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U.S. Attorney issues statement defending prosecution of Aaron Swartz (bizjournals.com)
43 points by Pr0 1832 days ago | hide | past | web | favorite | 116 comments

I guess it's pretty much what you would expect them to say. I still don't think threatening to prosecute him with a charge that could put him in jail for multiple years for an act that should have had a maximum penalty of no more than 30 days is anything they should have done or been able to do, and the fact that they "offered" to make him a felon for the rest of his life and send him to prison for "only" six months if he would waive his right to bankrupt himself proving that he didn't do it is not exactly endearing. But it's what they do every day, so naturally they think it's normal.

I've already lost count of how many times I've said this in the last few days, but we need to fix this. These laws have got to change so that this can't happen.

Be careful that you don't allow a minimum penalty that is much worse than the law says is due. If you believe Alex Granos, the defense's expert witness, there was no penalizable crime[1]: JSTOR allowed unlimited downloads to people connected to MIT's network without regard to speed, MIT didn't prohibit anybody from connecting, and the closet was unlocked. The more I learn, the more the prosecution has to answer for, let alone however much this kind of thing happens to other people, even for other kinds of crimes. If this is the means by which convictions are obtained and careers are scored, there are some truly perverse incentives in the Department of Justice.

1. http://unhandled.com/2013/01/12/the-truth-about-aaron-swartz...

I'm sympathetic to that. What I'm arguing is that there shouldn't even have been anything plausible to charge him with that had a penalty that high. It should have been so obvious that what he did was not something that should have had a felony penalty attached that the fact that the law allowed prosecutors to think they could plausibly charge one (to say nothing of thirteen) is a serious failure of the statutes to differentiate in severity between different classes of offense.

"...for an act that should have had a maximum penalty of no more than 30 days"

Where are you getting 30 days from?

>Where are you getting 30 days from?

My sense of proportionality?

See also what actual trespass is punished with: http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/...

My sense of proportionality?

Unfortunately, unless you are a member of congress with a majority backing, that's not worth much.

If he had only trespassed, then 30 days might mean something. But there is reasonable suspicion that he did more than that, according to the laws currently on the books. Are the laws right? Probably not. But it's the US Attorney's job is to uphold those laws as they're. Do they have discretion in how the do so? Yes. Did they use it. Yes.

It is a tragedy that Aaron took his own life. People are emotional right now. We would all like a reason, something that we can point to and change so something like this never happens again. But it's not that simple. The truth is we probably will never fully know the reasons why Aaron took his own life.

But mounting a witch hunt is not the right way to go about it.

>Are the laws right? Probably not.

Hence the trouble.

I've said before that I don't think these prosecutors probably did anything out of the ordinary. But that's the problem. The problem is that this is somehow ordinary. That needs to stop. And making an example out of a high profile situation can be one step to making it stop.

I don't know how much I really care if they get removed or not, and I don't really expect them to, though I certainly wouldn't cry for them if they did. As I see it, it's more a step on the road to fixing the general problem than anything to do with them as individuals. And certainly the problem is bigger than them and doing only that would be wholly inadequate.

>We would all like a reason, something that we can point to and change so something like this never happens again. But it's not that simple.

I think it's more accurate to say that it's not that easy. Because it is pretty simple: We need to change the law so the large majority of existing felonies that don't involve violence, physical injury or personal financial gain cease to be felonies, so that the justice system can stop being a prison factory that inherently requires coercive plea bargains in the overwhelming majority of cases merely in order to stop the system from collapsing under its own weight. That is not a trivial undertaking, but it's entirely solvable if we have the will and the numbers to make it happen.

I think that the current laws are right.

I wish he that didn't take his own life. But remember that it was his choice to break into that building and those networks in the first place.

What do you think they should have charged him with, specifically?

Unlawfully Obtaining Information From a Protected Computer, and only the JSTOR counts. All the other counts --- wire fraud, reckless damage, CFAA offenses against MIT --- seem spurious.

Considering that JSTOR was not inclined to prosecute and MIT was ambivalent, I'm not sure I think they should have charged him with anything.

Copyright infringment?

He did access MIT's network after they tried to kick him off. That's not nothing.

If it's not nothing, what is it, exactly? Lori Drew? Worse?

They didn't threaten him with the maximum sentence allowed by the law. They also didn't duct tape him to a chair and electrocute him. The two statements are approximately as meaningful, since Swartz was charged with 13 felony counts and the maximum penalty for his case would have been longer than the base penalty in California for murdering a police officer during the commission of a felony.

