Swartz didn't face prison until feds took over case, report says
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If Swartz had stolen a $100 hard drive with the JSTOR articles,
it would have been a misdemeanor offense that would have
yielded probation or community service.
Sentences aren't cumulative like that... or was my understanding wrong?
If it came to the judge+jury deciding it would likely have been on the order of 1-2 years.
> According to Jennifer Granick the sentencing guideline (assuming trumped-up loss calculations) would have been on the order of 1-2 years. There were a couple of plea bargains on offer, the worst of which was 6-8 months.
I'm not that familiar with the US Justice process, and nothing in that sentence makes sense to me :-/
Didn't he plan to go to trial? I thought he did.
In which case would the 1-2 years have been recommended?
By "trumped up loss", do you mean that the prosecution exaggerated the loss of the MIT/JSTOR?
At last, why is the 6-8 months plea bargain offer the worse? I thought it was the best one offered...
Basically in the U.S. justice system you have a right to trial by jury, but this is expensive for both sides, takes a lot of time (both for the prosecution and defense, but also for the jury itself), so typically both sides will engage in a process of plea bargaining.
This is where the prosecution gives up on some things (such as their recommended sentence) in order to convince the defense not to pursue the trial by jury. Depending on the evidence involved (which hasn't been thrown out by the judge at this point) it may even be advantageous for the defense to pursue a plea bargain to try to get a reduced sentence on what looks to be an almost certain conviction. In this case there was an offer by the prosecution for a 6-8 month prison sentence plea bargain.
However, if the prosecution really wants to avoid a jury trial then generally they'll argue for a longer-than-normal sentence should they win a conviction (because otherwise the defense would simply always settle for jury trial and hope for a "Hail Mary" that overturns the case on a technicality). So the prosecution had announced that they would argue for a sentence of 6-7 years (or so) should the trial go to a jury phase and convict Swartz.
The "fair sentence" is independent of what the defense and prosecution think, and is determined by the Federal Sentencing Guidelines. It is based on these guidelines that Jennifer Granick estimated a sentence of 1-2 years, if convicted.
In any event the actual sentence is determined by a judge, usually based on the sentencing guidelines (1-2 years) and biased up or down based on how convinced the judge is of the arguments presented by the prosecution and defense. It's hard to say exactly what the judge would do, it really just depends on the judge.
As far as I know about Aaron, he wanted to plea bargain, but didn't want to plead to any charges that would make him a felon (but unfortunately the CFAA legal code is all "felonies" due to the way their maximum sentence is derived based on damages caused).
> By "trumped up loss", do you mean that the prosecution exaggerated the loss of the MIT/JSTOR?
It never got to that point, but basically the CFAA allows the victim to claim any costs that are reasonably associated with the crime committed by the suspect as damages. It's very open-ended, so you can claim damages even for functions you might ordinarily have been doing anyways.
For example, if MIT has 3 network techs looking into the network intrustion then their wages could be claims as damages, even if MIT would have had those 3 on work that day anyways. JSTOR shut off MIT's access for a few days while trying to block Swartz so MIT can not only claim the pro-rated value of their JSTOR contract for the time it was down, but they can also claim damages for all of their scientists and researchers who were delayed or otherwise affected by the loss of JSTOR services, even if it really could have waited a few days.
So that's what I mean by "trumped-up", the CFAA gives a very large book you can throw at the accused.
> At last, why is the 6-8 months plea bargain offer the worse? I thought it was the best one offered...
Way earlier in the case there had been a plea offer on the table that would have involved no jail time, but allegedly MIT did not buy off on that (this is kind of older data though I haven't seen anything refuting that).
At the time Aaron killed himself there was apparently two different pleas, one where the prosecution would ask for 8 months but the defense could argue to convince the judge to reduce it, and another where the sentence was more "dialed-in". It escapes me what the differences between the two would have been in practice though, I'm not familiar enough with the private discussions (at least until those details get leaked out too)
The judge could assign more than 2 years (if convicted on all or most charges) so I'd be careful against suggesting that was the likely sentence. Given that the prosecution had mentioned pushing for 6-7 years I'd use that as the worst-case upper bound with 1-4 being the most probable band. However, both previous cases involving CFAA and the particulars of Aaron in particular (who had no malicious intent toward MIT) seem to argue against prison sentences as long as 4 years being a possibility in this case, but that's just my opinion.
Imagine it was a $100 hard drive with a few dozen copies of newly released films. Or medical records from a hospital. Or credit card numbers.
This is a red herring.
Another point: if you break into a house to steal a $5 watch you are looking at a lot more than just $5 theft. Aaron was charged with the equivalent of breaking and entering
People keep acting like this was simply and only about some JSTOR articles, but this was about more than that, he was on a network that he didn't have permission to be on, and used the cloak of that network access to grab things of little to no value without permission, and he did this over a long period of time.
