Prosecutors' deal for Swartz: Felony plea and three months in jail
arstechnica.com
arstechnica.com
Help put their records as prosecutors on-line where everyone can see them.
http://www.plainsite.org/asymptote/
The goal is a page like this for every prosecutor in the country:
I wish he'd be more up-front about this stuff.
Your characterization of the initiative as being solely designed to benefit me financially is misleading and inaccurate, and I disagree with your assertion that I somehow should have been more forthright.
al·so
/ˈôlsō/
Adverb
In addition; too.I do not find it necessary to explicitly disclose beyond what it already obvious from the PlainSite web site that I may capitalize on opportunities that are available to everyone, and which my work (and funding of others' work) has made more available to everyone.
Would you prefer that information not be in the public domain at all because I might make a profit from helping to organize it? Or are you saying that I have an obligation to disclaim that I might hypothetically make more of a profit from there being more public information in the public domain, which applies as much to you as it does me? Or are you (also) saying that I may not earn a living by any means and discuss circumstances surrounding or even unrelated to those circumstances unless they happen to meet your particular standards first? Or are you saying that no one should be entitled to profit from public information at all and that only the government should be able to dictate what information will be disseminated and how?
If you think you can do a better or somehow more "pure" job than I have making public information surrounding the justice system more accessible, please, by all means, go ahead. I and many others would be grateful.
In the meantime, whatever you are saying, I find your comments incredibly callous, disrespectful, and misleading (because you make it sound like the data goes to only me, when really it goes to the Internet Archive RECAP database) and I once again request that you stop.
Damned if you do and damned if you don't, guilt doesn't even enter into it you lose either way.
"plead guilty and only have one hand amputated, or spend a million defending yourself with the risk of execution."
would you still waste our time bring up personal responsibility?
because no one's arguing that he wasn't personally responsible for entering the server room. the issue is how unreasonable the offer is considering what he did.
How is any logical, reasoned debate supposed to follow from this? How is having a limb amputated supposed to compare to Aaron's case?
it's just the first straw-man misinterpretation you could invent to respond in any way, isn't it?
in any case, you've conceded that the reasonableness of the plea deal is the issue here and personal responsibility for entering the server room is irrelevant.
So the feigned incredulousness of that comment upthread isn't particularly convincing.
Definitely a great excuse for us all to beat each other over the head with pointless flame wars.
What's crazy is that there is as much heat on this thread as there was on the excellent WBUR piece that took on Ortiz' record in MA:
http://news.ycombinator.com/item?id=5264200
Go listen to that, instead of yelling at people on this thread. Ortiz' office is a mess. People who recommended her for her appointment are backing away from her. WBUR did actual reporting to back this up, rather than playing telephone with HuffPo.
Flagged.
It's much cheaper to say "confess your crimes or face much heavier penalties". It worked for the French Revolution, the Soviets and the Inquisition, why shouldn't it work in the USA?
Besides, the prosecutors are pretty even handed. They wouldn't prosecute someone if they didn't think they deserved a stiff penalty. As Carmen Ortiz says; "This is an adversarial system. We're here to prosecute."
[I think you're being sarcastic, but...]
The converse, plea-bargaining making prosecution easy and profitable (see seizure law), has resulted in huge expansion of laws making ordinary activities illegal.
If it was hard and expensive then we wouldn't outlaw behavior every time some twit get's their panties' in a twist. And we wouldn't automatically bend-over and use the criminal justice system to prop up failing business models.
It does little to prevent crime; it does little to prevent recidivism; it does nothing to rehabilitate people; it's fantastically expensive.
There are a small number of people who need to be locked away to protect society.
Putting Swartz in jail was just an opportunity to wave a flag - "Strong on crime, strong on the causes of crime" and all that nonsense.
More often than not, it breeds criminals, by mixing minor delinquents with professional, organized criminals.
In the vein of your comment, see also this article: http://www.guardian.co.uk/society/2013/feb/25/norwegian-pris...
While they offered a relatively short sentence,
prosecutors were absolutely determined to get a
felony plea and some kind of prison time, according
to sources cited by The Huffington Post. They wanted
those results because they believed it would justify
their bringing charges in the first place, according
to HuffPo.As for "unspecified chance"--of course there is some unspecified chance of anything happening. You don't piss off the federal government and a key piece of the military industrial complex by knowingly breaking laws and then rest easy in the knowledge that there is zero chance of your getting in serious trouble. But based on previous cases we've seen, it's highly probable that nothing serious would have happened. Other young hackers who broke into networks but didn't cause any damage mostly got probation. Kevin Mitnick got 5 years, but for his second offense after spending 2.5 years as a fugitive.
