RIP Aaron Swartz

Discussion in 'What's On Your Mind?' started by Frank, Jan 13, 2013.

  1. Sunny Goth

    Sunny Goth Original Member Coach

    But many of the docs are in the public domain - and he had a history of publishing just that. It's possible that that's what he was going to do with this batch as well - publish the public domain ones and leave the rest alone. We'll never know that now, of course.

    So interesting to me Mike. You rail against the TSA when they overreach. But when we're dealing with government overreaching in a CFAA case, you're all 'yay, string him up!' What gives? The CFAA has gotten worse and worse over the years. It's like prosecutors are so lazy they want the statute written as broadly as possible and if it ensnares the innocent (like in the Lori Drew case), or the not so innocent-but not guilty enough for 35 years in prison, so be it. This is wrong, and does much much damage.

    And there you are rooting for the prosecution.
     
  2. Mike

    Mike Founding Member Coach

    I'm simply not convinced that they overreached. The charges were only filed last September, and it takes time for these things to work out.

    The "30 years" or "35 years" that people keep throwing around is simply the maximum possible sentence. It is most unlikely he would have been given anywhere near that. An evidentiary hearing was coming up in 11 days. Who knows what the outcome of that might have been.
     
  3. Frank

    Frank Original Member

    There is also the idea that a lot of the articles (if not the majority) were created with public (that is, tax) funds, and are legally public domain. So the millions of dollars assumed value is hokum to start.
     
    KrazyKat likes this.
  4. Sunny Goth

    Sunny Goth Original Member Coach

    Here's what law professor James Grimmelmann has to say about the PACER episode (hint: what Swartz did was legal). He also feels that the US attorney's office was not at all amused by the PACER case and went after Swartz in the JTOR case - even though MIT and JSTOR walked away from it.

    Here's what JSTOR has to say about it and here's what MIT has to say about it.

    I hope some heads roll over the overreach - because that's what it was - vindictive overreach.
     
  5. Mike

    Mike Founding Member Coach

    The law professor is misstating things. Now why would I be surprised that someone who teaches wannabe lawyers is twisting things around and overlooking some key details?

    Early in the RECAP effort, Swartz had put together PERL scripts that could run from RAM sticks and download PACER documents. Most users would be bringing RAM sticks with them to store the documents on, so nothing looked out of the ordinary.

    Strawberry PERL is freely available and will run from any drive (which is how RAM sticks appear to the O/S), so there's nothing particularly exceptional in this. Most people would use the RAM sticks to move PERL from computer to computer. He just left it on the RAM stick and ran it from there.

    Managing remote computer sessions under control of a local program takes a bit of programming skill, but I've done that myself several times in the past, using PASCAL on a Mac and earlier using proprietary products on Control Data mainframes.

    This much isn't that big a deal, and certainly is legal. The library machines had proper access to PACER, and he just automated the process while he was there in the library.

    That much the law professor got right. It's what the law professor omitted that's most important:

    They decided that having to be in the library was too much of a bottleneck, and it was their solution to that that attracted the FBI's interest. It was suspected that he stole the libraries' PACER login information and used that to access PACER at much greater frequency from his own computers. That crosses the line into what is illegal, and that apparently is where the bulk of their 18M pages of PACER documents came from. However, the FBI never managed to make the case, so he escaped unscathed in that incident.

    This is the point in the tragedy of his life where overwhelming pride (ὕβρις) gives way to folly (ἄτη). When he tripped up again with the JSTOR pilferage, the FBI & federal prosecutors already had him in their sights.
     
  6. Sunny Goth

    Sunny Goth Original Member Coach

    He's a fairly brilliant law professor. Techie too.

    No charges in PACER and PACER is not at issue here. JTOR and MIT are at issue. Why do you keep on about this?


    The feds were humiliated and were acting vindictively. A possible 30-35 year sentence is all out of proportion to what he did.

    Here's what Jonathan Turley has to say in his blog post --

    We previously discussed how the Justice Department hounded Aaron Swartz in a prosecution that sought 35 years in prison for his effort to make academic papers available to the public — even though MIT did not ask for such charges and later released the papers free of charge to the public.

    There's more and you can read it at the link.

    And finally we have this article:

    Aaron Swartz's Lawyer: Prosecutor Stephen Heymann Wanted 'Juicy' Case for Publicity. I think the title says it all.
     
  7. Mike

    Mike Founding Member Coach

    Because it's pretty obvious he made a habit of using unauthorized access to computer systems to pilfer documents. There might not have been any charges resulting from the PACER incident, but the FBI had investigated it and was aware of it. In the end, his bad behavior caught up with him. Life's a bitch, sometimes.

    Do I really care how Aaron Swartz's lawyer paints the picture? I don't think so.

    To be honest, the more I read of Aaron Swartz, the less impressed I am. I refuse to subscribe to his martyrdom & beatification. He was a criminal under indictment, and most likely guilty. He could have done a lot more with his life, especially given his talents, but he wasted it.
     
  8. Sunny Goth

    Sunny Goth Original Member Coach

    Well, you're pretty much standing alone there.
     