Since the story of Aaron's passing, this site has been home to a lynch-mob asking for Ortiz's head on a plate. I wish I knew enough about federal prosecutions to say whether or not this one was far different from the norm - hell, I wish I knew enough about depression and suicide to say whether or not the prosecution was the primary reason for this sad turn of events - but, regardless, the users HN have been relentless ... almost as if they wished harm on Carmen Ortiz.
I'm pointing that out for a reason. Bullying and outright harassment come in many forms. The end result of these actions are at times not the result that anyone truly intended even if they imply it with their words/actions. You can't on one hand accuse the feds of being overly aggressive while simultaneously doing the same to Ortiz and her family.
Let the law and the current investigations run their course before there are more unwanted consequences of this tragedy.
Resist complaining about being downmodded. It never does any good, and it makes boring reading.
Please don't bait other users by inviting them to downmod you.
As for your point about the "don't complain about being downmodded" - fair enough, and I'm sure I'll earn a few more downvotes thanks to your due-diligence :)
At the same time, once in a while, you have to stand for something in your life. I made a serious point about a serious topic and some coward came along and decided to "down-vote" instead of having some dialog about it. I may lose digital karma but at least my conscience is clear for defending something I believe in.
I agree with you there. A posting on a newsboard might not be the best way to show your principles, though.
As for your opinion, consider the possibility that you're overreacting to a few overreactions by emphasizing those comments that went too far and ignoring the ones that showed moderation.
The worst-case for Ms. Ortiz, post-resignation, is that she gives up short-term gubernatorial aspirations and quits to take a $1,500,000-$2,000,000 a year gig as a partner at a large Boston law firm advising on white collar criminal defense.
This is not exactly a horrible fate. In fact, most people would consider trying to bring that about the opposite of "wish[ing] harm on Carmen Ortiz."
In addition to that, I've seen people sulk and get visibly agitated for long periods of time after poor performance reviews at work. Now, compound that by thousands in the public doing that - and then some. Think about the effect that has on someone's mental well-being.
But some of the comments you criticized above are far tamer than much of what passes for discourse in American politics nowadays: "Someone needs to be held accountable. Ortiz is someone." "Carmen Ortiz needs to go. She's a publicity hound" "Someone needs to be held accountable. Ortiz is someone."
Nothing wrong with saying any of those things. If you have a high-profile position in the U.S. government (Ortiz was confirmed by the Senate), you should expect scrutiny if you screw up. If Ortiz wants to restore her "mental well-being," one option would be to resign and take that lucrative law firm gig. That she has not done so suggests she assumes she can weather this storm and criticism of her will eventually die down. HN readers have the right to challenge that assumption.
It's bad for exactly the reasons you say.
It's good for the same reasons that they came down so harshly on Aaron--to make an example. The thing is, she represents the old guard--the old "I'm not good with computers but boy am I afraid of them" lobby. There is real money behind the internet now, and one of the perks of that is you get to demand representation and power. Just as Aaron made the mistake of getting into politics, so has Ortiz. Some examples need to be set that if the government expects us to bail them out in the future, they need to stop trying to put the best of us in jail.
Making an example of someone in retribution for it happening to someone else is eye-for-an-eye.
You can simplify any crime imaginable and any punishment imaginable to declare the combination of the two "an eye for an eye", as you have just done here, does not make such a declaration legitimate.
1. We need to make an example out of him and try to lock him up for 35 years.
2. We need to make an example out of her and get her fired.
I've said it before, I'll say it again.
Generally when people draw comparisons to a certain European government in the early 20th century, others freak out, trotting out old usenet quotes and declaring that the person has "lost" the argument for making such offensively hyperbolic comparisons.
Why then does this same community seem so accepting of comparisons between calls for resignation of a government official, and the practice of barbaric humiliating murder without trial of underprivileged minorities?
This is hyperbolic bullshit.
"Great to see Ortiz's office crash and burn"
"Carmen Ortiz needs to go. She's a publicity hound"
"Do not google "site:nl 2 girls 1 cup". Should you so google, do not click. You have been warned. But I should add, even if you so click, the result is less obscene than Carmen Ortiz!"
"This woman has ZERO principle or sense of morality"
"Someone needs to be held accountable. Ortiz is someone."
"Ortiz is obviously disgusting"
"It's unfortunate that by demonizing Ortiz, we play right into the hands of those who appointed her"
"I support the demonization of Ortiz purely on the level of revenge."
