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Prosecutor as bully (lessig.tumblr.com)
1200 points by guan on Jan 12, 2013 | hide | past | web | favorite | 260 comments



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.


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...

  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.


The trouble is, if Obama hasn't shut down Guantanomo, let Bradley Manning be held in conditions amounting to torture, et bloody cetera, what in hell makes you think he's going to fire and shame one of his best US Attorneys over a tragic death that she contributed to? It's probably more likely (though not very) that she will resign of her own volition.


Aaron Swartz has nothing to do with violations of UCMJ or the political impossibility of the executive importing terrorist suspects to the continental US over intense Congressional obstruction.


And all the crackdowns on the various Occupy protests around the country were spontaneous and local.


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


My suggestion, start a whitehouse petition. If that gets to 25k people, the whitehouse will respond. If Reddit gets involved, 25k people is quite doable.

The wording of the petition should be as strong as possible. I'm off with my children now, but if I get back tonight and I see a decent petition on this, I will definitely sign it.

Edit: D'oh, the petition has already been written. I just had to sign it.



pardon my ignorance, should one be a US citizen to sign this petition or is it open to anybody?


The second petition will never be granted. I can say this with certainty because it is legally impossible to grant a pardon when someone has not been convicted (or plead guilty to) a crime to finality (i.e., the exhaustion of appeals).

As with the Enron fellow who died during his appeals, Aaron will never legally be guilty of whatever it was he was specifically charged with because his case was never adjudicated to finality.


it is legally impossible to grant a pardon when someone has not been convicted (or plead guilty to) a crime to finality (i.e., the exhaustion of appeals).

http://en.wikisource.org/wiki/Proclamation_4311 is a famous example disproving that.


All Obama has to say is that Massachusetts law enforcement acted stupidly. It'd have the same effect, as they've done so before, and he's said so before.

http://articles.cnn.com/2009-07-22/us/harvard.gates.intervie...


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...). 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-...


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.


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.


Even if there are other overzealous prosecutors in general, getting rid of this one would be an important message. So this is an important step, even in the absence of practically impossible outcomes like decriminalizing copyright infringement.


Overzealous prosecutors hurt people accused of every kind of crime, making them accountable is a pretty far reaching cause.


Very much agree. Getting her out of office is the beginning of that conversation.


Excellent comment. Thanks.


I think we need to start lobbying for a bill that decriminalizes copyright infringement and makes it purely a civil matter.


I don't think that would really do it here. The problem is not (just, or even primarily) the laws against criminal copyright infringement. The problem is the Computer Fraud and Abuse Act, the Wire Act, RICO and the complete set of federal laws passed during the heyday of organized crime that are so broad and with such disproportionately insane penalties that they can be used to put just about any arbitrary subject of Her Majesty the Queen Prosecutor in prison for the rest of their natural lives.

Fixing one statute isn't going to cut it; they'll just keep on at it with the ones remaining. The fix has to be systemic or it's nothing but a band aid on a gunshot wound.


Changing the law is the aim, no doubt, but as with anything, progress is much easier when you're seen as having strength and being on the side of the angels. Having legally and properly dispensed with a conspicuously abusive US Attorney does a tremendous amount to discredit the opposition. And it puts other attorneys on notice that their preferred tactic—hitting people with a raft of charges the freezing or exhausting their assets before a trial—is on the public radar as a deeply illigitimate and almost certainly unconstitutional approach to handling what are, increasingly, political crimes.


I completely agree that we should make every legitimate effort to have this prosecutor removed from her position, along with anyone who uses similar tactics. You have to start somewhere.

My point is simply that this is a systemic problem. We can't have one prosecutor removed and then stop. We have to make this entire model of prosecution illegitimate. It's going to take a sustained, organized movement to make real change.

Which isn't to say it can't be done. It damn well has to be done. But it isn't going to be easy.


That's not how politics works. It's never been how politics works. This is why most people simply ignore Silicon Valley and the Internet when it comes to political issues.

If the likes of 4chan or reddit attack a federal prosecutor personally, all they will do is spur political action against reddit and 4chan. The underlying cause of their action will be ignored and forgotten.

(Note: SOPA is not an exception; major Silicon Valley companies spent serious amounts on lobbying to get that bill dropped. The internet opposition had exactly zero impact on its political fate.)


Key words: "legally" and "properly". In other words, the opposite of what Anon or 4chan could be expected to do.

Identifying the tactics used to effectively strip people of their rights to open trials is the object here. Juries exist specifically to guard against abuses like this. If the DOJ has found a way to make getting in front of one exceedingly risky and certainly ruinous, then they should be called to account for what is a clear subversion of basic Constitutional protections.

We can't get Aaron back. But we can make sure that everyone understands why he found himself in such a desperate situation in spite of having done nothing to warrant the insane penalties he was facing.


I hear you complaining but I don't hear your solution.


That's a good point... "The charges filed against Mr. Swartz include wire fraud, computer fraud, obtaining information from a protected computer and criminal forfeiture."

http://bits.blogs.nytimes.com/2011/07/19/reddit-co-founder-c...

I still like the idea of doing something bigger to help keep this situation from happening again.


But the people who want that don't contribute millions of dollars of campaign donations.


Make an infographic that attracts attention.

I unfortuantley do not know how I would even start doing one, but some comments have data like "97% of all people plead guilty" we could see what the average number of time in Jail is, pull out some quotes.

I posted abt it here http://news.ycombinator.com/item?id=5048729 and the types of question we would need to figure out relating to court costs and things like that.


How much would it cost to run a full-page ad near the front of The New York Times and Boston Globe, and some local tv ads in Boston? A targeted media campaign and the resulting echoes could easily put a stop to any political aspirations (I'm thinking 60 Minutes, Anderson Cooper, and the like).


This is the number two story on Google New's "Top Stories" for me right now so it seems like this has a far chance of getting a lot of coverage is people are loud enough for long enough.


I have a feeling Anonymous will get on this case. Sadly enough this is not one of those cases where a few messages is going to "send the message."


If her career ends in a clean and legal way, that will send the important message. So if individuals are in the position to send messages which will contribute to that, it would be a good thing.


Unless Anon pursues the course of action outlined above, I strongly suspect they will do more harm than good. Even a hint of illegitimacy on the part of Ortiz's opponents will be exploited ruthlessly. Keeping one's own hands clean is a vitally important part of bringing attention to the dirt that others have on theirs.


"after JSTOR itself had dropped the charges"

From a practical matter a prosecutor might decline to prosecute if they can't get the cooperation of someone (needed to testify or provide evidence) but this should have no bearing on whether to prosecute or not.

You could have a crime committed and the crime is worthy of prosection. The fact that someone believes (as an extreme example) that a person who committed assault against them shouldn't be prosecuted doesn't and shouldn't really matter (keeping in mind of course the practical nature of prosecuting without cooperation). Unless of course they say "no assault occured" which is different then "assault occurred but I don't want anything done".


>but this should have no bearing on whether to prosecute or not.

"We were just following orders" and "We were just doing our jobs" and "We were doing what the law told us to do" aren't the indefensible moral positions you seem to think they are. Laws are written by men and enforced by men. Just the idea that all prosecutors are slaves to these laws is so incredibly naive I almost don't know what to say to you, but I'll try to sum it up:

At best, this was a simple copyright issue that the two parties chose to work out. At worst, this was a white collar crime, and with all white collar crimes, your political capital determines what happens to you. Aaron had no political capital. The support of people like Lessig or Doctorow or the EFF is meaningless in DC. Carmen Ortiz understood this. Now here we are.


Exactly. The DC police made the (correct) decision recently to use prosecutorial discretion to not pursue David Gregory, who DID have juice in DC.

http://www.huffingtonpost.com/2013/01/11/david-gregory-inves...

  Having carefully reviewed all of the facts and 
  circumstances of this matter, as it does in every case 
  involving firearms-related offenses or any other potential 
  violation of D.C. law within our criminal jurisdiction, OAG 
  has determined to exercise its prosecutorial discretion to 
  decline to bring criminal charges against Mr. Gregory, who 
  has no criminal record, or any other NBC employee based on 
  the events associated with the December 23, 2012 broadcast.
  