  9. Mike

    Mike Founding Member Coach

    I doubt it.

    There's so much hype about him right now (Invented RSS? He didn't. Co-founder of Reddit? He wasn't.) that most people are missing the details in the all the fluff. He did a lot in 26 years, but he doesn't match up to the legend that it seems is being created for him.

    Basically you have a depressed prodigy who couldn't hold a real job and who committed suicide rather than deal with things.

    In the end the historians usually get it right.

    And as I've said repeatedly, the real issue that people should be addressing in all this is the availability of mental health care and treatment.
     
  10. Mike

    Mike Founding Member Coach

    On Reuters today, it appears there are plenty of others who have connected the same dots as I:

    Other legal experts said the prosecution, led by U.S. Attorney Carmen Ortiz in Boston, followed the law closely in bringing charges against Swartz, who argued that research created with public funds should be freely shared on the Internet. Authorities charge that, when MIT tried to shut off the downloads, Swartz hid and altered his computer's network identity and eventually sneaked into a closet at the university's Cambridge, Massachusetts, campus to gain access to the 4 million articles. "The prosecutors weren't stretching the law to fit the facts," said Orin Kerr, a professor at George Washington University law School and a former federal prosecutor. "The law is broad and seems to cover this kind of act."

    ...

    "They make an aggressive reading of what unauthorized access means to try to throw the book at somebody," she said. "Usually, their real beef isn't with the hacking, but with something else the person did that the prosecutor didn't like." Hofmann and many of Swartz's supporters believe that might be what happened to the popular online activist ... Swartz had been investigated before after downloading almost 20 million pages of text from a government-run database of court records called PACER in 2008. No charges were filed. But he got into more serious trouble in 2011 after the MIT incident, which led to his prosecution in a trial that had been due to start in a few months.

    Even the attorney who represented Lori Drew appears to agree that the prosecution of Aaron Swartz was proper:

    Swartz's possible desire to make the articles public did not exempt him from prosecution, said Kerr, who represented the woman accused of hacking for using a fake MySpace profile. "There's no 'good guy' exception to the criminal laws."​

    Meanwhile, his father and others are ranting that Aaron Swartz was 'killed by the government.' What a bunch of self-indulgent narcissists! Whatever happened to taking personal responsibility for your own actions and not breaking the law in the first place?
     
  11. There is much buzz surrounding the recent suicide of Aaron Swartz–and whether prosecutorial abuse by Carmen Ortiz played a part.
    Glenn Greenwald:
    Whenever an avoidable tragedy occurs, it’s common for there to be an intense spate of anger in its immediate aftermath which quickly dissipates as people move on to the next outrage. That’s a key dynamic that enables people in positions of authority to evade consequences for their bad acts. But as more facts emerge regarding the conduct of the federal prosecutors in the case of Aaron Swartz – Massachusetts’ US attorney Carmen Ortiz and assistant US attorney Stephen Heymann – the opposite seems to be taking place: there is greater and greater momentum for real investigations, accountability and reform. It is urgent that this opportunity not be squandered, that this interest be sustained.
    The Wall Street Journal reported this week that – two days before the 26-year-old activist killed himself on Friday – federal prosecutors again rejected a plea bargain offer from Swartz’s lawyers that would have kept him out of prison. They instead demanded that he “would need to plead guilty to every count” and made clear that “the government would insist on prison time”. That made a trial on all 15 felony counts – with the threat of a lengthy prison sentence if convicted – a virtual inevitability.
    Just three months ago, Ortiz’s office, as TechDirt reported, severely escalated the already-excessive four-felony-count indictment by adding nine new felony counts, each of which “carrie[d] the possibility of a fine and imprisonment of up to 10-20 years per felony”, meaning “the sentence could conceivably total 50+ years and [a] fine in the area of $4 million.” That meant, as Think Progress documented, that Swartz faced “a more severe prison term than killers, slave dealers and bank robbers”.
    Swartz’s girlfriend, Taren Stinebrickner-Kauffman, told the WSJ that the case had drained all of his money and he could not afford to pay for a trial. At Swartz’s funeral in Chicago on Tuesday, his father flatly stated that his son “was killed by the government”.​
    More background from Radley Balko and Declan McCullagh.
    The Aaron Swartz Case is a post from PoliceMisconduct.net
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    Continue reading...
     
  12. Mike

    Mike Founding Member Coach

    Prosecutors were preparing to offer a plea-deal that only called for six months in a minimum-security prison:

    CNN: Prosecutor defends case against Aaron Swartz

    [U.S. attorney for Massachusetts, Carmen M.] Ortiz said, prosecutors recognized there was no evidence Swartz had acted for personal gain, and considered that the harshest penalties available under the law were not appropriate for his alleged offenses. As a result, prosecutors told Swartz's legal team they would recommend to the judge a sentence of six months in a low-security setting, she said. At the same time, Swartz's defense was free to suggest to the judge that probation would be more appropriate, Ortiz said, and the final call would lay with the judge. "At no time did this office ever seek -- or ever tell Mr. Swartz's attorneys that it intended to seek -- maximum penalties under the law," she concluded.