Being mad and wanting someone to be fired are not even reprehensible in the slightest. In any other profession if you fuck up, that's just what you would expect, but apparently some of you people think anyone working for the government is an untouchable perfect angel who must never be insulted nor fired.
You might also want to mention how many comments urged restraint in response to the most over-the-top attacks. Your sample is definitely not a random sample, but a curated set of some of the most excessive comments.
Next, the power she wields is magnitudes greater than an on line "lynch mob". There for the words like bullying cant apply. She is not a lonesome hacker. She is a very powerful person who can destroy lives.
My problem is that focusing on this person misses the entire point, which is that the system allows, no, encourages this sort of thing.
In short, even if she is fired and marched out at gun point, others will just do the exact same thing, over and over again.
http://dankennedy.net/2013/01/24/the-swartz-suicide-and-the-...
The Boston U.S. Attorney's office was looking for "some juicy looking computer crime cases and Aaron's case, sadly for Aaron, fit the bill," Elliot Peters, Swartz's attorney at the Keker & Van Nest law firm, told the Huffington Post. Heymann, Peters says, thought the Swartz case "was going to receive press and he was going to be a tough guy and read his name in the newspaper."
The Law of Unintended Consequences strikes again...
EDIT: The notion I was trying to capture is perhaps better expressed by saying, "Be careful what you wish for." Heymann got all the things Peters accuses him of wanting, just not exactly in the form he was presumably hoping to receive them.
That said, based on what knowledge I do have of him, his being a notches-on-the-belt and consequences be damned type of Federal prosecutor fits the facts well enough — in fact, better-enough than all the other alternatives combined — to consider my opinion accurate enough for an internet forum.
Put differently: if a prosecutor chooses not to pursue particularly stupid applications of a law, that's better than the opposite, so we should work to make sure our public prosecutors are as reasonable as possible. But that's a very weak kind of protection. Having very broad criminal laws where we rely on the wisdom of prosecutors not to charge the "bad" applications leaves defendants with basically no procedural protections, since not being charged when you violated the law as written isn't any kind of legal right.
On the case, I know a lot of technical people are responding that this case overreach on the prosecutor's side. I wish people would look at this from both sides. How does she know that Aaron was truly innocent? I bet she had expert witnesses on her side saying that Aaron was doing something illegal and excessive. Everyone is saying that he had access to download those files. But the prosecutor is looking at all of his seemingly suspicious behavior. 4 million downloads through a custom script. He walked into the computer closet to hard-wire in.
If you are looking at the Aaron case abstractly and comparing his behavior with other cases. I bet the prosecutor thought they had something with the case against Aaron. He certainly wasn't entirely innocent. He didn't download 4-5 documents through a browser like a typical user.
I grew up knowing exactly what it's like to be bullied and severely beaten for being different, and the only thing different about me was that I was modestly intelligent and interested in computers. I'd be surprised if I was alone in my experiences among the HN crowd, but I was definitely alone in my small town. [I feel like even mentioning this is some kind of egregious faux pas.] Thank goodness for BBSes and IRC.
Not to diminish the suffering and needs of more visible and more historically persecuted minorities, but you'd think all the attention given to the "accepted" minorities would get people to generalize to accepting differences of any kind.
It's condescending to say people aren't looking at both sides. You are actually now arguing that either she was incompetent because she picked bad expert witnesses or she had bad judgement in how hard she prosecuted. After she had all the facts in front of her, she threatened him with 35 years for it.
As someone else posted above, if he had stole the hard drive with the 4 million documents on it, it wouldn't be a felony.
I didn't say that or imply it. On the other side. I have heard that Aaron had access to the documents. I have heard that MIT is an open access type of campus. I have heard things that claim that the prosecutor's case was in error. But, I have heard little about the validity of the case. I guess that the prosecutors reviewed the CFAA laws and other similar cases.
I am saying that the case should have proceeded forward. I would have liked have heard from both sides. Others say she should be fired and that the case was invalid.
The only reason we seem to be hearing about Swartz, Manning, the Duke Lacross Team, et al. is that they have a socio-economic standing that most of the victims of this particular brand of "justice" do not.
His infamy is due to the particulars of his case and because the hacktivists have latched onto him as a rallying point because of the association with WikiLeaks.
As opposed to, say, the less-visible alleged members of Anonymous and Lulzsec who are likely facing the same exact sort of prosecution 'strategy' as Swartz [2], but because they aren't or are lesser parts of those crowds, no-one's paying much attention. Even though, criminals though they may be, it's just as likely their prosecutors are pursuing their cases with that same lack of justice or proportionality.
[1] in the FOIA sense, not in the piracy sense.
[2] I definitely draw a distinction between Manning and Swartz's prosecutions, as Manning being enlisted, gives the prosecution a distinct ability to go so much further with it.