It would have been nonsensical to go after Gregory. He only got the benefit of the doubt because he was a DC political journalist who was literally interviewing Obama last week. And it was nonsensical to go after Swartz. But he did not get the benefit of the doubt.


> "We were just following orders" and "We were just doing our jobs" and "We were doing what the law told us to do" aren't the indefensible moral positions you seem to think they are.

Careful; that's a double-edged sword. Would you prefer that individual prosecutors have the authority to ignore the law? That didn't work too well in the pre-civil-rights South, when lynchings went unprosecuted.

It's far better to have a government of laws and not a government of men; then you can assign responsibility where it belongs, with the people who write the laws.


>It's far better to have a government of laws and not a government of men

Who do you think decided to tell JSTOR to shove it and prosecute him anyway under a federal computer crimes act? All prosecution is political and white collar crimes doubly so. Men decide to be vindictive, men decide which laws, and the men who prosecute knowing it takes millions of dollars to successful defend from a false accusation from the federal government.

We don't live under laws. We live under men. There's no politically neutral AI calling the shots. Its people trying to get promotions and making names for themselves and who knows what other motivations. The selfless prosecutor exists only in movies and TV.


All prosecution is political and white collar crimes doubly so.

No, all laws are political. Enforcement of the law, especiallly at the federal level, is apolitical. White collar crimes are not special; indeed, white collar crimes are by far the worst types of crimes because they strike directly at the foundation of the system itself (i.e., trust).

There's no politically neutral AI calling the shots.

Exactly. Letting prosecutors pick and choose which statutes they enforce would make prosecution political. This is what happened in the South for 100 years when blacks were prosecuted aggressively and white defendants were not (especially in cases with black victims). It's also the reason why prosecutors at the federal level generally do not have discretionary authority to decide what crimes they will enforce absent a presidential directive or a directive from the head of their agency.


  It's also the reason why prosecutors at the federal level 
  generally do not have discretionary authority
"The USA [US Attorney] 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...

  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.

  The authority, discretionary power, and responsibilities of 
  the United States Attorney with relation to criminal 
  matters encompass without limitation by enumeration the 
  following:

  Investigating suspected or alleged offenses against the 
  United States, see USAM 9-2.010;

  Causing investigations to be conducted by the appropriate 
  federal law enforcement agencies, see USAM 9-2.010;

  Declining prosecution, see USAM 9-2.020;

  Authorizing prosecution, see USAM 9-2.030;

  Determining the manner of prosecuting and deciding trial 
  related questions;

  Recommending whether to appeal or not to appeal from an 
  adverse ruling or decision, see USAM 9-2.170;

  Dismissing prosecutions, see USAM 9-2.050; and

  Handling civil matters related thereto which are under the 
  supervision of the Criminal Division.


No, no, no. The point of an AG is to act as a first line to determine which cases are worth pursuing and which are not. They absolutely are granted and should exercise frequently the right to not prosecute!

I have had several friends prosecuted for trumped up nonsense that should have been slap-on-the-wrist misdemeanors at the most.

I would prefer to see an AG exercise their privilege to not prosecute in cases where, even assuming the facts in the complaint are true, it is unclear that a crime has been committed. Particularly where there is no individual who has been harmed.

"Tough on Crime" is a messed up way to operate a justice system. "Fair on Crime" should be the standard we hold our officials to.


> Enforcement of the law, especiallly at the federal level, is apolitical.

Pull the other one now.


You don't think individual prosecutors don't already ignore the law? Selective prosecution happens all the time.


"Just the idea that all prosecutors are slaves to these laws is so incredibly naive I almost don't know what to say to you"

You are implying things that I did not say.

Please quote specifically what I said that gives you the impressions that I am "so incredibly naive". In other words indicate where I said or implied that prosecutors don't have discretion and what that has to do with what I did say which had to do specifically with the person "harmed".


I wasn't personally familiar with Aaron, but from what I've read of him, I really don't think he was the type of person who would want everyone to go on a witch hunt the day it's announced he's committed suicide.

So how about you save your emotionally charged call for an internet brigade until everything has settled down, yes?


That may be true, that may not be true. I don't know.

What I do know is that the issue is larger than Aaron himself.


If it's larger than Aaron, then people shouldn't be using his death as the core reason for their crusade.


Absolute rubbish. Why should we not use individuals as catalysts for greater change? Doing so has a long, successful, and proud history in this country. Hell, it predates the country.


You shouldn't do it the day after he died. You should mourn him and let his loved ones mourn him.

And what part of forcing a single attorney out of her job is "greater change"? What part of that is being "proud"?


> So how about you save your emotionally charged call for an internet brigade until everything has settled down, yes?

Hey guys! You might be effective if you do this now, so don't do it! Wait for no one to care before you start trying!


The person who pushed this prosecution was Steve Heymann, not Carmen Ortiz. Before you name and shame, make sure you have the right name.



> Naming and shaming Carmen M. Ortiz for destroying the life of a young man is exactly what is necessary

Agreed. She should lose her friends and family too, if they are good people. They should drop her out of their lives.


Maybe we can hammer her hard enough to drive her to suicide. Wouldn't that be a win?


No. It is, however, a win to separate from prosecutorial power those who misuse it.


I wish the Bush daughters had quit talking to their dad in the run-up to the Iraq War II. Those two girls maybe could've saved 100K lives. But highly unlikely Bush would've killed himself. His life wouldn't have been inextricably ruined like Aaron's was. He could get his life back just by stopping the run-up.


Great post, and I hope everyone on HN follows your suggestions for bringing this to the attention of the public. But ultimately, it's the law that comes out of the legislative process that not only enables, but prescribes these prosecutions.

Because of this, advocates for reform risk playing right, straight, smack into the hands of the system by resolving to do nothing more than stop one out-of-control public official. Soon enough, others will rise (in fact, they already have). And what will happen when the unlucky victims of malicious prosecutions don't have "the Internet" to back them up? To protect the public at large, the system itself must also be changed.

"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."

Could the real cause be that federal criminal statutes are too broad, and often shoved into bills at the last minute or for no good reason, and that mandatory minimum sentences for poorly-defined crimes litter every major piece of legislation to come out of Congress recently?

Before casting blame for malicious prosecutions entirely on prosecutors who are merely enforcing laws passed by Congress, let's look inward at ourselves, and wonder how we could be so stupid as to vote for people whose philosophy it is to write criminal statutes so broad that all justice is left to prosecutorial discretion. It could be argued that it is the American public who are ultimately responsible for malicious, pointless prosecutions.

But that's not the whole story. Currently, the public is totally cool with voting for people who write criminal statutes so broad that falling out of favor with the government can mean prosecutors can jail you for the rest of your life for no reason any empathetic person would agree with. It is also the public that is voting for people who appoint prosecutors incapable of using appropriate discretion.

"It is incumbent upon us to see that she does not get [to higher office], that this behavior is NOT rewarded."

And this is why your post is good and useful. Let's just remember that the legislative process, and therefore voters, are ultimately responsible for the lack of empathy and discretion in our judicial system.


Regarding Mr. Aaron Swartz, one hopes the Massachusetts Attorney's heavy handed actions will be the subject of a wider broadcast. Certainly, the attention afforded to Mr. Swartz by the DOJ (mind you, MIT long since has lost interest in the case) should now be focused, in the court of public opinion, towards the Honorable Carmen Ortiz and the choice to pursue this case, using extreme measures, leading to answers from a specific inquiry...namely: "Why? Why pursue an individual so harshly?" Insufficient answers from her or her office (apparently she's considering a run for Governor) should immediately result in her receiving administrative action, and the consideration for removal from office and disbarment.


I really can't beleive how naive such people like Mrs. Ortiz are... Beleiving in fighting for something like a greater good seems to make people pretty ruthless. I really cried for the internet community loosing one of the people who really felt responsable for fighting for the net's freemdom.

I hope some time justice will also spread in judiciary...


