
Prosecutor as bully - guan
http://lessig.tumblr.com/post/40347463044/prosecutor-as-bully
======
agwa
From the article: _For in the 18 months of negotiations, that was what he was
not willing to accept, and so that was the reason he was facing a million
dollar trial in April — his wealth bled dry, yet unable to appeal openly to us
for the financial help he needed to fund his defense, at least without risking
the ire of a district court judge._

Remember, this was on HN just a week ago:
<https://news.ycombinator.com/item?id=5003335>

Once again we see the true nature of criminal prosecutions: the prosecutor's
tactic is to bring outrageous charges that could result in decades in prison,
bankrupt the defendant one way or the other (seizing assets or making the case
so complex it bleeds him dry), and then use that to coerce a guilty plea. It's
no wonder that trials by jury are becoming so vanishingly rare that even the
Supreme Court has written that "in today’s criminal justice system, the
negotiation of a plea bargain, rather than the unfolding of a trial, is almost
always the critical point for a defendant." [1]

Do we really want to live in a country where your right to a trial is an empty
right?

[1] <http://www.supremecourt.gov/opinions/11pdf/10-444.pdf>

Edited to add: many people in this thread want to name and shame the
individual prosecutor in this case. That is seriously misdirected effort that
is not going to solve the systemic problems. It may even exasperate them, as
it falsely implies that the problem is with individual overstepping
prosecutors rather than a system in which it's the norm.

~~~
temphn
Naming and shaming Carmen M. Ortiz for destroying the life of a young man is
exactly what is necessary. She brought 13 felony counts against him for
downloading articles that should be freely available, after JSTOR itself had
dropped the charges. Destroying her career and seeing her fired in disgrace
will send a message to all other overzealous prosecutors, in the same way that
she surely thought her prosecution of Swartz would have a "deterrent" effect.

Seeing her dismissed and disgraced is in fact the _only_ thing that will send
such a message to such Javerts, as they have disabled the voice of the people
by routing around jury trials and they are appointed rather than subject to
elections. Carmen M. Ortiz is running for higher office on the backs of high
profile prosecutions, and now on the body of Aaron Swartz. It is incumbent
upon us to see that she does not get there, that this behavior is NOT
rewarded.

Example:
[http://www.justice.gov/usao/ma/news/2011/December/EremianVer...](http://www.justice.gov/usao/ma/news/2011/December/EremianVerdictPR.html)

    
    
      Lyons is the first defendant in the U.S. to be charged and 
      convicted of violating the Unlawful Internet Gambling 
      Enforcement Act (UIGEA). The statute was enacted by 
      Congress in 2006 to deter the use of the U.S. banking 
      system to pay Internet gambling debts incurred by U.S. 
      citizens.
    
      Unites [sic] States Attorney Carmen M. Ortiz said, 
      “Today’s convictions should serve as a message to those 
      involved with illegal gambling schemes that the government 
      will apply the full weight of its resources to identify, 
      investigate and prosecute individuals who seek to profit 
      from offshore gambling.”
    
      ... 
    
      The defendants face up to 20 years in prison on the RICO 
      charges; five years in prison on the illegal gambling 
      charges; and two years in prison on the wire act charges. 
      Lyons also faces three years in prison on the tax charges, 
      five years in prison on the interstate travel in aid of 
      racketeering and UIGEA charges and 20 years in prison on 
      the money laundering charges.Additionally each count also  
      carries three to five years of supervised release and 
      fines up to $250,000.
    

"Today's convictions should serve as a message" over online gambling, which
was just made illegal by fiat in 2006 in a rider tacked on to the Dubai Ports
World Bill! This woman is routinely involved in travesties of justice related
to online activities and thinks this means sending "a message". The Internet
needs to send a message back, and force her resignation in disgrace.

