Steve Heymann Should Be Fired
tarensk.tumblr.com
tarensk.tumblr.com
Is there any evidence for any of this seeming mind reading?
The path to success for prosecutors is successful high-profile prosecutions. Everybody knows that.
I don't actually know that Heymann's career had been fading, but the rest of this quote seems pretty reasonable based on what we know.
Taren's quote portrays him as ruthless. I concede that we don't know exactly what went through his mind, but based on the facts in evidence, I think that that appears to be an accurate characterization. I, at least, cannot imagine how anyone with any compassion or principles could have looked at what Swartz did and concluded that it deserved to be treated as a felony worth years in federal prison.
Anyway, as I said upthread, the point is not so much what happens to Heymann as it is publicly making the point that Federal prosecutors in general have too much power and inappropriate incentives.
Seriously, this is getting out of control. I have no idea whether an investigation will turn up evidence of misconduct, but I doubt you do, either.
I, at least, cannot imagine
Try harder. Yeah, maybe they should have sent Aaron off for counselling. He sounds like he was becoming steadily more and more unhinged. Anyway, Aaron was pretty tenacious in his illegal behaviour at MIT. He wouldn't back down, and he got his hand slapped. That happens when you don't back off.
Aaron fits into a class of young men who believe that, because they have lofty principles which they are sure are correct, and because they are exercising their skill in a novel domain in which they are experts (computers) they are or should be above the law, and society should bend to their desires. Heymann was a critic of this trend - he wrote legal papers on it - and I assume he saw Aaron as an important case in proving a principle - that headstrong young white men with lofty ideas are subject to the same laws as the rest of us. So, his prosecution would have been primarily driven by the deterrence rationale.
Deterrence eh? Seems to be fairly well-established as a prudent rationale for prosecution in law. Lol. Nah, forget that, Heymann was an ego-driven careerist monster! Off with his head!
Or maybe some lithium. First he decides that it would be nice to liberated all the world's documents and actually tries to do it. Second his totally irrational "plan" predictably fails, as in smoking crater fails. Third he collapses mentally and commits suicide.
That sure walks and quacks like manic depression.
I keep saying that the prosecutors are a red herring. This case is about Swartz's lunacy first and foremost, and secondly about the digital freedom opinion leaders who knew how the Feds like to make an example of people and egged Swartz on anyway.
And I've said many times that there are red herrings all over the show with this affair. Those who focus on Aaron's explicit ideology are falling for a major one, I believe. Similarly with the focus on the DOJ. The only relevant issue here is Aaron's psyche, and the trend of reckless, idealistic data-vigilantes trying to place themselves above the law.
In this particular case, if you think Aaron and his lawyers were disingenuously misrepresenting what was happening, or Taren is lying in a deeply emotional state about what he related to her, just say so. Not cloaked in clucking about mind reading.
I'm not sure what the right outcome is, but the issue needs a chance to be fought for; and so I've signed.
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?
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.
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.
"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....
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.
And based upon what evidence?
Now, if these sources of yours had provided their opinions before Aaron's suicide then I'd be more inclined to believe them. That they presumably only developed these opinions after the suicide seems a little convenient to me.
This is in direct contradiction to what Aaron's lawyers have stated. Jail time was required, and if he did not plead guilty then the DOJ would push for a 7 year sentence.
Incidentally according to Aaron's lawyer, the prosecutors were going to be trying to convince a judge of a lot more than 2 years. Whether they would have succeeded in that is an unknown question.
Either way: my understanding is that 35 years is an overt misstatement of how sentencing for repeated counts under CFAA works. I stand by the word "lie", both in its technical and moral senses.
Either way, I assume we agree that the DOJ published the press release knowing full well Swartz would not actually be subject to 35 years.
http://www.popehat.com/2013/02/05/crime-whale-sushi-sentence...
Ironically I've eaten at that restaurant. It was quite good before it was shut down. (No, I never had the whale sushi.)
https://www.justia.com/criminal/docs/sentencing-guidelines/s...
... and in the interpretation most generous to the DoJ I came up with a sentencing grade of 27, which works out to 7 years for a first-time offender.
I think if you read through the guidelines (they're interesting!) you'll see right away that there was no way he could have gotten 35 years. I stand by "the DOJ lied about the sentence in the press release".
I am reminded of a quote attributed to Emanuel Lasker ‘A threat is more powerful than its execution’.
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.
The law is about the law, not about justice. They may be related but they are not the same.
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.
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.
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.
Whatever your attitude about the White House's goofy petition site, the efficacy of 'online activism', or what-have-you, Aaron Swartz's grieving partner thinks signing this petition will help shed a little light into the circumstances that led to his death.
Maybe she's right, maybe she's wrong, but either way, it only takes a second to do - so just go sign the damn thing.
