5 ms·

The death of Aaron Swartz is a loss to his family, his friends, and to society. The focus on the prosecutors, however, makes me uneasy. I can support a review

by jmodp 14y ago

The death of Aaron Swartz is a loss to his family, his friends, and to society. The focus on the prosecutors, however, makes me uneasy. I can support a review of the conduct of the prosecutors but I can't call for their firing. From what I have read, the conduct of the prosecutors was close to standard procedure. If it was wrong of the prosecutors to make an example out of Aaron, it is equally wrong to make an example of the prosecutors. This should not be about revenge although such feelings are understandable. However, it is the whole judicial system that needs review (and reform). The focus on the prosecutors takes the focus away from other discussion we should be having such as the following. Why should these cases linger for so long? Why is our justice system so dependent on plea bargaining? Why can't we create have a hacker legal defense fund that would keep cases like this from bankrupting defendants? Why should expert legal advice be only available to those who can afford it? What should we tell a friend who is planning to commit a crime on behalf of a cause? Was Aaron's cause worth anyone's life? This should be a question for everyone, not just prosecutors. Is any middle ground possible in the conflict between rights holders and advocates of free information?

analog 14y ago
"the conduct of the prosecutors was close to standard procedure" This is part of the problem. It is standard procedure and it needs to be changed. Firing those who've acted too aggresively will help to change the way prosecutors operate. "If it was wrong of the prosecutors to make an example out of Aaron, it is equally wrong to make an example of the prosecutors" No it is not equally wrong because we're not suggesting anything like the same punishment. Losing your job versus facing decades in prison are orders of magnitude apart.
- tzs 14y ago
  > Losing your job versus facing decades in prison are orders of magnitude apart Swartz was not facing decades in prison. He faced charges whose maximum sentences added together reached several decades, but it was all but impossible to actually receive that kind of sentence. First, the Federal sentencing guidelines scale the sentence based on the severity of the particular instance of the crime. Swartz's was low on the scale for the various crimes he was charged with. Second, some crimes are grouped. You can be charged with several crimes from a group, but you are only sentenced for the one in the group with the longest sentence. I believe this was the case with the Swartz charges. PS: if PG ever decides to monetize HN, and interesting approach would be a "show me who down voted" button that costs $1 to use. I'd pay $1 to see who down voted this.
  - analog 14y ago
    Your beliefs on the length of Swartz's possible jail term are contradicted by the US Department of Justice themselves. "AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million." [1] [1] http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.html http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR....
    - tptacek 14y ago
      The DOJ lied in the press release. They have a habit of doing that. There was no possibility that Swartz would face 35 years in prison. You can be upset about that, and that's reasonable, but you cannot synthesize from that upset the idea that Swartz actually could have spent 35 years in prison. The consensus among former prosecutors and defense attorneys writing about this case is that if Swartz had been convicted on all counts, he might have faced as many as 2 years, but that he also might have avoided a custodial sentence even if he was convicted.
      - analog 14y ago
        Did anybody write this before Aaron's suicide? And based upon what evidence?
        tptacek 14y ago
        Go look it up yourself.
        analog 14y ago
        It's your claim. You provide the evidence.
        14y ago
- jmodp 14y ago
  It should not be a matter of degree. Selective punishment is unjust whether it is done in a courtroom or a kindergarten class.
  - ScottBurson 14y ago
    I don't know that this is selective punishment. It does seem to me that Heymann forgot that his job is supposed to be about justice. The system in which he works doesn't necessarily remind prosecutors of that as often or as impactfully as it should, and you're right, we need to fix that. There definitely are structural issues here that start with the knee-jerk "tough on crime" mentality of many voters. That's exactly why we need to make as much noise as we can -- to show the politicians and prosecutors that some of us feel strongly that the system has been over-optimized in the direction of prosecution.
    - barry-cotter 14y ago
      I don't know that this is selective punishment. It does seem to me that Heymann forgot that his job is supposed to be about justice. The law is about the law, not about justice. They may be related but they are not the same.
gamblor956 14y ago
Careful, you're being dangerously logical about this situation. My primary account got hell-banned for saying stuff like this. You're right about the need to address the structural issues before the personnel implementing the structure. If we just swap out the personnel, they'll conform to the system as it currently exists and we'll have the same problems...but with different people.
- ScottBurson 14y ago
  I half agree. We do need to address the structural issues, that's clear. But in the meantime, sending a signal that we want prosecutors to seek justice, not just rack up convictions, is not, I think, a bad idea. After all, justice is our ultimate purpose. And I think prosecutors will take note, even if their public statements suggest otherwise. If Heymann were actually fired, which I don't expect, they would take even more note.