~~~
dmix
How do we go about getting this message across to her and other key people
(legally)? I'm interested in helping.

~~~
temphn
It's obviously very important to stay on the bright white side of legal here,
as we are dealing with a prosecutorial bully. Emailing her directly is
unlikely to produce results and likely to get your name on some kind of
terrorist watch list. But going to her superiors and the Boston media to call
for her resignation in disgrace over an overzealous prosecution is the right
tactic.

0) Start with background: <http://www.justice.gov/usao/ma/meetattorney.html>

Looks pretty senior. Runs the federal government's DOJ office in
Massachussetts, with an office of 200 people. By no means the SecDef or
anything, but senior enough that serious pressure will need to be brought to
bear.

How to do this?

1) Research her past cases and start blogging them/analyzing them. Almost
certainly she has a history of extremely aggressive prosecutions. Find any
statements from her on this or past cases that are factually inaccurate;
highly likely as we are talking about a technical matter where "series of
tubes" comments are likely. By the end of this you will have a profile.
Perhaps you can show that she disproportionately pursues excessive sentences,
or perhaps you can show that she makes technical mistakes about the internet.
There are few records that will stand up to deep critical scrutiny. Maybe a
bit of statistics to see if she is an outlier relative to other US Attorneys
or to her immediate predecessor.

2) Go to LinkedIn. Find your closest contact at the Boston Globe. Work with
them to write a story on Ortiz. Tell them they are the only ones that can do
it. It is important to actually get a reporter to get Youtube video of Ortiz
either answering questions or running from them, as they have much more
license to get in the face of a US Attorney. A guy on the street who tries
Michael Moore-ing Ortiz with an ambush interview on her way to work is likely
to get cuffed for harassing a peace officer or something.

3) Repeat the above step for anyone in Boston with a media credential. A good
step is to find anyone who has gotten Ortiz on the record before, e.g.
Elizabeth Murphy from the Boston Herald
([http://www.mainjustice.com/2013/01/07/mass-u-s-attorney-
carm...](http://www.mainjustice.com/2013/01/07/mass-u-s-attorney-carmen-ortiz-
says-no-to-run-for-higher-office/)). Tell them the truth, which is that only
the press can hold a prosecutor like this accountable. They need to push for
quotes on the record and press conferences, and ask over and over whether she
believes her actions were right and her conduct was justified.

4) Determine who her technical superiors are. These are the people in DOJ who
are above her on the org chart:

<http://www.justice.gov/agencies/index-org.html>

Looks like US Attorneys report to the Deputy Attorney General (James Cole),
who reports to the Attorney General (Holder), who reports to Obama. A direct
top-down attack is going to be tough as these are national figures.

5) Determine who her political superiors are. This is a much broader list.
Everyone from the mayor of Boston to the governor of Massachusetts to both MA
Senators to the chair of the MA Democratic party can take a swing here. Those
are all players within the MA political establishment that she needs to listen
to. Might be obvious, but it's critical (and easy) to make the case to other
Democrats, as Swartz was a Democratic activist and this was truly blue-on-blue
violence (though Ortiz is hardly a "Democrat" in the sense of mercy and
fairness). Undercutting her political support and making her realize she has
no more political friends in the world will cause her big problems.

6) Relatedly, go through the press and make a list of everyone who has ever
endorsed her in public for anything, from the local Latino/a groups to the
people who got her on Obama's shortlist to the local Democratic politicians.
Call them up, explain that her overzealous prosecution led to the suicide of a
26 year old computer wizard (and Obama activist!), and ask them on the record
whether they will support her for higher office. Ask them whether Ortiz shoudl
resign. Blog this, with SEO for the headline: "X declines to support Carmen M.
Ortiz for further office." or "Y calls on Carmen M. Ortiz to resign for
spurious prosecution of Aaron Swartz."

7) Asymmetric warfare. This one is not illegal, but you would want one of your
law school friends who worked in the US Attorney's office or in the press to
do it (especially the latter as they will have some immunity). The concept is
to interview as many of the 200 people in the MA Attorney's office as possible
to determine how many of them feel good about these events, think Ortiz was in
the right, or feel like Ortiz has been a good leader. It is quite possible
that someone will describe a political or even personal scandal known only to
subordinates or immediate associates. An Eliot-Spitzer-Client-9 level scandal
uncovered in this fashion would absolutely knock her out of the ring, though
it wouldn't be as satisfying as seeing her forced to step down for pursuing
this case. But getting Capone for tax evasion is still getting Capone.

8) Swartz's friends. Anyone who has blogged or written about this case is
someone who can likely be counted on to amplify the messages above and keep
the pressure on.

EDIT: Aha. Looks like this same person went after online gambling under UIGEA
to "send a message".

[http://www.linkedin.com/groups/Editorial-comment-UIGEA-
last-...](http://www.linkedin.com/groups/Editorial-comment-UIGEA-
last-3800534.S.87672378)

~~~
andrewtbham
I do like these tactics and... I am in favor of naming and shaming. I think
she should be made the poster child for overzealous prosecution of a outdated
law.