Sure, he could have just rolled over. After all that's much cheaper, justice is, after all, for those that can afford it.
He wanted to fight a political battle, arguing that there was nothing wrong using someones network without permission or distributing peoples work without permission. People here in HN treat that as a given, but that's not how the law views things, and that's not how ordinary Americans view things. My mom wouldn't have needed to know about mac address spoofing to know what he did was wrong. Hell, if I wandered into random closets like that without permission as a child I wouldve known it was wrong.
He wanted to challenge the law, and argue that things we percieve to be wrong were either not wrong or otherwise justified. That's what was expensive--not getting a fair shake from the system.
Yes, we make it expensive and difficult to upset the settled order. That's by design and its a hallmark of civilization.
That's an opnion, not an established fact. What is a fact is that to establish whether you broke the law or not will bankrupt you regardless of whether you did or not.
See, you are not a judge, you simply are some guy on a forum arguing that Aaron broke the law. If you want to know for sure then you go before a judge and you defend yourself. Unfortunately that is now no longer affordable, tough luck.
The law does not 'view' things, the law is made by people and interpreted by people, ordinary Americans should - and plenty of the them do - view these things as strange and inscrutable. They don't understand why high profile banker criminals walk free but some kid that tries to do the world a service gets hounded to the point where he sees no way out.
I'm pretty sure that you as a kid already were a 'good boy' but there is more to this life than obedience, sometimes you have to think for yourself and figure out what is really right or really wrong. The results may surprise you.
Making things 'expensive and difficult to upset' is not a hallmark of civilization, it's a hallmark of a system that has gone wrong.
Of course to lawyers that's a great thing, it means more gravy for them.
When has this ever been affordable?
Can you craft a legal system where everyone receives at least the minimal amount of legal expertise that they need inexpensively?
Either way if you prefer semantics then even going through the expensive legal process will never verify the fact of whether Aaron broke the law. It will only verify whether or not a jury unanimously agreed that the prosecution appeared to have proven beyond a reasonable doubt that Aaron broke the law.
Given that the law (CFAA) is fairly unjust in this case, and deliberately so, I don't see why it's a stretch to claim that Aaron "broke the law", it was intentionally written to be easy to prove charges written against it!
Yes, we have exactly that here.
Because the common-law system that the U.S. uses is much more complex, which increases the complexity for the lawyers, which increases the cost of the lawyers/judges/etc. However rich a few of the lawyers may be, most struggle through and don't pay off their student loans until comparatively late.
But over there the lawyers are inexpensive (or simply unnecessary)? Because if that's the case it sounds like the issue is already solved, simply move to where you live.
If the lawyers are expensive, but not for their clients, it simply means that someone else is footing the bill, which has analogs within the U.S. (public defenders) but most who can pay choose to forgo public defenders (assuming the state even provides that option).
People find taxes strange and inscrutable. They find municipal regulations and housing codes strange and inscrutable. In my experience, they're pretty good with the various provisions of the law that provide for private property and enforced boundaries for private property. We're a society that believes very deeply in boundaries and walls, and are skeptical of people who breach those boundaries even when they have a political agenda that ostensibly justifies their actions.
> They don't understand why high profile banker criminals walk free but some kid that tries to do the world a service gets hounded to the point where he sees no way out.
It's just an opinion that Swartz broke clearly stated laws against illegally accessing networks, but it's a fact that bankers broke criminal laws. I have that straight?
> I'm pretty sure that you as a kid already were a 'good boy' but there is more to this life than obedience, sometimes you have to think for yourself and figure out what is really right or really wrong.
Sometimes you do, but when you do, you should be prepared to deal with the consequences of rocking the boat.
> Making things 'expensive and difficult to upset' is not a hallmark of civilization, it's a hallmark of a system that has gone wrong.
Civilization comes from stability. There is a reason Rome is remembered more for the Pax Romana under the empire than for the republic. There is a reason the peak of British civilization and the peak of American civilization are coincident with periods of their military supremacy.
> Of course to lawyers that's a great thing, it means more gravy for them.
Some lawyers? Sure. Lawyers generally? Not really. The set of people who can afford million dollar legal fees and the set of people are targeted for individual criminal actions is a small group of people. It's profitable work for a few high profile firms, but there just isn't a lot of it and it doesn't account for all that much revenue. By and large the targets of overzealous prosecution are low-income minorities who are put away for drug crimes. Not much money to be made there.