Or, you know, you could just call your local Congressperson and complain. This is far more likely to have a direct impact on her job (performance of, or continued employment) than some random internet "naming and shaming." It is also far more likely to bring about the structural changes necessary to prevent this from happening again.

...as they have disabled the voice of the people by routing around jury trials.

Aaron had the option of going to trial. It was his constitutional right. He chose to kill himself instead.

...and they are appointed rather than subject to elections

The history of the South should provide enough justification for why federal prosecutors are never elected. You do not want enforcement of federal crimes subject to popular whims or to political pressures. Too often, political pressure leads to overzealous enforcement of criminal statutes, not reasoned enforcement (see, e.g., Maricopa County).


The goal must be to get her fired for abuse of power. Getting the press involved is the only way to accomplish this. Calling a Congressman by itself will only help if done in a huge and coordinated way. That kind of suggestion on its own is a safety valve, the sort of futile thing that people who don't want see justice served would suggest. As for the justification of putting prosecutors beyond elections because of "the South": Reconstruction and Jim Crow have somehow become the excuse for birthing a class of invulnerable prosecutors that threaten a young Jewish kid in Boston with 35 years in jail for downloading some history PDFs! We really licked Jim Crow now, good job! I am sure that burning the democracy to save it makes some sense in some universe, but not this one.

No matter. The fact that this woman cannot be disciplined by electoral measures is what necessitates the use of the Internet and the press:

http://news.ycombinator.com/item?id=5048632


> Or, you know, you could just call your local Congressperson and complain.

Isn't that part-and-parcel of naming-and-shaming?

Most of the commenters seem to think that name-and-shame means "write about it on your blog" or "retweet something", I guess. A tweet doesn't get someone fired; calling your local congressperson is definitely the thing to do.


Good 'ol internet myopia.


> Aaron had the option of going to trial. It was his constitutional right. He chose to kill himself instead.

It was not a real option. He had run out of money for an expensive, complex case. He was sure to lose.


Robert Morris created the first worm on the Internet and was the first person prosecuted under the Computer Fraud and Abuse Act. He was convicted and sentenced to probation. He's now a tenured MIT professor and was a co-founder of Y Combinator.

For someone of Aaron's talent and reputation there is no reason that he could not have gotten past a felony conviction and lived a successful life.

I can only interpret Lessig's post:

"...the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18 months of negotiations, that was what he was not willing to accept..."

I don't know what the government actually offered, but it doesn't seem unreasonable that Aaron would have been able to get a deal with a relatively light sentence, maybe just probation. It sounds from Lessig's post like his hangup was that he wasn't willing to accept a felony conviction. I hope that's not the case because even with a felony record he most likely would have lived a long and successful life.


> but it doesn't seem unreasonable that Aaron would have been able to get a deal with a relatively light sentence

Being sentenced and getting a record for doing something you feel is right is not something everybody takes equally lightly. Personally I couldn't care less but I can see how someone with stronger principles would react much stronger to this.


Aaron sounds like an idealist in an extreme sense. He probably did not feel that what he did was wrong, and that accepting the label of 'felon' was an affront to the truth.


People handle adversity differently. It seems Aaron had internal pressures and this trial had definitely increased these pressures.


That was a very, very long time ago. Do you really think that with the way that the U.S. is now that Aaron would have won?


In some jurisdictions (most I believe) felons aren't allowed to vote. If someone believes in democracy and the freedom to vote and have a voice, how do you think they would feel about being so marginalized?


> Or, you know, you could just call your local Congressperson and complain.

Almost certainly zero impact for this. Easily ignored. The prosecutor in this case, however, probably could not easily ignore her friends and family dumping her.


Do you really think your internet activism will cause her family and friends to "dump" her?


I hate to say this, but 4chan will take care of this and they will be effective.


That's a crapshoot. Either they will get the local media to care about it for a day or two, then fizzle, or they will get the local pizza place really pissed off, or someone will do something drastic and a bunch more arrests will start being made.

Getting 4chan to apply the right amount of pressure to the right place seems to be like trying to get an apathetic redneck to remove a tree stump for you. Chances are he's either going to whack it a few times with an axe and declare it unmovable, or blow it up. (To be fair, blowing it up works great, but can get people in trouble rather easily)


MIT.edu is down. Let's see what comes next.


Worked with SOPA.


It's worth a shot.


I plant seeds for others to think about and hopefully replant.


That's about as realistic as expecting people to dump Aaron by telling them he downloaded a bunch of files without paying for them. It made him a hero.

You talk to her friends and family about her, and you'll just make her a hero in their eyes, the same way Aaron's actions made him a hero to reddit and 4chan.


There are a few "heroes" who are still outwardly racist. But for the most part they've withered under the glare of others. Ostracizing and shaming works wonders.


It's not just getting her fired, but also the public shaming as an end in itself. Political figures, who are in a position of an incredible amount of power/leverage over the rest of us, need to know that they must do only what "the public" thinks is acceptable and not whatever day-to-day tirade they get off on.


> Destroying her career and seeing her fired in disgrace will send a message to all other overzealous prosecutors, ...

This is Timothy McVeigh thinking, and it makes you a loser just like it did to McVeigh. You can never kill or destroy enough people to defeat Washington, D.C.

To win you have to think like Osama bin Laden: turn the system against itself. Wholesale, not retail. Scale up, not one off. TSA, not EFF.


Carmen Ortiz is not a building full of civilians, including children in a daycare. And a civil ending to a career for inappropriate and unjust use of power is not a murder or bombing.

It's appalling that your criticism of Timothy McVeigh is that he wasn't enough like Osama bin Laden. Do you really think either one of these should serve as a model?


Do you really think either one of these should serve as a model?

(Shrug) bin Laden got shit done. McVeigh did not.

They both ended up exactly where they deserved, but you can't ignore the fact that one of them was an effective political strategist while the other one was nothing but a plain old mass murderer.


Wasn't bin Laden's issue the American involvement/support of Israel? I'm not sure you can say he got shit done anymore than McVeigh did.


Actually, I believe that the biggest bee in bin Laden's bonnet was the Americans' use of Saudi territory for military bases. The story of the US withdrawal ( http://en.wikipedia.org/wiki/United_States_withdrawal_from_S... ) reminds me a lot of the resolution of the Cuban missile crisis, where the US quietly agreed to withdraw similar missiles from Turkey and Italy.

To the extent that bin Laden's ultimate goal was to cause severe financial damage to US interests, there's no question but that he succeeded grandly. Sure, 99% of the damage that resulted from 9/11 was self-inflicted by the Bush administration, but the outcome was the same as if bin Laden had destroyed trillions of dollars in US wealth himself.


Hmm, fair enough.


Ortiz is a generic, replaceable cog in the prosecution-prison complex. She was not "inappropriate", she was doing her job exactly like the American public wanted her to. You could no more end her career over this than you could keep Obama from being reelected. Killing her wouldn't even have any effect—another cog would be slotted into the case before her body was even in the ground. Even blowing up the entire Federal building where she works would be useless, they would just fly in replacements from the hundreds of other offices.

That's the lesson of Timothy McVeigh: if blowing up an entire building full of your opponents has no effect, then writing a stern letter to your Congressman is laughable.

As far as bin Laden being a good role model, he won didn't he? He got inside Washinton, D.C.'s decision loop and systematically turned it against its own interests. Trillions wasted on war, distracted from fixing economic problems, Turkey handed to the mullahs on a silver platter, occupation of ungovernable territories, etc.


Why wouldn't the replacement cog think twice about over zealous prosecution?


First off, the connection between forcing a political firing and committing an act of mass murder is unclear. Why did you pick McVeigh as the metaphor? Why not Osama, or Jared Loghner, or Russia?

Second, that you think calling the poster a "loser" is important is telling. What do you think that will accomplish? Has insulting people ever won them over to your position, in your experience? Or were you banking on everyone's agreement, effectively forcing an internet shaming?


Dang. I meant to say that it was loser-style thinking.

