Fans of dead data 'liberator' Swartz press Obama to sack prosecutor A new online petition has called for the firing of US attorney Carmen Ortiz for pursuing Aaron Swartz with charges that could have put him in prison for at least three decades. Meanwhile, Democrat congresswoman Zoe Lofgren has drawn up a new bill called "Aaron's Law" to amend the US Computer Fraud and Abuse Act used to …
I do not know about the situation in the US but in domestic violence cases, victims often retract their support for the prosecution and this is a factor in determining whether to press charges (i.e. if the case is in the public interest). So I agree to your (general) understanding why the authorities may prosecute without the victim's consent but should be careful about their determination.
In this case however - if the reporting is right -, the prosecution seems not only to have pushed for prosecution of the case but for maximum sentencing. That is odd: El Reg posted a link to the indictment by grand jury and the criminal law cited was wire fraud, computer fraud and unlawfully obtaining Information from a protected computer. In light that the aggrieved asked for the case to be dropped, it seems to have been a first time offender case and it does not involve actions for personal gain, the alleged push for a high sentence seems to be the oddity to be scrutinized.
This is a case where the conspiracy theorists have a good case. He was a first-time offender, but he had a political history likely to have upset those in power. One of his former stunts was to obtain a great number of court records, something officially available to the public anyway but in practice requiring a convoluted procedure for anyone other than a well-paid lawyer to get to in a reasonable time. It it quite plausible he was already known to the prosecution as a troublemaker with anti-government tendencies and a history of activism, and thus someone to go after with a bit more force than the average unremarkable first-time offender.
@ radbruch1929: As I said, I understand why it exists (and even considered mentioning it, but changed my mind because it distracted from the point of the post)
@Suricou Raven: I don't think I would call his previous action a "stunt." I would making things which are a matter of public record available to the public a "service," although it may not have garnered him friends in the prosecutor's office. If that is the reason for aggressiveness, an example needs made of this prosecutor.
@Oninoshiko: Ah, please excuse me for carrying coals to Newcastle. It was uncalled for.
@Suricou Raven: Thank you for pointing this out, I missed it. I still hope we are going to see a detailed analysis of the proposed sentence. The blog quoted at the end of the article only reviews (yet) the fact of the indictment but perhaps they carry on and provide more detailed information how the prosecution seemingly pushed for a sentence at the top of the given range. The story seems to be there.
"the prosecution seems not only to have pushed for prosecution of the case but for maximum sentencing."
The prosecution can "push" for whatever they want but the judge decides on the sentence.
"In light that the aggrieved asked for the case to be dropped, it seems to have been a first time offender case and it does not involve actions for personal gain, the alleged push for a high sentence seems to be the oddity to be scrutinized."
This might be apposite or germane if a JUDGE had actually given him a lengthy sentence. But since a judge had not passed sentence, your statement is meaningless.
I politely disagree. While I agree that in a criminal law system, the court (judge, jury) determines the sentence, I doubt that in the US, a prosecutor may push for "whatever sentence". A quick glance here:
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/27mcrm.htm
shows that "pushing for whatever sentence" also in a plea bargaining agreement may be in violation of the prosecutor's guidelines (number 9-27.430 Comments B 1. and 3.). Apparently, this violation is not actionable against the state or the prosecutor (9-27.150) but seems to be a basis for disciplinary action (9-27.130).
So the push for a maximum sentence in this case may be a reason to scrutinize the handling of this case. Please note that I have no understanding of US law.
Its my understanding that the historical reason that the state does not require the consent of the aggrieved is so that the wealthy are not able to "pay off" the victim in order to avoid justice. (It doesn't seem to make sense here, because the wealthy party was also the aggrieved party.)
But JSTOR isn't the creator, just the publisher. JSTOR collected money for access to the journals but none of that money went back to the creators of the journals which was the whole argument.
JSTOR got given the journals for free and charged for the access for everyone else.
From whitehouse.gov:
WE PETITION THE OBAMA ADMINISTRATION TO:
Remove United States District Attorney Carmen Ortiz from office for overreach in the case of Aaron Swartz.
[https://petitions.whitehouse.gov/petition/remove-united-states-district-attorney-carmen-ortiz-office-overreach-case-aaron-swartz/RQNrG1Ck]
"Does not seem to be making it any easier and cheaper for *individuals* though, is it?"