What they did instead was threaten Swartz with a calamitous 6-7 year sentence if he exercised his right to a jury trial, demanding instead that he testify under oath that he was guilty of 13 felonies and accept 4-6 months in prison.

6mo in federal prison and labelled as a felon for downloading journal articles. You think that was a fair deal, and he should have taken it?

Of course not. I think, and his lawyer thought up to the day Aaron died, that Aaron was in very little danger of a custodial sentence. He was a first time offender, his crime had no financial purpose, he had no co-conspirators, any damage he caused was minimal, and he cooperated with JSTOR.

The problem is that the 6 month sentence wasn't what the prosecution sought at trial; it was available only if Swartz plead out to all 13 felonies. To go to trial, he had to risk 6 years.

He didn't say that.

Also, for the sake of accuracy--it wasn't just downloading journal articles. It was downloading copyrighted journal articles while using someone's network and evading their attempts to kick you off.

Any public visitor can download articles using the MIT network. Aaron dis just that, but he downloaded more than one articles. Perfectly legal.

He didn't evade anything. He just used MAC address spoofing. That's not illegal either. There was no attempt to kick him off.

MIT allows people to use their network, but that doesn't mean they give up the right to revoke permission. MIT took multiple measures to get block Aaron. There is nothing illegal about spoofing your MAC ID, but spoofing your MAC ID to get around a ban suggests that you know your permission to access a network has been revoked, yet you continue to do so. That's the illegal part.

You can interpret a mac address ban that way, but you could also interpret it as implying that you're using too much resources at once, so you can't do that, but throttling your download rate might be okay.

That's the illegal part.

Do tell. None of what you describe is illegal in the U.S.

Um, you are completely misinformed. See: http://www.volokh.com/2013/01/14/aaron-swartz-charges/

Carmen Ortiz's defence is an attempt to shift the Overton window.

Her argument is that he was charged with so many charges that if he was given the maximum sentence on all of them he would have been put in prison for a very long time. That sets the upper limit of the Overton window. Instead of that upper limit, she is quick to point out that he was offered six months imprisonment if her admitted to the charges.

But taken without context, six months imprisonment for non-violent activities that, even if they had been successful, would have been very unlikely to have had a significant adverse impact on anyone is extremely disproportionate.

The other problem with her 'maximum sentence' argument is that it was the USAG office that decided to charge him with multiple charges all relating to the same events. If they had just charged him with "access[ing] a computer without authorization or exceeding authorized access" and no other charges, the maximum sentence allowed under 18 USC 1040 would have been 10 years (see http://www.law.cornell.edu/uscode/text/18/1030), and under the sentencing guidelines he would have fallen under Offence Level 6 (see http://www.ussc.gov/Guidelines/2012_guidelines/Manual_HTML/2...). Assuming no criminal history, the sentencing guidelines would dictate 0-6 months imprisonment and/or a $500-5000 fine.

She (along with Heymann) is an inveterate authoritarian who deigned to offer him a break from her ridiculously overcharged case, calling it a favor.

She's mentally ill, that one.

The statement contains no new news, it was already reported that there was an ultimatum from the prosecution for him to either plead guilty to all 13 counts, or go to trial where he faced a sentence of up to 50 years in prison.

Attorney Jennifer Granick, the Director of Civil Liberties at the Stanford Center for Internet and Society, pointed out that plea offers are not binding on the court and are presented as optional suggestions for the judge to consider during sentencing. Normally the judge goes with the "neutral" sentencing guidelines, regardless of any deals.


In this case, neutral guidelines are capped at 5 years per count, for a potential sentence of 65 years in prison, with the guilty plea deal.

As Granick states:

> [T]he court is not constrained to sentence as the government suggests. Rather, the probation department drafts an advisory sentencing report recommending a sentence based on the guidelines. The judge tends to rely heavily on that "neutral" report in sentencing. If Aaron pleaded to a misdemeanor, his potential sentence would be capped at one year, regardless of his guidelines calculation. However, if he plead guilty to a felony, he could have been sentenced to as many as 5 years, despite the government's agreement not to argue for more. Each additional conviction would increase the cap by 5 years, though the guidelines calculation would remain the same. No wonder he didn't want to plead to 13 felonies. Also, Aaron would have had to swear under oath that he committed a crime, something he did not actually believe.

Those who argue that Swartz should have plead guilty to all 13 counts are either unaware of these facts, or choose to present their opinion in a way designed to mislead the public that the prosecutor's deal was reasonable.