    Huffington Post: Aaron Swartz Prosecutor Defends Charges, Days After Activist's Suicide

    U.S. Attorney Carmen Ortiz on Wednesday defended her office's prosecution of Aaron Swartz as "appropriate," days after the 26-year-old Internet activist took his own life ... Ortiz maintained it was appropriate for prosecutors in the U.S. Attorney's Office for the District of Massachusetts to bring the case. She said her office was prepared to offer a deal that would have put Swartz behind bars in a low-security prison for six months. Ortiz said prosecutors never said they intended to seek the maximum punishment. "At no time did this office ever seek -- or ever tell Mr. Swartz's attorneys that it intended to seek -- maximum penalties under the law," Ortiz said.

    Full text of statement from U.S. Attorney Carmen Ortiz via Huffington Post:

    As a parent and a sister, I can only imagine the pain felt by the family and friends of Aaron Swartz, and I want to extend my heartfelt sympathy to everyone who knew and loved this young man. I know that there is little I can say to abate the anger felt by those who believe that this office's prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life.

    I must, however, make clear that this office's conduct was appropriate in bringing and handling this case. The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably. The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct -- while a violation of the law -- did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases. That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct -- a sentence that we would recommend to the judge of six months in a low security setting. While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge. At no time did this office ever seek -- or ever tell Mr. Swartz's attorneys that it intended to seek -- maximum penalties under the law.

    As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible. We strive to do our best to fulfill this mission every day.
     
  13. Mike

    Mike Founding Member Coach

  14. From the One Generation Away blog:
    Aaron Swartz was an influential man with very important friends, and that’s why this case is getting so much attention. Sadly, this kind of behavior by prosecutors is not an extreme example, but instead par for the course.
    t’s important to realize that what happened in the Swartz case happens it lots and lots of federal criminal cases. Yes, the prosecutors tried to force a plea deal by scaring the defendant with arguments that he would be locked away for a long time if he was convicted at trial. Yes, the prosecutors filed a superseding indictment designed to scare Swartz even more into pleading guilty (it actually had no effect on the likely sentence, but it’s a powerful scare tactic). Yes, the prosecutors insisted on jail time and a felony conviction as part of a plea. But it is not particularly surprising for federal prosecutors to use those tactics. What’s unusual about the Swartz case is that it involved a highly charismatic defendant with very powerful friends in a position to object to these common practices. That’s not to excuse what happened, but rather to direct the energy that is angry about what happened. If you want to end these tactics, don’t just complain about the Swartz case. Don’t just complain when the defendant happens to be a brilliant guy who went to Stanford and hangs out with Larry Lessig. Instead, complain that this is business as usual in federal criminal cases around the country — mostly with defendants who no one has ever heard of and who get locked up for years without anyone else much caring.”
    That was law professor Orin Kerr. He has a proposal for change: “Felony liability under the statute is triggered much too easily. The law needs to draw a distinction between low-level crimes and more serious crimes, and current law does so poorly.” Some have proposed “Aaron’s Law” which would remove terms of service violations from the federal criminal code….
    Aaron Swartz knew he was breaking the law when he downloaded those articles. What he did not know, was that if a prosecutor wanted to make his life (expletive deleted), she could credibly see to it that he was locked up until his mid 50’s. We should make sure that punishments fit crimes, and that when we collectively threaten to remove a human being from society for a generation or two, they actually did something worthy of such a profound punishment.

    More on the Aaron Swartz Case is a post from PoliceMisconduct.net
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    Continue reading...
     
  15. Mike

    Mike Founding Member Coach

    Just ran across this, it's a really good read ...

    The Volokh Conspiracy: The Criminal Charges Against Aaron Swartz (Part 1: The Law)

    I hope to answer these questions in two posts. In the first post, I’m going to try and answer the first question — the law — as informed by my background as a specialist in this particular area of law who has testified on these statutes before Congress, defended computer crime cases involving these statutes, and helped prosecute them, too. In a subsequent post, I’ll try to answer the second question, the exercise of prosecutorial discretion.

    This is going to be a long post, so here’s the summary of my conclusion on the first question: I think the charges against Swartz were based on a fair reading of the law. None of the charges involved aggressive readings of the law or any apparent prosecutorial overreach. All of the charges were based on established caselaw. Indeed, once the decision to charge the case had been made, the charges brought here were pretty much what any good federal prosecutor would have charged. This is different from what a lot of people are hearing on the Internets, so I realize this post isn’t going to be popular. But I’ll explain my position in some detail, starting with the facts and then turning to the law ...

    ... My conclusion, at least based on what we know so far, is that the legal charges against Swartz were pretty much legit. Three of them are pretty strong; one is plausible but we would need to know more facts to be sure. Of course, there may have been reasons not to charge Swartz even though he had violated these statutes or to offer him a lenient plea. I’ll take on those questions in my next post. But to the extent we’re focused on just what the law is, I think that what Swartz was alleged to have done fits pretty well with the charges that were brought.
     

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