Your point is? That universities are only splurging their cash helping their own sector rather than you as well, despite also normally providing free preprint servers for their research, copious free materials, lecture notes, etc., for everyone in the world to access? Yes, that's terrible! Burn them!
" "free preprint servers for their research, copious free materials, lecture notes, etc., for everyone in the world to access?"
Maybe this would make sense if PloS didn't exist..."
PloS only seems to be interested in medicine as far as I can tell from looking at it. There are other fields of knowledge. Medicine is perhaps the one where the paywalls are particularly grating as the information inside could potentially be lifesaving, but the battle against commercial publishers is happening in engineering, physics, chemistry, my own branch of mathematics, all over science. Every course I give at university I put the lecture notes on my website, free for anyone to download. All my papers are on there, all slides from any talk I've given, all materials I have produced as part of my job.
"District Attorney" is the title of a public prosecutor in most States in the USA. Some States, like Massachusetts and Kentucky, call the office "Commonwealth Attorney". At the Federal level the office is "United States Attorney". Ms Ortiz is a "US Attorney" not a "DA".
"so how come they're non-profit and charge 10 bucks to get access to each article? AND, at the same time, proclaim to be all for spreading the knowledge as wide as possible?"
Right. Because IT departments and services have no expenses for personnel, administration, and hardware where you live.
But he *knew* he was breaking the law. He *knew* what the possible consequences were.
This is not to say that I am not in favor of sanctions against the prosecutor and overhaul of much of the US criminal code, but let's keep the big picture in mind: he took his own life, and he committed the crimes for which he was charged.
This wasn't a failure of the US justice system, this was a troubled man finding a way out of bad decisions he had made.
troubled man finding a way out of bad decisions he had made
People who use terms like 'finding a way out' don't have a very good idea what they're talking about. People retain the will to live while being tortured, while imprisoned, during terminal illnesses, and amidst hopeless poverty and misery.
Suicide is not 'a way out' - it's a response to a situation which is quite literally intolerable. Humans have a primal - for obvious reasons - fear of and aversion to death, one even stronger than the drive for power or sex or anything else. People desperately want to stay alive. It's built in. For someone to commit suicide requires life to be such a waking nightmare that 'easy way out' - or *any* 'way out' - is an absolutely absurd way to describe it. If your hands were being held in a fire, you'd do almost anything to make it stop. If you were pinned under a boulder, you'd do almost anything to get free - but that doesn't mean that sawing your arm off with a pocket knife is 'the easy way out'.
Those who commit suicide may be incorrect about the impossibility of things being better, but that's in the nature of depression - though it's sometimes also true. But overcoming the instinct to remain alive requires such a terrible alternative that describing suicide as some kind of strategy for improvement is absurd.
The reality is that the prosecution pushed for the highest punishment possible, and got it. The death penalty. You can argue all day long about "how he knew the consequences", but clearly he didn't, there is no way that he thought he would be getting more time behind bars than if he robbed a chain of liquor store at gun-point and killed two of the clerks in the process. His crime was non-violent, there is no way that anyone will ever convenience me that on his first offense he should have spent 30-50 years in prison.
The prosecution killed him.
Because clearly, if you're caught speeding, it's appropriate that the prosecutor pursues the death penalty against you. After all, you committed the crimes for which you were charged. Oh, you don't think wildly disproportionate punishment would be appropriate here? Well, oddly enough, that's the problem.
You assert that "he knew what the possible consequences were". Would you care to present some evidence for that? Or perhaps you just made that up on the spot? His "crime" was sufficiently heinous that JSTOR refused to press charges and wanted the case dropped. Do you honestly fail to see a problem with a prosecutor abusing the law to further their career?
The trouble is that Aaron was high profile so I suspect someone was trying to send a message to all such hackers. The trouble is that the prosecutors office went way overboard and went utterly overboard,
In the U.K. we have an offence called "Attempting to pervert the course of justice". It's not designed to be used against prosecutors but I don't see why it shouldn't be. If U.S. has something similar maybe that should be used given the circumstances.
There are numerous laws in the US designed to handle legal misconduct in any part of the justice system. More importanly, the *insert jurisdiction here* bar association can revoke an attorney's license to practice law, no matter which table they sit at. Even judges can be sanctioned that way. It may not be a criminal charge, but it's far more devastating to an attorney than minor jail time.