>plea offers are not binding on the court and are presented as optional suggestions for the judge to consider during sentencing

That's not entirely true. There are two basic types of pleas. One is a sentence recommendation - the government recommends a sentence, but the court is free to do what it wants and the defendant cannot withdraw the plea if they are unhappy with the sentence. However, rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure allows for plea agreements under which the court may only either accept or reject the plea and the stipulated sentence; it cannot change the sentence. If the court rejects a plea made under this rule, the defendant is free to withdraw their plea and go back to square one (face a trial). The Rule that the plea is being made under is always specified in the plea agreement in writing. I don't know which type they were discussing, but he would have had to be insane to plead guilty to 13 felonies and not insist on an 11(c)(1)(C) plea.

He may have been stressed not over the initial sentence, but over the the consequences. For one thing, he would have been under federal Supervised Release for a period of either 3 or 5 years, during which a judge could have barred him from using a computer or the Internet. Any violation of these rules could have then yielded an instant sentence of up to the length of supervision - either 3 or 5 years - even if the violation occurred on the last day of his supervision. These types of restrictions are put in place all the time.

Finally, pleading guilty to 13 felonies may have been problematic from a criminal history point of view. If he were ever charged with anything in the future, the judge or prosecutor would be unlikely to show mercy on someone that has 13 felonies on their record. In some states, any prosecution for a felony subsequent to this deal would have qualified him for a three strikes/habitual offender status and an accompanying life sentence (Nevada being one, for example, that does not distinguish between violent and non-violent felonies for purposes of three strikes sentences - a felony DUI in Vegas after this plea would have earned Aaron a life sentence).

I thin Granick's argument is questionable.

1) judges generally rubber stamp pleas 2) pleas can be made contingent on sentencing, no danger of crazy judge surprising the defendant 3) you can agree you've violated the letter of the law while maintaining that what you did should not be illegal.

Also, Aaron would have had to swear under oath that he committed a crime, something he did not actually believe

What about the evidence to the contrary? He was caught on camera covering his face with a bike helmet.

What constitutes a crime is not for the accused to determine.

Something's not adding up for me. If he were convicted at trial of all 13 counts the most he could face is 50 years but if he plead guilty the max is raised to 65? How does that work?

If they were only looking for a 6 month sentence, why did they charge him with 11 counts of fraud? The judge is free to disregard the proscecution's recommendations and sentence the defendant to the full legal maximum. This is not common in federal cases, but it does happen.

They charged him with that many counts because they wanted to extort him into signing a plea. That's pretty much how they work these things. It's standard operating procedure - overcharge, then sign the plea.

The interesting part is that they wanted him to plead guilty to 13 felonies. That is relatively unusual, as in most cases they agree to drop all but one or two counts. In many states that deal would qualify him for a three strikes penalty if he were ever charged with a felony subsequent to this case (a state-based computer crime, for example). If he had taken the deal and were charged a few years later with any felony in Nevada, for example, he would be exposed to a life sentence.

Exactly my thought. Her statement is deliberately misleading.

It really isn't. Talk to some lawyers. It's exactly what happens in criminal cases like this, and that's not obviously a bad thing. I'm glad lots of people are asking questions about the plea system, but it's worth getting informed before reaching simple conclusions.

What happened here was a proposal where the US Atty. would agree to ask for six months in a minimum-security prison (where Aaron could have, for example, read whatever he wanted and had debates with financial criminals for six months), would agree to let Aaron's lawyers present an argument for a suspended sentence ("probation"), and let the judge decide. The judge here has a kind of harsh reputation, but, from talking to local lawyers, it seems that that mostly comes from being pro-government. Aaron would probably have gotten six months.

This is the statement I take issue with:

> At no time did this office ever seek - or ever tell Mr. Swartz's attorneys that it intended to seek - maximum penalties under the law.

Emphasis on the "at no time" part, which includes after the plea bargain fell through. I repeat what il said. Why so many counts?

No, the it's highly uncommon for a proscecutor to refuse to drop any charges as part of a plea bargain. Not only would Aaron have been a convincted felon, but he would have had a dozen felonies on his record as priors. If the DA didn't want to make an example out of him, they would have dropped most charges and reduced the felony to a misdemeanor as is done in the vast majority of these cases.

