Attorney General: Aaron Swartz Case Was a ‘Good Use of Prosecutorial Discretion’
wired.com
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It's quite possible Ortiz was overzealous. It's quite possible (in fact to some extent almost certain) that the system is broken and defines computer crimes poorly, and Ortiz was doing her job well in a very tough spot. It's possible we're better off with laws aimed to stop computer fraud, and that prosecuting those who commit it (even if they happen to be people we generally like) is a necessity in the 21st century.
At the end of the day we have to remember, we need laws to prevent computer fraud, hacking, etc. Those laws will, almost by necessity, be written and enforced by non-programmers.
Which is not to say Aaron deserved 17 felony charges. But it's overly simple to vilify Ortiz or the AG's office.
However, the idea that the CFAA is the best we can do in the way of legislation is just laughable. I really can't stand this futile notion that because the law can't be totally perfect, we might as well just give up and allow it to be catastrophically bad. No to that. We can't make it perfect but we can make it a lot better than it is.
You're exactly right but careful about what you're arguing against. I don't think anyone is actually claiming that CFAA is the best achievable law we could have, or that we shouldn't try to improve it (even if we accept that the law will be mostly written and almost completely enforced by those without technical training in computers and networking).
OK, I'll bite. It's overreach because they charged him with a felony for doing something that shouldn't be a felony, and there is reason to suspect that they charged him and not any of the very large number of other people who violate that statute on a regular basis in significant part as a result of his political views.
Despicable.
Holder's analysis was based on the AUMF, which as a Congressional authorization of force is as much as the U.S. has ever required.
As an aside, a declaration of war is a diplomatic issue between nations. It's not even applicable in this context, in hostilities against non-nation entities.
http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/pdf/PLAW-107publ...
Also the same attorney general who has so far only prosecuted bit players in the nationwide mortgage document fraud without even bringing charges against executives whose name is on memos ordering the fraudulent practice.
If you're wondering why justice in this country appears to be available only to those who can afford it... He is the prime mechanism of failure.
I understand that there is evidence of fraudulent mortgages, and executives involved in risky financial behavior, but I am not aware of something tying the executives to the fraud.
As for "threats of 35 year sentences"--the statutory maximum is not a "threat." If I punch you in a bar fight, causing no injury, and you press charges, I'm theoretically facing the maximum sentence for assault in New York, which is 25 years. But at no point does anybody think anyone will actually get a 25 year sentence for a little bar fight. If I went apoplectic about the grave injustices of "facing" 25 years in prison for a bruised chin, people would point out the obvious: the statutory maximum is for people who try to kill people, not people who get in bar fights. Similar common sense should prevail in this discussion--the fact that it doesn't is because of nothing more than grandstanding.
That's simply incorrect. It is absolutely a threat. As I recently argued:
> The prosecutor used the threat of 35-50 years in prison to get Aaron to accept a guilty plea. If he chose to plead not guilty and attempt to defend himself, it would cost well over a million dollars in legal fees, and if he were found guilty anyway, the judge would be strongly predisposed to make an example of him by giving him a very long, punitive sentence.
> A prosecutor forcing someone to admit guilt by threatening a life-destroying cruel and unusual punishment if they do not admit it - why, that is the very essence of using torture to extract a confession!
http://quandyfactory.com/blog/103/on_crimes_and_punishments_...
Yes, prosecutors offer lower sentences in exchange for guilty pleas, but the lower sentence is relative to the sentencing guidelines, not the statutory maximums. See: http://www.volokh.com/2013/01/16/the-criminal-charges-agains...
> A prosecutor forcing someone to admit guilt by threatening a life-destroying cruel and unusual punishment if they do not admit it - why, that is the very essence of using torture to extract a confession!
I count at least 7 fallacies in that single sentence. Impressive.
Let's switch it up and say that the guy you decked was the son of the prosecutors best buddy from high school. And that you are a minority, high school dropout. In todays america, you very well might be facing the maximum sentence; if not much worse.
The meta-point I am attempting to make is that despite the pieties and the nice heritage architecture of the buildings it lives in; our system of justice has become unutterably and unsustainably corrupt; almost as corrupt as our political system.
Can we have a civilized conversation please? Criticizing my arguments is one thing, accusing me of dishonesty completely different. Thanks.
