

Towards Learning From Losing Aaron Swartz: Part 2 - tptacek
http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-losing-aaron-swartz-part-2

======
tptacek
_Some have blithely said Aaron should just have taken a deal. This is callous.
There was great practical risk to Aaron from pleading to any felony. Felons
have trouble getting jobs, aren't allowed to vote (though that right may be
restored) and cannot own firearms (though Aaron wasn't the type for that,
anyway). More particularly, the 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 me. 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._

And:

 _It is also true that in my criminal law career, I found the U.S. Attorney's
office in the District of Massachusetts particularly immoral. In one case, I
was told that if my client failed to enter a plea that day, the prosecutor
would supercede and add embarrassing pornography charges to my client's
computer crime case based on materials allegedly found on his hard drive but
never disclosed to me in discovery. Similarly, that office sought to imprison
a man for collecting user emails to compile a list of best-selling books,
despite the fact that the email collection would have uncontroverably have
been lawful had it occurred a nanosecond later. (U.S. v Councilman)._

So, as Granick explains it, it's worse even than we've been led to believe so
far.

If you're charged with 13 felonies in federal court and manage to get yourself
acquitted from _twelve_ of them --- meaning, in essence, that 92% of the
prosecution's claims about you were false --- not only do those acquittals not
damage the credibility of the prosecution at sentencing, but because
sentencing is based in part on "relevant behavior" not heard at trial, those
12 acquitted charges can come back on you.

But wait, there's more! Sentencing for fraud charges in general and computer
fraud in particular is based on a lower burden of proof for the prosecution
than conviction is. In sentencing, the prosecution need only establish a
"reasonable" estimate of losses, backed by a "preponderance of the evidence".
The prosecution is thus free to look at the "costs" of dealing with all 13 of
the charges and to come up with some plausible story to turn a few months into
years.

This is batshit. If you've committed a felony with a computer, you committed a
felony with a computer; the idea that we should scale sentencing based on
whether you punched the number "8" or "2048" into the for() loop that got you
caught is insane. If crime victims need recourse to make themselves whole for
the damages a felony caused, that's what civil courts are for.

~~~
danielweber
... is that first paragraph saying that Aaron couldn't actually have entered a
plea on good faith? That, after accepting the plea, things could be flipped on
him?

~~~
rprasad
It's an uninformed comment by some woman taking advantage of the case to
burnish her own image.

 _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 me. 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._

Technically, this is correct, since federal sentencing laws limit the judge's
discretion to raise or lower prison sentences. They actually have a _table_
indexed by "points" which the judge must use to determine the length of the
sentence. Thus, in order for the prosecution to honor a plea for 6-7 months,
it would necessarily have entailed that all of the (other) charges either be
dropped or reduced to their misdemeanor equivalents. (Note that if you read
her CV, she hasn't handled a case in the federal courts since the sentencing
guidelines were issued.)

~~~
tptacek
"Some woman"? Jennifer Granick was a friend of Aaron Swartz's, the Director of
Civil Liberties at the Stanford Center for Internet and Society, and more or
less the go-to lawyer for #hack for something like a decade. That in addition
to the fact that she has actually defended computer crime cases against this
exact US Attorney's office.

Seriously: find any DMS-100-hacking member of the Masters of Deception from
back in the 1990s and ask them to name a lawyer. Jennifer Granick's is the
only name you'll hear from more than one person. She represented Kevin
Poulson, for fuck's sake.

It seems very unlikely to me that her analysis is less informed than yours. I
think you've made a mistake in your analysis here.

------
anigbrowl
I disagree with Granick that the problem is with the CFAA. The entire legal
system in the US is badly damaged. Fewer than 1 in 50 cases ever goes to
trial, for example:
[http://www.marcgalanter.net/Documents/papers/thevanishingtri...](http://www.marcgalanter.net/Documents/papers/thevanishingtrial.pdf)
This is partly because of a preference for procedural rather than substantive
rulemaking under the constitution.

I grumble about this too frequently already, so I'll stop here, but (re)cite
two books I think make particularly succinct critiques: _The Collapse of
American Criminal Justice_ by Christopher Stuntz and _Adversarial Legalism_ by
Robert Kagan. In a nutshell, both argue that the fact-finding role of trial
courts (civil as well as criminal) is seriously impeded by the ever-denser
thicket of procedural protections, such that a case of any complexity is
eventually reduced to a war of legal attrition.

Don't even get me started on the post-trial situation.

------
btilly
It is one thing to know that the USA has a larger prison population than any
other country in the world. It is another to see how the sausage is made - to
see the process that actually puts people there.

In just a few days I've developed much more severe misgivings about the
process that we use to put people in prison than I had before.

~~~
rayiner
I read some statistic somewhere that our prison population is more due to the
ridiculous sentence lengths than simply putting more people in prison.

~~~
tptacek
I dug into this on an unrelated debate on HN a few months back, and while drug
charges do make up a large component of the prison population like you'd
expect, violent crimes make up the majority. If you dig into local data, a lot
of those violent crimes are domestic.

That gives some weight to the idea that the problem is long sentences, but
admits some other ideas too, like that our prison population is less the
product of criminal statutes or sentencing and more due to economic and
educational inequalities. The US is large and diverse in a specific sort of
way that may amplify this.

------
pms
"Real reform of the CFAA requires two steps (1) a comprehensive rethinking of
the statute, esp. since solving the Lori Drew problem would not have saved
Aaron and (2) engaging not with the White House, but with Senator Leahy, who
is the policy maker most likely to understand and support these efforts.
Nevertheless, I'm going to sign this petition. The White House can know what I
think." [https://petitions.whitehouse.gov/petition/reform-computer-
fr...](https://petitions.whitehouse.gov/petition/reform-computer-fraud-and-
abuse-act-reflect-realities-computing-and-networks-2013/qMvdwVNw)

------
gojomo
Here's an idea: prosecuting/sentencing based on 'damages' ought to be subject
to a hard damages cap based on any civil damages/settlement reached.

After all, the standard of proof in a civil case is lower: "preponderance of
the evidence". Negotiation between the affected parties can, at little cost to
the government, come to a settlement more easily and fairly than involving the
full force/ego/ambition of federal prosecutors.

Sure, criminal prosecutions almost always come first. (The aggrieved parties
prefer to have the government take on much of the trial cost, and can use the
conviction "beyond a reasonable doubt" to fast-track their later
case/negotiations. And even failing a conviction, they can pursue the civil
case later.) But it might make sense to reverse that usual ordering, perhaps
even by involving some of the public resources in the civil case, as a way of
testing the "minimum viable case" before going all-out.

And even if the criminal trial comes first, the full sentencing could be put
on hold until civil claims are resolved. That'd lead to more realistic
damages/sentencing and an important check on prosecutor discretion in dreaming
up massive damage figures.