Let's say a person takes the deal, goes before the judge, the judge sides with the prosecutor, and the judge gives the defendant six months in prison. At that point can the defendant say, "actually, thanks but no thanks, I want a jury trial"? Or is the defendant bound to the sentence once he agrees to go before the judge?

Once the defendant agrees, he agrees. But he can make the plea contingent. "I'll only plead guilty if the sentencing judge only gives me 6 months."

Sorry, but we're overstocked on torches and pitchforks and need to move them. Can you come back and be reasonable at some other time?

Plea bargaining is a form of negotiation.

Choosing between serving more time and serving less time isn't much of a deal when you think what you did was right and you are innocent.

Doing what you think is right when you know it is probably illegal is called civil disobedience, and it usually entails a willingness to go to prison when done right.

Why does it matter what the defendant thinks is right?

But in no other country are the chips stacked as high as they are against the defendants as they are in the U.S. in a federal case. Ortiz, via her office, charged Aaron with 11 counts of fraud. If you think you're innocent, there's no negotiating out of pleading guilty to at least some of the charges. That is fundamentally wrong.

I don't think plea bargaining is the best way to run a justice system either, but that's the reason why.

About as much as putting a gun to one's head is a form of negotiation.

"While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge."

This was not negotiation with a gun.

Swartz was first to point a gun (i.e., initiate force). No one forced him to keep breaking into MIT's wireless networks and its wiring closet, nor did anyone force him to violate JSTOR's rules and copyrights. He chose to do all of those things, and the government was merely doing what it's supposed to do: retaliate.

The statement makes clear what I had suspected, as a lawyer, from the outset: Lessig, some criminal defense attorneys, and a few other parties have mounted a witchhunt that has little to do with the case in hand.

I should add that I'm not far from Lessig politically, and I don't have any strong disagreement with open-information advocates. But Lessig turned this case into something it shouldn't have been, and he benefits from that personally. Aaron's lawyer, a partner at a major firm, is using this case for his own personal publicity, and that is a shame too. "Follow the money" works for people who manipulate hackers too, not just those who oppose them.

I've noticed a lot of legal mistakes in this forum. To start with, the attempt here wasn't "victimless," and the law routinely punishes unsuccessful attempts even when nobody is hurt. "Computer hacker offered plea deal of six-months in minimum-security prison after seeking to make an expensive archive that generates significant revenue public" wouldn't arouse anger among anyone except extremists. It might arouse political disagreement, or even a small protest, but not a call to fire prosecutors. What it aroused before Aaron's suicide was a small effort to raise money for his legal defense, which didn't really go anywhere. If we're going to be rational, that shouldn't change when a defendant commits suicide while the case is pending.

There's other manipulative PR worth identifying. Aaron's lawyer said that he told the prosecutor his client was a potential suicide risk. How does anyone who reflects for a minute think that a prosecutor's office should respond to that. They did what they usually do, which is to tell the lawyer that they could revoke bail and monitor the client if that was what the client wanted. What else should they have done? Do we think all charges against suicidal people should be dropped?

Welcome to Hacker News, SocioTech. I see you joined when the Swartz case news broke and all of your posts so far have been to defend the actions of the prosecution while demonizing Swartz and his advocates.

That's fine, but why not take a look at the front page of Hacker News? As a tech guy and hacker, I'm sure there are lots of other topics that you as a new member would enjoy discussing and not just this single topic.

I'm a reformed programmer who's now a lawyer (with a pretty high profile, but no connection to the US Atty's office), and I have another account that is more easily tied to my real-life identity. I'm not on HN a lot, but I know the community pretty well.

This whole case is too politically touchy for me, which is why I'm on this different account. The last thing I want to do is get the attention of Anonymous, or anyone else. I am connecting through Tor when I write this. Maybe that underlies my fear of the mob mentality and the idea of witchhunts. ;)

Interesting. We should all beware. There are Reputation Management firms hired by people like Ortiz specifically to help "correct" what they believe are knocks against their reputation after a controversial incident. It usually starts off with carefully crafted and prepared statements followed by in-depth newspaper interviews in Sunday editions several weeks after the controversial incident. It ends when they write a book which presents their side of the story, uncontested, and provides an opportunity for them to have a newspaper article written against this one-sided story. In between they do have folks who would sandbag online forums like this one.

Yes - it has me wondering who SocioTech is, who he or she works for and what their role is there. Arguably the behavior reflects someone who is PR, political party or DA office, which in itself would be fairly big news.