I agree with your comparison of Aaron's deeds to trespassing. What is the statutory maximum for trespassing with a hoodie? Why does trespassing onto a network fit into a category of crimes for which prosecution can (and does) seek worse punishment than for actual physical assault? Pretty much for the reasons I've outlined in my comment: entrenched interests, desire to hit novel kinds of possible crimes with excessive punishment rather than reform the system to deal with them.
Saying "there is nothing wrong with changing your MAC address" in this context is disingenuous, because it implies that Swartz was being charged for changing his MAC address. That is a false implication. He was being charged for the other things he was doing--the things that necessitated his changing his MAC address.
Trespassing onto a network under the CFAA is a misdemeanor, just like criminal trespass in a building. Trespassing with intent to commit some other crime therein is a felony under the CFAA, and is basically burglary (http://en.wikipedia.org/wiki/Burglary) in meat-space.
The problem here is that mass copyright infringement shouldn't be a crime, but rather a civil issue. But the entrenched interests that made mass copyright infringement a crime are probably different than the ones you're thinking of--it was the tech industry, the BSA with Microsoft, Oracle, etc, that turned copyright infringement into a criminal matter in their fight against mass pirating of Windows, etc.
> "Changing your MAC address, for instance, is no worse a threat to society than wearing a hoodie in public"
I'm not sure how else to read this other than "there is nothing wrong with changing your MAC address."
> And I still don't believe it's justifiable for the virtual equivalent of either trespass or burglary to fit in a category of crimes that are more serious than physical assault on a living, breathing person.
It may be more or less serious--it depends on the context. Trespass into a network system with intent to steal credit card numbers is worse than punching someone at a bar, while trespass into a network system just for kicks is much less bad than beating someone up. That's why both crimes can range from misdemeanors to serious felonies.
> Why does trespassing onto a network fit into a category of crimes for which prosecution can (and does) seek worse punishment than for actual physical assault?
In a word: automation. It can be (note: doesn't mean always is) entirely different in scope to be a network trespasser than to trespass in real life.
The Allies executed Germans after WWII who never so much as met their victims, based only on the fact that they wrote, approved and otherwise perpetuated policies that caused millions on the same continent to later perish.
I'm not trying to say that Aaron or anyone else is killing people obviously, just that there's a lot of things you can conceivably affect on a computer network, which might make a computer-related charge even more serious than a similar charge in real life.
I'm not sure how people so ignorant and blind wind up in positions of authority, but it scares me. Even scarier is the fact that I find myself agreeing with the Republican Senator from Texas who is likely only pressing the point with Holder to embarrass the Obama administration.
This microcosm encapsulates so well government doing all of the wrong things for all of the wrong reasons. How did it come to this?
Perhaps some Mark Twain quotes from the late 1800s might change your mind about us having recently "come to this":
"All Congresses and Parliaments have a kindly feeling for idiots, and a compassion for them, on account of personal experience and heredity."
"It could probably be shown by facts and figures that there is no distinctly native American criminal class except Congress."
"[I] was reporter in a legislature two sessions and the same in Congress one session, and thus learned to know personally three sample bodies of the smallest minds and the selfishest souls and the cowardliest hearts that God makes."
They don't just apply to Congressmen. They're relevant to pretty much any level of our government. It seems to apply anywhere that people are given power before they deserve it.
He was caught red-handed, so to speak. Any rational jury would have convicted him on evidentiary grounds had he chosen to go trial. There doesn't seem to be any record of his defense counsel arguing before the court that he was unfit to stand trial.
It's always been like this, and the people pushing the political buttons and pulling the political levers are patting the AG's back now. Special interests have an iron grip on politics in Washington now and the only way to win is to spend the most money.
Don't think this is limited to the Federal government, the States have been infiltrated just as well. Money makes the world go around.
There was no such time.
He's doing it to build up his bid for the 2016 presidential election, and maybe a little to please his daddy.
I'm positive it has nothing to do with embarrassing the Obama administration.
2. Or maybe, the seriousness of a crime is not actually completely correlated to the likely prison sentence. The prison sentence given should be based on what is required to prevent recurrence by the suspect in this particular case, and to prevent new occurrences of the same crime by others. E.g. if you could prevent theft of $20 million with a $5 padlock you'd normally call that a wise investment.
