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Lawmakers slam DOJ prosecution of Swartz as 'ridiculous, absurd' (thehill.com)
236 points by wilfra on Jan 16, 2013 | hide | past | web | favorite | 63 comments

" Now that it is politically advantageous for them to do so, and their actions can have no practical effect, lawmakers slam DOJ prosecution of Swartz as 'ridiculous, absurd' "

If you want a member of congress to act on something, you have to ask them. That's how the system works. If you don't put in the effort, their time is spent on the thousands of other people clamoring for their attention who were more motivated and passionate than you were.

Really didn't want to bring this up, but I actually floated the idea of the community pursuing a political strategy to help Aaron here on HN: http://news.ycombinator.com/item?id=4529907

The suggestion didn't get many upvotes, and was utterly belittled by one of HN's most prolific posters. Something to keep in mind before you ridicule the small number of representatives who are actually friendly to tech. (To be clear, I could have taken action myself anyway, and I didn't find the time. That's on me.)

It's really, really unfortunate that this is the top comment.

This is probably the top comment because the zeitgeist is that the system is broken and making nice with it is a failing strategy.

So engaging the system would have resulted in an outcome that is worse than what actually happened? I don't think so.

It's a false choice. You can engage the system and change it at the same time. Of course you can.

The system was engaged with, that was the problem. People have a default assumption of adequacy when it comes to interaction with the state, this episode shows such a default assumption is not only unwarranted, but actually dangerous.

In my experience, the more you engage with the system, the more willing you are to rationalize or even overlook its failings.

I've spent time doing both, and I think we're just going to have to agree to disagree.

No practical effect for Aaron.

But there is always a next person to come along. It benefits them.

And there is a possibility that in the process of investigating someone will point out to them that PACER is breaking the laws that they wrote about how much can be charged. This might lead to more than symbolic reform there.

While it may be politically advantageous that doesn't mean it's not a good thing. Remember, this "tough on crime" attitude is largely the product of public outrage at the spike in crime in the 1970's and 1980's. The drug war was buoyed up on a tide of "just say no!" moms and dads in the 1980's and 1990's.

Congresspeople aren't completely immune to responding to broad public pressure, if that is indeed what develops from this case.

Just to play devil's advocate here though, how many people in the US wrote their congressperson over this? Zoe Lofgren was mine at the time Swartz' case went public in the media, and I didn't write.

I guess that makes me partially guilty, too.

How? How can Congress affect a US attorney once confirmed, unless by impeachment? I guess that a committee could call in the attorney for hearings, but how likely is that?

The mere threat of damaging their political reputations in a hearing is probably enough to make a prosecutor suddenly change their mind given that it's all these prosecutors ever cared about in the first place.

Yeah, that's how democracy works. Actions that are forward progress eventually become politically advantageous. That's pretty much the single principle that makes democracy as functional as it is.

Certainly we wish they'd done something while Aaron was alive.

The effect we can now hope for is prosecutors everywhere will learn that despite it being very unlikely that something bad will happen when they over-prosecute for career advancement, if it does, they're going straight under the bus.

A moments hesitation in the mind of the next Ortiz/Heymann duo thinking about levering up against a "soft target" is a very good thing.

You don't think Congress agreeing with us on this can have any practical effect? You realize they are the ones who make the laws and confirm judicial appointments, right?

I know it's cool to hate on the government and criticize everything they ever do and assume they are all idiots - and most of the time they deserve it - but if they are on our side on this that should be welcomed and they should be given credit for it.

My point is that I don't think Congress actually agrees on this. Zoe Lofgren represents Silicon Valley. Making statements like this could just as easily be trawling for votes as it could be genuine outrage over the issue.

No Congressperson ever said these things while Swartz was still alive, and his prosecution was just as ridiculous then, but saying so wouldn't have netted you nearly the positive media coverage in the tech press that it will now.

Um. We didn't do anything much either before he killed himself. I think it's fantastic that they're on Aaron's side here - yes, it's unfortunate that it took his death to make them on his side, but that blame lies with all of us, not the lawmakers.

We made this a big deal after his death, consequently leading to the politicians making their claims now. Had we made a big deal before he died, perhaps the lawmakers would have done the same.

Our fault, not theirs. They really are representing us here.