Reading about this case, I've seen lots of people called "shills" for the US Atty's office or the DOJ. You probably won't (and maybe shouldn't) take my word for it, but that's just not how these organizations work. It isn't even close.

People in small communities often overimagine their own importance. That's not an insult, just a psychological truth. The DOJ doesn't care what people here write, and if you talked to people there, from political appointees down to staffers, most of them would fall somewhere between (a) pleasure that the democratic process is proceeding through random or organized discussion online and (b) snide dismissal of hackers they don't understand. They don't hire PR people to infiltrate discussion boards on general issues. (Of course, the FBI does hire people to infiltrate criminal communities.) Think of any cases of astroturfing that have come to light. It happens by hotels that want to post undeserved reviews on TripAdvisor, startups (and even charities, as Aaron once pointed out) that want to get attention, etc., etc. The DOJ and US Attys aren't in the astroturfing business.

Another thing that should give people some perspective: It's laughable for people to have suggested, as I think a dozen did, that the new limit for White House petitions (100,000 instead of 25,000) had anything remotely to do this this case. Most people in the administration haven't heard of it and never will. There's a lot going on in the world. ;)

> I've seen lots of people called "shills" for the US Atty's office or the DOJ.

I don't think you were just called a shill for either of those organizations, but rather a shill for one or more of the individuals involved.

Well, it's not true either way. But that too is very rare. There's just too much risk with it, and it's not how most nontechies think. Look what actually happened in this case: Ortiz's husband issued an ill-thought-out, insensitive statement in frustration on Twitter, and then eventually there was a calm, rational press release from the office.

Then they'll move on. They've got thousands of other cases, many of which have made other communities similarly angry. That we get 35,000 signatures for an online petition mostly speaks to the fact that we're online.


Believe it or not there are people who don't think like you. Some of them are lurkers, and a controversial subject like this one can draw lurkers out of hiding.

People can disagree with you and not be a paid shill.

I think you're wasting time trying to discredit someone based on who they are.

Why was jail time and a felony ever sought for in this case? Why not 2-5 years community service focused on computer needs in the community? He stays out of jail, doesn't get a felony and the community or government gets some much needed computer help <edit> while he pays his debt to society.</edit>

It's not that I oppose the fact that DA was prosecuting, it's how they were doing it. I see this as abuse of power by not showing restraint - but that's my opinion that a felony and jail time were excessive for the crime committed and the DA should have shown more restraint in how they plea barganed.

Mirroring the arguments about MAC spoofing in another thread, I have a question.

If I got banned from an IRC server, switched my proxy settings and came back on to spam a channel with "I Dunno LOL ¯\(°_o)/¯" Can I be prosecuted and sent to prison for it? After all, I'm "evading access restrictions" and every other ridiculous vague threshold for illegal activity Aaron was charged with.

The programmer/lurker in me would react by banning open proxies (DNSBL?) and requiring registration. Which is what we've been doing for decades. Would the federal prosecutor in you hunt down this potentially 10 year old kid and charge them with computer fraud to set an example?

I think the sane reaction to a security issue is to fix the issue. Especially in the cyberlibterarian utopia I wish the Internet was. If it was exploited with enough maliciousness, I can look the other way while the hacker is sentenced for it.

But for something this stupid? An open wifi network? An open closet? Aaron broke through no walls but made-up protocol restrictions. Where is the line drawn?

"Can I be prosecuted and sent to prison for it?" Probably not, but even if so, this is where prosecutorial discretion comes in. This is what people aren't understanding.

If you avoid a channel ban, or sign up as "Mickey Mouse" to get free WiFi, nobody's going to prosecute you. If they did, you "stole" $30 worth of stuff and the penalty would be tiny.

I'm not criticizing Aaron, but what he did was to intend to compromise a valuable database. If the gov't could prove beyond a reasonable doubt that he intended to make that valuable database public, that is a serious harm at issue.

You might (and I might) not agree that the harm is important, but that's what many parties (journals, authors, JSTOR, universities who pay JSTOR) have relied on. Do we think one person should change the rules just because the can?

Also, I didn't think even libertarian extremists would think that just because you installed windows rather than armed steel plating around your house, nobody could be blamed for breaking in. And I hate to say it, but the security - the combination of personnel and online monitoring - WORKED in this case. They outsmarted Aaron, as is clear when you read the docket. They engaged in a ruse to trap him and it worked.

If an IRC channel, or HackerNews, kicks me off, and while I know that they don't want me back I reconnect, that's almost assuredly illegal.

