
The Prosecution of Aaron: A Response to Orin Kerr - wglb
http://www.thepublicdomain.org/2013/01/18/the-prosecution-of-aaron-a-response-to-orin-kerr/
======
sociotech
What exactly is Boyle's argument? He rehashes the now-typical hagiography.
Then he seems to argue that should influence legal policy. This is wrong for
two reasons. One, the hagiography is factually wrong, no matter how generously
anyone uses the word "genius." Two, conclusions about prosecutorial discretion
do not follow from it.

We need to distinguish between decisions made before and after Aaron's death.
It is totally fair to say that Kerr's blogposts - or my attempts to remind
programmers what they thought about Aaron when he was alive - lack "sympathy."
But what exactly does Boyle think should have made the prosecutors sympathetic
to Aaron when they brought their charges against him? His lawyers' claim that
he might be psychologically unstable? His desire for attention from the geek
community? His on-and-off friendship with Lessig or Doctorow? His history of
writing code as a volunteer? His involvement in a sale of a company to Conde-
Nast?

To use my example from another thread, let's say Brian Behlendorf gets
arrested for DUI while on the way to a conference to talk about free software.
Should we be sympathetic because he gave us the Apache httpd server (something
a thousand times - maybe a hundred thousand times - more significant than any
code Aaron ever wrote)?

By the by, I do feel like a jerk for not being more "sympathetic" to Aaron now
that he is dead. But when the people around you turn your case into a
political football and say the government killed you, it is fair game to try
to put things into perspective.

~~~
ScottBurson
I think the most substantive part is where he quotes Alex Stamos, the expert
witness who planned to testify in Swartz's defense. Stamos provides a strong
rebuttal to claims that Kerr seems to take for granted, about the validity of
the legal charges against Swartz.

I would very much like to see a detailed response by Kerr to Stamos' argument.

I think this would have been a very interesting trial.

~~~
mpyne
If Stamos's blog post was any indication I don't think it would have been much
help to Swartz.

I say this only because his points were of the form "It was so easy to get
around MIT's weak security that you can hardly call it hacking", but Swartz
wasn't charged with "hacking", he was charged with wire fraud, computer fraud,
unauthorized access, etc., and these are not charges that go away just because
it was easy to do.

His testimony would certainly have been very helpful if it came to a
sentencing phase but during the trial he would have been all but confirming
that Aaron did indeed get around the feeble MIT and JSTOR blocks on him, and
that's much of what the prosecution would have needed to prove right there.

------
jlgreco
> _The implication, it seems clear, is that we should not focus on this one
> case, but on broader problems in our legal system. This seems to be a straw
> man. I see no one saying "let’s only be angry about Aaron Swartz."_

I have noticed several of comments with this "focus on the larger picture"
style of criticism here, and frankly I think at this point it amounts to
concern trolling. I think this article does a good job of rebutting that
sentiment.

~~~
Anechoic
I disagree. Much as PDR is responding to Kerr's "implicit criticism," Kerr is
responding to the implicit focus of the tech world. Much of the response to
the situation as focused on three things: 1) firing Ortiz, 2)
reforming/repealing the CFAA and 3) open access. Even if the tech community is
completely victorious on all three points, the lesson absorbed by authorities
will be "don't piss off the tech community when it comes to tech crimes." But
when it comes to drug crimes, gang crimes, violent crimes etc (where
prosecutors use similar strong-arm tactics on conspiracy, trespassing, etc to
force pleas on defendants who may have simply been in the wrong place at the
wrong time), it will be business as usual.

So sure, HN types can go about their lives. No so much for other folks. The
larger picture has to be kept in mind. Since so many posts over the last
couple of days have focused on comparisons to MLKjr, I'll leave this quote:
"Injustice anywhere is a threat to justice everywhere."