But let's suppose you're right. I don't actually think firing would be an disproportioniate rebuke under the circumstances. To use language that Heymann might have used of Swartz, I think it would be great to make an example of him.
All that said, I don't expect it to happen.
He would, without a doubt, make much more money in private practice. That's one thing I think HN folks overlook. Senior DOJ people could lateral out to high six figure into seven figure salaries as partners in law firms. The folks that stay at DOJ as lifers are generally "true believers." That doesn't mean they don't have their internal motivations, but rather those motivations are shaped by an extremely deep belief in the rule of law. They view people who don't follow rules as at best anti-social, and more likely dangerous. Figuring out why they don't understand hackers doesn't require resorting to any elaborate theories about trying to make career-defining prosecutions. They're simply people who have a very different world view than the one hacker culture embraces.
In the physical world you are also sometimes confronted by people who stand outside a supermarket with a petition and you're supposed to be able to make a fully informed decision as to whether you should sign literally on the spot. If that's such a good system (it's not obviously) we should extend it to other things. But it's not and it's not even as if the person requesting the action that you have personal knowledge of their reputation or whether they are presenting the info fairly and completely showing both sides of the argument.
... as you helpfully demonstrated by calling chasing an asshole while chastising him for being offensive.
But I still disagree with your original comment. ;-)
Ummmm no.
Has there been a single White House petition that resulted in anything other than an official comment?
In the history of legislative and executive actions that have ever taken place, though, it's worth noting that many of them were spurred because of public awareness and outcry that preceded them. Does anyone here really think that SOPA was indefinitely tabled because Congressmembers suddenly read the bill and had a change of mind? Or was it because their offices received more calls and emails in than they likely did in the run-up to the Iraq and Afghan wars combined?
Or, alternatively, because the executive branch believed it already had the authority the bill would have provided (since they shut down MegaUpload the very next day).
I'm very cynical about things like 'awareness', because it's all too easy for politicians and lobbyists, who think about these issues every day, to slip something else by eventually. Most of the policy changes that we deride today as regressive were themselves not a 'first attempt'.
Ironically, I'm even more cynical than you. I don't think that politicians think about these issues every day...I think they think about the "big" hot-button issues (health care, taxes) and otherwise spend most of their time campaigning to stay in office... and that is why the SOPA protest worked...SOPA would've sailed through considering it's extremely wide bipartisan support...but it's not because the politicians were in a backroom scheming about it. All it takes is a few politicians who agree with the lobbyists; the rest will go along with a given issue as long as there's no political fallout...because there is always political fallout in voting against an ally.
Once people started e-mobbing the offices en masse, then the just-go-with-it majority realized there was political fallout. And for better or worse, that legislation and virtually any similar legislation in the future, will not be seen as benign. That is a huge hurdle for lobbyists to overcome.
That's simply not the case, though. It's trivial for them (lobbyists) to disguise it as an unrelated issue, using whatever common bogeyman is popular at the time (drugs, child porn, terrorism).
This is exactly what has happened time and again.
Let the less dedicated participants feel that they have done their part, and numbers will dwindle. As numbers dwindle only the extreme remain, and in few enough numbers that the entire cause is then written off as fringe.
It is a phenomena usually seen when cults start ejecting their more moderate members, but in this case it is harnessed by a separate party.
Exactly if you give people a "complaint department" and a method to file a complaint you put distance between their anger and the thing they are angry about and they will many times cool down and not explore other more viable options (not sure if that is what you meant but it's one of my thoughts about a process like this).
My (probably unnecessary) expansion on this is that when you deflate the sentiment, all those who remain angry will become more extreme (just by nature of not being surrounded by less extreme people) and will become easily to marginalize/fire.
Their first response was to toally agree with us and give us the distinct impression that they were going to "make good". As a result we didn't do anything we just waited because we didn't think there would be any problem in restitution. Well time passed and later I had lost my steam when they finally came around and said "sorry but we're not going to do anything".
Also known as "letting a hundred flowers bloom." How'd that work out for the "flowers?"
I had that exact thought and built a site where petitions are paired with giving the charity to add extra "oomph" to your opinions. The idea being that you can either donate to charity on behalf of your idea in order to make the importance clear -or- you can donate to charity if/when the objective is met as a form of incentive.
So far, I've not been able to get any traction though, so the idea remains to this day an experimental concept. Nevertheless, I've channeled all of my own charitable giving through the site for the past year on behalf of ideas of interest to me.
I figure, why not? I possibly win by convincing the powers-that-be and/or the charities win by receiving donations.
I invite you to take a look: https://brianstaskforce.com/blog/more-than-a-petition
I'd say it's a tragedy that the response has already died down this much this quickly, but not being an American there's little I can do.