It won't hit CFAA standards until damages exceed $5,000, though. The IRC channel, or HackerNews, probably doesn't have $5,000 worth of stuff to damage, unless I really harass them for months. JSTOR and MIT, whether you like them or not, did have something that valuable.

The physical analog is entering a store that you have been forbidden to enter. That's misdemeanor trespass and probably only a small fine for the first time you do it. However, if you harm people or take/harm property while trespassing, you can quickly find yourself in the neighborhood of felony trespassing.

"There's other manipulative PR worth identifying."

Yes, like the press release Ortiz issued stating that Aaron faced up to 35 years in prison.

Again, that number was not pulled out of thin air- it came directly from her office in an official press release.

This never was a purely legal case at any time. It has always, at all times, also been a case the prosecution intentionally made into a media case.

>The statement makes clear

The statement doesn't actually provide any new information. All it says is that they decline to resign or admit wrongdoing. That much was expected and nothing else is anything we didn't already know.

>If we're going to be rational, that shouldn't change when a defendant commits suicide while the case is pending.

You're assuming that we were being rational before and now are being irrational rather than the other way around. It was previously irrational for us not to do something about this. (I don't mean these prosecutors specifically, but the system that allows this sort of thing to be "normal" is hugely problematic.)

As for "manipulative PR," I'm not sure how much we should care about being "manipulated" to try and fix something which is legitimately in our own self interest to fix anyway.

Who was the victim?

MIT, JSTOR, and publishers with JSTOR contracts.

Not liking the victim doesn't make them not a victim.

I strongly disagree with the grandparent comment, for what it's worth.

JSTOR settled, and so were no longer a victim. http://about.jstor.org/statement-swartz just sayin'.

> I strongly disagree with the grandparent comment, for what it's worth.

I'd be interested to hear why, if you haven't burned out on the subject... which presumably you haven't, since you just commented on it.

Then justify the distinction of

Trespass: up to 30 days in jail and/or 100$ fine

!!!COMPUTER!!! trespass: Years and years in jail, hundreds of thousands of dollars fine, Federal felony.


Your comment has nothing to do with mine.

I agree that that's the right question. The intended "victims" were journals and JSTOR. I'm glad JSTOR didn't lean heavily on the prosecution, but they're not the only party who has a stake in this, and it's routine for government not to be simply a "victim's rights" organization that lets private people tell them what to do. Many small journals depend on subscription fees from services like JSTOR.

But look, I'm not saying the law is perfect. There are whole encyclopedias written on legal theory about people's responsibilities to follow arguable but imperfect laws, and that is a big debate. The essence of the case here is that a "long ranger" activist who acts to publicize a massive database does threaten a significant financial disruption to many parties, and that is "harm" even under JS Mill's "harm principle." It's not like possessing drugs (which of course people go to harder jails for 20 years for possessing).

If I am recalling correctly, a key point in the government's case was that Aaron was going to distribute the documents to the world had he succeeded. If so, they would have had to prove that beyond a reasonable doubt. If Aaron had a good case that he was just downloading the documents for his own personally curiosity, he would probably have won, and it would be easier to say the prosecution was overblown.

But all that seems to have happened here is that the government offered 6 low-security months to someone who the government believed it could prove, beyond any reasonable doubt, was intending to undermine the revenue model of a significant part of the world's academic infrastructure. That doesn't mean that revenue model is praiseworthy, but the law doesn't let you take matters into your own hands.

I don't want to sound dismissive, but the conspiracy theory stuff - that they targeted him because of SOPA or whatnot - is not something that anyone I know takes seriously. I am trying to say that mildly and respectively. (There are many harsher ways to say it.)

>I don't want to sound dismissive, but the conspiracy theory stuff - that they targeted him because of SOPA or whatnot - is not something that anyone I know takes seriously.

Interesting that the Secret Service ECTF took over the investigation into Swartz despite the fact his crime doesn't meet any of their stated criteria for involvement ("Significant economic or community impact", "Participation of organized criminal groups involving multiple districts or transnational organizations", or "Use of schemes involving new technology").


The Secret Service was brought in before MIT knew who the intruder was. Thinking they were brought in to get revenge against Swartz is serious tin-foil hat territory.

I haven't looked into the details, but "new technology" means something different to the public than it means to us. Publicizing a valuable database sounds like it's in their mandate.

>"new technology" means something different to the public than it means to us.

Good point. Would be interesting to see with what frequency they get involved in these kinds of cases.