  - Kylekramer 14y ago
    If Heymann or Ortiz gets fired, the message isn't "seek justice". There are much worse miscarriages of justice that go unpunished daily. The message will be "don't fuck with defendants that have powerful connections and an internet mob".
deleted 14y ago
[deleted]
rayiner 14y ago
> Why should these cases linger for so long? Because legal cases involve tremendous amounts of back and forth, which is slow. After each order, motion, etc, all the parties get time (measured in weeks) to mull over and respond. This is intrinsic to the process--if the prosecution makes a motion, the defense needs to have time to research the law and respond accordingly, and vice versa. So any given case has a ton of latency built in. If courts only handled one case at a time, utilization of the scarce resource would be terrible, so they multitask. You can think of a court as a highly SMT CPU. Each thread (case) is full of high latency operations, so the court handles dozens (or hundreds) at a time and switches between them. This favors throughput at the expense of getting any given case over with as quickly as possible. > Why is our justice system so dependent on plea bargaining? Because it doesn't have the resources to handle the actual case load. You can think of this in terms of VM overcommit. Your OS's virtual memory manager will happily hand out much more virtual memory than it can back with physical memory. It's counting on the fact that you won't actually use all that memory (if you do, it'll swap and things will get shitty). The justice system handles far more cases than it can actually take through trial, both criminal and civil. It counts on the fact that most cases will settle (both criminal and civil) before they get very far in the pipeline. > Why can't we create have a hacker legal defense fund that would keep cases like this from bankrupting defendants? It was Aaron's choice to hire one of the premier white collar litigation boutiques in the country to defend his case. It's not intrinsic to the system. > Why should expert legal advice be only available to those who can afford it? It's not. Truly exceptional and meritorious cases will be taken up pro-bono by non-profit organizations (ACLU, etc). Aside from that, money buys better service the same way money buys everything. Aside from exception people who get a scholarship, truly excellent education is generally limited to children whose parents can afford it. The bar we set as a society in both cases is similar--everyone should have access to competent legal representation, just as everyone should have access to a decent education. But that doesn't mean everyone has access to Andover/Exeter or to Keker & Van Nest. > What should we tell a friend who is planning to commit a crime on behalf of a cause? Don't? Civil disobedience should be a last resort. If it is inevitable, work with public interest lawyers to establish a reasonable game plan and set up legal defense ahead of time. Swartz's case, if it was mean to be civil disobedience, was poorly played. If the point was to go after JSTOR, then the whole thing with plugging into MIT's network and evading their attempts to kick him off was just a pointless distraction. It forced him to fight on two fronts, one of which was much less sympathetic than the other (freedom for scientific articles versus the freedom to do whatever you want on MIT's private network despite their attempts to stop you). > Is any middle ground possible in the conflict between rights holders and advocates of free information? Does there need to be a middle ground? It's like talking about a "middle ground" between my rights as a property owner and the desires of people who want to camp out in my yard. Tying JSTOR into the larger copyright debate is a losing proposition, and an unnecessary one. It makes far more sense to work the angle that JSTOR articles are the product of substantial public funding, and push for setting up a publicly funded database for accessing them.
pc86 14y ago
> Why should these cases linger for so long? While I don't know that this was case with Aaron's case (I assume it was), most federal cases are incredibly complex and take a competent attorneys weeks just to get up to speed. Justice is not about arriving at a decision quickly, but arriving at the correct decision. > Why can't we create have a hacker legal defense fund that would keep cases like this from bankrupting defendants? Nobody says you can't, but I know I wouldn't put money into it. You don't get to do something like that and cherry pick who gets to use it. Criminals will use it to pay for a better attorney. > Why should expert legal advice be only available to those who can afford it? Because expert legal minds are not content to earn $50,000 a year, and with what it costs to attend the best law schools (and even mediocre undergraduate institutions) it's ridiculous to expect them to. > What should we tell a friend who is planning to commit a crime on behalf of a cause? That if they're not willing to pay the full price they probably shouldn't do it. > Was Aaron's cause worth anyone's life? This should be a question for everyone, not just prosecutors. This is where I start to get twitchy with the general consensus on HN. Aaron was not murdered. His death was not an accident. He chose to take his own life, so clearly to him this cause was worth that, or at the very least it was preferable to him going to prison. > Is any middle ground possible in the conflict between rights holders and advocates of free information? Not so long as rights holders are hell bent on perpetuating a business model from the 1920s, and not so long as free information activists are hell bent on not respecting the personal (intellectual) property rights of others, including corporations.