As a result, you'll find very few groups of people more against overzealous criminal prosecution than lawyers. I have too many public defender friends to be unaware of the problems of over-prosecution. But wealthy tech entrepreneurs breaking the law to push their political agenda just doesn't tug at my heart strings the way say a young man actually getting 20+ years for some drug possession does. People like that have the resources to push for change they desire through "official channels" without resorting to dramatics.
More generally, stability is good for lawyers for the same reason it's good for everyone else. Legal industry revenues are a function of GDP, weighted towards GDP from financial services. In a stable environment, people invest in the future. They do deals, some of those deals are a success and result in successful companies, some of those deals go sideways. All of those things generate legal work.
http://www.volokh.com/2011/05/24/congress-considers-increasi...
There is a very widespread belief that Swartz faced decades in prison. Rayiner is a lawyer, but you don't even need to be one of those to learn that Swartz didn't face decades in prison. His own attorney wrote a long, detailed post about the situation Swartz was in. The prosecution threatened 6-7 years, and his attorney thought it was unlikely that Swartz would have received a custodial sentence at all even if convicted on every charge.
All Rayiner is doing is correcting a misconception.
Rayiner is an AC, if he's a lawyer beyond his claim he should stick his name on his profile, until then he just claims to be a lawyer. Grellas is a lawyer.
Since the lawsuit never came to a conclusion you can claim that you can see into the future all you want but the sentence was never passed so you don't actually know how it would end. All we have is what Aaron was charged with, and we know is that he took the push to get him to face jailtime very seriously.
There is no certainty in going before a judge, performance in the past is no guarantee for the future.
It's quite possible that Aaron would have just been 'slapped on the wrist', but since it isn't your head on the block I think you should lay off. And even 'just' being labelled a felon is apparently a small thing to you, to me it would matter a great deal so if that's all there was that is too much for me.
I understand you have a problem with people breaking the law and not getting punished, let's hope that one day you will move beyond 'level 2'.
The longest sentence for hacking in the U.S. on record, according to Wired, is for a guy who stole two million credit card numbers and sold them for $20 a pop to organized crime: http://www.wired.com/threatlevel/2010/02/max-vision-sentenci.... He was sentenced to 13 years and paying $27.5 million in restitution, but will be serving about 9 years in a minimum security prison.
The maximum sentences exist for guys like that (and I don't think 9 years in prison is unreasonable for hacking that resulted in $86 million in fraudulent charges).
A quick Google-ing shows that people who engage in activity that doesn't actually cause substantial economic damages, even when facing a dozen felony counts, just don't get substantial jail time. Which makes the "35 years in prison" hand-waving just plain misleading.
Now, maybe you think a 6 month suspended sentence and a felony record are too harsh for illegally accessing a network. I tend to agree with you--I think that copyright infringements should be purely civil matters and accessing networks without permission should be misdemeanors, not felonies. But that's a totally separate argument than: "OMG our system is so fucked he was going to get 35 years for not doing anything wrong!"
I guess my point is that things can be wrong without being an indictment of our whole society. Not everything we should change is the result of the fundamental corruption of our society, the fact that our Congress people are bought out, the fact that our government is one step away from fascism, etc. When you throw the misleading "decades in prison" language around, you force the debate in that direction, instead of more sensible and productive ones ("maybe we should make the misdemeanor case of the CFAA more robust and not so easily side-stepped by simply claiming the hacking was in the furtherance of some other crime.")
I think one of the problems here is that the 'decades in prison' thing is actually used at all, especially by the prosecutors.
If there is no chance of 'decades in prison' then it shouldn't be used in the first place. Such bluffing and posturing leads to all kinds of trouble and I can't see anything good coming from it.
The other part - the civil / felonies - bit I think is slightly more nuanced. Big time commercial piracy versus most others kinds, where the felonies should obviously be handed out to big time commercial pirates. This may be hard to put together in a way that holds water legally, but that opens the door to overreach.
What I've gleaned from the Aaron Swartz case so far is that the actual thing Aaron tried to do (the downloading) turned out to be non-punishable because of the JSTOR reversal, so instead, a lot of hay is being made over something that is actually peripheral to the whole case.
It's like someone with driving with their lights off being charged with a whole slew of offenses because they can't be charged for breaking and entering. Going for the absolute maximum penalty that you can attach in every contrived way possible to driving with your lights off.