My understanding is that the articles Aaron downloaded and intended to distribute were in the public domain. I suppose one could make a case that the scans of those articles that JSTOR had prepared at its own expense were not in the public domain, but even if copyright law supports such a distinction, which I'm not sure it does, it seems to me that the worst crime Aaron would have commmitted would have been copyright violation -- a civil matter, and not one, AFAIK, that the US Secret Service routinely gets involved in.

In short, if Aaron had scanned the same articles and made them available on his own server, he would have been in the clear. Here's an interesting analysis from well before Aaron's death: http://www.theawl.com/2011/08/was-aaron-swartz-stealing

No, no. Some of the articles were in the public domain, but not all of them. (The precise ratio could have been a relevant fact at sentencing for some of the charges, because it would speak to the monetary value of what his actions threatened to publicize in violation of copyright law.) Copyright violation is routinely both a civil and a criminal manner.

He would not have been in the clear if he scanned and publicized the articles himself.

I said, "the articles he downloaded and intended to distribute". There is some suggestion he only intended to distribute the public domain ones. Of course, this might be hard to prove in court.

If the government couldn't prove beyond a reasonable doubt that he intended to distribute the public-domain part of the archive, he would have won the largest part of his case, or at least received a very minimal sentence (with no prison time).

"As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible."

Then why did you prosecute a terms of service violation? Or do you mean "protecting" the use of computers by restricting it to only those purposes you happen to like?

This "TOS" stuff is another red herring. Even the EFF said the new proposed change in that law wouldn't have stopped the charges in this case.

This case was about more than doing something that JSTOR told users not to do. Yes, it involved that too, but it also involved taking materials that others had copyright to and threatening to make them publicly available, which could have disrupted many organizations' functioning.

Would you be surprised if someone pulled four million videos off of YouTube (or books off of Google Books) and torrented them, and then was prosecuted and asked to serve six months?

>Would you be surprised if someone pulled four million videos off of YouTube (or books off of Google Books) and torrented them, and then was prosecuted and asked to serve six months?

You're using the six months as though it wasn't the "coercive" part of a coercive plea bargain. When six months in prison and a felony record is supposed to be the carrot in a case of noncommercial copyright infringement, something malevolent is going on with the stick.

Maybe. It's the administrative system we've got, though, and we should be talking about how to reform the whole thing.

Note how much Orin Kerr recently agreed with the points I made days ago here on this subject.

>It's the administrative system we've got, though, and we should be talking about how to reform the whole thing.

I completely agree. The whole thing with the prosecutors is kind of a "they represent the part of what's broken that we can currently see" thing. Fixing the laws and the system is more important than fixing a few individuals.

>Note how much Orin Kerr recently agreed with the points I made days ago here on this subject.

I think most reasonable people end up coming to largely the same conclusions about all of this at the end of the day... which is actually kind of eerie. People who are normally at loggerheads continuously, now getting along and working together.

It makes my brain hurt that it took for someone to die for this to happen and now I don't want to be happy about it even though it's seeming more likely that we may actually get something good to come out of this. I guess I don't know what to feel. So I just keep trying to figure out how to fix it and hope actually accomplishing something will make it feel different somehow.

> I know that there is little I can say to abate the anger felt by those who believe that this office's prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life

If MIT asked to drop the charges, then you not only wasted taxpayers money but whats more importantly, as a result, you've helped young man to take his life.

> The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably.

Yes of course Ms. Ortiz; so were those military and political leaders in Germany circa 1939 and see how they ended: http://en.wikipedia.org/wiki/Nuremberg_Trials

Nobody will live forever Ms. Ortiz. I hope Aaron will wait for you at Heaven's gates and handle you a key... to hell.

Prosecutors routinely over-charge in an effort to intimidate defendants into plea deals. It's very effective on the vulnerable, often with tragic consequences.

When justice is measured in the number of convictions and sentences handed out and not low crime-rates, this is what happens.

>I must, however, make clear that this office's conduct was appropriate in bringing and handling this case. The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably.

No, it wasn't appropriate. Both MIT and JSTOR had declined to continue prosecution. Her office over charged to force a plea bargain with 6mo of prison time and would have turned Aaron into a felon.

This is so much CYA bullshit from the government. It's time to stand up to these bullies.

According to Aaron's lawyer, MIT demanded jail time, even if they dropped the trespass charge.

Why? How does jail time protect and improve our society when there are more appropriate forms of punishment like community service. They could have had him clean up trash on campus or use find use his computer skill to pay his debt to society. Does some one who did what he did really need to go to jail on the first offense with circumstances and evidence like these?