Nobody has ever won against Washington, D.C. by scoring a symbolic personal victory against a few minions. Even if you are like McVeigh and willing to accept a certain degree of collateral damage, it has no effect. It turns out that blowing up a Federal building is the political equivalent of putting itching powder in Uncle Sam's shorts.

So if that is the case, sending an outspoken email is a pre-defeated strategy. It is the action of someone who lost before they started, a loser.


Timothy McVeigh blew up children. We are proposing someone lose their job.

Hyperbolic much?


> This is Timothy McVeigh thinking, and it makes you a loser just like it did to McVeigh. You can never kill or destroy enough people to defeat Washington, D.C.

What? McVeigh murdered innocent people. The parent is proposing investigating the prosecutor for breaching the mores and laws that govern her profession using the legal system already in place. These are not exactly equivalent.

I have no interest in defeating Washington, D.C. I have no desire to "win" if "winning" requires me thinking "like Osama Bin Ladin" (or do you mean not thinking? because I think he's dead, last time I checked).

There's no worse fear for a bureaucrat than to be hoisted by their own petard, to face a misconduct investigation, and possibly criminal and civil charges. A lot of harm can be prevented if her public service career is ended early on the count of what she has done to Aaron (and presumably others): I'd rather her career end as an associate in a think-tank (or whatever), rather than as the next Rudy Giuliani (who also started his career as a DA).


Approximately 97% of indicted federal defendants plead guilty before trial because of three aspects of our system:

1) US Attorneys routinely routinely overcharge defendants to an almost absurd degree;

2) The most commonly used federal statutes, such as the Wire Fraud statute, are so broadly written that people with no criminal intent could reasonably be found guilty; and

3) The maximum sentences for convictions under these broad statutes are so absurdly high that no one in their right mind would dare risk a trial.

These factors, combined with often merciless prosecutors, add up to a recipe for a potential disaster such as the one we have seen here. The system is very much geared to send to prison anyone that is charged with a crime, based on the system's trust in the concept of prosecutorial discretion. Unfortunately, many prosecutors abuse their discretion, and there is no way to inject uniform sanity into our system as it currently exists. Sadly, the prosecutor in this case likely won't even offer as much as an apology to Aaron's family, as most of them seem to feel justified in their behavior.


It's actually 97%, at least as of 2010:

http://www.ussc.gov/Data_and_Statistics/Annual_Reports_and_S...

Unfortunately that's down at the moment but you can use the Google Cache:

https://docs.google.com/viewer?a=v&q=cache:WCmq1ybmBqAJ:...


Corrected, thanks. The 94% figure was from 2001 I believe. Apparently it's gone up.



This is almost as good as Japan's very controversial 99%+ conviction rate, which is widely seen as abusive, with a high rate of innocent people forced to confess, for varied reasons.

This is a decades old paper, but still quite relevant for the reasons why the conviction rate is so high in Japan.

http://www.rasmusen.org/published/Rasmusen-01.JLS.jpncon.pdf


http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness...

No, it actually isn't. You have to look at convictions, acquittals, and dismissals to form an accurate assessment of the outcome of criminal prosecutions. When you factor in dismissals, the conviction rate, whether by a plea of guilty or no contest, or as a result of a trial, drops to 90-91%.


So 97% is "absurd" but 90-91% is well within reason?

Moreover, in many cases the cause of a dismissal is that the prosecutor requested it, e.g. because the entire charge was a farce meant to intimidate the defendant and it by that point had either failed or (more likely) succeeded to do so and no longer needed to be maintained.


What would you prefer it be, 50/50? Would you prefer the US charge more innocent people with crimes to bring down the conviction rate?

If someone is formally charged with a federal felony, that means they have been indicted by a federal Grand Jury; i.e., a majority of the 23 Grand Jurors felt that there is probable cause for charging the defendant(s) with the alleged offense(s). People indicted by Grand Juries should end up getting convicted the vast majority of time, otherwise Grand Juries (and the prosecutors that bring cases before them) aren't serving their function, and their findings of probable cause are erroneous.

I actually don't think a conviction rate of 9 out of 10 is too high; rather, too many things are illegal (and felonious in particular), and the penalties are too severe. But I don't think the actual trial and pretrial systems are irredeemably bad, as many of the posts here are suggesting.


It seems pointless to talk about conviction rates in isolation. In a perfect world, prosecutors would bring charges exactly when they had enough evidence to prove that the suspect committed the crime, and they would be found guilty at trial due to that evidence. One could also imagine a horribly imperfect world where prosecutors routinely charge innocents and achieve convictions in every case regardless due to kangaroo courts. In both cases, the conviction rate is 100%, even though one world is great and one is awful.

Without knowing why the rate is what it is, it seems pointless to talk about it at all. A 99% rate could be great, and a 50% rate could be great, depending on why it happens.


Perhaps the triangulation with dismissal rates here is informative -- cases the end in dismissal sound like they are a sizeable portion of those that don't get pled. I don't know the exact numbers in our world, but that number ought to be virtually insignificant in the 'great' world.


> If someone is formally charged with a federal felony, that means they have been indicted by a federal Grand Jury; i.e., a majority of the 23 Grand Jurors felt that there is probable cause for charging the defendant(s) with the alleged offense(s). People indicted by Grand Juries should end up getting convicted the vast majority of time

This is profoundly ignorant. As a Grand Juror, you will have a mountain of documents dumped on you, alleging or suggesting various crimes. The validity, accuracy, or even meaning of those documents, isn't debated or even examined.

A Grand Jury will indict anyone where the law enforcement officers have done a minimal amount of investigation and have gathered something. The process is there to prevent mass prosecution, in other words, to make sure the government does some minimal amount of work at least.

It does not, in any way, suggest guilt of any sort.

They could present a Grand Jury with documents from another case and not a single Grand Juror would be the wiser. Obviously that would be illegal and grossly inappropriate, but the fact that this could easily be done suggests that the process isn't there to determine any realistic "probable cause" ... just to make sure a minimal amount of work was completed.


>Would you prefer the US charge more innocent people with crimes to bring down the conviction rate?

Don't be ridiculous. What I would prefer is that more of the innocent people who are currently charged not be convicted or coerced into a guilty plea by the prospect of outrageous penalties and soul-crushing legal fees.

>People indicted by Grand Juries should end up getting convicted the vast majority of time, otherwise Grand Juries (and the prosecutors that bring cases before them) aren't serving their function, and their findings of probable cause are erroneous.

It is pretty obviously the case that they fail spectacularly at this function.

"a grand jury would 'indict a ham sandwich,' if that's what you wanted." - New York State Chief Judge Sol Wachtler

And until that changes (if it even can), the conviction rate should not be anywhere near as high as it is.

>too many things are illegal (and felonious in particular), and the penalties are too severe.

On this we agree.


> What I would prefer is that more of the innocent people who are currently charged not be convicted or coerced into a guilty plea by the prospect of outrageous penalties and soul-crushing legal fees.

Swartz was guilty. Even Lessig's post decrying Swartz' treatment intimates as much. Again, perhaps the things he did shouldn't have been crimes, or at least not felonies, and the penalties shouldn't have been so severe, but you need to distinguish between innocent people being wrongly prosecuted for things they did not do and bad law making criminals out of good people.

> "a grand jury would 'indict a ham sandwich,' if that's what you wanted." - New York State Chief Judge Sol Wachtler

Judges, prosecutors and legal academics in general exhibit hostility towards juries, grand and petit alike. There are rare exceptions, such as Antonin Scalia. But in general, the legal profession resents the continued involvement of the common man in the judicial process, especially in as crucial a role as pre- and post-trial arbiter of fact.

Whatever perceived defects exist in the grand jury process, such as its secrecy or the absence of the accused, these can be remedied while still keeping intact the basic structure of 23 average citizens making, by majority, a determination of probable cause.

In fact, rather than being part of the problem, if juries were so emboldened, they could mitigate many of the injustices of our system themselves through the use of jury nullification.


>Swartz was guilty. Even Lessig's post decrying Swartz' treatment intimates as much.

I didn't read it as such. I read it as Lessig saying that what prosecutors accused him of doing was a crime, but that Swartz may have informed him of contrary facts in confidence which he was not at liberty to disclose.