However, it is a story that could serve a larger purpose than just ruining
this woman's career. I would like to this effort put into something more
constructive like the decriminalization of copyright infringement. It could be
relegated to a civil issue, especially online (versus manufactured goods).

There will be other overzealous prosecutors to replace her, but if the law is
changed. It could serve a greater purpose.

~~~
Spooky23
You need to understand that US Attorney is a stepping-stone job, especially if
she is very vocal in her role. Ego-maniacs like Rudy Giuliani use it to bypass
the normal political machinery to get a mayorship, congressional post or
cabinet/justice appointment. Others use it as a path to the ultimate job --
lifetime prestige and employment as a Federal judge.

"Naming and shaming" gives her name recognition and boosts her credentials as
"tough". Any publicity is good publicity for a politician.

Instead, you and your friends should be asking the Senators and Governor of
Massachusetts (aka the gatekeepers to this person's career path) why someone
who demonstrates such contempt for the concept of justice is representing the
United States government. You should ask President Obama and the Attorney
General why their administration tolerates that contempt.

If you want the law changed, you need to attack those who are perpetrating
injustice.

------
PrudenceYuris
Then do something about it.

This prosecutor is quite the collector and displayer of awards:
[http://www.necc.mass.edu/wp-
content/uploads/2010/08/Carmen-O...](http://www.necc.mass.edu/wp-
content/uploads/2010/08/Carmen-Ortiz-Bio-USA-Dec-2011.pdf)

She is a PR asset to this university: <http://www.pr.com/press-release/366324>

Evidently some people want her to run for higher office:
[http://bostonherald.com/news_opinion/local_politics/2013/01/...](http://bostonherald.com/news_opinion/local_politics/2013/01/carmen_ortiz_rules_out_gov_senate_run)

Governor Ortiz? Make sure it isn't:
[http://www.bostonglobe.com/metro/2012/12/07/patrick-
reported...](http://www.bostonglobe.com/metro/2012/12/07/patrick-reportedly-
cites-prosecutor-vying-for-governor/0aEpGj5QqjvJfgSwgFNc7H/story.html)

And if you are a big biotech company, you can readily negotiate a deal to
avoid prosecution: <http://www.justice.gov/opa/documents/gsk/plea-ex-k.pdf>

Oh, and piling on in the JSTOR case, while pleading down to two years for an
actual money-stealing ATM skimmer with real victims:
[http://www.bostonglobe.com/metro/2012/11/08/romanian-man-
who...](http://www.bostonglobe.com/metro/2012/11/08/romanian-man-who-stole-
financial-data-from-atms-gets-two-years-
prison/aY7QPwebi3OdnXegU8AZsM/story.html)

Make sure this black spot eclipses them all. Contact the organizations she is
a member of and/or a recipient of some award. Make sure the leadership of that
organization knows that she lacks a sense of proportion and that this tendency
to overreach cost a good man his life.

Make this an exercise in how to correct these injustices, and make her an
example to other prosecutors.

~~~
rprasad
This is quite possibly the worst idea ever.

Let's not just go after one person, let's go after everyone she ever knows,
even if they have no involvement in this particular incident? Are you going to
suggest we tar, feather, and lynch them too?

 _Make this an exercise in how to correct these injustices, and make her an
example to other prosecutors._

You do this by airing ads against her if she ever runs for office or seeks
higher appointment. You do not attack other people associated with her; that
crosses the line.

~~~
PrudenceYuris
You need to reread that.

Contact her professional network, and let them know you don't approve of her
actions. No tar. No feathers. Just make your own opinion known in the circles
that matter to her career.

~~~
rprasad
Let me get this straight: you want to contact a group of judges and
prosecutors and "let them know you don't approve of her actions."

What exactly do you hope to accomplish by this? Federal judges and prosecutors
_already get this_ every day from people who do this for a living. And you
know what? _It doesn't work._

Who cares if you don't approve of what they're doing? They don't measure
themselves based on your approval. They measure themselves based on their
record of convictions, however they are earned. _They are not directly
accountable to you._

If you want to change something, let your local Congressional representative
know you disapprove of how this prosecutor conducted herself. Your
Congressperson _is_ accountable to you, and he/she is the one in the best
position to make change happen _in this context._

~~~
PrudenceYuris
Her entire career, professional circle, and reputational supports have made an
error in backing her, and they need to hear that directly.

She hounded someone to suicide, and the repercussions for that are light if
they are limited to ending her career.