I think it's ridiculous that MIT demanded jail time, if what Aaron's lawyer says is true. But the idea that both JSTOR and MIT were like "oh, it's harmless, don't prosecute" seems to be inaccurate.

I'm impressed that a US Attorney is responding to criticism. I will remain cynical, however, because there are hundreds who are suffering from these types of tactics. I doubt we'll see this type of outpouring for all those who have been subjected to this type of prosecution.

Largely because the targets of such over prosecution are either unsympathetic (drug dealers, gang members) or because people are quite happy to join the "string him up!" Mentality when it's a bad guy they can't identify with (bankers).

I'm surprised by the level of "human-ness" the statement shows. It would have been very easily for the office to take a more empty position a la "we have nothing to say - we were doing our jobs."

That being said, other than the unexpected personal touch, this is basically what we all assumed they'd say. "We're sorry. He broke the law - we were doing our job."

So in the end, this doesn't change anything.

"Had not sought the maximum penalty" and "offered a plea bargain" are two very different things.

"That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct - a sentence that we would recommend to the judge of six months in a low security setting."

It sounds like a plea bargain to me.

Wasn't the assistant of the US attorney involved in this case, too, and people asked him to be fired as well? I could see why he's defending the case.


The "assistant" US Attorneys are lawyers, not what you'd think of as "assistants." The "US Attorney" is a politically appointed senior executive, while the "Assistant US Attorneys" are career staff lawyers. The "US Attorney" signs most filings, but the career staff does the significant legal groundwork on almost everything.

I read the whole docket today, and most everything was signed by Stephen Heymann and, less frequently, Scott Garland.

So these were the choices they offered him: - Plead guilty and become a felon (even if he believed otherwise, and clearly against his conscience.) - Or face 13 felony counts, potentially leading to a very lengthy prison sentence.

The prosecutors were trying to make sure the case never goes to court. This is disgusting!

even if he believed otherwise, and clearly against his conscience

So you're saying that a man who steals a car shouldn't face felony charges as long as he claims that his conscience is clear? The law must be objective, not based on whim.

The problem is that the alternative to not accepting guilt is a ridiculously lengthy prison sentence. What do you do then?

You say it's "ridiculously lengthy," and I say it's not.

This is what we have procedures, judges and juries for.

7 years (which is what I read) is a "ridiculously lengthy" prison term for downloading papers from the internet for no financial gain. How can one see it any other way?

This isn't about the judge and jury. 7 years is what the prosecutors would have asked, and we are discussing the fairness in their approach.

It's not about who gains. His actions violated the rights of all of the people at JSTOR and MIT.

In a murder trial, you can't properly argue that the killer ought to face lighter charges because his crime was not motivated by personal financial gain. This is relevant here because we're talking about criminal court. I'm not saying that what Swartz did is the same as murder. However, the same concept applies in both cases.

So Aaron downloading JSTOR files is very similar to a murder?

In the respect we're concerned with, which is that Swartz's particular crimes and the crime of murder are both criminal matters prosecuted in criminal courts, yes.

This... is not going to end well. I wouldn't look forward to going in tomorrow if I worked in that office.

Rule number 1 of surviving an internet storm: do NOT give extra ammunition to the enemy.

The indictment doesn't say anything about the penalties sought. Anybody have handy the primary sources indicating what penalties the prosecutors were pushing for?

They weren't pushing for any penalties... yet. Sentencing comes after a finding of guilt.

They did announce that the maximum sentence was 30 years, but that's just the statutory maximum; it says nothing about the plans of the prosecution.

It would be interesting to see what she, or some AUSAs, have told the courts in their pleadings.

I'm not sure if PACER (http://www.pacer.gov/) has all the criminal pleadings, but it might have those. Its another thing in the long list of items that should be completely free to access.

Archive.org has the whole docket. It used to be a reference on his Wikipedia page, but it looks like it's not there anymore. You can find it in the history.

It sounds like the response is trying to say without saying that there was no great big fateful choice of "plead guilty to something you think wasn't wrong and do 6 months or probably get 30 years."

I suspect everything they said to Aaron without saying in their dealings with him attempted to convince him that was his choice exactly.

"personal financial gain"

No. You don't get it. Try again.

Try quoting the whole thing:

"The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct - while a violation of the law - did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases."

I misread it at first. Thanks for pointing that out.

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