DOJ Elevated Its Charges Against Swartz Because Internet Rallied on His Behalf
pjmedia.com
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Right now, the DOJ is one of the targets of a massive scared-straight campaign by Beltway technologists. One of the worst kept secrets in the world is that US cybersecurity, outside of the military and the IC, is incredibly bad. If most civilian agencies were private corporations, they would have been sued dozens of times by users for negligence in data handling.
For those that understood the dangers of this lax security posture, for many years it was a game of railing into the wind about the potential consequences of continuing to ignore this attack vector.
Then, China got involved.
Suddenly, the dangers weren't speculative at all. They were right at our doorstep. And the same Cassandras that were on the outs for so long suddenly found themselves with the ear of every CIO in Washington. What followed was a massive purchasing binge, which is still ongoing, and a huge amount of advertising and mindshare devoted to this topic.
It was amidst the height of this cyber-scare that the Schwartz prosecution was brought. For Mr. Heymann, Aaron Schwartz was a huge target. A US hacker, caught in the act of stealing information worth millions, was a great prize for Mr. Heyman, his boss Carmen Ortiz, who has rather naked political ambitions, and her bosses in DC.
So why am I disappointed in MIT? Because the DOJ has never understood computer technology very well. MIT does. It was their job to educate the DOJ, to subordinate passion to reason, and to parse the difficult technological issues to explain the real lack of damage caused by Aaron Schwartz's actions.
MIT is supposed to be a guardian of our online rights and a cradle for technologists like Schwartz. It should have been on the forefront of the opposition to Mr. Heymann, demanding that charges be dropped. Instead, they threw him to the wolves. And now, in one final insult, they ask the courts for special leave to screen documents in order to hide their involvement with the prosecution.
I hope the individuals involved know that they abandoned a sacred trust, tarnished the name of a great institution, and negligently contributed to the death of a brilliant young man. I hope they know that they weren't "just doing their jobs," that they didn't "follow rules and procedures," and that no one buys their excuses anymore.
I hope that at least one of the administrators responsible has lost even one night's sleep over Mr. Schwartz's death. But, knowing the disdain and disregard for Mr. Schwartz that these hired bureaucrats expressed while he was alive, I doubt it.
I can see where you're coming from here, but unfortunately, from what I've read (particularly what's in the Abelson report, see below), I don't think the DOJ was listening to MIT in this case anyway; the US Attorney's office had its own view of the case and wasn't receptive to alternative views.
And now, in one final insult, they ask the courts for special leave to screen documents in order to hide their involvement with the prosecution.
Are you referring to MIT's request to redact the private personal information of MIT employees who were named in the documents? That doesn't hide anything about MIT's involvement; it just allows employees, who did not set MIT policy to begin with, to get on with their lives without being persecuted.
I'm also curious what "involvement with the prosecution" you think MIT had. Have you read the Abelson report?
It's quite comprehensive in its treatment of what involvement MIT had at each phase of things.
>"I'm also curious what 'involvement with the prosecution' you think MIT had. Have you read the Abelson report? It's quite comprehensive in its treatment of what involvement MIT had at each phase of things."
I'm very skeptical of any internal investigation conducted by an institution that exonerates it from all wrongdoing. While I have tremendous respect for Prof. Abelson as a person and an academic, it was obvious from the outset that he was interested primarily in protecting MIT's reputation rather than seeking the truth. Nor am I the only person that thought so. See e.g. http://business.time.com/2013/07/31/aaron-swartzs-father-bla...
Prof. Abelson began his investigation with an outright statement in The Tech that he didn't expect to find any wrongdoing. That very statement is the hallmark of either an inept or a biased investigator. A true investigator enters his task with no preconception of what its result will be. To do otherwise is to invite confirmation bias.
Universities are places of complex politics. I wouldn't trust any investigation by an employee of the institution under investigation, much less a professor who's beholden to the very administrators he's investigating for funding, offices, and staff.
Also, MIT didn't seek leave merely to redact names of employees, although I see no reason why those who participated in these terrible events should be shielded from public opprobrium, but also any information in which MIT has a privacy interest. For an attorney, what that means is any information that could potentially implicate or even embarrass the university. I stand by my original statements.