This comes across as quite surreal and unjust.
But the Supreme Court should take a look at where the Constitutional boundaries for plea bargaining practices lie. Having a maximum multiplier would be a good idea: If a plea bargain for N days in jail is offered, no more than 3N days can be sought at trial. (Of course there has to be some way to convert different punishments into equivalent "currency" for this conversion.) The point is to keep defendants from pleading out due to pure risk management considerations, which makes a mockery of the justice system by turning it into a high-stakes poker game, and deprives defendants of due process by coercing them into giving up their rights.
This is insane. Absolutely insane...I know this was intimated before, but to hear it confirmed... You can be convicted of a felony for expressing an opinion about how to improve goverment? I have stayed mostly silent about this until now, but this is just beyond the pale.
Forget impeachment- Ortiz and the other prosecutor (forget his name) should be perp-walking for this. Their punishment should be public and severe enough that no one else in their position will think they can do this with impunity.
No, but I don't see why they can't use it as evidence in a different case. IANAL, but it seems relevant if they wanted/needed to demonstrate intent.
I read the indictment and I'm pretty sure it talked about something about evading network bans and hooking computers up directly to network switches. Either way though, the conviction would come from the jury, not Ortiz, something which people always seem to conveniently leave out.
The manifesto is one of the things the prosecutors use to determine if this is "just a kid on a joyride" or a repeat-offender-to-be. As such, why would they not consider that in their determination of whether to bring charges or not?
Is it your thought that someone can post an open letter saying that they intend to bring about forcible change to the law of the land, by taking matters into their own hands if necessary, and have that letter get no response from the one branch of government charged with enforcing those same laws?
And am I the only one who has noticed that he was never actually charged with piracy or copyright infringement? The ends don't justify the means, that leads only to a world where might alone makes right. By all means, open that access, but don't break into networks to do so.
That's absolutely not what is being said there. He was not being charged because of what he wrote in 2008. He was being charged because of his observed actions. What he wrote previously was only being cited as context for why he did it and as evidence of his intentions[1]. In law, intent (if it can be proven) can make an enormous difference in what you get charged with or convicted of.
[1] e.g. "We need to download scientific journals and upload them to file sharing networks." http://archive.org/stream/GuerillaOpenAccessManifesto/Goamju...
For example travel to Canada: http://www.wikihow.com/Travel-to-Canada-with-a-Felony-Charge
From that page, it can take up to a year and $1000 to apply for the visa for entry.
The data sharing between the US and other governments means that you can't keep your convictions secret either.
For example, Canada is hooked into the US databases, and they can and do retrieve information from them.
"Some congressional staffers left the briefing with the impression that prosecutors believed they needed to convict Swartz of a felony that would put him in jail for a short sentence in order to justify bringing the charges in the first place, according to two aides with knowledge of the briefing."
I have a felony computer hacking conviction and it is the opposite: I have to turn down job offers.
Yeah, in a positive way. Here is a guy that stood up for what he believed in and for the most part had support from other techies. By all accounts he was also a very smart and productive kid. Companies would have been lining up to hire him, if for no other reason than to thumb their nose at the feds.
It hurts a lot of the working class, where "no ex-felons" is a cheap and legal filter.
(If I ever wanted to get a security clearance again it would be an issue -- but obviously Aaron is exactly the person who should not get a security clearance.)
That you know of. But it is the sort of thing that some people do check up on quietly.
We have something called "Criminal Records Bureau" checking, which is used for anyone working with vulnerable people. (Children, old people, people with mental health problems, people with learning disabilities, etc etc.) There has been a problem with people using these too often (ie, for jobs that don't require them) and rejecting people for convictions that are either very old or that have no relevance.
But I've never filled out a "job application" for a software development position. For the kind of jobs that are typical of American readers of Hacker News, employers asking about your arrest record is less likely than them asking where/if you went to college.
(There are certain classes of software development jobs where a felony conviction would matter, like defense work.)
Federal prosecutors typically hold all the cards.
You go to trial if you are actually factually innocent, and you are a millionaire with a bunch of expensive lawyers and a large publicity apparatus and network of friends. Aaron Swartz's problem was that he was NOT factually innocent of all the charges considered in that case. His lawyers were aware of that, and that constrained their range of options. People who keep their behavior innocent have more options.
Just like those guys from HSBC. And they did their time too. Oh, wait.