US Attorney General Defends Handling of Aaron Swartz Case 276
TrueSatan writes in with the latest in the ongoing Aaron Swartz tragedy. "Attorney General Eric Holder on Wednesday said the suicide death of internet activist Aaron Swartz was a 'tragedy,' but the hacking case against the 26-year-old was 'a good use of prosecutorial discretion.' The attorney general was testifying at a Justice Department oversight hearing before the Senate Judiciary committee and was facing terse questioning from Sen. John Cornyn (D-Texas). ...Holder stated: 'I think that's a good use of prosecutorial discretion to look at the conduct, regardless of what the statutory maximums were and to fashion a sentence that was consistent with what the nature of the conduct was. And I think what those prosecutors did in offering 3, 4, zero to 6 was consistent with that conduct.' Notwithstanding Holder's testimony, Massachusetts federal prosecutors twice indicted Swartz for the alleged hacking, once in 2011 on four felonies and again last year on 13 felonies. The case included hacking charges under the Computer Fraud and Abuse Act that was passed in 1984 to enhance the government's ability to prosecute hackers who accessed computers to steal information or to disrupt or destroy computer functionality."
Duh. (Score:5, Insightful)
Huge asshole defends being a huge asshole. News at 11.
Re:Not long for this administration (Score:4, Insightful)
Between Fast and Furious, Swartz, and now giving the OK on drone strikes against US citizens in America - he doesn't have a friend in the world, he has ticked off everyone.
Don't worry, there are still plenty of people drinking the Kool-aid. People tend to chain themselves to a particular ideology because it makes life easier to absorb. The "us vs. them" mentality is a basic human survival mechanism.
What will be interesting to find out is how Obama is perceived after the "not so nice" parts of his healthcare law take effect in a couple years––then scholars truly can debate who was worse, Bush II or Obama.
Re:All the way to the top. (Score:5, Insightful)
Uh.
What he did was really illegal.
SHOULD it be super illegal? No. Of course not.
We also need a sea change in both jurisprudence and how we view crime. You know part of this is him trying to keep his ass out of hot water in the mainstream press. If we change how we as a people view crime and justice, there wouldn't be this snap call to be "tough on crime."
Rationality has left our culture. It's happening on both sides, but in Swartz's defense, and those who are outraged by Holder and everyone involved, now is not the time for well reasoned disconnected logic.
Someone died because a prosecutor turned the screw over an incident where no money was lost, no lives were lost and by all measure, relatively harmless.
To blame Holder or the prosecutor specifically ignores the bigger social context at work. That needs to change. We need to not forget what happened here.
Re:All the way to the top. (Score:4, Insightful)
Fast and Furious wasn't enough to even make him break a sweat. Hell, Waco happened and Janet Reno skated. This won't even be a blip on the DOJ's radar.
Re:Same DOJ That (Score:2, Insightful)
> This is the same DOJ that...spends thousands going after ... illegal 'copycap' handbags and sports paraphernalia, etc.
So what the heck is wrong with going after this sort of stuff? Trademark infringement is seriously bad news. Ask anyone who has gotten fake merchandise thinking it was genuine.
Re:All the way to the top. (Score:5, Insightful)
What he did was really illegal.
SHOULD it be super illegal? No. Of course not.
This is not the issue.
The problem is that plea-bargaining mechanism (an abomination in itself) leads to situation where to get 6 months (!) he was threatened with something like 30 or 50 years (yes, yes, federal guidelines, blah blah, but the judge would have discretion and it could lead to a lot more than 6 months)
Prosecutors should be barred from piling on an unreasonable number of charges just to scare the defendant into plea bargain.
John Cornyn (Score:5, Insightful)
I would add one more thing. While I really question what happened in this case, I also know that when you play with the big dogs you have to be able to deal with getting bit. Someone like Schwartz who father gave him ample opportuniteit and who was private school educated may have they did not have to live in the real world. Maybe they thought they had protection, and when they did not it frightened him. I saw this a lot when I was growing up, and even now. There were some white kids in Louisiana, for instance, who thought it might be fun to taunt the black boys. They were asked nicely to stop, but they did not. When retaliation did occur then thought it was very unfair. After all they were white and protected. I am not saying that the cases are similar, just that some people don't know that real world consequences exist. We live in a dangerous world where people, especially powerful people, will retaliate with excessive force. Fairness is not the point. Solving the problem is. Some of us have had experience with this from a young age
Compare this case to Julian Assange and Bradley Manning. The retaliation against them are orders of magnitude greater than against Schwartz, yet they are dealing with it the best they can. Actions have Consequences. Thoreau was against the war, did not pay taxes, and went to jail. He honored his conscience and paid the price. Just as we all do.