Moreover, we don't know that someone is guilty until after they have been convicted, right? Swartz was never convicted (and obviously at this point never will be), so he is innocent until proven guilty.

But your point about distinguishing between guilt under the law and moral culpability is well-taken. I much more strongly care to ensure that the sort of thing Swartz was accused of doing not be illegal than care whether Swartz in actual fact did the thing that I believe should not be illegal.

>In fact, rather than being part of the problem, if juries were so emboldened, they could mitigate many of the injustices of our system themselves through the use of jury nullification.

I don't disagree with that, and it isn't the jury I blame for the outcomes, it's the process. As you mention, the Grand Jury hears from only one side in a sealed proceeding. The outcome of that is entirely predictable. And changing it would be quite welcome, but unless and until we change it, we can't assume that as-implemented it works as the theory says it should, contrary to all available evidence.


> Swartz was guilty. ...

He may have been guilty of something. It sounds like the charges against him were at the very least trumped up far beyond what would have been reasonable for the actions he is known to have taken.


Thanks for some clear, rational thinking in what is otherwise an irrational, emotional, and ignorant cluster fuck of a thread.


The sole purpose of a grand jury is to determine if there is sufficient evidence that a crime may have been commited to justify an expensive investigation, filing charges, or proceeding to trial (depends on the jurisdiction).

The grand jury hearings have no bearing on the determination of guilt, much less on the adequacy of the prosecution's case.


Right - dismissals of some counts often happen as part of a guilty plea.

Still, wording is important: both I and the parent poster should have said 97% was the percentage of convictions which resulted from pleas, not the percentage of indicted defendants which plead guilty. I think taking percentage of convictions is the correct metric to use - given the ideals of innocent until proven guilty and the right to trial, you would hope that most convictions were the result of a trial rather than a vanishingly small (and getting smaller) 3%.

It's also quite telling that even with statistics haggling, the anonymous poster still conceded a whopping 90%.


Including dismissals, I suppose you are in the ballpark. However, are you saying that a 90-91% conviction rate, in a system that publicly claims to offer so many protections to those within its grasp, is a positive thing? Many of our federal courthouses have inscriptions of Blackstone's formulation ("better that ten guilty persons escape than that one innocent suffer"). That is hardly the case in practice in our courts today.


What do you think about jury nullification?

If more people knew about it, do you think "we the people" could reign in out of touch congress critters that write these laws (don't repeal or change them) and the over zealous executive branch (prosecutors and police) that attempt to rack up and level up charges.


The most prominent and continuous use of jury nullification occurred in the American South in the 20th century to nullify murder charges against those who had lynched black people or killed them by burning down their homes and churches.

Didn't change the law in the direction they wanted, and didn't achieve justice either.


I understand that. Isn't that why the Federal government came up with federal "civil right violation" laws to combat this to remove the jury of peers from the immediate locale [of racist jurors]?

Also, one "short coming" of jury nullification is that it doesn't actually nullify the law, just the outcome of individual trials which, yes, can be abused as it was in the South. The precedent it can create, if enough juries nullify similar trials, is reducing over zealous prosecution and prosecutors. So, when a true RICO case comes up the law can appropriately be used. But when RICO is used in a case just to trump up charges, prosecutors will be less apt to pursue if its going to hurt their record of convictions and careers.


What would happen if the 97% of cases that don't go to trial actually were to go to trial? It would seem that the prosecutors wouldn't have the resources to try everyone and would be forced to reduce or drop charges entirely. Not sure if this would be possible, but by coordinating this tactic among all federal defendants could discourage prosecutors from tacking on unnecessary charges.


Wow, do you have a source for the 94%?


Perhaps it is the system's fault because it is not set to find the truth, but rather as a sports event between the defender and the prosecutor. Each one does their job and at the end, the winner takes all, whether for right or for wrong.

I have a friend who is a prosecutor and I had heard him talk about his work before. Everything he said was focused on winning. He was proud that he was able to dig out cases from the past where people went free, and then send them to jail. He was proud how good he was at prosecuting people. For all I know, he kept a score.

Is being so driven by the end goal a good thing? Sure it is, when you are prosecuting an actual bad guy. But, as it was my impression from my friend, it didn't really matter to him how bad the guy; all that matters is whether he can win. In that case, the system is at fault for allowing this kind of competition with human lives, but the individuals are at fault for playing the game.


I disagree with your edit. There's definitely a systemic problem, but it's a systemic problem with elected officials. Naming, shaming, and voting them out is the solution.


I agree naming and shaming is a good idea. It puts a name and a face to the story... not just some nebulous "the system is broken." People need a narrative to humanize the situation and it can serve as a warning to other prosecutors.


Yes...as much as hacker-minded people want to think that it's about the data (which I won't argue that it isn't), things happen because of individual stories.

Rosa Parks was not the first person to be denied a seat on a bus. The mishandling of rape cases has been a problem in India for a long time and it took the tragic case of the (so far, anonymous) woman who was brutally gang-raped to spur international furor. And think of the numerous laws named after victims...Megan, and so forth


I was actually thinking about Rosa Parks when I made that comment. The reason that Rosa Parks became a well known civil rights figure was because she was well known and liked, not because she was the first... Just like Aaron


Which just adds to the tragedy of all this. I think Aaron is someone the tech and non-tech community could have backed together, for any reasonable civic cause. His name is already attached to Reddit and all of his other accomplishments make him as much a non-consumer-facing media tech darling as you could hope for.


This

The system is supported by people. Someone is responsible.

Not naming the people responsible is only good for them and is probably what they want.


> it's a systemic problem with elected officials

Federal prosecutors are appointed, not elected, which makes the effort to name and shame them even more tenuous. Trying to fight the culture of overzealous prosecution as a whole would make it more likely that the elected official who appoints them (the president) does a better job.


You're correct; I misread the article as her being an elected Attorney General, not a US attorney.

I still support undermining any effort of hers to get elected to higher office, though.


She was considered someone in the running for Mass. governor and may continue a political career later in life.


How do you 'fight the culture of overzealous prosecution as a whole' without ever making reference to individuals or individual cases? You can't.


> 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

Disagree. Ostracizing and shaming everyone who supports such tactics is the reasonable way to mitigate this crap. Ostracizing and shaming worked for the civil rights movement, it can work here too.


I can imagine and believe that defending yourself against the US government is costly, what I don't understand is what the breakdown of all expenses would look like.

What services do you need to purchase/hire that you wouldn't get in a normal court case?

Is it because you spend a lot more time in court or in preparation?

Do you need to choose among lawyers with special certification? What type of paperwork do you need to produce?

In the Latin America (where I am) I could easily see the biggest expenses being bribes and it is in general what I think of when you need a problem solved. (Not a good thing at all...)

P.S. Making an infographic about a case like this vs a regular court case would be an interesting project and could help us make the case for Aaron...anyone want to help by looking for data / making one on your own?


Federal courts vs normal courts are like the difference between the NBA and high school basketball, or the NFL and college football.

Most of the rules are the same, but the game is played at a much higher level and the stakes are higher.


> 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.

There's a good essay on exactly that point, descriptively entitled "Fix the machine, not the person". Written by... Aaron Swartz.

http://www.aaronsw.com/weblog/nummi

It's perhaps interesting that, in a thread with dozens of HNers calling for everything from naming and shaming to harrassment, no-one so far has linked to his opinion on this.


Plea bargains should be illegal. If the state doesn't have the resources to try a crime then they shouldn't bother with an indictment.


Yes, I agree with this, having been the subject of unreasonable scrutiny in the past myself and having had friends who have similarly been abused by the "justice" system.

This kind of thing is far too common. The prosecution may be allowed to presume guilt, fine. But the law should prevent an overzealous prosecutor from rendering moot the 5th, 6th, 7th, and 8th amendments (not that I'm a constitutional scholar, just applying the "common sense" rule here).

Seizing assets is wrong in 99% of cases, and eliminates the right to mount an effective defense. It is morally bankrupt.