by jmodp 14y ago

analog 14y ago

"the conduct of the prosecutors was close to standard procedure" This is part of the problem. It is standard procedure and it needs to be changed. Firing those who've acted too aggresively will help to change the way prosecutors operate. "If it was wrong of the prosecutors to make an example out of Aaron, it is equally wrong to make an example of the prosecutors" No it is not equally wrong because we're not suggesting anything like the same punishment. Losing your job versus facing decades in prison are orders of magnitude apart.

tzs 14y ago
> Losing your job versus facing decades in prison are orders of magnitude apart Swartz was not facing decades in prison. He faced charges whose maximum sentences added together reached several decades, but it was all but impossible to actually receive that kind of sentence. First, the Federal sentencing guidelines scale the sentence based on the severity of the particular instance of the crime. Swartz's was low on the scale for the various crimes he was charged with. Second, some crimes are grouped. You can be charged with several crimes from a group, but you are only sentenced for the one in the group with the longest sentence. I believe this was the case with the Swartz charges. PS: if PG ever decides to monetize HN, and interesting approach would be a "show me who down voted" button that costs $1 to use. I'd pay $1 to see who down voted this.
- analog 14y ago
  Your beliefs on the length of Swartz's possible jail term are contradicted by the US Department of Justice themselves. "AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million." [1] [1] http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.html http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR....
  - tptacek 14y ago
    The DOJ lied in the press release. They have a habit of doing that. There was no possibility that Swartz would face 35 years in prison. You can be upset about that, and that's reasonable, but you cannot synthesize from that upset the idea that Swartz actually could have spent 35 years in prison. The consensus among former prosecutors and defense attorneys writing about this case is that if Swartz had been convicted on all counts, he might have faced as many as 2 years, but that he also might have avoided a custodial sentence even if he was convicted.
    - analog 14y ago
      Did anybody write this before Aaron's suicide? And based upon what evidence?
      - tptacek 14y ago
        Go look it up yourself.
        analog 14y ago
        It's your claim. You provide the evidence.
        14y ago
jmodp 14y ago
It should not be a matter of degree. Selective punishment is unjust whether it is done in a courtroom or a kindergarten class.
- ScottBurson 14y ago
  I don't know that this is selective punishment. It does seem to me that Heymann forgot that his job is supposed to be about justice. The system in which he works doesn't necessarily remind prosecutors of that as often or as impactfully as it should, and you're right, we need to fix that. There definitely are structural issues here that start with the knee-jerk "tough on crime" mentality of many voters. That's exactly why we need to make as much noise as we can -- to show the politicians and prosecutors that some of us feel strongly that the system has been over-optimized in the direction of prosecution.
  - barry-cotter 14y ago
    I don't know that this is selective punishment. It does seem to me that Heymann forgot that his job is supposed to be about justice. The law is about the law, not about justice. They may be related but they are not the same.

gamblor956 14y ago

Careful, you're being dangerously logical about this situation. My primary account got hell-banned for saying stuff like this. You're right about the need to address the structural issues before the personnel implementing the structure. If we just swap out the personnel, they'll conform to the system as it currently exists and we'll have the same problems...but with different people.