"Wrongdoing" is a broad term. The report says that MIT did not do anything illegal. It does not say that MIT made no mistakes.
Once again, have you actually read the report? If not, you should do so instead of relying on biased second-hand accounts.
I wouldn't trust any investigation by an employee of the institution under investigation
In other words, you don't think any institution can ever police itself. But the alternative is for it to be policed by...another institution?
This is, of course, the old quis custodiet problem, and it has no guaranteed solution. But I don't see why the default position should be that no institution can police itself. I think we ought to expect institutions to police themselves, and you can't do that if you automatically distrust anything the institution says about itself.
MIT didn't seek leave merely to redact names of employees...but also any information in which MIT has a privacy interest.
Source, please? The only things I'm aware of them asking for are to redact names and identifying information of employees and information about MIT's network vulnerabilities.
I see no reason why those who participated in these terrible events should be shielded from public opprobrium
Even if they were acting reasonably? For example, take the MIT network engineers who noticed the unusual activity and reported it, helped to discover where it was coming from (as in, what device was producing it--the laptop), but had no further part in the proceedings. They are named in the documents. Do they deserve public opprobrium?
The world is not black and white, and people have to try to make reasonable decisions with incomplete information all the time. I will agree that the MIT administration made mistakes (although it's a lot easier to say that in hindsight); but I do not agree that every single person affiliated with MIT who participated at any point in these events acted wrongly and deserves public opprobrium.
Once again, have you actually read the report? If not, you should do so instead of relying on biased second-hand accounts."
Yes, I have read the report in detail. To comment without doing so would be irresponsible.
In particular, the portion I, as well as many others including Aaron Swartz's father, take issue with is the section beginning on page 52 entitled "MIT adopts and maintains a posture of neutrality."
MIT in fact began the prosecution through contacting law enforcement, conducted a sting operation by videotaping the wiring cabinet, and most importantly, at every turn chose to escalate the situation rather than see the incident for what it was: a petty experiment. They could have chosen to block his access, or approached him privately. Instead they chose to hand him over to a US attorney's office for prosecution under laws they knew or should have known to be draconian.
>"In other words, you don't think any institution can ever police itself."
That is emphatically not what I said, nor is it an accurate restatement.
I said that I don't trust any internal investigation which exonerates the institution that conducted the investigation. Prof. Abelson began his investigation by stating, "The review will not be a witch-hunt or an attempt to lay blame on individuals. We don’t know what we’ll find as the answers unfold, but I expect to find that every person acted in accordance with MIT policy."
Before he spoke to a single witness, weighed a single piece of evidence, examined a single record, or interviewed a single expert he stated that he expected to find no deviation from policy. That is not the statement of a fair or unbiased investigator.
I place no more stock in his investigation than I would a JP Morgan or Goldman Sachs "investigation" that concluded that they played no role in the mortgage crisis.
Twisting my words to argue against a strawman is facile and does not further the cause of informed debate.
>"Source, please?"
http://www.documentcloud.org/documents/729140-mit-motion-to-...
Note the broad claims to protecting employee "privacy." This is about more than redacting a few names, not least because FOIA requires that the names of third parties be redacted anyway.
If redacting names is a requirement of the law, why would MIT need an invented "pre-screening" procedure to ensure names were redacted? The answer is, of course, that they wouldn't.
Never have I seen a private institution intervene in a FOIA request in this manner. This intervention had precisely nothing to do with protecting the privacy of employees, and everything to do with establishing a legal avenue to conceal information MIT found embarrassing.
>"I see no reason why those who participated in these terrible events should be shielded from public opprobrium >>Even if they were acting reasonably? For example, take the MIT network engineers who noticed the unusual activity and reported it, helped to discover where it was coming from (as in, what device was producing it--the laptop), but had no further part in the proceedings. They are named in the documents. Do they deserve public opprobrium?"
No, nor would they receive it. Setting aside that FOIA requires their names be redacted anyway, I trust that sunlight is the best disinfectant, and that public scorn would be heaped upon those that deserve it.
Hmm. I'm not sure you read the same report I did.
