
Also, it might be difficult to consider being locked in a cell with people who
are liable to rape you to assert power.

In addition, we never heard his side of the story. It's possible he had zero
intent to ever distribute these. In which case, going to federal prison for
trespassing seems absurd (and questionable jurisdiction).

~~~
rayiner
Hackers don't go to "rape you in the ass" prison. They go to places like this:
<http://en.wikipedia.org/wiki/Federal_Prison_Camp,_Yankton>

~~~
strlen
I am not sure about the district Swartz is in, but I've known folks who went
to FCI Lompoc (for non-violent felonies -- albeit ones with actual victims and
non-trivial monetary damage, i.e., they did deserve to go to prison fair and
square). While federal prisons are it's far cry from California state prisons
(which, even at low security levels, are far more violent than state prisons
-- it's not uncommon to take a longer federal sentence as opposed to a shorter
CA state prison sentence for this reason), it certainly not "club fed". Swartz
would have certainly have been beaten to a pulp on a regular basis, would have
been treated to diesel therapy, and while possibility of sexual assault would
have been low, it would be far from remote.

~~~
rayiner
Federal correctional institutions (FCI's) are a step up from Federal prison
camps (FPC's). They are generally used for drug offenders and somewhat scarier
people. For reference, the hacker serving the longest sentence for hacking in
history (caused tens of millions of fraudulent CC charges) is serving it at an
FPC.

~~~
strlen
Ah, so apparently I learned something new: there's a FPC attached to FCI
Lompoc, which I am guessing is where Mitnick served time when he was at Lompoc
(for his earlier convictions, rather than the most infamous one) as well as
Captain Crunch (I am guessing he did not offer Energy Transfer Massages there,
however).

<http://www.bop.gov/locations/institutions/lox/index.jsp>

