The Personal Toll of Whistle-Blowing
newyorker.com
newyorker.com
More than anything, I didn't realize how long these cases seem to take. But I wonder: if there was a way to reduce the duration of the cases, would that reduce the impact on whistleblowers? Is that possible somehow? Retaliation is also a big concern, of course, as the article makes clear.
Also, I found this interesting: >the first documented whistle-blowing case in the United States took place in 1777, not long after the signing of the Declaration of Independence, when a group of naval officers, including Samuel Shaw and Richard Marven, witnessed their commanding officer torturing British prisoners of war. When they reported the misconduct to Congress, the commanding officer charged Shaw and Marven with libel, and both men were jailed. The following year, Congress passed a law protecting whistle-blowers, and Shaw and Marven were acquitted by a jury.
But I wonder: if there was a way to reduce the duration of the cases, would that reduce the impact on whistleblowers?
Intuitively it makes sense. If you're gonna go after some naughty people for doing naughty things, you really don't want to rush the investigation and have the findings fall apart at trial.
Many federal crimes are unconstitutional and deliberately vague, like "lying (not volunteering incriminating evidence) to an investigator" and "mail fraud" which is just a way to charge you in federal court where the odds are stacked against you.
The US federal judicialry is a kangaroo court. 99% of federal crimes should be repealed and maximum sentences reduced to be in line with state laws.
Federal jury selection is also suspect, especially in cases involving "national security".
http://www.cnn.com/2011/CRIME/02/21/us.scotus.toxic.love/ind...
> The high conviction rate is a result of extremely high maximum sentences. People who are 100% innocent often plead guilty after being threatened with a 30-year prison sentence that would be only 1 or 2 years under local law.
That's erroneous because very few federal defendants actually face such long sentences, so those that do so pleading guilty is not a plausible explanation for high conviction rates.
Federal sentences for a particular instance of a crime are based on the class of the crime and on the details of the particular instance. The class sets an upper limit, which often is long, up to 20 years, but it is the details that determine how much you can actually get. To actually get anywhere near that 20 years you have to have a lot of the details against you. Typically this means you caused a lot of damages or harm, had multiple prior convictions for similar crimes, where doing it as part of organized crime, and similar things.
Swartz is a good example. A lot of reporting said he faced 30 years or 50 years or similar big numbers. Actually, he was looking at maybe 6 or 7 years if things went as favorably as possible for prosecutors.
The DOJ bears a lot of the blame for that bad reporting. They make no attempt in the press releases announcing indictments to actually compute the maximum sentence for the particular instance of the crime. They just give the maximum that it is possible for the worst possible instance of that crime committed by the worst possible defendant.
Here's a good article on federal sentence length [1].
[1] https://www.popehat.com/2013/02/05/crime-whale-sushi-sentenc...
Do you know this for a fact?
Because the way I understand it is, he was facing multiple decades in prison IF all charges stuck. And once you got to trial, all charges can stick. It has happened. So he was facing 35 years. So saying he wasn't is just wrong.
Your 6-7 years is 'probably'.
I think what your saying is: The federal government doesn't threaten you with 35 years, they threaten you with 10x3.5 years, and since it is possible that not all 10 will stick... it's not really a 35 year threat?
I mean, if I threaten to punch you 10 times but I might stop at 1,2,3 or any number and I probably won't get to 10, but we can negotiate before I start, is it not a 10 punch threat?
To me it seems like you are splitting hairs in order to defend the indefensible. The practice of tacking on as many charges to get people to plea bargain is unethical and fascist.
Am I facing 10 years in prison? No! That's because the way sentencing works under the Federal Sentencing Guidelines is that the sentence range is looked up in a table whose rows range from short sentences up to the maximum (10 years in this case). The biggest factor in that lookup is how much monetary damage I caused. At $101 I'm going go get a row with a sentencing range that is something like up to a year or so.
To push it up to where my sentencing row actually includes 10 years I'd have to have done a lot more damage, such as blown up the building.
(There are other factors that also go into picking the row, such as if I have prior convictions for similar crimes).
When I'm indicted, though, the DOJ press release will tout that I've been charged with a crime with up to 10 years and $250k fines as penalties. They'd say the same thing when indicting someone who blew up the whole building. Their press releases make no attempt to convey the sentence the person is actually facing based on the facts the DOJ is alleging about that person's alleged crime.