This of course assumes that malpractice or some sort of ethical violation actually took place and can be proven. Being a dick isn't a crime, and should never be considered as such.
People who make poor choices in life suffer the consequences of their choices. The DA is not the reason why Swartz killed himself. Not being man enough to accept the consequences for his actions is why Swartz killed himself. That too was of his own doing just like all the other poor choices he made in the past.
This should be a lesson to those who think they are above the law. A prison cell awaits you. Blaming other people for your poor personal choices is futile.
We I guess if you're going to see no fault in the governments actions than you probably have the strings they attached firmly wedge up your...
First you need to understand that JSTOR database was free accessible to him. In fact, had actually downloaded each individual file, himself, he would have been in complete legal rights. He use a program to do it. His big heat was abusing the MIT network to download the stuff.
Second, I think you don't understand the wiretap portion of this. In any general definition of the term wire tapping, Aaron was file transferring, not snooping wires. Certainly from MIT's perspective it was a serious breach of security, but the prosecution of such actions don;t have much merit.
Third, JSOR originally brought charges, but then drop them. Not completely related to the case, but at the same time JSTOR was planning on making much the material public anyways.
At best, his crime should be trespassing, however do to an over-zealous DA, and broad Computer Crime Act, they abused their Judaical integrity and in the eye of the public they should burn.
I guess if you want to believe the DA's actually consider cases than by all mean live that dream, but aggressive prosecution is alive an well especially if they think it will advance their career.
I agree that he was guilty and should have been punished. Perhaps one or several of the following:
- 6 months to 2 years in jail.
- A moderate (uncomfortable, but affordable) fine passed to MIT as compensation.
- Community work - again possibly at MIT as compensation
The above is reasonable.
10-30 years in prison and fines/legal fees that would bankrupt J.R. Eweing is utterly disproportionate. Aaron Swartz wasn't a serial rapist, murderer or child molester - any of whch might deserve such punishment. He was a misguided guy who broke the law.
A witch hunt isn't what is needed here, but a good long hard look at the way the laws are implemented in the U.S. is, perhaps.
"10-30 years in prison and fines/legal fees that would bankrupt J.R. Eweing is utterly disproportionate. Aaron Swartz wasn't a serial rapist, murderer or child molester - any of whch might deserve such punishment. He was a misguided guy who broke the law."
But hacking and/or copyright infringment is a far more serious crime than rape, murder or child molestation...
"I agree that he was guilty and should have been punished. Perhaps one or several of the following: - 6 months to 2 years in jail. - A moderate (uncomfortable, but affordable) fine passed to MIT as compensation.- Community work - again possibly at MIT as compensation The above is reasonable"
Well how the fuck do *you* know what the sentence would have been had he been found guilty? He could have wound up with a sentence far more lenient that what you are suggesting. And ALL of the prison terms - had any actually been imposed, which is, sadly, doubtful - would have been served concurrently. And *any* fine, no matter how big, could have been (and should have been) paid by Google, as Swartz was basically a Google Tool, and Google is the prime beneficiary of all the sleazy freetard/anti-social causes he promoted.
"He was a misguided guy who broke the law."
Discuss that with the people who egged him on.
I agree with Synja and JStor shouldn't be getting the heat they are. MIT wouldn't drop the case even when JStor agreed to.
So, one of the consortium members was basically overruling the consortium. They need to sort out who should be the predominant voice in these situations. Although, MIT is where the actual "damage" took place so perhaps they should have more say.
"MIT wouldn't drop the case even when JStor agreed to."
I can understand, in principle, that MIT thought their infrastructure had been used for illegal purposes and took the matter seriously. I don't know enough details to have an opinion on whether they were in the right to press charges, but it does not seem unreasonable on the face of it and it looks quite independent of JSTOR's decision not to press charges - the latter does not mean the deed was not illegal, just that JSTOR were satisfied with the outcome/redress/etc.
It does seem that in prosecutions in the US, the maximum penalty is sought when there is little or no "evidence" in an attempt to get a guilty plea and so avoid a failed prosecution. The "guilty" party will cop to a lesser plea rather than go to jail for 30years for jaywalking.
I believe in the UK, that sentences are either set by statute or at the discretion of the presiding Judge and not by the prosecution (ie the DPP).
It would seem sentences are political in the US and have nothing to do with justice.
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