I'll even agree that Heymann is unlikely to be fired, but to equate either TarenSK's suggestion or petition signing with a lynching is both unfair and unkind.
Edit: In my opinion, a demand for someone to be fired shares the same social DNA as lynching. Driven by the same forces: an angry crowd demands that a scapegoat be punished to appease it.
This idea that people in the government are unfireable is a disease. If you fuck up in the public sector, you get sacked. Expecting the same of the government is not equivalent to torture and murder.
Or are you just afraid of collective action in general?
Yes and no. No, the medium is not important, because groupthink can manifest and has manifested many times at every stage of civilization. Groupthink is of course not unique to the internet.
But yes, the medium is important, because the medium in this case is the internet, the defining medium of our age, and which most importantly is an emerging medium, which I would argue we still don't really understand. I think that we haven't yet worked out, as they say with the development of cinema, the grammar of the internet. This is after all still very early days for a global connected world culture, and there is always the potential for negative developments in such a period, before mistakes have been made, recognised, and effective counter-measures have been developed and deployed. In my view, this period is always dangerous.
>are you just afraid of collective action in general?
Not afraid perhaps but definitely wary. Collective action can be good, but it generally takes a lot of time and hard work and thought by a small group of people preparing and working on the rationale for the action, targeting an issue which is as close to bulletproof as possible. The Civil Rights movement, for instance, is an excellent example of this, but it didn't happen overnight. "Good things take time." And I should mention that from my impression the people involved in civil rights behaved with calmness and dignity, and never would have turned shrill at a small setback or upset. Contrast this with modern insta-rage activism, which in my opinion rests almost always on very shaky intellectual foundations. The screefield of issues thrown up in the wake of Aaron's death are anything, I would say, but bulletproof.
There is a strong precedent in history for collective action degenerating into groupthink and turning very nasty, and thus I think it is perfectly reasonable to be suspicious of collective action today.
Re: your previous post -
> If you fuck up in the public sector, you get sacked.
See that's part of the problem. Yes, of course, employees public sector should be accountable. I have no argument with that. But the implication here is that these employees of the DOJ did fuck up. But did they really? Many, many people judged them more-or-less on the spot as guilty - and based on what? A blog they read? Their political prejudices? Their sympathies to a story about a nice young kid with lofty ideals? Is this issue really so simple, so cut and dried, that it boils down to some bad cops ganging up on a nice kid? I don't believe so. And furthermore, I think that it never bodes well when lots of people are making up their minds very quickly that someone is an enemy who needs to be punished.
That's where normal, democratic mechanisms of accountability are supposed to come into play: to sift slowly through all the ins and outs of issues and avoid quick, heated judgements. Yes, there should be mechanisms for accountability in society. But those mechanisms must be objective, critical - and slow. What modern internet activism threatens is a short-circuiting of whatever mechanisms we have with the worst mechanism of all: mob rule. Regardless of the quality of current mechanisms, that would be a loss. Why? Because mobs move too quickly to reflect on their motives. Because mobs lack the social delineation which allow dissenting voices to challenge the developing orthodoxy. Because mobs lack an organisational structure which would allow the issue to be effectively and calmly analysed. Because mobs demand quick justice. Because mobs intimidate others to get what they want. Because mobs demand assent.
Now, I'm not saying that the current situation is all this. It's much milder than the worst case scenario - but it has the potential to develop that way. Or at least that's what I think. I also think that at any point in time, the people crying the loudest about oppression and freedom are most likely the real oppressors. But that's just a pet theory.
Your 'pet theory' about those who complain about oppression is a very convenient one for someone interested primarily in the status quo. Quite clever.
> but it has the potential to develop that way.
Hyperbolic bullshit. There is no potential for this online petition to develop into a lynching.
You are afraid of effective collective action.
Secondly, I am actually not saying that I think that, within a week or two, people will be calling for actual blood/lynching. What I'm trying to do is flesh out my sense of a trend which, though driven by the impatience and quick mouse-fingers of internet-users, is a lot slower than that. I think the Aaron Swartz hullabaloo will peter out. But I have noticed a gradual, albeit strong, trend of increasing pressure being wielded by the great undifferentiated masses of the internet. Anonymous. We The People. KONY. Avaaz. These are all facets, I reckon, of the same trend: slowly, a structure is forming which can link together and focus the emotion of the many against the few. Anonymous' Low Orbit Ion Cannon is not a bad example. Anonymous users can join together to attack prominent, exposed individuals or groups. Governments, celebrities, corporations, whatever. The balance of power is stark: targets have little recourse - isolating one individual or another from the crowd is practically useless.