~~~
rprasad
I don't know how much more clearly I can state this:

Most criminal defendants do not kill themselves. It was Aaron's choice to take
his life, not hers. Her professional and personal contacts will never agree
with you that she hounded someone to suicide. Telling them "she did wrong"
when it is not clear that she did anything out of the ordinary in this case
will have _zero_ effect on getting her "shamed" and will have no effect on
ending her career.

The internet does not determine whether these people get jobs. People in the
legal industry and in the federal government determine that. And right now as
a member of the legal industry, I can tell you that _despite my extreme
distaste for prosecutors_ , based on all publicly available facts about this
case _she did not do anything wrong._ She did her job, pursuant to the laws as
they are written. You don't like that? _Change the laws._

Going after her without changing the laws will not work.

~~~
PrudenceYuris
"she did not do anything wrong"

That's a pretty arrogant statement in light of the general opinion regarding
this case. It's also arrogant to think that someone, somewhere, will not find
some means to destroy her career when at least tens of thousands will try.

You simultaneously claim that attempts to make an example of her will fail,
and that such attempts should not even be made. Pfft. Something something
before a fall.

------
pbateman
From the link in the article:

 _Depending on how many of the counts Swartz is found guilty of, the sentence
could conceivably total 50+ years and fine in the area of $4 million._

What an absurd and unreasonable level of punishment. Carmen Ortiz, the
prosecutor who was behind this[1] needs to be publicly shamed.

[1] (source: [http://bits.blogs.nytimes.com/2011/07/19/reddit-co-
founder-c...](http://bits.blogs.nytimes.com/2011/07/19/reddit-co-founder-
charged-with-data-theft/))

~~~
Benferhat
The prosecutor's job is to charge you with the violation of every statute that
the evidence indicates you violated, and use that breadth of charges as
leverage in a plea negotiation. Don't hate the player, hate the game.

~~~
erichocean
People in power need to take responsibility for what they do. Claiming they're
"just doing their job" is how the worst stuff that ever happens to humanity by
other humans goes down.

For more, check out _The Lucifer Effect_. Doing evil in the name of your "job"
is a bug in the human psyche.

We need to do everything we can to mitigate its effects, and that starts by
not staying stupid shit like "Hate the game, not the player" that's intended
to absolve people of the guilt and shame they should be feeling for acting
immorally.

~~~
objclxt
Laws are meant to be beneficial to society as a whole. In the US, laws must be
passed by a democratically elected body.

The judicial system is one of the few areas where "just doing your job", no
matter how 'evil' it may seem, is morally right. Even the most heinous and
obviously guilty defendant deserves the best defence available. And similarly,
is a prosecutor enforcing a law that society chose to enact inherently evil?

It is far, far better to take all this outrage and anger and direct it towards
changing the outdated laws that govern computer crime.

~~~
erichocean
> And similarly, is a prosecutor enforcing a law that society chose to enact
> inherently evil?

That's not what happened here: society did not enact laws that made his
actions illegal, and _certainly_ did not inact punishments to the extent of a
felony and 35 years in prison.

This is perhaps the clearest case I've even seen for prosecutorial abuse
(excepting situation where the prosecutions literally fabricates evidence).
More info here: [http://unhandled.com/2013/01/12/the-truth-about-aaron-
swartz...](http://unhandled.com/2013/01/12/the-truth-about-aaron-swartzs-
crime/)

Bottom line: in this case, _society_ is not to blame and no, the prosecutors
weren't just "doing their job".

------
olefoo
Petition to Remove United States District Attorney Carmen Ortiz for overreach
in the case of Aaron Swartz

[https://petitions.whitehouse.gov/petition/remove-united-
stat...](https://petitions.whitehouse.gov/petition/remove-united-states-
district-attorney-carmen-ortiz-office-overreach-case-aaron-swartz/RQNrG1Ck)

<http://wh.gov/E3v1>

Needs 25,000 signatures by February 11.

Please help us get it there. Thank you.

------
javajosh
_I_ am ashamed. I am ashamed that I didn't do more to help aaron when he was
alive. I am ashamed that I didn't reach out to him, donate money, donate time.
I am ashamed that I've allowed this to go on, to go on in my name as an
American.

I've always hated bullies, even as a kid. In elementary school I would come to
the aid of those being abused. And over the years, I still get angry, but I so
rarely do anything anymore. It's too big, too complex, too scary.

No more. It is time to shine light into the dark corridors of American power,
to get personally involved. The only way for the abuse of power to continue is
for us to ignore it.

------
miles
_if what the government alleged was true — and I say “if” because I am not
revealing what Aaron said to me then — then what he did was wrong. And if not
legally wrong, then at least morally wrong._

Morally wrong to download taxpayer-funded research? I'm sorry Larry, you lost
me.

More on the academic publishing "industry":
[http://www.guardian.co.uk/technology/2012/apr/22/academic-
pu...](http://www.guardian.co.uk/technology/2012/apr/22/academic-publishing-
monopoly-challenged)