~~~
erichocean
_the lesson absorbed by authorities will be "don't piss off the tech community
when it comes to tech crimes."_

If that actually happened, that would be a _major_ improvement on the
legislative and legal front for _everyone_ in the world, not just tech people.

~~~
Anechoic
_If that actually happened, that would be a major improvement on the
legislative and legal front for everyone in the world, not just tech people._

Doubtful. Right now the lesson is "don't piss off rich people when it comes to
financial crimes" and yet not-rich folk still get the short stick in terms of
prosecution. The folks with the loudest voices always get listened too, the
folks with no voices are ignored.

edit: downvoter, what do you disagree with?

------
kh1411
I was also disappointed with the Part 2 review Orin Kerr posted. This post by
James Boyle touches on areas that should've had more consideration by the
prosecutors. When I encountered this next article(excerpt below) on Jan18th,
it became obvious, how Ortiz's office used Aaron for their own publicity and
name making:

"Last Friday, on the same day that Swartz hanged himself in his Brooklyn,
N.Y., apartment, prosecutors from Ortiz’s office stood in a Boston courtroom
and allowed a former state representative named ­Stephen “Stat” Smith to plead
guilty to a misdemeanor for rigging absentee ballots in three elections.
Swartz’s lawyers asked for the same consideration, that Swartz be allowed to
plead guilty to a misdemeanor. Prosecutors refused.

So, given that Ortiz will not explain herself, we’ll just have to presume she
believes that illegally manipulating the outcome of elections, which are the
essence of our democracy, is less serious an ­offense than downloading an
online archive of obscure academic articles." (Excerpt fm article by Kevin
Cullen, Boston Globe). [http://bostonglobe.com/metro/2013/01/18/taking-
heat/L1rfSF47...](http://bostonglobe.com/metro/2013/01/18/taking-
heat/L1rfSF472wEPsGX5PWfu5I/story.html)

~~~
sociotech
I don't know anything about the Smith case, and I am not saying you (and
Cullen) are wrong to draw the comparison and ask questions about it.

However, it is very difficult to make this kind of backseat-driver judgment.
I'm not arguing that people shouldn't look into it. They should. But different
cases are often treated very differently. Perhaps Smith's case would have been
harder to prove to a jury. Perhaps he had better procedural objections. It
doesn't just come down to how bad anyone thinks the crime is.

~~~
kh1411
At least we seem to agree her office should be investigated as to how they
handled the case. It's not acceptable to me that they just be allowed to
slither away by issuing a press release absolving themselves. My point is his
'alleged' crime was less offensive to the public good, and a misdemeanor
conviction in Aaron's case should've met the prosecutors need for a 'crime'
such as this (which was nowhere near as offensive as ballot rigging). Why
insist on guilty plea to 13 felony counts unless you are being a hardass
&trying to build a name for yourself?

------
jerrya
Semi-related:

I like reading the Volokh Conspiracy. I disagree with them on at least half of
what I read, but their posts and the comments almost always teach me something
about the law, and interacting with lawyers, especially when they are wrong,
helps take away the halo I seem to hold for them.

And many of them were former hackers, certainly Eugene Volokh got his start
that way.

I write this now, because when I have submitted links to HN from the VC, the
links seem to go dead pretty quickly, and I think that's a shame, because
often what they write about certainly seems well targeted to the hacker
community.

That said, regarding Professor Kerr, while I find his posts very informative,
I have often detected a weird skew to his analyses.

I am not a lawyer and pretty ignorant and I am certain his analyses are just a
zillion times better than anything I could say, but for example, in the Jones
GPS case, Professor Kerr was very attached to the raw search and seizure
aspects of the case, and seemed to ignore what the implications of his
analyses would be in a world of very cheap government installed ALPR devices.

~~~
macchina
I'm a lawyer and I completely agree with you.

In general, I think Prof. Kerr is just a lot more pro law enforcement than I
am. I find that he is often very dismissive of the defendant's case. For
example, he seems to take for granted that Aaron violated the CFAA. With that
being said, I still think he is Volokh's best contributor.

~~~
tptacek
Is Kerr being dismissive of the case, or is he stipulating things to make his
two points (that prosecutors didn't stretch the CFAA or wire fraud statutes to
make a case against Swartz, and that they weren't unusually vindictive with
Swartz in negotiating a plea)? It was up to a jury, not Kerr, to decide actual
guilt or innocence.

~~~
macchina
>that prosecutors didn't stretch the CFAA or wire fraud statutes to make a
case against Swartz, and that they weren't unusually vindictive with Swartz in
negotiating a plea

Yes, he was definitely doing that and he was right to. I am not saying he
ought to play jury, just address some of the counterarguments.

