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Prosecution of Swartz Typical for the "Sick Culture" Pervading the DOJ 443

tukang writes "According to a report in the Massachusetts Lawyers Weekly, State prosecutors had planned to let Swartz off with a warning and Swartz would not have faced any criminal proceedings or prison time had it not been for the decision of Carmen Ortiz's office to intervene and take over the case." Although the CNET article focuses on Aaron Swartz's particular case, the original article calls attention to general abuse of power within the DOJ: "It seems never to have occurred to Ortiz, nor to the career prosecutors in her office in charge of the prosecution, Stephen Heymann and Scott Garland, that there is something wrong with overcharging, and then raising the ante, merely to wring a guilty plea to a dubious statute. Nor does it occur generally to federal prosecutors that there’s something wrong with bringing prosecutions so complex that they are guaranteed to bankrupt all but the wealthiest. These tactics have become so normal within the Department of Justice that few who operate within the bowels of this increasingly corrupt system can even see why it is corrupt. Even most journalists, who are supposedly there to tell truth to power, no longer see what’s wrong and even play cheerleader."
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Prosecution of Swartz Typical for the "Sick Culture" Pervading the DOJ

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  • An old saying. (Score:5, Insightful)

    by kurt555gs ( 309278 ) <kurt555gs@ov i . c om> on Tuesday January 29, 2013 @04:08AM (#42723561) Homepage

    Power corrupts. Absolute power corrupts absolutely.

    • Re: (Score:2, Funny)

      by Anonymous Coward

      I'm also very disappointed by MIT's treatment of the man. It makes me sick actually to think what his university did to him.

      I know that this is MIT's management, and not necessarily academic staff, but to do this is disgusting.

      • Re:An old saying. (Score:5, Informative)

        by Anonymous Coward on Tuesday January 29, 2013 @05:19AM (#42723795)

        I don't think he was a student at MIT. He just got in to one of their data closets.

        Swartz was a research fellow at Harvard University, which provided him with a JSTOR account; additionally, visitors to MITâ(TM)s "open campus" were authorized to access JSTOR via the campus network.[47] The authorities say Swartz downloaded the documents through a laptop connected to a networking switch in a controlled-access wiring closet at MIT.[48][49][50][51] -wiki

        • Re:An old saying. (Score:4, Informative)

          by Weezul ( 52464 ) on Tuesday January 29, 2013 @07:24AM (#42724221)

          MIT has an intentionally open wifi setup, like everyone should.

          We're having trouble with the fire Stephen Heymann petition [whitehouse.gov], only like 10k signature out of the needed 25k.

          What do people think we should do? Start a second more well written and informative petition perhaps?

          • Re:An old saying. (Score:4, Informative)

            by todrules ( 882424 ) on Tuesday January 29, 2013 @08:20AM (#42724483) Journal
            Don't start another one. You need 100,000 signatures for the new petitions from now on.
          • Re:An old saying. (Score:5, Informative)

            by Charliemopps ( 1157495 ) on Tuesday January 29, 2013 @09:13AM (#42724829)

            You do realize they do absolutely nothing about those petitions at all, even if you get the signatures. They're just a honey pot for gathering the names of political dissidents. I know a lot of you don't think this has started in this country but it has.

      • Re: (Score:3, Insightful)

        by DrXym ( 126579 )
        Swartz abused MIT's terms of service, abused services they had subscribed to, effectively managed to DOS that service, actively evaded attempts to block his IP and MAC addresses, hid computers in University property to hide what he was up to and intended to disseminate content to non subscribers of that service.

        He did something clearly illegal and then had the book thrown at him. Perhaps the DOJ was heavy handed and perhaps his subsequent state of mind should have been a red flag to all parties to drop th

        • Re:An old saying. (Score:4, Insightful)

          by sosume ( 680416 ) on Tuesday January 29, 2013 @08:01AM (#42724397) Journal

          You are so right. People who disclose (already public) academic data should be thrown in jail for the rest of their lives! After dragging them through hellish court procedures. How dare they disobey the ruling class! That's your point, right?