~~~
brianobush
Taxpayers fund my research, so can they just break in and steal "information"
(code, plots, draft of papers, etc)? They paid for it, right? The academic
publishing industry is not one of my favorites, but they do provide a service
to the communities they represent. Circumventing them will eventually destroy
the community unless another "open" organization is willing to step in. Many
fields (mine included) are so arcane that very few would be interested in
making an open publishing venue with the editorial quality we have now.

~~~
Homunculiheaded
"Stealing" in the sense of depriving you access to the documents should be
prohibited, but I see no problem if someone requested you immediately copy all
of your research.

In fact this is exactly the case with anyone working directly for the federal
government, doing research or otherwise. You're told in no uncertain terms
that at any moment information on your work laptop can be FOIA'd in which case
you will have to immediately hand over the contents of your hard drive (if it
has been determined there is a reasonable likelihood that it contains the
FOIA'd information). Obviously if you're working on classified state secrets
the process is different (also personal information is redacted from the
documents). There's no reason research can't be accomplished successfully
given the condition that the public has a right to that information at any
given moment.

~~~
erikpukinskis
> I see no problem if someone requested you immediately copy all of your
> research.

Academia can be extremely competitive. Like, if a competing lab got ahold even
of the _title_ of your upcoming paper, they would and do rush to duplicate
your results, and try to publish before you to get the scoop.

For that reason, I don't know if open access to everyone's hard drives would
work.

~~~
cwkoss
I'd say "too bad" for slow researchers. If someone can reproduce your results
and publish a quality paper before you, that is better for society.

Nobody gets to "own" an idea. This possessiveness and reputational greed is
what is causing all of these problems.

~~~
langarto
In my experience as a researcher, this competitiveness and haste to publish
leads very frequently to lower quality in the research. For a researcher's
career is often more profitable to quickly publish a half-baked paper than
ensuring that everything is correct and well explained. This is a quite
difficult problem to solve.

------
spindritf
> architects of the financial crisis regularly dine at the White House

Is this empty rhetoric really necessary? There were no architects. It took
over two decades of government (mis)regulation, whole banking ecosystem of
incentives and repackaging, not to mention plenty of people willing to take
loans they knew they wouldn't be able to pay back to bring about the crisis.

Same with some great moral wrong of downloading a stack of papers and making
them public. Many paid for by the public or even already publicly available.

~~~
lilsunnybee
Magnetar <http://en.wikipedia.org/wiki/Magnetar_Capital>

~~~
JumpCrisscross
Asset managers wanted exposure to certain credits.

CDOs created a liquid vehicle for those credit exposures.

Because of market inefficiencies the prices of the liquid CDOs went much
higher than the underlying mortgages (equivalent to you adding up the
constituents of the S&P 500 and finding the index trades much dearer than the
stocks because of, say, a financial transactions tax that makes trading the
stocks individually difficult).

Arbitrageurs attempted to correct/take advantage of the mis-pricing by turning
the underlying assets into CDOs.

Sometimes, due to the difficulty of procuring the underlying assets, synthetic
CDOs were created that quacked like regular CDOs but were made of plastic.
Synthetic CDOs use swaps to amplify the underlying assets' credit exposures -
these swaps need two sides, a long and a short.

In the midst of the housing boom it was difficult to find people willing to
bet against the housing market. Issuers decided to let the short side help
construct the reference portfolio of the synthetic CDO on the assumption that
if houses are safe as houses it's the same as letting a gambler choose which
of the casino-provided dice are rolled.

It's easier to say Magnetar was evil, but as usual, the truth is substantially
more nuanced (or, banal, from higher up - market inefficiencies and
artificially advantaged participants, i.e. federally protected banks, mixed to
produce enormous yet fragile superstructures).

------
gosub
I would like to live in a world where, what Aaron did, was neither immoral nor
illegal.

~~~
ChuckMcM
nor necessary.