------
SonicSoul
> "But prosecutors routinely over-charge as the opening step in a plea
> bargaining "

this seems like a problem to me. it puts an overly high burden on the
defendant to not only defend his case, but first decrease the "over-charge" to
a fair punishment, and THEN continue past that point to the actual defense.

Also, i do believe that context matters. If someone committing a crime is some
anarchist taking pleasure in destruction of "anti-establishment", OR, that
someone is a contributing member of our society trying to be heard.. no these
are not the same crimes in my view. i do believe that such a thing as "good
credit" should be taken under serious advisement.

~~~
tptacek
Prosecutors charge aggressively for a reason: statistically, most of the
accused that they deal with are in fact guilty, and the cost of a jury trial
is tremendous. Pundits are fond of wagging a finger at the fact that 9x% of
convicted offenders never had a jury trial while overlooking the fact that for
the overwhelming majority of those cases, a jury trial would have been
pointless. No court system in the world could handle the volume of cases that
would result from a majority of charges being heard by a jury.

I submit that the real culprit here isn't misconduct stemming from
overcharging, but rather from our careless and illogical sentencing
guidelines. Swartz's prosecution could have huffed and puffed all they wanted,
but if the facts they had at their disposal supported a maximum of 6-9 months
custody even at trial, it would have been a different story.

Instead, Heymann had at his disposal a set of sentencing guidelines that
scaled up with "damages", which is a standard that makes no sense in a
computer crime case. The difference between $500 and $1000000 in damages in a
CFAA case is a number in the middle of a for() loop. This isn't a novel
challenge for the criminal code; other offenses have more reasonable
sentencing and "aggravation" elements as well. Swartz's sentence should have
involved the extent to which his intentions were commercial, how many co-
conspirators he roped in, how much of a challenge he made it for the
prosecution to investigate him, how much damage he caused, how recklessly that
damage was caused. These are familiar elements of criminal and civil cases and
could apply in CFAA cases too, had the law been written more carefully.

~~~
jamieb
So your argument is, "We cannot afford justice, so injustice is justified."

~~~
tptacek
No, that is not at all my argument.

------
wes-exp
Kerr's writeup also relies on "pre-crime", heaping punishment on Aaron for
something he _might do_ (release the documents publicly), but, crucially,
never did.

I do think it's a strong possibility that Aaron intended to do so, but I also
have my doubts. There was another instance where Aaron obtained documents en
masse but did not "liberate" them: from Westlaw; he contributed to a
statistical study on them. The results were published in the Stanford Law
Review.

I cringe at the thought of Aaron's life being ruined over guesses about his
future behavior.

~~~
sociotech
"Crime" often relies on "pre-crime." The legal definition of "burglary" is
breaking into a building with an intent to steal or commit another serious
crime. Prosecutors have to decide whether they think they can prove "burglary"
or can only prove "trespass." The jury decides whether the prosecutor has done
so beyond a reasonable doubt.

Aaron never published anything in the Stanford Law Review. The student article
in the Stanford Law Review that seems to form the basis of your claim doesn't
even credit Aaron.

~~~
wes-exp
"While at Stanford, Swartz had worked with a law student to download all the
law review articles in the Westlaw database, to map funders of research with
research conclusions. The result of that research was published in the
Stanford Law Review, and showed a troubling connection between funders and
their conclusions. At the time of Aaron's alleged "crime," he was a fellow at
my Center at Harvard. The work of the Center? Studying the corruption of
academic research (among other institutions) caused by money."

[http://www.nationaljournal.com/domesticpolicy/a-law-for-
aaro...](http://www.nationaljournal.com/domesticpolicy/a-law-for-aaron-
swartz-20130117)

~~~
sociotech
I saw that too and read the Standard Law Review article. He is not credited it
in. He may have helped a law student write a Python script, which she then
used. The article does mention that a Python script was used to collect some
data.