Re:Derp (Score:5, Insightful)
There should be a law requiring to pursue existing charges against everyone and not based on prosecutor discretion. That would cut down on ridiculous laws overnight.
There wouldn't be anyone left then, except perhaps newborns... who would promptly starve to death since any adult capable of taking care of them would be in jail. It would, quite literally, be the end of human life in this country -- there is no person alive who doesn't commit a crime deserving of jail every week in the course of his/her everyday activities.
And you don't need vague laws for prosecutors to go after anyone they want... it just makes it easier. All you need is a big helping of the just world hypothesis [wikipedia.org] and a side of Milgram's obedience experiments [berkeley.edu] to clean up anyone who doesn't get suckered by the first one.
This is the morality sieve in every culture that has allowed freedom and liberty to de-evolve into tyranny and abuse of power: Anyone hurt by it deserved it and anyone who disagrees vocally enough to start convincing others this is not the case will be punished, and naturally then, they deserved it too. As far as why people go along with things they clearly know are wrong or hurtful... it's because they're afraid of being punished by The Authorities. But here's the real interesting thing... when you add in a helping of Bureaucracy, then you can have an abstract authority where no one person is responsible. When you divide responsibility amongst even a small number [southeastern.edu] of people, then nobody takes responsibility, nobody is at fault, and the process continues on its merry, eating people left and right. "I was just following orders."
Re:All the way to the top. (Score:5, Insightful)
What he did was really illegal.
Whether something is illegal or not has no bearing on whether it is ethical or moral. And there are also shades of illegality. It is, for example, illegal to be publicly intoxicated, and yet if you go downtown you are sure to spot drunk people parading about, along with many police officers watching them do so. There's a reason why public intoxication is illegal, just as there are equally compelling reasons why the officers don't give a damn. Morality and ethics is the short answer.
You know part of this is him trying to keep his ass out of hot water in the mainstream press.
Do you mean the corpse, or the attorney general? I'm going to go with attorney general: His ass isn't in hot water. It's his job to ensure that the laws are applied fairly, and that the laws themselves are fair. As long as he's doing his job, he should have nothing to fear. So if his ass is in the proverbial hot water, then it's because he wasn't doing his job properly, which in turn means myself, and many others, are quite pleased to see him get a thorough roasting for causing a situation so repugnant.
If we change how we as a people view crime and justice, there wouldn't be this snap call to be "tough on crime."
You're assuming that an enhanced understanding of the problem will solve it. That illusion is one of mankind's oldest.
Rationality has left our culture.
That implies it was ever present. Even tracing back to the very foundations of our society, we can find plenty of examples of how irrationality dragged us forward. One might even argue that a dose of irrationality is exactly what's needed sometimes -- if you are known for having a strongly vindictive nature, then even though someone may be stronger than you and able to beat you up, they may leave you alone because you're simply not worth the effort. Is being vindictive rational? No of course not: It could earn you an ass pounding! And yet, counterintuitively, that's exactly what it prevents.
Someone died because a prosecutor turned the screw over an incident where no money was lost, no lives were lost and by all measure, relatively harmless.
No, someone committed suicide because society had no place for them. What he was doing may have had value to him, but society as a whole has, through its legal system, has made it so even in cases where there is no financial or physical harm to others, said that what he was doing had no value. Since what he was doing was at the core of who he was (obviously, since it drove him to kill himself when he was deprived of it), it is more accurate to say society had no place for him. Whether that's moral, or ethical, right, or wrong, I leave to you. But that is why he died.
To blame Holder or the prosecutor specifically ignores the bigger social context at work.
The larger social context here is that nobody gives a damn. It's apathy and indifference on a mass scale. There's no need to make vague motions towards a "larger social context", as though that means something more than "people are fucking self-centered, lazy assholes." It doesn't sound as academic, as intellectual, to say that, but it's closer to the truth.
Re:Same DOJ That (Score:5, Insightful)
> This is the same DOJ that...spends thousands going after ... illegal 'copycap' handbags and sports paraphernalia, etc.