~~~
brainless
I think not necessary is the stronger tool here.

~~~
wildmXranat
Indeed.

------
danso
> _Early on, and to its great credit, JSTOR figured “appropriate” out: They
> declined to pursue their own action against Aaron, and they asked the
> government to drop its. MIT, to its great shame, was not as clear, and so
> the prosecutor had the excuse he needed to continue his war against the
> “criminal” who we who loved him knew as Aaron._

Can someone expound on MIT's role or ability to impact the prosecutor's case
against Aaron? Did they aggressively push for _some_ kind of trial? Did they
just wash their hands of it? What is the OP referring to?

~~~
masklinn
From my reading of Lessig's words, it seems MIT just let the proc do its
thing, which allowed said prosecutor to invoke the Computer Fraud and Abuse
Act of 1984 (MIT's computer resources were the ones Aaron abused when he
downloaded the articles from JSTOR)

Although since procs do their own thing and the feds were probably out for his
blood after his previous PACER stunt, I'm not sure even an express assertion
from MIT that they wanted to let it go would have changed anything.

------
josh_fyi
We need a website to coordinate open sharing of all research papers and books.

If Napster and Bittorrent could do it for music and movies, we can do it for
research.

Various technologies are possible, but the key point is to spread these
publications as easily as possible.

And regardless of what you think of "piracy," justice is all the more on our
side with these government-funded, unremunerated publications which are part
of humanity's drive to push forward the frontiers of knowledge.

------
rayiner
Man, if we could get this kind of outrage built up against over zealous
prosecution when the defendant isn't a white techie, we might actually get
some criminal justice reform in the U.S.

~~~
AnthonyMouse
If we're lucky we can get this kind of outrage built up when it is, and then
fix it for everyone.

These laws get passed when the innocent victim is a sympathetic white girl,
why can't they get repealed when the innocent accused is a sympathetic white
boy?

~~~
mscarborough
No laws are being rewritten posthumously for 'sympathetic white girl'.

There's really no need to inject 'prosecuted white guy' into the conversation.

~~~
AnthonyMouse
You're quite right that race shouldn't have anything to do with it; I
shouldn't have written it that way. But this is clearly wrong:

>No laws are being rewritten posthumously for 'sympathetic white girl'.

We pass laws for specific sympathetic victims all the time. We often even name
them after the victims. Megan's law, Amber alerts, etc.

It isn't that they're white that matters, what matters is that they're
sympathetic. At best, if we assume society is fairly racist, maybe we see them
as more sympathetic because they're white. But let me admit that was a mistake
and move past it, because it's going down the wrong path.

The point is that most of the innocent accused in the existing justice system
are poor, uneducated, largely unsympathetic urban youth who no one in power
cares about. There is no powerful lobby to fix it for them.

In this case we have a brilliant kid who everyone loved, who was subjected to
the same injustice. This should never have happened -- not to him, not to the
others. So we should rally behind this tragedy and while we have the support
of public opinion, prevent it from happening again, to anyone.

------
alan_cx
I cant articulate it properly or fully, but it feels like there is an
establishment jealousy or resentment of dot com type people. Kids making too
much money and having too much power out side of the "norm" course of
business.

~~~
andrewtbham
haters

------
liber8
In keeping with agwa's, and others', analysis that the system itself is
broken, Aaron's thoughtful analysis of The Dark Knight is very interesting.
Aaron concludes that, of the various desperate attempts to change Gotham's
corrupt systems, the Joker ultimately has the most success by causing chaos.
The eerie part is the last line:

"Thus Master Wayne is left without solutions. Out of options, it’s no wonder
the series ends with his staged suicide."

<http://www.aaronsw.com/weblog/tdk>

------
andrewtbham
I think we should start lobbying for a bill that makes copyright infringement
a civil matter, not criminal. The Aaron Swartz bill.

~~~
_delirium
Unfortunately, that _was_ the case for noncommercial infringement, but public
sentiment went the other way and the law was amended in the wrong direction:
<http://en.wikipedia.org/wiki/NET_Act>

In Swartz's case, though, it seems he wasn't being prosecuted for copyright
infringement: he never actually released the JSTOR documents. Instead he was
being charged with unauthorized access to a computer system, and miscellaneous
other related things.

------
jmvoodoo
This type of behavior makes me wonder what the incentive structure is (both
financially and socially) for these prosecutors? IMO that's what needs to
change if we are going to have any sort of real justice in the future. Going
after individuals might make us feel better for a little while, but it won't
save the next Aaron Schwartz from the same fate.