MIT in fact began the prosecution through contacting law enforcement
Local law enforcement, yes--because, as the report notes, they did not have the in-house expertise to figure out what was going on. MIT did not call in the Secret Service; local law enforcement did. And calling law enforcement to help figure out who is using your network in a way you didn't expect is not the same as beginning a prosecution.
conducted a sting operation by videotaping the wiring cabinet
The cabinet, the room it was in, and the network as a whole were MIT's property. Would you call it a "sting operation" if you put a video camera in your house to figure out who was trying to hook up to your home network?
and most importantly, at every turn chose to escalate the situation rather than see the incident for what it was: a petty experiment.
I strongly disagree with this characterization, and I don't think the report supports it.
They could have chosen to block his access
They did, several times. Each time he changed tactics to circumvent the blockage.
or approached him privately
They couldn't, because they didn't know whom to approach. Swartz was not identified until he was arrested, and even then MIT did not identify him; the Cambridge police did.
Instead they chose to hand him over to a US attorney's office for prosecution
They did no such thing. You are twisting the facts.
I said that I don't trust any internal investigation which exonerates the institution that conducted the investigation.
First of all, as I said before, the report does not "exonerate" MIT. But let's assume for the sake of argument that we are looking at a report by an institution concerning its own conduct which does exonerate it, in all respects.
Second, even on that assumption, what you say here amounts to the same thing I said before: you don't think any institution can police itself. You are basically assuming that, if an investigation is ever started at all, there must have been some wrongdoing, so if the institution doesn't find any wrongdoing, it must be a whitewash. That's equivalent to saying that no institution can ever police itself. (It's also wrong, in my opinion; investigations can perfectly legitimately find that no wrongdoing took place.)
Before he spoke to a single witness, weighed a single piece of evidence, examined a single record, or interviewed a single expert he stated that he expected to find no deviation from policy. That is not the statement of a fair or unbiased investigator.
I'm not judging the report by statements made beforehand. I'm judging it on its own merits. I don't think you are doing likewise.
Note the broad claims to protecting employee "privacy"
No, the claims aren't broad, because they specifically say "employee privacy". They do not say, as you implied they did, "anything in which MIT has a privacy interest". That would indeed be very broad, but that's not what MIT requested.
No, nor would they receive it.
Hollow laugh. You have a much greater faith than I do in the public's ability to consider such things rationally, particularly when the public is being inflamed by rhetoric about how the government is being draconian and MIT is aiding and abetting it.
>"Local law enforcement, yes--because, as the report notes, they did not have the in-house expertise to figure out what was going on."
Your argument, on Hacker News, which you find perfectly plausible, is that the Massachusetts Institute of Technology lacked sufficient in-house expertise to diagnose a mass download via curl?
Ladies and gentlemen, I rest my case.
It wasn't the downloading that was hard to diagnose; they figured out pretty quickly what was being downloaded. What caused the difficulty was the tactics that were used to circumvent the normal controls on downloading and usage of the network. I do find it plausible (though very disappointing) that the MIT administration did not have in-house expertise in the low-level diagnosis necessary to deal with that. How familiar are you with MIT?
MIT is making a claim that it's report represents the ground truth about the events, an assertion echoed by the previous poster. That claim is dubious, not least because of its provenance.
Have you read the report? It documents its sources of information pretty thoroughly. There is certainly enough information there for you to, as you say, read it and draw your own conclusions. That's what I've done.
Not sure why you're excluding Mil/IC here, in light of Bradley Manning and Edward Snowden, did you mean to restrict your point to Internet-connected devices?
Both Snowden and Manning got their information from systems to which they had been granted access. .Mil and IC targets are among the most hardened in the world, even if they were a bit lax about implementing fine-grained access control amongst their cleared personnel.
it still requires stakeholders delegating access to said individuals for different [sub]compartments.
It's a nightmare to me that there could be 15 people that have actual access to information, but a random official in the chain of command could give any one of 1.4 million people access to it without any further vetting.
Other words I misspelled at one or another include Heymann, personnel, guardian, and wolves. :)
[1] http://www.newyorker.com/online/blogs/newsdesk/2013/05/stron...