        • by headhot ( 137860 )

          I wonder, did MIT disclose its terms of service with the users? I suspect not, as thats a contract between JSTOR and MIT.

          Did his actions prevent anyone else from accessing JSTOR? As for as I read, JSTOR never went down, so in that case, not its not a DOS.

        • Re:An old saying. (Score:5, Insightful)

          by Teancum ( 67324 ) <[ten.orezten] [ta] [gninroh_trebor]> on Tuesday January 29, 2013 @10:37AM (#42725663) Homepage Journal

          This wasn't "clearly illegal" and in fact was just a "terms of service" violation where most ordinary people doing the things that Swartz was doing would even think was perfectly legal or even expected for legitimate scholarship. Where he crossed the line was doing more of it than most people..... sort of like going to an all you can eat buffet and filling up a dozen plates with food that you can't possibly eat in one sitting.

          Perhaps Swartz should have used some better judgement, and had something like his account terminated and perhaps be sent a bill for the "extra resources" he consumed (sort of like the restaurant example charging an extra fee for all of the wasted food), but it certainly didn't cross into the realm of criminal behavior as most people would define the term. Frankly I don't even understand why the Department of Justice was even involved in what was just an ordinary contract violation and should have been handled by a civil court judge at worst.... and a state judge at that. It shouldn't have even been a criminal matter in the first place.

        • I don't believe it was inappropriate to prosecute him for what he did regardless of what his intentions may have been at the time.

          Strawman . No one is saying Swartz was completely innocent of any crime. Fuck off and stop trying to distort the argument, if that's what you're doing. If you're not trying to make a strawman argument, listen/read what people are actually saying before you jump to a response.

        • You are missing the point: trivial things are now illegal. If you have ever been less than entirely honest in an e-mail or letter then YOU TOO are a felon and any federal employee who doesn't like you - or decides to use you as career fodder - can jail you for wire fraud or mail fraud. Same if you have ever made a 'mistake' on your tax return. Wondered why the IRS audited the CIA waterboarded whistleblower back 7 years? Because it's an easy way to jail someone. Getting Al Capone for tax evasion seems clever
    • by SmallFurryCreature ( 593017 ) on Tuesday January 29, 2013 @04:50AM (#42723701) Journal

      In a democracy, the power is supposed to lie with the voter. The voter has power, indeed absolute power to change the leadership every so many years and in the US even sooner because isn't that why you got so many guns... and therefor, the voter is corrupt. Nice.

      The simple fact is that while a LOT of people claim outrage at this case, a LOT of people ALSO want a though stance by the justice system on OTHER peoples offenses. Hang'em all and let god sort them out is a significant voting group.

      An even BIGGER group of voters is "hang em all" "oh my god, you slapped his wrist, how mean!". It is a lucrative market to serve as the media, write a story about how soft the system is on hardened criminals then a story about how hard the system is on misunderstood people and you got your readership nice and enraged and yet feeling like they are caring people after all.

      The DOJ YOU got is the system your society wants. Don't believe me? Nothing has actually been changed with regards to JSTOR and its policies has it. MIT hasn't stopped working with them. Academia still submit their papers to it don't they? Everybody is having a good little cry and a nice outrage at the system and then all back on our hamster wheel part of the big machine just like before.

      It reminds me of Munich. How many seconds was the collecting of wealth and fame halted after the slaughter? Did a single athlete say "no this isn't right, I won't continue". In the Tour de France at least if there is some event like a rider who died, the other riders do symbolic things like letting the affected team win or ride across the finish line as a group rather then in a race. Sometimes... if the stakes aren't to high.

      How many people/organizations have declared to STOP using JSTOR or to keep themselves associated with MIT? Have many MIT students have stopped going?

      People forget that oppression isn't just a person at the top going "send him down", it is an entire support system beneath it. If you want to be nice it is "good men doing nothing" but mostly it is "selfish people not doing anything unless it benefits them and even then only if it doesn't take to much effort". You might blame the Klan for segregation laws in the deep south (see how neatly I avoided mentioning the nazi's and a godwin?) but that doesn't explain how easily it was implemented and supported. Every bus driver, every shop owner, every person who went into a whites only area. Did you push YOUR granddad in the face for being part of it? No? So you think the DOJ should be punished for prosecuting a criminal but racism is okay?