~~~
guan
Federal prosecutors are appointed politically and are political figures. This
can sometimes be a good thing because they can be more accountable than a
faceless bureaucrat—maybe this prosecutor won’t win her next election because
of this—and because they might be more likely to reflect society’s values. For
example a prosecutor can decide to be more lenient in some nonviolent drug
cases: the police has to investigate and the judge has to convict, but a
prosecutor has the discretion to just drop the case. Of course in Aaron’s case
we see the dark side of the political nature of US attorneys.

Fans of The West Wing may remember this quote from Robert Jackson:

“The prosecutor has more control over life, liberty, and reputation than any
other person in America. His discretion is tremendous. He can have citizens
investigated and, if he is that kind of person, he can have this done to the
tune of public statements and veiled or unveiled intimations. Or the
prosecutor may choose a more subtle course and simply have a citizen’s friends
interviewed. … While the prosecutor at his best is one of the most beneficent
forces in our society, when he acts from malice or other base motives, he is
one of the worst.

“Your positions are of such independence and importance that while you are
being diligent, strict, and vigorous in law enforcement you can also afford to
be just. Although the government technically loses its case, it has really won
if justice has been done.”

[http://www.roberthjackson.org/the-man/speeches-
articles/spee...](http://www.roberthjackson.org/the-man/speeches-
articles/speeches/speeches-by-robert-h-jackson/the-federal-prosecutor/)

------
adammil
I created a White House petition for this, please sign it:

Terminate prosecutor Carmen M. Ortiz for overzealous prosecution of Aaron
Swartz, leading to his suicide.

<http://wh.gov/EO5n>

~~~
PrudenceYuris
Duplicate. This one has 1500 signatures already:
[https://petitions.whitehouse.gov/petition/remove-united-
stat...](https://petitions.whitehouse.gov/petition/remove-united-states-
district-attorney-carmen-ortiz-office-overreach-case-aaron-swartz/RQNrG1Ck)

------
paulrademacher
> unable to appeal openly to us for the financial help he needed to fund his
> defense, at least without risking the ire of a district court judge

Can someone explain this statement? Can a person not raise a defense fund from
the public?

------
MaysonL
_But anyone who says that there is money to be made in a stash of ACADEMIC
ARTICLES is either an idiot or a liar._

Elsevier, Springer, Pearson et al. beg to differ. Which is probably the basis
for the overdiligent prosecution.

------
rossjudson
If we can petition the White House for a Death Star, we can petition for
Ortiz' removal.

------
jacoblyles
I object to the characterization of the government's prosecution as
"overcharging". The correct punishment for Aaron's actions is not a smaller
prison sentence, but a medal.

------
csense
Assuming he did it -- or he didn't but was going to be found guilty anyway --
wouldn't fifty years for this nonviolent crime, done in the Martin Luther King
Jr. spirit of civil disobedience, by a person with (I assume) no prior
criminal record, be Unconstitutional cruel and unusual punishment?

~~~
mscarborough
MLK Jr. did his jail/prison time and he didn't pussyfoot around his civil
disobedience.

All the love for aaronsw, but he wasn't ever sentenced and if what he was
alleged to do was a civil disobedience act, it was hidden behind his lawyers.

~~~
csense
Maybe aaronsw intended to, until he found that the rigors of the investigation
and the length of the prison sentence were multiple orders of magnitude worse
than he'd thought they would be.

------
vermontdevil
We need to stop glorifying the prosector by rewarding them with political
victories. I don't believe being a good DA equals being a good governor or
senator. These two roles are mutually exclusive.

But I fear our citizenry is just too lazy to really understand all the
different candidates and vote for the best one for the job. Instead they
depend on abstract figures such as conviction rates, aggressive attitudes on
crime, etc to determine who gets their vote.

Can be frustrating at times.

Additionally I just read that the prosector in Aaron's case, Carmen Ortiz, is
being considered as a candidate for Governor of Massachusetts. It might be
something for the hacker community in that state to organize and utilize the
web (social media, etc) to make sure she does not go that far.

------
sohamsankaran
Someone should start a whitheouse petition to question the anachronistic laws
that allowed the threat of this sort of ludicrous punishment to be within the
realm of possibility....

------
exit
'prosecutor' is too abstract. specific names should be named.

~~~
vertr
I agree, who is this prosecutor?