"Making an example" of someone is complete garbage. That is not justice, it is cruel and unusual punishment. It seems to more often be used by DA's with political aspirations than for legitimately egregious crimes.

This is why I vote against anyone who lists "tough on crime" as a credential. It's not. "Fair on crime" is a virtue, "tough on crime" is bullying and an abrogation of justice. Citizens should have an expectation that punishments for doing something wrong will suit the offense. Anything otherwise is a violation of the 8th amendment.

If there is doubt over whether or not an action is even a crime, a DA should be using their discretion to NOT prosecute. When the "victims" of a "crime" don't even want to press charges, you have to question the motives of a DA that pursues the case anyway.


I agree, we should be careful not to confuse justice with vengeance and focus on the root cause by improving the framework so that this kind of behavior by prosecutors is simply not possible. “An eye for an eye will only make the whole world blind.” MG. What will we say if this prosecutor commits suicide next week?


No, I think you're wrong: making an example to encourage the others would be a most productive step to take.

https://petitions.whitehouse.gov/petition/remove-united-stat...


exacerbate


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

This is such a disgusting violation of power it makes me want to vomit blood. Why on earth do judges have the right to prevent people from appealing to the court of public opinion? That's immoral, abusive, and absurd. If people can't disclose what is happening to them, then abuses of power become frequent.


None of these sorts of problems will ever get fixed unless society decides to get back to basics and back to reason and principles. I don't see any evidence of that happening.

The problem isn't with government per se, it's with the typical intellectual.


I'm reminded of a saying, "the strong do what they can and the weak suffer what they must." Well, "..what they must" is a strong phrase, but you get the idea. The general population isn't bothered about these kind of issues. The best they can do, if they notice an issue, is post their views on internet or express some strong views to their friends. If we need to clean shit, we need to go to the top and change it. Sadly I too don't see this happen anytime soon.


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...

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/...

Governor Ortiz? Make sure it isn't: http://www.bostonglobe.com/metro/2012/12/07/patrick-reported...

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...

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.


OK but before we all get on the public shaming bandwagon, I ask whether you know for sure that Ortiz is the primary target of Lessig's (rightful) criticism here? I know Ortiz was involved, but Lessig doesn't explicitly name Ortiz in this article and he refers to the prosecutor as a "he".

And please pardon my skepticism if it is in fact Carmen Ortiz, but I'm not familiar with the case and I think a healthy dose of skepticism is a good idea whenever "internet justice" is called upon.

Anyway, rest in peace Aaron.


Lessig's probably referring to one of the two assistant district attorneys who did all the day-to-day work - their names are mentioned elsewhere in this thread. Carmen Ortiz is their boss.


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.


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.


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.


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.


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.


"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.


> Going after her without changing the laws will not work.

Making it a political liability for prosecutors to act a certain way will surely influence things.


Here is half the phone conversation from tomorrow morning:

Mr. President, one of your appointees made it to the top of the petition list...

No, sir, it's not good news

Shall we draft a response for your approval?

No you don't know her personally...

Hey, at least she's not Deval's Lt. Gov.


The notion that voicing an opinion is equivalent to fucking lynching of all things is a disease that serves to highlight just how little people actually believe in fundamental ideas backing democracy.

"Restrict your protest to the appropriate democratic channels" is the rallying cry of those who wish to suppress dissident.


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...)


She has been rumored as a candidate for Governor or Senator, but denies interest (such denials often mean nothing).

http://bostonherald.com/news_opinion/local_politics/2013/01/...

The Boston Globe named her "Bostonian Of The Year" in 2011.

http://www.boston.com/news/local/massachusetts/articles/2011...

Like most things, it seems complicated. She's done a lot of good for society, but it looks like she really screwed up in this particular case.


This is business as usual. Naming the prosecutor isn't going to accomplish anything - the whole system needs fixing.

Just a week ago this was on HN: https://news.ycombinator.com/item?id=5003335 I don't think they seized Swartz' assets in this case but they didn't need to - they made his defense as expensive as possible and bled him dry.


Make no mistake, this means she will always be facing serious opposition should she choose to run for public office.

And since she was appointed by President Obama, it is entirely appropriate for those of us who feel strongly that she misused her position; to ask him to remove her from office for failing to exercise her discretion appropriately.


> Make no mistake, this means she will always be facing serious opposition should she choose to run for public office.

Beware, given the people's love of tough-on-crime politicians, drawing any attention to her career as a prosecutor, even if negative, might only help her. Most people outside of HN probably see Aaron Swartz as a criminal and this tragedy isn't going to have serious sway. Consider that factually innocent people get convicted because of prosecutorial aggression and there are no public scandals.

The public's attitude towards crime needs to change before naming and shaming prosecutors will be effective. We should try to change it - quote figures to show that people needn't fear being victims of serious crime, appeal to the American founding and the ideals of innocent until proven guilty, make economic arguments that locking people up for disproportionate amounts of time is costly and pointless. This approach will move the needle on the public's attitude and will slowly fix the system which did this to Aaron Swartz. It's more nebulous and less satisfying than trying to destroy the career of a bad prosecutor, but it won't be wasted effort.


A huge part of the problem is that there is no lobby for largely innocent people who are stripped of all their assets and locked in prison indefinitely, but there are strong lobbies for "tough on crime": Police unions want more "resources" (i.e. cash in their members' pockets) for crime fighting, especially if the "crime" involves suspects who are very unlikely to harm investigators, like "computer" crimes. Private prisons want more prisoners so that they grow their "business" -- and if they're innocent all the better, because good, honest people are less violent inmates. Victims' groups suffer from "what have you done for me lately" disease, where to get support from their constituencies they need to continually be making it harder for anyone accused to not be convicted and anyone convicted to ever see the light of day again, with no real incentive to care whether those accused and convicted are guilty or innocent.

And, of course, there are no strong "innocent convicts" special interest groups because their constituencies, though numbering in the millions, have no money and can't vote.


Because Obama has shown so much interest in listening to those who voted him in, right? Copyright maximalists are exstatic about this prosecution, and that's the trough Obama feeds from. That slop doesn't smell any better than the Republican's trough.

Also, remember that Swartz was a key player in the SOPA/PIPA campaign. Do you think anybody in the government is sad about this? There will be no support from Obama on this. I doubt you could get an acknowledgement of any kind out of him.


As a rule I find it difficult to justify a prison sentence (beyond perhaps a short "scare them straight" visit) to somebody who has committed a crime that isn't violent (or causing others to commit violence) or perhaps something that causes widespread distress (certain types of fraud).

Of course this would make it difficult to jail alcapones perhaps.


>Of course this would make it difficult to jail alcapones perhaps.

I don't follow. Al Capone was convicted for tax evasion -- because he committed tax evasion. He also allegedly (and very likely actually) committed a whole list of other serious crimes they didn't prove. But tax evasion is an actual crime that should actually be prosecuted. If Al Capone had made all his money placing legal bets in Las Vegas and then failed to pay tax on the winnings, he could and should have been convicted just the same for failing to pay his taxes. He should also, if proved, be convicted of any murders or racketeering or other such things he participated in.

What he shouldn't be is charged with a law that you could just as easily be charged with, with multi-decade prison sentences attached, just because law enforcement is too corrupt or incompetent to prove the real crimes that he actually committed.


Oh, I agree.

I suppose my point is that it might make it easier though for those who order violent crime to distance themselves from it enough that it becomes extremely difficult to every give them a custodial sentence.


The prosecutors actually working the case were Scott L. Garland and Stephen P. Heymann. (source: http://ia600504.us.archive.org/29/items/gov.uscourts.mad.137...)


Stephen P. Heymann deserves special attention. He worked for the "Security Division" of EMC. He may have a past record of inflating small exploits with no criminal intent into federal cases. We don't need lawyers like that practising tech law.


Even sadder is that Scott L. Garland is a MIT alum :(


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.


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.


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.


> 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...

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


Congress is bought and elections are a choice among the bought.

We are dealing with prideful arrogant people. They need a vivid example in order to get their attention. Destroying this case's prosecutors' careers is only a good start.