ScottBurson 14y ago
I half agree. We do need to address the structural issues, that's clear. But in the meantime, sending a signal that we want prosecutors to seek justice, not just rack up convictions, is not, I think, a bad idea. After all, justice is our ultimate purpose. And I think prosecutors will take note, even if their public statements suggest otherwise. If Heymann were actually fired, which I don't expect, they would take even more note.
- Kylekramer 14y ago
  If Heymann or Ortiz gets fired, the message isn't "seek justice". There are much worse miscarriages of justice that go unpunished daily. The message will be "don't fuck with defendants that have powerful connections and an internet mob".

deleted 14y ago

[deleted]

rayiner 14y ago

> Why should these cases linger for so long? Because legal cases involve tremendous amounts of back and forth, which is slow. After each order, motion, etc, all the parties get time (measured in weeks) to mull over and respond. This is intrinsic to the process--if the prosecution makes a motion, the defense needs to have time to research the law and respond accordingly, and vice versa. So any given case has a ton of latency built in. If courts only handled one case at a time, utilization of the scarce resource would be terrible, so they multitask. You can think of a court as a highly SMT CPU. Each thread (case) is full of high latency operations, so the court handles dozens (or hundreds) at a time and switches between them. This favors throughput at the expense of getting any given case over with as quickly as possible. > Why is our justice system so dependent on plea bargaining? Because it doesn't have the resources to handle the actual case load. You can think of this in terms of VM overcommit. Your OS's virtual memory manager will happily hand out much more virtual memory than it can back with physical memory. It's counting on the fact that you won't actually use all that memory (if you do, it'll swap and things will get shitty). The justice system handles far more cases than it can actually take through trial, both criminal and civil. It counts on the fact that most cases will settle (both criminal and civil) before they get very far in the pipeline. > Why can't we create have a hacker legal defense fund that would keep cases like this from bankrupting defendants? It was Aaron's choice to hire one of the premier white collar litigation boutiques in the country to defend his case. It's not intrinsic to the system. > Why should expert legal advice be only available to those who can afford it? It's not. Truly exceptional and meritorious cases will be taken up pro-bono by non-profit organizations (ACLU, etc). Aside from that, money buys better service the same way money buys everything. Aside from exception people who get a scholarship, truly excellent education is generally limited to children whose parents can afford it. The bar we set as a society in both cases is similar--everyone should have access to competent legal representation, just as everyone should have access to a decent education. But that doesn't mean everyone has access to Andover/Exeter or to Keker & Van Nest. > What should we tell a friend who is planning to commit a crime on behalf of a cause? Don't? Civil disobedience should be a last resort. If it is inevitable, work with public interest lawyers to establish a reasonable game plan and set up legal defense ahead of time. Swartz's case, if it was mean to be civil disobedience, was poorly played. If the point was to go after JSTOR, then the whole thing with plugging into MIT's network and evading their attempts to kick him off was just a pointless distraction. It forced him to fight on two fronts, one of which was much less sympathetic than the other (freedom for scientific articles versus the freedom to do whatever you want on MIT's private network despite their attempts to stop you). > Is any middle ground possible in the conflict between rights holders and advocates of free information? Does there need to be a middle ground? It's like talking about a "middle ground" between my rights as a property owner and the desires of people who want to camp out in my yard. Tying JSTOR into the larger copyright debate is a losing proposition, and an unnecessary one. It makes far more sense to work the angle that JSTOR articles are the product of substantial public funding, and push for setting up a publicly funded database for accessing them.

pc86 14y ago

> Why should these cases linger for so long? While I don't know that this was case with Aaron's case (I assume it was), most federal cases are incredibly complex and take a competent attorneys weeks just to get up to speed. Justice is not about arriving at a decision quickly, but arriving at the correct decision. > Why can't we create have a hacker legal defense fund that would keep cases like this from bankrupting defendants? Nobody says you can't, but I know I wouldn't put money into it. You don't get to do something like that and cherry pick who gets to use it. Criminals will use it to pay for a better attorney. > Why should expert legal advice be only available to those who can afford it? Because expert legal minds are not content to earn $50,000 a year, and with what it costs to attend the best law schools (and even mediocre undergraduate institutions) it's ridiculous to expect them to. > What should we tell a friend who is planning to commit a crime on behalf of a cause? That if they're not willing to pay the full price they probably shouldn't do it. > Was Aaron's cause worth anyone's life? This should be a question for everyone, not just prosecutors. This is where I start to get twitchy with the general consensus on HN. Aaron was not murdered. His death was not an accident. He chose to take his own life, so clearly to him this cause was worth that, or at the very least it was preferable to him going to prison. > Is any middle ground possible in the conflict between rights holders and advocates of free information? Not so long as rights holders are hell bent on perpetuating a business model from the 1920s, and not so long as free information activists are hell bent on not respecting the personal (intellectual) property rights of others, including corporations.