------
jacquesm
It's a pity this got posted in the middle of the night when it will receive
very few votes. It's a _really_ long piece, it is fairly balanced and makes a
few excellent points.

~~~
wglb
It did better than I expected.

------
mdesq
The very nature of the legal system is built on adversary. Each side, in
general, works to the maximum overall advantage of their client. There is a
bit of discretion available, but in general, expect prosecutors to press for
maximum overall enforcement of the laws. This is how it works and how we
expect law enforcement to act. The laws were generally put in place by
legislators duly elected by their constituents. We expect the executive branch
to execute, not legislate. Orin's posts seem to be simply pointing out that
this case is business as usual. If we don't like it, this should gravely
concern us. This type of prosecution is ho-hum, and not just in matters of
technology.

Given that the state always has more resources available than individuals it
prosecutes, cases like Aaron's are powerful arguments for a limited
government. A real limited government, not the kind that just keeps hands off
hackers and turns their arsenal of weapons on another class we care about
less. I realize this perspective is completely out of vogue these days, but
the fact that governments oppress individuals is an age-old truth that needs
to be relearned over and over, it seems.

Asking prosecutors to be "nicer" won't cut it. Nor will firing one and
replacing them with another, tasked to enforce the same law. We must remove
some of their power, meaning many laws need drastic change or repeal. It's sad
that it takes a high profile individual to raise concern when plenty of others
have been destroyed before and gone unnoticed.

------
erichocean
_A reader of Orin’s post would likely miss those complexities. Again, the tie
does not go to the accused._

That sums up everything I have a problem with in Orin's discussions about
Aaron Swartz: he _always_ sides with the government, whenever there is any
doubt at all about the facts, the law, or the case. It's anti-Aaron, all the
time, in seemingly every possible way Orin could find (without even
considering all of the evidence). It makes no sense. Worse, it's dishonest, as
the reader is given a _severely_ distorted view of the facts.

I don't know why Orin chose to do that with Aaron; certainly, in others, he's
not been reflexively pro-government as a rule. Maybe he just wanted page
views, TMZ-style.

Or perhaps it's because the Computer Fraud issue was finally getting press,
even though Orin has labored at it for years (without getting any traction at
all)? That would explain why he seems so offended that Aaron's "fame" is why
people care about Computer Fraud now.

Still, it's sad to see Orin so blinded by someone with "fame" and "friends". I
suspect in the years to come that Orin will regret lashing out at Aaron
literally days after his death. It just made Orin look petty, and any "fame"
he's gained as a result is certainly the wrong kind of fame.

~~~
subsystem
Well, he worked for the DoJ computer crime division for three years.

[http://www.law.gwu.edu/SiteCollectionDocuments/CV/Orin_Kerr....](http://www.law.gwu.edu/SiteCollectionDocuments/CV/Orin_Kerr.pdf)
[http://www.justice.gov/careers/legal/jobs/ccips-trial-
atty.h...](http://www.justice.gov/careers/legal/jobs/ccips-trial-atty.htm)

------
welder
> If we think [Aaron] was treated poorly, we should realize we are condemning
> the system as a whole, not just the treatment of Aaron, and we should beware
> of special pleading for this famous person and friend of the famous; our
> concern should go equally to the unknown, poor and poorly represented
> person.

~~~
zvrba
> To the extent that Aaron couldn’t live even with the possibility of the
> penalties that he might have received at the end of the day, then maybe he
> should not have been committing acts of civil disobedience in the first
> place.

~~~
darkarmani
That would make sense if anyone could possibly understand the penalties.

It's like saying don't jaywalk if you aren't ready for felony charges that
might get applied. I mean the only law you really broke was jaywalking, but
then you are charged with 9 counts of wire fraud because you wore a different
outfit each day -- obviously changing your appearance was fraudulent.

~~~
mpyne
It would be like that if no one knew that jaywalking carried felony charges,
but it's not as if CFAA is a new law, or that there haven't been at least a
dozen or so other famous hackers fall afoul of it. Given that aaronsw seemed
to know pg, it would stand to reason that he'd at least heard of rtm,
(convicted under CFAA and also a Y Combinator co-founder).

------
hkhanna
This post made me emotional about his death. I really hope people read this to
understand what a wonderful person Aaron was.

------
koide
While I agree with the response in that Kerr has presented an overly
condenatory view not necessarily warranted by existing evidence, I have a
feeling that Kerr was trying to compensate for the huge amount of pro Aaron
noise. Noise that is, likewise, overly simplistic and dismissive of laws and
existing evidence.

------
jerrya
Thank you for posting this.