> Our fault, not theirs. They really are representing us here.

Why are you blaming the victims? It's not difficult to determine that the current penal system is ridiculous, and unlike us, it's their responsibility to do so. <hyperbole magnitude="a bit"> Instead, they focus on making copyright legislation to support corporate interests. And the courts focus on whether or not the 5th Amendment was a good idea after all. </hyperbole>

I agree with you completely that we should be doing more to advocate for reform, but it is far from being our fault.

I don't know. I think the fact that he killed himself is a very strong message that wouldn't have been attached to movement (by 'us') prior to his death (not that I'm happy it happened).

Martyrdom is a hell of a drug.

I think the counter point would be that if they actually do make positive changes to the laws to reflect their newfound wisdom then perhaps their public pandering will actually be a good thing.

The public just needs to make sure that they do make changes and aren't just happy with them eating crow. Saying shit is broken just to look good does nothing for the people, but if they actually fix shit then they can say whatever they want imo.

I don't know if you can really blame congresspeople for being apathetic while Aaron was alive if even HN of all communities largely was as well.

Until action takes place, there's no distinction between political opportunism (i.e. blowing a lot of hot-air at the press to look good and maybe win a few votes) and genuine concern about the state of the law.

The key bit is where Rep Issa says “whether or not there was excessive prosecution is something we’ll look at.” This means, thankfully, that we'll be seeing some form of congressional investigation of Aaron's prosecution.

Confirmed here: http://www.huffingtonpost.com/2013/01/15/darrell-issa-aaron-...

When a legislator say they will "look" at something, it means they don't intend to actually do anything about it but are simply attempting to pacify their constituents by promising something.

But in the case of Darrell Issa, we have a Congressman who,

A) Worked with Aaron Swartz to fight SOPA,

B) Sits on the House Judiciary Committee, and

C) Has a history of hauling the Justice Department before Congress.

Rep. Zoe Lofgren and Rep. Jared Polis are also on the House Judiciary Committee, and could potentially lend bipartisan support to any investigation.

Rep. Issa is the real deal, he's a special member of Congress. He's a California tech entrepreneur and also voted against the TARP bailouts.


He was also responsible for the absurdist witch hunt that resulted in the impeachment of Gray Davis.

How many "constituents" of Issa's do you think actually care about Aaron Swartz? Do you think the San Diego/Orange County population have been running major protests for Swartz?

a "martyr" for why Congress should limit the discretion of prosecutors.

Not going to lie, that sentence chills my bones. Lack of judicial discretion got us minimum sentences in the "war" on drugs. I don't have much faith that lack of any prosecutorial discretion will turn out much better.

This is a power grab by congress, nothing more.

“It's absurd that he was made a scapegoat. I would hope that this doesn't happen to anyone else.”

This type of shit happens every day. This is how prosecutors in this country operate.

If you want a legislative response, now is the time to write to your representatives. The EFF has an easy tool to send the appropriate people a message:


The prefilled text is about the CFAA, but you can change it to say whatever you want before sending it. Don't feel apathetic, or think that you can't make a difference. One thing Aaron Swartz showed us is that Congress can be made to listen to the public, if we are loud enough.

Contacting your representatives can make a difference. We saw it with SOPA and now we see it here.

Now we, as a community, need to keep up the pressure on lawmakers and make sure meaningful reforms are passed to make sure something like this never, ever happens again.

This happens all the time. Many face long sentences while innocent. How many innocent people are sitting behind bars today because they thought no one would ever believe them in court? I expect the number is small, but that does not change the circumstances of this case. Only the most immoral of our society could ever put a man in a cage because of a copied file. They equate their justice to morality, but in the end they only show the very nature of the animal within themselves. Man is a cunning and advantageous creature, the most deadly of them all.

So what happens now if the prosecutor commits suicide, after being singled out by an Internet mob for doing his/her job?

No mention of plea bargain reform. That's the real issue.

Or the extreme resource imbalance between prosecution and defendant that makes the threat of trial all the more powerful. What about at least:

1. Maximum sentence cannot be more than twice any offered plea bargain.

2. Making the counts non-severable. Or the defense only needs to win half of them to be cleared of all charges. Something needs to discourage stacking on limitless ridiculous charges and hoping some stick.