<http://www.justice.gov/usao/ma/contact.html>

~~~
exit
pbateman linked to an nytimes article that names 'Carmen M. Ortiz'.

[http://bits.blogs.nytimes.com/2011/07/19/reddit-co-
founder-c...](http://bits.blogs.nytimes.com/2011/07/19/reddit-co-founder-
charged-with-data-theft/)

 _> Mr. Swartz was indicted last Thursday by the United States Attorney for
the District of Massachusetts, Carmen M. Ortiz, and the indictment was
unsealed Tuesday. The charges could result in up to 35 years in prison and a
$1 million fine._

there must be more people behind this though.

~~~
guan
Federal prosecutors have a lot of independence and discretion. She could
easily have let Aaron go with a slap on the wrist or pursued lesser charges.

------
noonespecial
As citizens, there should be a way to collect enough signatures to pronounce
the professional death penalty(1) on a prosecutor who fails adequately
represent the wishes of the people. They do ostensibly represent the people,
prosecuting those who harm the public. If they fail this duty and harm the
public instead...

(1) Never be allowed to serve in the role of prosecutor at any level again.

------
jacoblyles
I take exception to Lessig's description of Aaron's behavior as "morally
wrong". It was no more "morally wrong" than enabling a slave to escape his
master's plantation. Property rights that have their basis in injustice are
not valid.

------
arbuge
Well said. The prosecutor seems to be the party acting criminally in this
case. What balance is there in the system to prevent such blatantly evil
prosecutorial excess from occurring?

------
shuri
An attempt to set academic knowledge free should be celebrated and commended
not penalized. Certainly not used to bully people like this.

------
paulrademacher
Question for the legal experts: We've been reading potential jail time of 50
or 30 years, plus $millions+ in fines. Realistically, had he taken a plea
bargain or gone to trial, what would he likely have wound up with?

~~~
pseingatl
It's quite easy to calculate the likely sentence. The Federal Sentencing
Guidelines provide for a base level of 6, plus an 18 step increase for fraud
between $2,500,000 and $7,000,000. The sentencing range at this level assuming
no criminal history is 57-71 months. Expect supervised release (no computers)
for three years. The fine would be up to the sentencing judge within statutory
limits. The government estimated the value of the JStor documents at $5
million. Even if the government's estimate was exaggerated, the documents were
worth something--and this figure would drive the sentence to be imposed. The
judge could also depart upward based on aggravating factors such as PACER and
a lack of remorse. Swartz faced with no good choices. When he did not take the
offered plea, they superseded and racheted up the counts. The number of counts
doesn't really matter for Guidelines purposes but there is always the risk
that the sentencing judge could impose the sentences for each count
consecutively.

My guess is that Heyman/Ortiz really didn't want to prosecute the case, afraid
that it would become a political hot potato and controversial. They made him
what they considered a reasonable offer in September--7 to 8 months federal
prison, a fine (amount unknown) and two-three years of supervised release. The
kicker is that he could not use computers until supervised release was
finished. So for a decade or so, he would be cut off from the digital world
entirely.

(There are various reports about these negotiations but I have not seen an
offer letter.)

We know that Swartz did not accept the offer. What happened next is what
prosecutors do in all sorts of cases: they superseded, that is, replaced the
indictment with a new one, adding new charges and new counts. Perhaps they
withdrew their plea offer as well, or put a deadline on acceptance.

With a trial date of this week, and advice from his lawyers that he very well
could lose (whatever the facts, the hiding his face with a mask would be a
prominent feature of the trial, and mummery by the prosecutors just as the
glove in the OJ case).

I do not know what his attorneys told him; but from their pleadings they seem
to be competent, professional federal defense attorneys, so they would have
told him realistically what his chances were. Criminal defendants in these
circumstances often take very drastic action.

Someone was pressing this case. It could have been Ortiz. It could have been
the case agent. It could have been Heyman. In state court a case like this
would almost certainly have resulted in probation. Someone, somewhere wanted
Swartz' head on their pike.

------
mscarborough
Nobody killed Aaron Swartz except Aaron Swartz. Not the prosecutor, nor the
legal system, nor the copyright system. Completely useless as they all are.

It's absolutely horrible how this happened and that we lost such a light in
the web community. But stop the myth making and pretending that you cared the
whole time, when really nobody did.

~~~
darkarmani
Threatened with 35 years of jail time...

~~~
mscarborough
Yes, it was threatened. Not convicted or sentenced. Not held up on appeal,
much less tested in court in the first place.

------
michaelfeathers
What would reform look like?