The smart people in law enforcement are scared sh*tless of hacktivists, so it's totally possible they lumped him in with the Sabu/Hammond/Lulzsec crowd.
Pure mobster mentality.
I'm all for piling on the malefactors in the Aaron Swartz case, but I wouldn't bet a nickle on anything that comes out of PJ Media.
‘from a human one-on-one level to an institutional level.’
The corporate capture has left the wealthy and powerful above the law, if they're just willing to join the corruption scheme.
In short, the US is swiftly becoming a 3rd world country when it comes to equality of income and fairness of justice, and this is especially the case if someone like Aaron Swartz is looking to really rock the boat… they become the examples hung in plaza so everyone else meekly complies.
All Ford's pardon did was to prevent vengeful Democrats, some holding grudges going as far back as 1950, from criminally prosecuting him. It allowed the nation to Move On; the alternative would have pretty quickly ended the Republic if history is any guide.
So while we're in agreement that Nixon was a criminal, you're saying he should not have been prosecuted...because people had other reasons to dislike him beyond his criminal acts? I fail to see how allowing Nixon to escape justice allowed the country to Move On. It demonstrated to the public that in fact, there are different classes of people in this country, and the powerful simply aren't subject to the same laws as the commoners.
Therefore prosecuting him because he was an anti-Communist Republican would not have been good. While this doesn't address my greater point, look at all the bogus prosecutions of Reagan Administration officials.
My greater point is about the arena that Ford decisively closed off with his pardon. Historically, when a Republic degrades to the point where leaders don't dare lose power, because they'll lose their freedom and frequently in time past their lives, that Republic dies an ugly death.
Perhaps you weren't alive/politically aware back then, but the country did Move On, Nixon and Watergate, which had consumed it, often to the exclusion of very important external issues, just stopped being a, let alone the top issue of the day. We Moved On to the supposedly clumsy Gerald Ford (he did have a bad knee from college football, but this was greatly exaggerated), Whip Inflation Now, Swine Flu, but seriously, the general business of the nation.
The other point in time where Republics die an ugly death is the point at which the leaders no longer feel constrained by the threat of being held accountable for actions while in office. Ford's preemptive pardon of Nixon -- which forestalled a thorough questioning of Nixon's actions and a determination of whether he ought to be held accountable for them -- moved the Republic closer to that point, even if it also moved it farther from the point you are concerned about (which, of course, is always the one those in power want to avoid, and not out of any concern for "the Republic".)
> Perhaps you weren't alive/politically aware back then, but the country did Move On
It did, indeed, move on to the abuses of national security apparatus by later administrations (most notably under Reagan, Bush II, and Obama, though the Ford, Carter, Bush I, and Clinton administrations aren't without issues, as well) with a similar lack of accountability, and indeed an increasing acceptance that, while we didn't like it when it was the other side doing it, such abuses were just part of what happened, and even in the most egregious cases with the clearest involvement from the top, there was no serious consideration of accountability.
The Ford pardon secured and further institutionalized the Imperial Presidency.
Well, no, you'll note I didn't say anything like that.
In fact, viewed alone, that would be a very potent blow for accountability; but impeachment and conviction on articles of impeachment alone is fairly minimal accountability, especially for a President (for, e.g., judges its somewhat more significant, as the ban on future public office is more significant for them than for Presidents.)
It would, however, be significant for Presidents because it opens the door for immediate criminal accountability, but this impact is neutralized when we establish that even the consideration of criminal liability of the President for actions committed during the term of office, even those high crimes and misdemeanors so serious and well established that they certainly would have resulted in impeachment and conviction, is outside the scope of what can be considered.
The Constitution limits the possible penalties on conviction for impeachment to removal from office and "disqualification to hold and enjoy any office of honor, trust or profit under the United States" [1]. It does not mandate that both of the available remedies be applied upon conviction.
[1] Art. I, Sec. 3
I'm sorry, I had no idea that you were this far out there. There's not much point in debating you if we're not on the same page about the realities of his actions.
If you can't see the danger of changing the rules of the game and throwing people into jail based on that....
Also, I don't care what standards Presidents were held to. Presidents are human beings, which are all equal before the law. He was just as criminal as anyone else who engages in conspiracy to obstruct justice. If other Presidents successfully evaded prosecution for their crimes, that's too bad. However, it's no excuse to let another one slide.