In the case of someone charged with multiple crimes there is another factor that leads to inflated numbers. The same underlying acts can often support more than one charge. Similar crimes are grouped together for sentencing under the Federal Sentencing Guidelines, and if you are charged with and convicted of more than one crime from the same group based on the same underlying acts, you are only sentenced for one of them.
Unfortunately, this grouping is often ignored in press releases and reporting about potential sentencing.
In most cases, those multi-decade numbers you see people talk are due to one or both of the aforementioned issues: (1) not taking into account what the person is actually alleged to have done, and (2) ignoring grouping if the person is charged with more than one thing.
Here is a detailed analysis of Swartz's possible sentencing [1]. The earlier article by the same author looking at what he was charged with is also interesting [2].
[1] http://volokh.com/2013/01/16/the-criminal-charges-against-aa...
Have some intellectual honesty and admit you were wrong.
0. https://www.popehat.com/2013/03/24/three-things-you-may-not-...
We see this sort of "up to" crap all the time in our culture. It's still misleading. Accurate, but fundamentally misleading and wrong.
Or are you saying that his probably of being sentenced to the maximum was low? If so, how low? And when does it stop being 'intelligent' to consider a small probability with a horribly outcome? I mean, in your intelligent opinion.
depending [1]: https://www.ussc.gov/sites/default/files/pdf/guidelines-manu... [2]: See §2B1.1 at https://www.ussc.gov/guidelines/2018-guidelines-manual/2018-... [3]: Table 8 at https://www.ussc.gov/sites/default/files/pdf/research-and-pu...
But not when it is on others. Then it's fine 'because low probability'. In fact, many of the apologists for what happened go as far as to conflate in a single post low probability with no probability.
The double think is amazing.
These are factors such as causing a death, causing significant physical injury, causing extreme psychological harm to your victims beyond that one would expect from the crime, abducting people, causing property damage beyond what is taken into account by the guidelines, using weapons during the crime, or torture.
Swartz did not have any of the factors that could end one up in the 3%.
"lot of reporting said he faced 30 years... Actually, he was looking at maybe 6 or 7 years if things went as favorably as possible for prosecutors."
So let me ask again, last time you didn't answer: Is the chance of a 35 year sentence for Aaron 0%?
No? Then do the intellectually honest thing and admit you are wrong. Your correcting somebody by saying wrong things. And then doubling down on it.
Low probability is not 0%. Whatever the probability was, it was real that they could have given him 30 years. Unlikely? Yeah. But I'll bet you wouldn't play Russian roulette at those odds; whatever they may be.
But that's the question. The probability is not 0%. It may be %0.01, or %0.001. Can either of us find any existing cases where a defendant with Aaron's background received a 33-level sentence increase? I would propose that that has never happened in cases with similar circumstances to Aaron's. If you can find one, I'd be interested in the citation.
In the absence of any examples, my argument is that the chance of a 35 year sentence is not functionally different from 0%, and Aaron (and any other defendant in this situation) should have made decisions based on the 99% of sentences they were actually likely to receive.
One last note: you mentioned playing Russian Roulette at those odds. Russian Roulette normally has a 16% chance of death. I wouldn't play RR at 16% odds. Would I play it a 0.001% odds? Probably, presuming the benefits of playing RR were of significant value to me.
Aaron's chance of a 35 year sentence was not 16%. It was also not 0.0%. It's somewhere in-between, and unless you have evidence that shows otherwise, I'd personally guess it was below 0.01%, and his choice of suicide remains a tragic one. YMMV.
Sentencing guidelines for Aaron were 6-7 years. A single wire charge on max penalty could be 20. All you need is one judge who saw WarGames to want to make an example out of the kid.
I don't know what the probability is. You don't either. Likely no one did. But that probably has weight.
It's disturbing: the callous indifference to that weight by those who question the exact kilos from an arm chair expert point of view.
This whole thing has parallels to other situations:
A Powerful Group is responsible for a system that perpetrated an injustice.
Members of the powerful group are confronted with the injustice. Members have the following reactions:
Denial (high dissonance)
Disgust
Apologists
Apologists do the same thing: They minimize, deny, question and speculate.
What apologists of all kinds don't realize is that even if they are right, they are wrong.