      Life is hard, fighting the good fight all the time is FUCKING hard. Lessig is one person who does it easily by doing the fighting through proxies and getting his proxies lumbered with million dollar punishments or until a depressed young man kills himself. How many cheered Swartz on and how many gave a depressed suicidal guy a shoulder to lean on? I sure as hell didn't. I am taking the easy way out. I know this of myself and just avoid looking at myself in the mirror. SAME AS YOU!

      You can convince me differently if for instance there had been a "Spartacus" event where a lot of MIT students had copied the mass download. There wasn't. If students had left MIT. They didn't. If Academia had stopped using JSTOR. They didn't. If there had been ANY action beyond a few cheap speeches.

      It is even more hilarious to read articles denouncing the DOJ on this subject matter when such sites are heavy supporters of copyright and have in the past attempted to restrict fair use of their own content.

      I predict that NOTHING will change. The reason is simple, NOBODY cares. Well not enough. The next election will be about taxes and employment once again and the people will vote for the guy they think is best for them (or for Romney voters, better for that rich guy they never met and will never be) and copyright is just not a big enough issue to figure in election results yet. Hell, the US doesn't even have a green party of any note.

      • Re: (Score:2, Redundant)

        by Genda ( 560240 )

        Its so strange you should be having this conversation now. Apathy has this nation by the throat. It takes time to become this apathetic, spirit broken, cynical, resigned. It takes having your dreams squashed, beliefs shattered and dreams abandoned. And lie after lie after lie. On the way home I heard a public service announcement. To date 6,000,000 children have died from AIDs worldwide, all innocent victims of the epidemic. That is more children than in all the preschools and kindergartens and grade school

        • We have 2 political parties. They both control the government. They both control the media. They both control who's allowed to be on the ballot. They both control the courts. They both control which businesses thrive and which businesses wither on the vine.

          It's similar to a Hydraulic Empire: http://en.wikipedia.org/wiki/Hydraulic_empire [wikipedia.org]
          They control information in this case, and control us all by it. If we disobey them, they cut off our access to it. Or use it to imprison us. If buisnesses disobey they seize

          • We have 2 political parties. They both control the government. They both control the media. They both control who's allowed to be on the ballot. They both control the courts. They both control which businesses thrive and which businesses wither on the vine.


            But they dont control the enforcement of the law!

            All you have to do is sit on a jury and vote innocent on anyone that is brought up on a stupid law or on charges that are way over the top. They can pass all the laws they want it is up to we the people to enforce them. Sad that so many want to complain about the system but then work to get out of jury duty.

      • by berashith ( 222128 ) on Tuesday January 29, 2013 @08:34AM (#42724557)

        The power doesnt lie with the voter. We only vote for the politicians, we dont get to vote for who is in power. The people in power are smart enough to not allow their position to rely on the whims of the population.

    • by golodh ( 893453 ) on Tuesday January 29, 2013 @06:37AM (#42724021)
      There isn't all that much wrong with the powers accorded the DOJ.

      The key issue (that I see) can lead to abuse is the widespread phenomenon of 'plea bargaining'.

      It is this mechanism that provides an incentive for the DOJ to heap unreasonable amounts of far-fetched charges on a single suspect. The sole objective is to render it unattractive for the suspect to let the case come to court and thereby pressure the suspect into copping to specific charges.

      There are two reasons to do this. The first is based solely on cost reasons (as with most decisions in the US), as in: it's costly to prosecute and it's cheap to file charges. If you can get suspects to plead guilty and accept the penalties, you've handled a case cost-effectively.

      The second reason is that people have sought for means to make things sufficient hot for extreme cases (like e.g. mafia bosses) who are likely to shrug off most charges that can be proven against them beyond reasonable doubt. For such cases people saw fit to impose totally disproportionate penalties for relatively innocuous offenses.