We can also see that this goes only one way, although that's hindered by the big discontinuity of Ford and Carter being believed to be "clean" (although maybe I'm not remembering efforts to criminalize his short Administration, but a quick skim of Wikipedia didn't bring up anything) and Republicans then holding the office for 12 years.
"Let the whole thing come crashing down", well, that tells us how much you really care for "the people" ... you're talking about ending the Republic. The idea that the public will have an opportunity to elect officials after this is very questionable. Some people claim a desire to pursue justice no matter what the cost is idealistic, I'm with those who consider it idiotic. There is a reason our Founders created an unquestionable right for a President to pardon people, and this is one of the examples.
No, I'm referring to the collusion between the two extant political parties. Political parties receive no charter in the constitution and the founders of the country generally held them in low regard, and yet they've established a stranglehold on the country. Their reign is what I'm referring to when I say "Let the whole thing come crashing down."
Edit: George Washington said it better than I can in his farewell address[1].
[1] http://en.wikisource.org/wiki/Washington%27s_Farewell_Addres...
Given that this is how people always organize themselves in the post-monarchical period (significant counter examples welcome, but of course one party states don't count), it's fatuous to imagine that we'd see anything in the vague direction of the Founder's idealism (well, I'm sure some realized they'd develop, as they did rather quickly, especially after Washington left the national stage (heh, which I drafted before seeing your addition)). After those knives spill enough blood, it's doubtful there'd even be a reconciliation.
I think you wildly overestimate how passionately partisan the citizenry of this country really is. The majority of the population isn't even invested enough in their chosen party to make their way into a voting booth every couple of years to fill out a few checkboxes. Do you actually believe that these resigned, apathetic people are going to take up arms against each other simply because their leaders were revealed to be criminals?
Depends on how you qualify its big-ness. Go out and talk to regular, non-techie folks about NSA spying. In the unlikely event that you even find someone who knows what you are talking about, they won't care. They will look at you like you're crazy and they'll say, "If you have nothing to hide, you have nothing to worry about."
If it's just a small, quickly forgotten blurb on Fox news between TERRORISM and Honey Boo-Boo then does it even qualify as scandal?
Nixon got outed for spying on a hotel room. The Executive Branch just got outed spying on pretty much everyone.
Watergate was also in a time when people were, by and large, a little more literate about the supposed balance that's supposed to exist between the government and the individual. I was a teenager during Watergate and recall more than one adult being outraged that the president would spy on anyone and shared their outrage.
Today, the almost absolute apathy about being spied on is as disturbing to me as the surveillance itself. It doesn't bode well for the American political future.
So why not download from Harvard, instead of abusing guest access at MIT?
It reminds of the time I was reprimanded by a teacher more harshly because I chose to share the sequence of events that unfolded with my parents. My parents called the teacher about it, and the next day, things were magically worse.
Edit: fixed typo
Prosecutors have a huge amount of discretion in their jobs. They can choose if they press charges and if so what charges to press.
In this case, there are allegations that the prosecution abused its power by retaliating against free speech.
The prosecutor allegedly said something along the lines of: Aaron Swartz was foolish to exercise free speech because it then went "‘from a human one-on-one level to an institutional level.’ The lead prosecutor said that on the institutional level cases are harder to manage both internally and externally"
I presume by "one-on-one" prosecution, the prosecutor meant it was one prosecutor against Aaron Swartz. But by publicizing the case, it aroused the interest of the "institution" (i.e. the higher ups), who then decided to throw the book at Swartz.
Ortiz and Heymann abused their power and abused Aaron's rights. They should be in jail, not getting a paycheck from taxpayers.
Just surreal. Like Swartz was a sadist and MIT was a traumatized victim of violence, not like a young prodigy whose life were being crushed for the modern "Prometheus" action and a bunch of PC-sensitive executive bureaucrats augmented by a lawyer department.
Somehow I missed it before that they had come all the way down to 6 months in prison, and just 2 days before he killed himself. I thought he died still thinking he was facing 35 years in prison... not 6 months.