When will you run for office so that we may vote for you?
I'm being snide but the fact is that it's not at all a mystery how these people end up there. The self-proclaimed "best and brightest" go off to less annoying/higher paying/etc. jobs. QED.
First things first: Swartz is small potatoes. Holder deals with a lot of things, not the least of which is fielding questions about the legality of drone strikes on US soil [1], or writing memos about Gitmo or torture [2]. The handling or mis-handling of a single case is nothing to Eric Holder, especially since his boss is not up for reelection.
Second thing: the default position for any government leader is to back up your people. It's easier that way. If everyone in government backs up their people, coupled with unapologetic denials of wrong-doing, you have a much more comfortable government for one and all - at least between elections. But hey, 4 years of total autonomy is far better than suffering constant public scrutiny and having to react to it. This is even more powerful if you have the judiciary on your side and, since you're all on the same team, that's more likely than not.
In summary, Eric Holder doesn't care about this case, and has assumed the default position of someone in his station: deny-everything. It would have been quite remarkable, in hindsight, for him to have done anything else.
Clearly this is not a good outcome: we want an Attorney General who shares our sensibilities, and in this case, we wanted someone in that role who perceives the fact that the federal prosecutor overstepped their bounds and drove a sensitive soul into oblivion for actions which caused no-one any harm. We want someone who understands that merely to be prosecuted is a severe punishment in time and treasure. We want someone who understands the difference between someone who breaks the law out of a heartfelt spirit of doing the right thing, and someone who breaks the law out of malicious, selfish intent.
Sadly, I can think of no other way to address this problem than to keep this in mind for the next election.
[1] http://www.npr.org/blogs/thetwo-way/2013/03/05/173572444/pre...
[2] http://www.guardian.co.uk/world/2013/mar/06/pentagon-iraqi-t...
EDIT: P.S. I really like looking at inexplicable/horrible things like a software bug. Rather than indulge in pointless, impotent anger, treat the anger as a signal that your understanding of the system is flawed, and think through the forces at work. It's hard to get in the head of an insider, especially right after they pissed you off - but chances are they didn't want to piss you off. They didn't care about you at all.
Then, when your cogent analysis is through and you understand the system and how it can be fixed, you turn your anger back on a little and RIP THAT SHIT APART AND FIX IT.
Even more sadly is I can think of no rational practical way to address this problem, period.
What does keeping it in mind for the next election do? When the election rolls around you basically have the choice between an asshole owned by the corporate lobbyists and another asshole owned by the same corporate lobbyists but who doesn't mind if gay people get married and women have abortions. Neither is going to fix this shit.
The only way this changes is if the election system changes to instant-runoff or another system that breaks down the two-party system, but guess how popular that idea is with the people whom the current system put into power?
Sigh. Maybe that's just me not being jaded enough :p
Our election process is totally broken. The parties are the kingmakers. They have vast fundraising and promotional networks that extend into every state and key regions of each state, with powerful connections to incumbent governments. Which is kind of surprising because it seems like neither party is very good.
The only other network that has that kind of reach is the Internet. think it's worth thinking about the possibility that the internet could displace traditional political parties.
We have legislators for a reason: to act as a brake on the mob, not to echo it.
For a common felon, any time is a life sentence, but not for a talented techie with this kind of rap. For example, Kevin Mitnick is a very successful guy post prison. Aaron would have always been able to find work too, if not vote.
ETA: This makes me think that perhaps there should be a law to prevent 'placing oneself into the status of felon' (by admitting guilt, taking a plea deal, w/e) and that one must be convicted of a felony to be labeled "felon" and thus be required to live with the lifelong restrictions.
And that was the absolute quickest of Google searches.
If you don't know something about what you're talking about then why are you making claims of fact instead of couching in terms of opinion?
And what's this "couching in terms of opinion" crap? Where did I opine about this?
My point about opinion was that you stated as a bare fact that his right to vote would be taken from him as a felon, which was not true (even if only 1 state gave felons the right to vote, he could move to that state when he's out).
Having a felon status is annoying in enough actual ways that you shouldn't have to make stuff up or state unchecked assumptions as fact.