      Unfortunately this practice has been adopted for general use, specifically for serving as a deterrent against law-breaking by increasing the perceived risk of law-breaking. As in :

      perceived risk = probability of capture x potential penalty

      In the Middle Ages they used torture, mutilation, branding and suchlike to up the potential penalty to "deterrent values". Nowadays we use disproportional (and crippling) fines and equally disproportionate (and equally crippling) prison sentences for the same purpose.

      People who complain ought to realise that this setup is very 'American' in nature and that it continues to exist only because a majority doesn't think it worth changing this aspect of the system.

      Of course the whole thing can be changed: simply lower maximum penalties to proportionate values and invest (much) more money in increasing the probability of getting caught in order to keep the perceived risk of lawbreaking constant. It's completely feasible, but expensive.

      Only people here don't want to hear that: they (collectively) prefer to destroy the odd individual in order to maintain the balance of terror on part of the law by the cheapest means available.

      It's a choice (if a callous one), and it has nothing whatsoever to do with awarding the DOJ "too much power", let alone with the DOJ being ''corrupted by power". The DOJ simply does what it's told to do ... by the outcomes of a democratic process. If you don't like it, then have it changed.

      • by TapeCutter ( 624760 ) on Tuesday January 29, 2013 @09:02AM (#42724745) Journal

        The key issue (that I see) can lead to abuse is the widespread phenomenon of 'plea bargaining'.

        Bingo, been saying that for years. I'm also assuming they are judged by the quantity of convictions, not the quality of the charges. Other western nations seem to be able to get guilty pleas without turning the whole thing into a Turkish bazaar, so it's certainly possible that it could be improved by democratic oversight. The fact that someone in the US is 7X as likely as someone in the EU to be locked up is a pretty strong signal that there is a systemic problem within the US justice system.

  • by starworks5 ( 139327 ) on Tuesday January 29, 2013 @04:08AM (#42723563) Homepage

    How else can you hold up the charade of a dual track justice system, if some people are hunted down by the authorities with extreme prejudice, and at the same time others are too powerful to fail, you create an illusion of order and safety and create bogeymen to keep people in fear.

  • what (Score:5, Insightful)

    by phantomfive ( 622387 ) on Tuesday January 29, 2013 @04:14AM (#42723589) Journal

    Even most journalists, who are supposedly there to tell truth to power,

    I just want a journalist to tell me what happened. Do some research, so I can read it, because I don't have time to do it all myself. I don't want reporters to shove their ideology and viewpoint at me. That's what editorial pages are for.

    • Re:what (Score:5, Informative)

      by SuricouRaven ( 1897204 ) on Tuesday January 29, 2013 @04:30AM (#42723633)

      Doesn't happen so much any more. Journalists are under far greater time pressure than they once were - editors expect them to write more in less time, to satisfy our new 24-hour news culture. Investigative journalism is a very time-consuming process and can take weeks or months to produce a story. So it has been largely abandoned in favor of a form of 'production line' news which focuses on just collecting quotes and getting them broadcast as quickly as possible.

  • What about... (Score:5, Interesting)

    by Anonymous Coward on Tuesday January 29, 2013 @05:00AM (#42723741)

    ...making Carmen Ortiz an "example" of this kind of abusive behavior from the prosecution?


    US-citizens, your future is in your hands.
    We, as in "foreigners", can only look at all this mess and shake our heads, which we do alarmingly and increasingly often...

  • by jcr ( 53032 ) <jcrNO@SPAMmac.com> on Tuesday January 29, 2013 @05:03AM (#42723747) Journal

    If the prosecutor offers a lower penalty for a guilty plea, then the government is admitting that the lower penalty is sufficient if the accused is guilty, and that should be what the defendant is in jeopardy of if he goes to trial. The effect of the threat of drastic sentences for minor offenses means that most of the time, the accused is denied his right to trial by jury.


    • by oztiks ( 921504 )

      JCR I don't agree with many of your comments which I've read on /. over the years but this one gains you my respect.