3. The government needs to cover the expenses for the defense, limited to the amount spent on the prosecution. (this doesn't seem politically palatable, but it needs to be addressed somehow)

Yeah, these things are large meta-issues that aren't a political shoe-in. But pretending that merely amending the CFAA would have prevented this from happening is wishful thinking.

Also, making TOS's inapplicable (which, didn't anyone see this coming with Lori Drew? But I digress..) wouldn't have stopped the prosecution in this case from claiming that simple trespass into an unlocked network closet should be considered felony federal "unauthorized access to communication network".

>3. The government needs to cover the expenses for the defense, limited to the amount spent on the prosecution. (this doesn't seem politically palatable, but it needs to be addressed somehow)

I like the idea of this, the thing to watch out for is going to be accounting shenanigans. For example, if you account for resources the prosecutor uses but not the police, they'll just arrange it so that all the expensive legwork is done under the auspices of law enforcement and on paper all the prosecutor's office does is type it up and file the paperwork.

1. Minimum plea bargain cannot be less than half of maximum? What about crimes where the sentencing guidelines are already spanning 2x? That would mean you could get a lighter sentence by going to trial than the minimum plea.

Of course you can get a lighter sentence by going to trial - by being acquitted.

And no, it would not work that way, because if you had an open and shut case with a plausible sentence of 20 years, prosecutors wouldn't or at least shouldn't be offering plea bargains of under 10 years.

I saw an argument recently, that most of the problem has been caused by the fact that sentencing has been pulled out of the hands of the judiciary (though mandatory minimums etc). Judicial discretion in sentencing was once a check on this sort of thing.

That's not how criminal procedure works.

Pursuant to constitutional law, you are required to start with the charges first, so the defendant knows what they are being accused of and can prepare a defense.

In some but not all jurisdictions, prosecutors may offer "plea bargains" that reduce the sentence, or reduce or drop some of the charges, in lieu of proceeding to trial. In some jurisdictions (i.e., large portions of Texas), there are no plea bargains; you always go to trial.

Maximum sentence is set by law, as a matter of constitutional rights. Thus, your solution would simply restrict plea bargains to not being any shorter than 1/2 of the maximum sentence (in Aaron's case, 16 years).

Making the counts non-severable is a legal and constitutional impossibility. Double jeopardy requires the prosecutor to charge you with all possible crimes arising from a single act (or intertwined set of acts) in the same criminal proceedings. Once those criminal proceedings have been adjudicated (i.e., a guilty plea, a conviction, a not-guilty verdict, or charges dismissed with prejudice), the prosecutor cannot ever charge you again for any other crimes arising from that act. Your solution would either require them to choose which charges to pursue and which charges to drop forever. That's fine in cases like Aaron's, but that's not something you want when you're dealing with a rapist or a murderer (i.e, cases far more common than Aaron's).

Finally, the last suggestion, is not simply politically unpalatable, it is economically impossible. Most criminals are actually guilty; making the prosecution pay for every defense would increase the costs of the criminal justice system 1000fold. A better solution: make the prosecution pay the defense costs where (a) a defendant that is found not guilty or actually innocent, (b) a hung jury trial, if the prosecution does not refile, or (c) the prosecution drops charges before trial. This would accomplish what you want in a realistic manner (and is actually already the law in some jurisdictions).

> your solution would simply restrict plea bargains to not being any shorter than 1/2 of the maximum sentence (in Aaron's case, 16 years)

No, I phrased it the way I did for a reason. A prosecutor who does not think that the crime is serious enough to warrant 16 years can still offer a lower plea bargain. In Aaron's case, they may have offered 1 year in jail, making it so that by asserting his right to trial, he would be doubling his sentence to 2 years in the worst case.

> Your solution would either require them to choose which charges to pursue and which charges to drop forever. That's fine in cases like Aaron's, but that's not something you want when you're dealing with a rapist or a murderer.