He had basically zero chance of having his rights restored.
The only way to have your rights restored after a Federal felony conviction is by way of a Presidential pardon. Unlike the states, the Federal government has no other process in place for this.
Further, there is no process for the restoration of your rights if convicted of a Federal felony outside of a Presidential pardon, which is what Aaron was facing.
I would actually use the term "virtually harmless" because it conveys the truth more accurately.
Those determinations are for the judicial branch to make, not the executive. Under article II of the Constitution, the executive 'shall take Care that the Laws be faithfully executed.' Under article III, the judicial power rests with the Supreme Court (and such lower courts as it has created). Prosecutors do not have the power to set aside the law, and even where plea bargains are made, they must be approved by a judge first.
I think there are severe flaws with the adversarial legal model that obtains in the US, but the Constitution is extremely clear and explicit about this.
It seems to me they're for the legislature in the first instance. Only when the legislature fails so egregiously as to be in violation of the constitution would the courts have the power to strike down a law, and I have to hope we want to draw the line somewhere prior to "violates constitutionally guaranteed human rights" and nearer to the point of having some resemblance to proportionality and reason.
In cases like this there is also the issue that a major part of the problem itself is the cost of access to the courts. How do you argue to the court that it costs you an unreasonably large amount of time and money to make your arguments to the court? By the time you make the argument it's moot. It needs to be addressed in the legislature before we ever get to the courts.
And I'll give you that it isn't the executive's purpose to stop things like this from happening, but they can most certainly make things better or worse by making differently the decisions that are within their discretion.
The legislature created the law in question and has no so far seen fit to amend it.
How do you argue to the court that it costs you an unreasonably large amount of time and money to make your arguments to the court?
You would make a selective prosecution argument under the equal protection clause, but you would likely lose as other defendants with fewer resources seem able to navigate the trial process even with public defenders rather than counsel of their choice.
I think access to the courts is sadly lacking in many respects, and would be quite happy to see Congress give the courts more money even at the price of higher taxes.
The point is we could encourage them to do so.
>You would make a selective prosecution argument under the equal protection clause, but you would likely lose as other defendants with fewer resources seem able to navigate the trial process even with public defenders rather than counsel of their choice.
It's not even necessarily selective prosecution. All defendants face the same calculus. The trouble is that paying for and living through years of trials and appeals is arguably a greater penalty than going to jail for a few months. Even if you're totally innocent you can rationally be better off pleading guilty than proving it in court. Even if you win you don't get a free ride in a time machine to undo all the hours and years you had to spend to do it.
>I think access to the courts is sadly lacking in many respects, and would be quite happy to see Congress give the courts more money even at the price of higher taxes.
I don't think it's a money problem. It's a scale problem. We prosecute way too many people. Throwing money at it might provide a certain level of improvement, but it does nothing to address the root issue that so many people are committing crimes and have to be prosecuted. In cases where the crimes are legitimately nefarious, the money would be better spent improving social and educational institutions to the point that future would-be perpetrators are better able to find work or other satisfaction in their lives and don't turn to criminality. In cases where the "crimes" are violations of existing law that cause no real harm to anyone, they should be made trivial offenses or taken off the books entirely so that resources wasted on prosecuting them can be used for some better purpose. If we can significantly reduce the number of people being prosecuted, the amount of resources spent on each side of a trial can be increased and it will still cost less money overall than it does today.
However, this is slow going; there are conflicting theories on the role of criminal law (consequentialist, deontological and so on) and no clear answer on the purpose of sanctions (deterrent, penal, and rehabilitative) that don't yield to simple analysis. Changing this will take a generation, or two.
OK, so one foot in front of the other. Change the debate. Present irrational and disproportionate "tough on crime" rhetoric with strong public opposition and make sure the demagogues fighting progress have to face the scorn and ridicule they deserve.
>There are certainly attempts (mostly at the state level) to downgrade victimless or harmless crimes, and to divert petty or juvenile criminals into non-penal programs or extrajudicial fora.
Which is well and good, though I think most of the problem lies at the federal level, so it would be nice to see more progress there.
>However, this is slow going; there are conflicting theories on the role of criminal law (consequentialist, deontological and so on) and no clear answer on the purpose of sanctions (deterrent, penal, and rehabilitative) that don't yield to simple analysis.