    • When there is no doubt that a defendant has broken a law there is no incentive to that defendant to plead guilty. In the best case there could be a procedural error and the defendant will walk free. In the worst case the defendant will get what was offered in the plea deal. Do you really want every minor infraction that would put someone away for less than a year to have to go to court? Do you realize how clogged the courts already are and what a mess they would be if that happened? The reason the prosecuto

      • by DarkOx ( 621550 ) on Tuesday January 29, 2013 @06:52AM (#42724097) Journal

        Then maybe the problem is there are two many minor infractions. If we are not willing to give someone their day in court over a matter than we probably should not be regulating it in the first place

        • Thank you. Saved me the trouble.

        • Do we stop regulating speeding, theft under $500, trespassing, etc? The issue is not how minor the offense is but how often they are committed and that the offenses clog the courts with needless procedures on the off chance that something will go wrong and the defendant will get off. It is no longer a quest for justice but a crap shoot.

          • by DarkOx ( 621550 )

            Speeding, theft, trespassing, are all things that should take a properly function court no more than an hour to hear and settle unless there are really interesting legal questions to deal with. There evidence is there or its not for the vast majority of those cases. Many states and localities actually REQUIRE minors to go to court for those infractions; they can't skip the trial.

            Court costs are often part of the punishment for those crime if you are convicted and I think that is perfectly fair. I am not

            • It's worse than you might think.

              All of those minor infractions are already just bench trials, unless you lose and appeal. At least around these parts, however, you end up with around a year of continuances because the prosecution is never ready to go to trial, forcing you to appear six or more times (for up to the full court session... you can't leave until they get around to telling you they aren't ready for you, and they will purposefully make you wait there until the very end) before having your 15 minut

          • by Hatta ( 162192 )

            If it's not worth investing in a trial, it's not worth putting someone in jail for. Period.

      • Do you really want every minor infraction that would put someone away for less than a year to have to go to court?

        If it means that innocent people stop being punished by the 'justice' system? Absolutely.

    • The only thing a prosecutor should be allowed to offer is a recommendation to the judge for a lower sentence. The crime charged should never change.

  • The article points to the prosecutors, but these are not the real problem. The real problem are the laws. Democratic principles of rule of law do not only concern rights of due process but also the laws themselves. Laws that allow sentences ranging from a fine up to 35 years in prison for the same crime at the discretion of the prosecutors and judge are inherently injust. That should be obvious to anyone.

    As for plea bargaining itself, I personally have always considered that injust, too, because it mostly w

  • by sesshomaru ( 173381 ) on Tuesday January 29, 2013 @06:14AM (#42723935) Journal

    State prosecutors who investigated the late Aaron Swartz had planned to let him off with a stern warning, but federal prosecutor Carmen Ortiz took over and chose to make an example of the Internet activist, according to a report in Massachusetts Lawyers Weekly.

    Hey, she did make an example out of Swartz, just not the kind of example she was hoping for.

    He became an example of the result of the tyranny of the modern American State. (Honestly? He's not even the best example, but he's very prominent. Which is exactly why Ortiz and Heymann chose him. )

    Incidentally, Shirly Sherrod lasted how long when that deceptively edited video of her was released, compared to how long Ortiz has lasted after an egregious miscarriage of Justice that she was responsible for was shown?

    Seems the Obama administration has its priorities...

    • by Alranor ( 472986 )

      Your Sig: "MIT betrayed all of its basic principles."

      You can't betray your basic principles. What MIT have done is revealed that they have been lying about what their basic principles are.

  • ironic (Score:4, Insightful)

    by stenvar ( 2789879 ) on Tuesday January 29, 2013 @06:26AM (#42723973)

    Of course, it is "sickening" that federal prosecutors overcharge, that they have so much power, and that so many cases end up in federal court to begin with. But it's Congress that is responsible for this development; you can't blame the prosecutors (for many years, they were required to charge everything they reasonably could).

    It's ironic that Swartz is becoming a poster boy for this, given how linked to progressive causes he was. A large reason for the huge transfer of power to the federal government is due to progressive causes. You want less of this kind of heavy-handed federal government action? Stop handing more power to the federal government and take it back to the states. Of course, you the have to live with the fact that people in Tennessee may not share your views on gay marriage, abortion, weed, evolution, guns, or welfare. But then, you don't have to live there (and fortunately neither do I).