"don't hate the player" is a satirical half assed defense used to justify irresonsible actions. even if the entirety of our hate should be directed at the game, that doesn't mean the player holds no responsibility.


Hate the game or play the game.

Destroying her reputation. Stripping her of every professional friendship by making her a pariah. Piling on in every conceivable forum against her. Making it cost her every every she ever earned, her home, her retirement, and every penny of any family member willing to help her would be perfectly fitting and proportionate in that light.

And yet you will see people here say "Write a note to your Congressman" and that should be the limit of it. Bah.


Isn't part of the game political? By shaming her, you are playing the game.


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...

http://wh.gov/E3v1

Needs 25,000 signatures by February 11.

Please help us get it there. Thank you.


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.


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...


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

Then you've got a pretty significant misunderstanding of Larry, especially as he clarifies what he found morally wrong in the next phrases of the paragraph:

> The causes that Aaron fought for are my causes too. But as much as I respect those who disagree with me about this, these means are not mine.


Larry's saying that we should fight against unjust laws in court and ride in the back of the bus on the way to the court house.


What Lessig sees as the moral problem may not be the retrieval itself but the use of resources. I dunno, I'm just guessing.


I was wondering if this sentence was a typo. I thought he almost certainly meant the reverse:

And if not morally wrong, then at least legally wrong.


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.


"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.


> 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.


Perhaps it should be more cooperative.


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.


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.


The question here would be why should the public have to break in in the first place? Why isn't it public info from the start?


Agreed. Many times publicly funded projects are not entirely open, case in point: DoD funded work.


> Taxpayers fund my research, so can they just break in and steal "information" (code, plots, draft of papers, etc).

They should be allowed to make copies of it (in which case it isn't theft). They should not be allowed to deprive you of your copies of the information.


I don't mean this as an attack, but I think you're missing the point. First, I doubt you publish significant amounts of code in any published papers. I've read a number of Physics papers and I don't think I've seen more than two lines of code in them. Plots are a different matter, but they'll be highly visible if a paper gains any traction at all.

Second, the taxpayers did fund your research (assuming you research at a university), even if you had to work for that funding, and the results should be publicly available as default. Or can you provide a reason for why it shouldn't?

Personally, I'm biased even without the taxpayer argument since I believe in online learning (duolingo, OCW, etc.). I also know most published papers will only be skimmed at some later date by people highly involved in that field, and so having the information available to interested taxpayers doesn't seem to me to be an issue.


It does not follow that the destruction of the academic publishing industry will destroy the scientific community.


> 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.

What is your field? And why don't the members of this field just create their own on-line publishing venue?


Taxpayers don't fund government, workers fund government (and it's expenditures in research). Government issues currency and draws upon the wealth of the nation for funding. Taxes drive demand for currency, they don't fund the government.


Separate topic, but I'm curious if making a statement like that open up the possibility that one could be served a subpoena to testify what was said?


I believe Aaron had come to him under attorney/client privilege at that time. Just because Lessig had to step out due to a conflict doesn't change that fact.


Ordinarily yes, but attorney–client privilege would apply here.


The problem is not that Aaron accessed the information; it is that he abused the public resources used to maintain the store of information, and further that he did so in such an egregious matter. He would not have been prosecuted if he had just downloaded a dozen articles, but he downloaded 4 million.


4 million, 40 million - it's just bytes on a wire. I web scraped 35,000 articles from the AJCN recently, about 11 Gigabytes worth. I didn't ask permission - I just checked to see if my $10 temporary AJCN account could do it and set up an awk script generate the appropriate curl requests, so I have a lot of empathy for Aaron here.

Understand that Aaron's entire purpose was to Liberate Information that should have been free in the first place, so what he was doing was the exact opposite of abuse.

To the best of my knowledge, and from what I can recall in the case, the real issue was the Physical Break and Enter - which should have resulted in all of 40 hours of community service and an apology to MIT.


We talked about this on previous threads (when he was still alive). Distributing static content is a very much solved problem. Even then, if you don't want someone to download 4 million articles, don't enable them to do so. Every time I ask JSTOR for an article, their servers vet the request and then fulfill it (or not).


The research might be paid for by tax-payers money but journals aren't, they cost significant amounts of money to run (it typically takes a decade before a journal builds enough of a reputation to break even).

You could argue publicly funded researchers shouldn't submit to non-open journals, but that's not an argument for depriving publishers renumeration for the work they've done. The profit margin for both closed and open-access journals is typically around 20% (for some of the top-tier journals it goes upto 30%) - except with open-access journals it really is the taxpayer who is paying for the publication as the author's institution typically picks up the cost (as opposed to non-open journal where the cost is distributed among customers of the journal).


> 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.


Wall Street's side bets on the mortgage market dwarfed the actual value of the real estate in question.

"And why did synthetic C.D.O.’s become popular? One reason was that the subprime companies were starting to run out of risky borrowers to make bad loans to." http://www.nytimes.com/2010/04/17/business/17nocera.html?hp

Everyone shares responsibility, sure: but culpability is proportionate with the harm. Individual mortgage holders are a rounding error in this analysis.



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).


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


nor necessary.


I think not necessary is the stronger tool here.


Indeed.


> 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?


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.


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.


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.


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?


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

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


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.


Rewritten? Perhaps not, but he said passed.

There are numerous examples of laws that have 'little innocent white girls' as catalyzing moments, to the extent that they are often named after the victims, if only in popular media. Just from the top of my head and a few seconds on google: numerous proposed "Caylee's Laws", Chelsea's Law, Marsy's Law, Jessica's Law, Megan's Law...

There is a metric bucketload of laws named after people here: http://en.wikipedia.org/wiki/List_of_eponymous_laws

I don't really feel like filtering that by "young female victim", it would be too depressing.


Whether Aaron is a "sympathetic" defendant depends strongly on your point of view. All the laws named after little white girls are named after dead little white girls who were the victims of brutal crimes.

Aaron is the alleged perpetrator of a potentially serious felony. Moreover, he is the perpetrator of a crime that most people cannot distinguish from hacking (because unlike the HN crowd, most people are not technology literate beyond knowing how to download apps). Aaron would not be a sympathetic defendant to most of America; he would be just another one of the same hackers who try to steal money from their bank accounts.


I don't think you're getting the idea here. We have internets now. The prosecutor says Aaron was a bad man. Everyone who knows anything about him -- and that's tons of people -- says completely the opposite. The New York Times is writing largely sympathetic stories about him. This isn't 1950 anymore. You don't get to control the public discourse just because you have a suit and an office.

It doesn't matter what they say he did, it matters what we say he did. And we say he did good. Which we can get people to believe, because we're right, and there are millions of us.

This whole "tech people are irrelevant and no one listens to them" meme dates back to the 1990s before tech people were relevant and people started listening to them, and before there were millions of us instead of thousands.

There are a lot of us. We're generally pretty smart. We control a lot of important stuff. We can fix serious problems if we collectively set out to do it.

You can say "politics doesn't work that way" a hundred times, but politics works the way that people make it work. And we're people.


The prosecution does not say that Aaron was a bad man. They merely alleged he committed acts which fall within the definition of a crime under statutes passed by Congress.

It is irrelevant whether Aaron is bad or good; the law addresses only guilt and leaves morality to others. Legally, what matters is (1) whether he committed the alleged acts and (2) whether those acts (which are currently crimes) should be crimes.

It doesn't matter what they say he did,

You're right, because now he's dead and we do not allow the prosecution of dead men.

* it matters what we say he did. And we say he did good. Which we can get people to believe, because we're right, and there are millions of us.*

You have people on HN, on reddit, and 4chan who agree with you, and the bloggers who work for the NY Times. As I already discussed, there's not a snowball's chance in hell that you will convince other people (i.e., the tecnically illerate supermajority of America) that what he did was "good" once they understand that what he did is considered hacking.

There are a lot of us. We're generally pretty smart. We control a lot of important stuff. We can fix serious problems if we collectively set out to do it.