I think the key to this is to realize that the existing system doesn't adequately serve any of those goals. Consequentialists should be dissatisfied by the number of victimless crimes being prosecuted. Deontologically there are a great many "criminals" going unpunished because they violated the letter but not the spirit of the law, while those who violate the spirit but not the letter (or otherwise raise the ire of a prosecutor) are often prosecuted on the basis of "he seems like a bad guy, let's find something we can nail him with." Anyone interested in deterrence or rehabilitation can't be satisfied with the recidivism rate, and anyone interested in punishment (as distinguished from revenge) should be extremely concerned about the lack of proportionality.
Moreover, solutions that work in practice tend to satisfy everybody. Nobody who isn't being intentionally disingenuous is going to be dissatisfied by a reduction in the crime rate or the recidivism rate.
>Changing this will take a generation, or two.
Possibly. It depends how bad we want it and what we're willing to do about it.
This is exactly the problem actually. In the United States, the expensive nature of the legal processes make them tools the powerful use to intimidate, manipulate and disenfranchise the weak. And the real sad part is that if this wasn't the case, large parts of the system would simply crumble.
Heck, forget about federal cases. Think about something as simple as traffic tickets. If you get a ticket for $100, and it was wrongfully given, how much would it cost you to contest it? Well, not only do you have to figure out how to appeal it, but you also have to go through the official process (which in most cases traveling to a courthouse). In most cases, it will be much more costly to have the ticket thrown out than to actually pay it, which is what most people end up doing.
But what if this wasn't the case? What if the contest process was incredibly easy and efficient? Suddenly you would have a ton more tickets invalidated, which would cause police department revenues to plummet. Imagine the (beautiful) chaos that would produce.
The process can't get any easier or cheaper without inviting significant amounts of abuse. It also can't get any easier without denying people their constitutional right to a hearing before a judge/judicial officer.
Suddenly you would have a ton more tickets invalidated, which would cause police department revenues to plummet.
Ticket fines do not go into police department budgets, nor are they used as a revenue source for police departments. Ticket fines go into the local city/county general fund, and only go into police department budgets if allocated to the police department by the appropriate legislative body.
So basically, at least two hours taken out of your workday, plus however long it takes to drive to the courthouse. If you have other work-related appointments at that day and time, you need to figure out another day and time, which in itself is a process.
The process should be made online. If the only thing the judge is doing is listening to five-minute long arguments, create a secure online forum and have the respondents type out their arguments there. The judge can then read them when they have the time and issue a ruling online.
And yet they choose to not prosecute some times. The judicial oversight in plea bargains is to minimize abusive coercion.
It seems the underlying trend, regardless or political party or position, is the continual accumulation of power. Instead of primarily attempting to solve problems each new law, regulation or spending program grants some politician or government employee some additional power.
The only solution I can see is to somehow put limits on their power. This would have two benefits: (1) it would be less likely the power would be abused (say a politically ambitious government employee putting you in jail); and (2) it would reduce the incentive for powerful interests and their lobbyists to influence government policy.
The tradeoff would be a reduced ability to actually solve problems. If you think, like me, that on balance their power is being primarily abused rather than used to actually solve problems then some of their power should be taken away.
Unfortunately I don't see how this could possibly be accomplished. Other than the limits in the Constitution and the Bill of Rights as interpreted by the Supreme Court nothing stands in the way of politicians and government simply granting themselves more and more power. Hard to imagine this trend reversing.
Over the years, lawmakers have been ratcheting up the maximum sentences on crimes and watering down the requirements for conviction. These factors have combined to create one of the most effective extortion schemes ever devised. I don't know what success rate the mob has when it extorts businesses, but I'll bet it's lower than the 90%+ plea rate that the DOJ has. They are modern-day thugs with pens instead of guns. You can't get 90% of any group to do anything - except apparently to admit to crimes that they may or may not have committed and literally send themselves to prison in order to avoid the risk of a conviction at trial and potentially draconian penalties.
With that in mind, how is using a drone any different?
In addition, we never heard his side of the story. It's possible he had zero intent to ever distribute these. In which case, going to federal prison for trespassing seems absurd (and questionable jurisdiction).
His lawyers didn't seem to think so.