The callous indifference shown, instead of the guttural understanding of something wrong being needed to be made right... is what is so hard to understand. Even if your argument that the official numbers are overblown by x%.
In any given year, around 4% of women in the US will get pregnant. Suppose Alice is a sexually active woman in the US who uses the pill religiously, and who requires her sex partners to wear condoms.
Do you think that because 4% of women will get pregnant this year, and Alice is a women, Alice has a 4% chance of getting pregnant?
That's the kind of reasoning you are using with the 3% figure for upward deviations in sentencing. You are assuming that because 3% of sentences are above guidelines, everyone who is sentenced is equally at risk for an above guideline sentence.
> Sentencing guidelines for Aaron were 6-7 years. A single wire charge on max penalty could be 20. All you need is one judge who saw WarGames to want to make an example out of the kid.
A judge cannot just arbitrarily exceed the guidelines like that. There are specific factors and considerations that a judge must cite to justify an upward deviation, and they are not applicable in Swartz's case. A judge who just arbitrarily decided to apply his own criteria to come up with 20 years would have that quickly overturned on appeal as an abuse of discretion.
You want to know what happens to someone in Swartz's situation if he gets a judge that wants to throw the book at him? He gets 7 years. That's the result of a hard line judge accepting an exaggerated damages claim and not applying any of the factors that would allow lowering the sentence. That's why his lawyers, the prosecutors, and outside lawyers all said he would probably actually get at most a few months--the 7 year number is the "judge who saw WarGames to want to make an example out of the kid" number.
We also know that the absurd sentences you're referring to would be departures from the federal sentencing guidelines, which spell out where in the range of possible sentences each specific case lands.
This is literally the purpose of the 5th amendment. If you get asked a question where the answer would incriminate you, you are well within your rights to refuse to answer the question. Taking the path of deliberately attempt to mislead investigators is most certainly a crime and it should be.
> But I wonder: if there was a way to reduce the duration of the cases, would that reduce the impact on whistleblowers?
https://www.whistleblowers.org/news/obama-signs-whistleblowe...
https://www.huffingtonpost.com/peter-van-buren/silencing-whi...
https://www.politifact.com/punditfact/statements/2014/jan/10...
They started out as a small pharmacy, but now have a team of lawyers. They’ve gotten over $600M in whistleblower rewards as of the early 2010’s. Not sure what the total is now.
I think we have a very serious conversation ahead of us as a culture.
Are we the bad guys?
It is so confusing to me. Not saying I love the US but if someone did... shouldn't they want to improve it?
“Hans... are we the baddies?”
This was a really depressing story on multiple levels.
It takes a lot of courage to rat on an employer. Your career is probably over if you do.
It's kind of thing that seems like a scam to normal people, but politicians seem to think is a way to save money. Go figure. I don't see how you can save money when you start out by adding 13% extra at the beginning to give the private sector some profit to work with.
Head injuries are no joke, people. Even if you recover from them, the epidemiology suggests there are life-long consequences for mental health, intelligence, income, impulse control...
Just do not put your head above the parapet.
An unintended consequence of this might be that people make false allegations. It's tough to find the right balance. Maybe they get a stipend to live on, and the money is put into escrow for when the case is resolved.
Guess not all whistle-blowing is about stealing money, but I best most of it is.
That's exactly what the law encourages.
This is the problem, why should you not take dubiously legal or moral action, if there isn't a significant deterrent?
Yes, it'll go wrong. It'll also go right. I don't think we need to structure our society like a prison just because it has the capacity to be worse than we like it to be.
On a micro scale, not wanting to be an asshole will cause people to follow the laws. On a macro scale, the only way to make people follow the law is to make breaking the law costly.
HSBC got slapped on the wrist for laundering cartel money.
"If you’re suspected of drug involvement, America takes your house; HSBC admits to laundering cartel billions, loses five weeks’ income and execs have to partially defer bonuses"
https://www.rollingstone.com/politics/politics-news/outrageo...
happens all the time with corporations.
That argument for moral complacency is largely self-fulfilling, because if nobody thinks that one person defecting will change anything, you'll never get more than one defector at once, and nothing will ever change. In that way everyone will march in lockstep to hell and deserve every bit of the torture that's waiting for them.