Now, because LOIC is a pretty dramatic example, I should be clear of something: I am not saying that this trend is categorically a bad thing. But I do think it has the potential for evil - not now, but later. You say that what is happening is of little "real" consequence - I would argue that perhaps now that is true (though should be willingly sacrifice a man's career to the appetites of the crowd if he is innocent?), but what about next year, or the next? I am not stupid. I know that there is a buffer between these petitions and the government. That won't disappear overnight. But people are working hard to develop, all the time, these tools of "direct democracy." SOPA was stopped. Action has been effective, and governments do seem in some ways relatively impotent, lacking the technological know-how, focus, flexibility and downright cunning that can be mustered by engaged citizens.
Again, I should be clear: I'm not imagining some cartoonish image of crowds marching through the streets with pitchforks. However this manifests it will suit the manner and technologies of this time.
Also, I'm not defending the status quo. Really. I haven't considered the flipside to these arguments in depth, but it involves something along the lines of the ability of large organisations to negotiate agreements with other large organisations, to engage the bureaucratic infrastructure of society, and develop and deploy large-scale surveillance technologies. I'm not sure how these forces balance up, or how they will pan out, or who's good and who's bad, or who I think should win. I'm mostly playing with ideas at the moment.
Anyway, in this corner of the web, we spend a lot of time worrying about democracy and the rights of the people, standing on soap boxes and shouting about injustice - but what if we're part of a game, what if we're not as pure as we make ourselves out to be? The concept that our actions might be aggressive, confrontational, threatening, is counter-intuitive - a lot of what I'm saying is counter-intuitive (which is why I think people here are reacting so mixedly to it) - but what if this is our blind spot? What if we are the aggressors here - or what if we are the force growing into the role of aggressor/oppressor? What if governments and corporations turn out to be weak before the anger of the crowd?
Well. I don't know, but I think it's interesting to consider. I'm not afraid of effective collective action. But I am opposed to poorly-thought-through collective action. 1) because it tends to flop (Occupy) 2) because it needs to grasp for easy enemies and 3) because it can be destructive. I see that potential today in modern internet behaviour. Maybe tomorrow I might see another side. Who knows.
Above all: I like to know where the crowd is heading before I join in the rush. It seems difficult to get a coherent answer from a lot of these modern cause célèbres.
If that is really the case, then maybe think next time before you start off by making comparisons to lynching.
Yeah yeah, I know. "Why not LOIC him?" doesn't carry the same juicy emotional punch...
I made the comparison to lynching for two reasons. Firstly, because I think the basic social DNA is the same, though the phenotype is different. To whit: an angry crowd jumps to a snap decision and demands rapid, extra-legal retribution. In the case of lynching, the crowd is a group of people in a single place whose only mechanism of demanding this retribution is face-to-face and physical. In our situation, the crowd is a dispersed group of people who can interact in relatively anonymous digital channels, and do not have as clear a mechanism to gather together physically and demand retribution in that fashion. (Luckily - this practical difficulty hampers the groupthink tendencies of the internet.)
Secondly, I made the comparison to lynching because it is an effective rhetorical point. Lynching is something which most people today would find shocking and unacceptable. By drawing and defending a comparison between lynching and this current behaviour, I am attempting to reframe and destabilise this modern trend of calling for blood. People that find lynching shocking might eagerly support calls for the firing of Ortiz or Heymann, but if they are confronted with a logical link between the two activities, they may reconsider their motives and actions.
And broadly I am doing all this, as I have explained, because I think while this behaviour is relatively innocuous now, it's growing teeth, and could turn ugly.
For some reason, whenever there's a lot of public anger, the process just so happens to disproportionately end up going the way of public anger. Not all the time, but a lot of the time. Cf. healthcare law and its route through the judicial process.
It's a SCOTUS issue, but I can't see how it's even constitutional to punish a person for demanding their constitutional right to a trial. And yes - it's a punishment, as the expected outcome of a jury trial tends to be much harsher than a plea bargain. I really doubt under 10% of defendants would demand a trial if there weren't effectively a penalty for doing so. (Aaron never would have gotten 10 years, but even 12 months would still be much harsher than the 6 months they offered).
The only reason to plead guilty should be to save time, costs, and establish contrition (sorry judge, I did it, and I feel bad ... can you give me a slightly lower penalty?)
I understand that public prosecutors and judges are underpaid and overworked, but if they can't do their jobs there's no shortage of law grads out there. It would cost a little more, but if you're locking someone up for 6 months and can't afford give them a day in court (Aaron's case may have been a bit more than a day, but I doubt the average court case would take much time at all) then you shouldn't be prosecuting them at all.
I guess there's not as much scope for corruption though. Privatised prisons are a massive money maker. Public prosecutors and judges probably don't bribe (sorry ... support) their representatives nearly as much as prisons.
To me signing the petition is simply to let others know my attitude, and to let those who hold the same stand know that they are not alone.
It means people have been signing the petition like gangbusters. Probably thanks to BoingBoing.