People in SV keep saying that, and then they churn out yet another social network or photo sharing app. At this point, I'll believe statements like that, even if made on HN, once they are backed by actual action and not just words.

You can say "politics doesn't work that way" a hundred times, but politics works the way that people make it work. And we're people.

Yes, you are people. But you're a small minority of America that generally avoids politics and interacting with the rest of America. Until that changes, and you involve yourself in America beyond just relatively unimportant stuff, like unpaid access to academic journals, you won't have much success changing anything.


>It is irrelevant whether Aaron is bad or good; the law addresses only guilt and leaves morality to others. Legally, what matters is (1) whether he committed the alleged acts and (2) whether those acts (which are currently crimes) should be crimes.

We are not in a court of law. We are in the court of public opinion, where it is very relevant whether Aaron is bad or good.

>there's not a snowball's chance in hell that you will convince other people (i.e., the tecnically illerate supermajority of America) that what he did was "good" once they understand that what he did is considered hacking.

Half the point of this exercise is to make those people understand that "hacking" doesn't mean what they think it means. By these prosecutors' definitions, what they each do every morning by logging into a website using an ad blocker in violation of its terms of service or filling in a fake name to a web form is just as much considered "hacking" -- which is the problem. These laws are asinine. They make us all felons. Normal people can understand that without having to know what curl is.

>People in SV keep saying that, and then they churn out yet another social network or photo sharing app. At this point, I'll believe statements like that, even if made on HN, once they are backed by actual action and not just words.

I read your other post where you attributed the SOPA defeat to lobbying rather than activism. I don't agree with you. If you talk to Congressional aids, it was the volume of letters and the phone calls from real people who did it. It broke records.

If you don't agree with that, how about the Arab Spring? The activists themselves attribute their success to social media. Granted many of them are now learning that being citizens in a new democracy is harder than it looks, but you can't deny that there are actions there rather than just words.

What kind of actions are you looking for anyway? We are not going to have that sort of semi-violent revolution in the United States. That just isn't in the cards. But we can have political change without violence -- which is going to involve a lot more "words" than "actions" but is more than capable of getting results.

And what do you care? If we're willing bust our butts trying to change things, why do you have to shit on the attempt?

I want to fix things. Other like minded people want to fix the same things. We have ideas. We have resources. We are going to try. You can help if you want, but if you don't want to help then please go away and if you encounter anyone more helpful on your way out the door then kindly send them back this way.

And let me say this: If you're arguing that we haven't been living up to our potential, I agree with you. We don't need "another social network or photo sharing app." But we are capable of more than that. So don't tell us that we can't do it -- it helps nothing for you to convince anyone to believe you and have them go back to making more social networks and photo sharing apps. This is more important than that.


There is no time like a tragic death to collect some karma for hating whitey.


I think that's the point here: use Aaron's case as a starting point to highlight over zealous prosecutors. Techie-nerd community is also relatively wealthy and influential: getting the word out and actually having an impact will be feasible.


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.


haters


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


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


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.


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.


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...


Don't make the perfect the enemy of the good. A career ending for one overzealous prosecutor would signal an important feature of the incentive structure. Wars are won one battle at a time.


Prosecutors are self-selected to be zealous defenders of the rule of law as it is written. (Quite frequently, people who believe in the rule of law as it is intended choose to go into defense work.)

Thus, they need no financial or social incentives; the work itself is their incenctive, much in the same way that tackling a hard programming program is incentive in itself for a talanted programmer.


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


Duplicate. This one has 1500 signatures already: https://petitions.whitehouse.gov/petition/remove-united-stat...


> 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?


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.


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


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.


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?


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.


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.


Yes, but good luck getting a ruling saying that.


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.


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....


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


I agree, who is this prosecutor?

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


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

http://bits.blogs.nytimes.com/2011/07/19/reddit-co-founder-c...

> 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.


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.


Agreed.

I'd imagine he'd appreciate hearing from you directly:

Home:

23 Kenwin Rd Winchester, MA 01890-1309 (781) 729-4959 https://www.facebook.com/stephen.heymann [544593576]

Office:

1 Courthouse Way, Suite 9200 Boston, MA 02210 stephen.heymann@usdoj.gov (617) 748-3181 (ofc) (617) 748-3100 (ofc) (617) 748-3974 (ofc fax) (617) 223-4607 AMA01(SHEYMANN)

And surely his friends and family care deeply as well...

Philip Heymann https://www.facebook.com/profile.php?id=100004045145173 Ann Heymann https://www.facebook.com/profile.php?id=100004049494750 Becca Heymann https://www.facebook.com/profile.php?id=1243020036 Paul Heymann https://www.facebook.com/profile.php?id=213491 Jacqueline Barnett https://www.facebook.com/profile.php?id=1387024953 Ben Brewer https://www.facebook.com/profile.php?id=4205714 Ovie Carroll https://www.facebook.com/profile.php?id=502888162 Mitch Dembin https://www.facebook.com/profile.php?id=1041605240 David Duffy https://www.facebook.com/profile.php?id=100002032056701 Judith Falk https://www.facebook.com/profile.php?id=100000492529826 Jean Falk https://www.facebook.com/profile.php?id=100004733971567 Andrew Falk https://www.facebook.com/profile.php?id=14232671 Dorothy Falk https://www.facebook.com/profile.php?id=1518875044 Benjamin Falk https://www.facebook.com/profile.php?id=563015230 Jenny Finkel https://www.facebook.com/profile.php?id=205334 Peter Garza https://www.facebook.com/profile.php?id=1250838479 David E. Green https://www.facebook.com/profile.php?id=674733985 Gail Grunberg https://www.facebook.com/profile.php?id=1300305988 Stuart Harrison https://www.facebook.com/profile.php?id=1190476219 Peter Hermann https://www.facebook.com/profile.php?id=100000239474404 Tamara Hunter Hermann https://www.facebook.com/profile.php?id=1038235478 Camilla Hermann https://www.facebook.com/profile.php?id=1233240296 Kate Hermann https://www.facebook.com/profile.php?id=1401535451 Howard Hermann https://www.facebook.com/profile.php?id=1474280711 Ellen Hirsch https://www.facebook.com/profile.php?id=100000665045848 Caitlin Hogan https://www.facebook.com/profile.php?id=213492 Sally Schneider Huebscher https://www.facebook.com/profile.php?id=516995538 Stephen Huggard https://www.facebook.com/profile.php?id=577192251 Lesley Koenig https://www.facebook.com/profile.php?id=1473317935 Susannah Lewis https://www.facebook.com/profile.php?id=100000251989330 Michael Lewis https://www.facebook.com/profile.php?id=1789216769 Peggy Falk Lipscomb https://www.facebook.com/profile.php?id=1767478405 Meimei Ma https://www.facebook.com/profile.php?id=1066522128 Laura Falk McCarthy https://www.facebook.com/profile.php?id=1317939935 Margot Moser https://www.facebook.com/profile.php?id=1286063406 Paul Nesline https://www.facebook.com/profile.php?id=1304233 Ingrid Parl https://www.facebook.com/profile.php?id=1243020067 Steen Parl https://www.facebook.com/profile.php?id=1439593849 Michael S Pickett https://www.facebook.com/profile.php?id=100001757657625 Lucille Pierce https://www.facebook.com/profile.php?id=1628690441 Philip Reitinger https://www.facebook.com/profile.php?id=637280654 Ann Ross https://www.facebook.com/profile.php?id=1076564480 Matthew Shopsin https://www.facebook.com/profile.php?id=1007190 Martha Stansell-Gamm https://www.facebook.com/profile.php?id=1292492918 Lindsay Hogan VII https://www.facebook.com/profile.php?id=1581030090 Anna Wilson https://www.facebook.com/profile.php?id=663036632 John Yarbrough https://www.facebook.com/profile.php?id=794884761 Ellie Falk Young https://www.facebook.com/profile.php?id=1660197742

Carry on, Internet.

- O.K.


He and his family members have numerous computing industry connections in their network. Turn these connections against him, and isolate him.

David E. Green is VP public policy at NBC Universal. He should be aware of what a pariah Heymann is.

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