    • This, exactly this. The reason we have this abuse of power is because we have asked Congress to make too many things federal offenses. Prosecutors, and other government officials, who answer to locally elected officials are more easily held accountable for abuse of power than government officials who theoretically answer to Congress (and in practice the only elected official they answer to is the President).
  • by CuteSteveJobs ( 1343851 ) on Tuesday January 29, 2013 @06:55AM (#42724117)
    1. Quote Martin Luther King as saying disidents should be proud to go to jail.

    Not everyone is heralded like Mandella with a large base of supporters and international attention. Most are swallowed up by the penal system never to be heard from again. Only their family remembers. Look what happened to John Kiriakou who blew the whistle on illegal torture. He's gone away for 30 months. http://dissenter.firedoglake.com/2013/01/28/convicted-cia-whistleblower-john-kiriakou-confronts-government-talking-points-on-nbcs-today-show/ [firedoglake.com]

    Whistleblower John Kiriakou said "I am proud that I stood up to our government. I am not a criminal. I am a whistleblower. Torture is illegal and it’s officially abandoned in our country and I’m proud to have had a role in that." Sounds a bit like Patrick Henry's "Liberty or Death". A hero right? And yet...

    Don't expect the media to save you. NBC's Savannah Guthrie began her interview of him: "Some people say you betrayed your former colleagues in order to raise your media profile in order to sell books and get a consulting business going." Are *you* going to be holding a candlelight vigil for a cad of a man who betrayed his country to sell books?

    Don't expect the judge to save you: The US District Court Judge Leonie Brinkema said on Friday that Kiriakou had damaged the CIA. She called the sentence, the result of a plea arrangement with prosecutors, "way too light". Before issuing the sentence, the judge asked Kiriakou if he had anything to say. When he declined, she said: ''Perhaps you have already spoken too much.''
    This book tells how once you're jailed the public think you deserve it and quickly forget about you. http://books.google.com/books?id=Tu5RB6YHf10C&pg=PP1&lpg=PP1&ots=51Ya4U8XFt&dq=lynch+in+the+name+of+justice [google.com] (Go to page 43 of this Google Books preview).

    2. Swartz broke the law and should do the time.

    These posts are usually accompanied by an anal exploration of the relevant statute by watched too many courtroom dramas and thinks they are real life, but was there ever an Episode of Law & Order when McCoy said "Let's fuck this college kid over! I want a promotion! "

    People who post these overlook the whole point that these are unfair laws. Volokh showed how unfair they are when he wrote a TOS that could be used to send anyone to jail named "Ralph".
    http://www.japantimes.co.jp/text/eo20120803gw.html [japantimes.co.jp]
    http://www.amazon.com/Arrest-Proof-Yourself-Ex-Cop-Reveals-Arrested/dp/1556526377 [amazon.com]
    http://www.volokh.com/posts/1227896387.shtml [volokh.com]
  • by divisionbyzero ( 300681 ) on Tuesday January 29, 2013 @09:08AM (#42724787)

    The DOJ criminal division hasn't done a thing to prosecute any of the heads of Wall Street firms that have destroyed the lives of millions by engaging in fraud but is willing to destroy the life of a promising young men for a victimless crime.

    See: http://www.pbs.org/wgbh/pages/frontline/untouchables/ [pbs.org]

    Thankfully, Lanny Breuer resigned after this documentary came out but it seems like the DOJ is rotten to the core. Eric Holder needs to go next. Obama should get someone in there to clean out the stables.

  • But the DoJ is as political as anything else.

    Otherwise... well, Tom DeLay, former Speaker of the House, was convicted in Texas of money laundering for campaigns...*THROUGH THE RNC*. Laundering money requires at least two guilty parties... so why hasn't the DoJ RICO'd the RNC, instead of going after small, easy fish?


  • by myth24601 ( 893486 ) on Tuesday January 29, 2013 @02:54PM (#42729547)

    We should nationalize the legal profession. If you get charged with a crime, the government pays your lawyers the same amount it pays prosecutors.

Things are not as simple as they seems at first. - Edward Thorp