Of course I know about double jeopardy. They have to choose which charges to pursue and which to drop forever sometime. The problem as it stands is that charges are piled on in a shotgun approach, making it very hard for the defendant to concentrate on what they're actually fighting, and ballooning court costs. And shouldn't rapists and murders be getting charged with rape and murder, respectively? We certainly don't want punishment of rapists and murderers to rely on whether they also happened to be disturbing the peace at the time. And yeah, I'll give you that all-or-nothing is a bit harsh, which is why I said something else about being acquitted on the majority of counts would result in complete acquittal. Create a mechanism so that the prosecution wants to make pretty sure you're guilty of something before accusing you of it.

> Most criminals are actually guilty; making the prosecution pay for every defense would increase the costs of the criminal justice system 1000fold

So then in the name of economics, guilty criminals don't actually have a right to a trial? It would still be in an obviously-guilty defendants interest to take a half-sentence plea bargain and avoid trial. I do see it being more palatable if it only applies to non-guilty outcomes, but with the following caveats: limits increased to 2x what the prosecution spends, and the money is loaned out by the government as the case progresses and is then owed by the defendant in the event of a guilty verdict. Sorry, as you should know, justice costs money.

I don't think you've looked at what happens when rules like only 1/2 sentence plea bargains get implemented. Aaron definitely would have been looking at 17.5 or whatever as a plea. Look at the change to CA tax code. They didn't give refunds to the out of staters, they're going after in staters. When people demand arbitrary equality, the result is not turning the bad scenario into a good one. It's turning the good scenario into a bad one.

I see what you're saying, especially as a general ask-and-ye-shall-receive rule, but something determines what the statutory maximums are even if it takes a while for that feedback to occur (average sentences being too short due to prosecutor laziness, jail overcrowding, general outrage, etc). It would also have shattered the illusions of those who condemned Aaron's actions but thought he would end up with a slap on the wrist.

>“We're looking at the real question of open government,” Issa said. “Has the government or even MIT been holding back materials that the public has a right to know?”

>Issa said he wanted to make sure “that what is paid for is as widely available as possible to the American people.”

It's good to see lawmakers paying attention to Open Access. While it is important to make sure that the unscrupulous practices of the Department of Justice are curtailed, it is also important that people pick up and carry on Aaron's campaign for Open Access.

I am upset not just because Aaron was treated unfairly, but because he was treated unfairly for doing the right thing. Freedom of Information is at the core of Internet values, and that's what Aaron fought for.

Help me, I can't find "freedom of information" in either RFC 791 or RFC 793.

Help me, I can't find "freedom of information" in either RFC 791 or RFC 793.

Come on, don't be that guy. You know when someone says "freedom of information is at the core of the Internet's values" they're really saying that freedom of information is at the core of the values of the people who worked hard to build and promote it (see Vint Cerf's recent statements about the ITU conference: http://venturebeat.com/2012/12/04/vint-cerf-save-the-interne...), not that the RFCs defining the Internet Protocol include those exact words.

My point is that the Internet does not come packed with an ideology, the personal politics of some of its creators aside.

To those of us who grew up with the Internet as our hometown and BBSes as our place of birth, it sure seems to have an inherent ideology just by its very structure.

Values aren't always codified in formal documents. If they were, Aaron Swartz would still be alive, since a key fact that lawyers have been hammering home to us for the past few days is that federal prosecutors are only capable of following the rules as they are written.

In other fields of human endeavor there's plenty of other sources of knowledge. For example, folklore.

"The Net interprets censorship as damage and routes around it." -- John Gilmore

"History is rife with examples of governments taking actions to ‘protect’ their citizens from harm by controlling access to information and inhibiting freedom of expression. We must make sure, collectively, that the internet avoids a similar fate." -- Vint Cerf

C'mon. Since when are technical people so whimsical? Believe in folklore, have your politics, but don't make the ridiculous assertion that a technology for moving bits around comes with a particular set of politics baked in. What, praytell, are the politics of the transistor? The internal combustion engine?

Defining the Internet as "a technology for moving bits around" is incredibly reductive and sterile, and does nothing to capture the reality of it. You may as well say that a brain is a "collection of cells that transmit electrical potentials". What are the politics of a neuron?

The Internet encompasses more than its hardware and algorithms. It was created and is operated by tens of thousands of people with real values, is used by many more, and freedom of information is a very important principle for many of them.

What are the politics of a neuron? There aren't any. It's mechanism. You're free to give your neurons whatever policy you wish.