The foremost thing that Snowden achieved was that he quit doing the bad thing. There is some value in not being an active contributor to the suffering in the world. Sure, if you quit littering that won't clean up the parks, but at least you won't be a litterer anymore. The first thing Snowden did to improve the state of the world was reducing the number of NSA employees by one; and he improved himself by switching from NSA employee to unemployed. Too many people overlook this, thinking that all that matters is whether or not the world is good on average, while ignoring whether or not they themselves are good.
Secondly, Snowden hasn't been forgotten. It might take a few more to follow in his footsteps before the lesson sinks in to the public, but the things he revealed are still out there.
Finally, there actually have been some changes because of his actions (I saved the most concrete point for last). Nobody on HN discounts the reality of malicious state attackers anymore - it used to be that nobody expected to be on the receiving end of a state level attack (and we never secured appropriately), but now it's common knowledge that Public Enemy Number One is actually the public itself. Snowden definitely helped push forward HTTPS rollouts, for example.
A common fallacy is thinking that you only have to be a good person for matters less than $100. I can't explain it or present an argument in its favor but it is a very common sentiment.
Good is relative to average, and is a concept that society determines the baseline of.
So, Snowden's choice was between giving a traitor the easy life and facing hardship and uncertainty as a good person. Granted, he had to suffer a lot, but the alternative to suffering was providing comforts to a criminal that happened to be him.
That's a lot to ask of anyone, and why I think Snowden will go down as among the bravest people in history.
If it wasn't worth it, you wouldn't know his name, and you wouldn't be talking about it today. Does that count for nothing to you?
You seem to value having your name remembered; i.e., you value fame, and you're projecting that onto Snowden. I don't know what Snowden values, but assuming he values fame as you do (or that the person you're responding to does) makes no sense.
If the person you responded to values only financial security and a peaceful life, then he's absolutely right to say he doesn't think Snowden's actions were worth it, because to him, Snowden sacrificed all that and got nothing in return but exile in Russia. (I guess it could be worse... there's worse places to live on the planet, but Russia is a pretty lousy place to live in my book.)
Total bullshit. Nothing I said implies any of this.
What I value is that we can have a discussion premised on facts. Snowden is a real person who exists, and we can discuss what he did and what the consequences are. The alternative is that we discuss a hypothetical whistleblower and have all our reasoning dismissed as fear-mongering or paranoia. That is what I value.
>Whether it's "worth it" is completely subjective, and differs from person to person based on their values.
To be clear, it is worth it to me to have Snowden be a whistleblower because I had to pay nothing for the privilege. There are not many people who would say it is not worth it for someone else to be a whistleblower unless they think whistleblowing is inherently objectionable.
Would that be worth ruining your life? I'm asking for your perspective.
>Would that be worth ruining your life? I'm asking for your perspective.
Would what be worth ruining my life for? Obviously one doesn't make such personal sacrifices solely for personal gain, so if I'm going to ruin my life, it will be because I feel that it could very well lead to the betterment of many other lives. There's no 'perspective' there to glean. The fact that you would personally not value my sacrifice doesn't really impact that, because frankly, I don't give a shit what you think. You're just some rando with an opinion.
How is it evidence of anything more than his fame? It's very counter-intuitive that being brought up as an example of an unaccomplished person is evidence of accomplishment. I don't see how that works.
If you want to argue in favor of Snowden having accomplished something important, point out his accomplishments. Your argument is bad and makes it seem like he has none.
Your argument is predicated on a category error.
what if during that time his father died? was 100million "worth it"?
Second, he went to jail because he committed crimes from which he expected to gain, personally. He was at risk for a longer, more severe sentence had he been discovered and not cooperated with the government.
In all due respect this is an opinion born of a sheltered life.
In reality, where I live, different people have different work ethics. Some people get fulfillment from work, some people have really interesting jobs, while lots of others only work to put food on the table. You really think a hotel maid gets some fulfillment from her job?
If a family member dies while you're in prison you're usually allowed to attend their funeral unless you're an extreme risk.
If he goes to prison now with his whistleblowing money, the whole point is he WON'T need to trade his time for money at all in the future.
You don't need to be a whistle-blower to have a toll on your life/career.
Talk too much shit about a company in Silicon Valley and you're fucked, regardless of the merits of your claims against them.
#TeflonUnicorn