There are people who created the internet who believe in freedom of information. There are people who were just working on a defense contract at a major defense contractor. There are people who operate it now who believes lots of different things, and even those that believe in "freedom of information" in some sense have all sorts of definitions for what they think it means.

Creators of technology don't get to decide what politics will be attached to that technology. RMS doesn't like Android, which contains GPL-ed software. Does it matter? Of course not.

Maybe it's late, maybe I'm just slow, but it feels like your argument is jumping around, so I'll just ask: What are "Internet values"? Are you saying the phrase is meaningless because the Internet can't have values because it's just some hardware and algorithms; or are you saying that "Internet values" can theoretically be anything, but what they happen to be are the current laws regarding Internet use in the United States, which means that "Freedom of Information" is not an "Internet value"; or are you arguing something else?

I'm saying "internet values" is meaningless, fluffy terminology. Some of the people who created the internet might have had certain values, but that doesn't make them "internet values" any more than whatever believes the inventors of the transistor held makes them "transistor values."

That is not to say that we as a society don't have values about the use and function of the internet. But we get to decide what those values are, not the people who happened to create the hardware and the protocols.

I feel like this whole conversation could have been averted if you had just given "Internet Values" a charitable interpretation. Why couldn't "Internet Values" have meant "the values we as a society have about the use and function of the Internet"? I'd argue that if you look at how people actually use the Internet, it's closer to how the founders wanted it to work than how the CFAA stipulates that we should use it.

The ironic thing is that rayiner is displaying exactly the same problematic rhetorical behaviours that we're all so upset with Ortiz for. Wilfully over-narrowing/widening an interpretation in order to win an argument at any cost.

America's slavish veneration of their constitutional text is largely responsible for this poisonous legalistic mode that has infected their discourse at all levels. Discuss.

Precision keeps you from falling into the trap of assuming the universality of your assumptions. Def was doing it with "information freedom" just now, but that's just the flip side of the coin from statements like "of course we need stronger laws against hacking." Your friends all agree with you, so you assume everyone shares your premise, then get surprised when people don't reach the same conclusions.

Are we talking about the values Vint Cerf has re: the Internet, or the values society as a whole has re: the Internet? Those are two different sets or values, and I'd argue that the latter doesn't include "freedom of information" in anything but the most diluted sense.

That's why I'm being pedantic about the distinction. Vint Cerf can't imbue the Internet with his politics. Society at large has adopted a different set of politics regarding the Internet. My mom doesn't care about free information. She just doesn't want anyone to steal her credit card numbers while she's shopping on Gilt.

The internal combustion engine contributed to a significant increase in the freedom of movement of individuals.

The Internet provides a similar boost to the free flow of information, spreading it further than it would otherwise.

Both of these outcomes have political implications, and I would go so far as to say are nearly inevitable emergent behaviors of the two inventions.

Lets not forget he broke the law wether you or I think that what he did was for the benefit for good of the people or not. Laws are laws and what do I tell my children it's ok to break the law if your an activist. Making a saint out of basically a criminal because he believed in Internet freedom is insane. Who did this guy think he was Robin Hood. I think healthcare should be free should I steal money and give it to those without insurance. No, I can tell you this no person in government has the right to do anything but uphold the law. If the laws aren't right that is another conversation. Thousands of people are in jail for pot and I think it should be legal, but I'm not going to kill myself to try to get the law changed that's just stupid.

I'm not sure your rhetoric would stick much here on HN. I think this is trolling but I'm willing to give you the benefit of the doubt.

The laws he may have broken are not necessarily the ones he has been charged with, this is partly why it has been called persecution overreach.

Breaking immoral laws is our moral obligation, there is no other way around it.

Would you expect anything less if I were to enact a law that made your children sexual slave ?

Would you expect anything less if someone were to take public funded research and locked it up behind huge and crazy paywall without any competition ? Huge costs for things that are in the public domain, from a copyright prospective, but that JSTOR tried to keep that as a profit center.

They are the one stealing from the public and akin to companies like the MAFIAA at that.

If you think healthcare should be socialized then go and tell your politician and fight back with the groups that share your convictions.

In my mind he broke very little laws and this is a crazy overreaction from the persecution.

Damn you may well be a troll with your trolling attitude and 11 minutes old account (mine is only a few days old).

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