So what the heck is wrong with going after this sort of stuff? Trademark infringement is seriously bad news. Ask anyone who has gotten fake merchandise thinking it was genuine.
My sarcasm meter is off but.... seriously? People who buy a 10 dollar Iphone or a 4 euro gucci purse know what they are getting....point me the the pool of angry people getting fake merchandise unintentionally and I'll point you to a DOJ that prosecutes serious issues of criminal action where actual victims lost life/liberty/pursuit of happiness. Currently they seem to be prosecuting to take those same things away away from whoever their super pac funded blame-thrower is aimed at...making them the wanton aggressor....not the guy pushing handbags or the site taking bets on a football game.
Re:Same DOJ That (Score:4, Insightful)
No one on Canal Street has any delusions.
Don't try to kid us with your claims that trademark in this case is being wielded to the benefit of the consumer. The consumer knows what's going on and wants a cheap knockoff. They would never buy the real thing anyway (for lack of funds). So they aren't really relevant to the poor aggrieved trademark owner.
You're focusing on the wrong "victim" here. No one cares about the overpriced designer. They can go to hell for all we care.
Genuine consumer protection issues are interesting but that's not what this is about. Although you will happily help muddle the issue for situations have have ZERO consumer protection concerns.
Re:One solution to this problem (Score:2, Insightful)
If the owner of the computer does not want the alleged offense prosecuted, no prosecution can go ahead.
Not worth the ink on paper.
DOJ: "Sign here that you want him prosecuted."
Server owner: "But I don't want to hurt him."
DOJ: "OK, then I must treat you as a conspirator; you will be arrested in a few minutes. By the way, the English-Arabic dictionary that the guy illegally downloaded may have been used to translate the drawings of a nuclear weapon. You will be charged with terrorism. Or, perhaps, you changed your mind and want to sign this little paper? The choice is all yours." (DOJ starts absently playing with handcuffs.)
Server owner: "But... but... you cannot do that!"
DOJ: "Who is going to stop me? All the police that you see around here are under my command. Their orders are law to all peasants. Any disobedience is a shooting offense. If you didn't have an illegal gun when you attacked an officer, a drop gun will be provided for you. We also have a choice of bags with drugs, maps of subway systems, and some other items that you may like. Do you understand, WORM, that you are still alive only through my kindness? Don't make me angry. Sign here and I will let you live."
Re:Pleading guilty compulsary (Score:5, Insightful)
Except we aren't talking about selling a car. We are talking about putting people in prison and labeling them as a felon.
Re:All the way to the top. (Score:3, Insightful)
The larger social context here is that nobody gives a damn. It's apathy and indifference on a mass scale. There's no need to make vague motions towards a "larger social context", as though that means something more than "people are fucking self-centered, lazy assholes." It doesn't sound as academic, as intellectual, to say that, but it's closer to the truth.
It's also really fucking lazy. Because this isn't about JUST Swartz.
How many people are in prison or on death row or even dead because prosecutors are under pressure to get convictions? Or how many Governors are just simply unwilling to grant pardons or approve parole because of Willie Horton?
Ignoring why is so superficial and what's wrong with our political system right now. No amount of voter or finance reform will matter unless we stop responding to having hot buttons pressed and giving into sensationalization. Our problem is a lack of nuance, not ethics. No one wants to sit through a longer news story or have to hear about the grey areas.
I don't know if this is historical or not, but that's the problem.
Right now the media is reporting that Eric Holder will not rule out the use of drone strikes on American soil.
What they didn't report on is that even military intervention is such an extreme reaction to anything that it's generally not anything we have to worry about. It's an extremely extraordinary circumstance, the weight of which is lost in the cultural zeitgeist.
Re:All the way to the top. (Score:5, Insightful)
The 'crime' here was violatoin of terms of service. It was the equivalent of having out too many library books at the same time. It is the *same* Federal crime as creating a Facebook or Google+ profile under an assumed name.
Prosecuters refused any plea bargain that did not involve jail time because Aaron was politically emberassing to some.
Re:Pleading guilty compulsary (Score:5, Insightful)
Re:All the way to the top. (Score:5, Insightful)
No, someone committed suicide because society had no place for them. What he was doing may have had value to him, but society as a whole has, through its legal system, has made it so even in cases where there is no financial or physical harm to others, said that what he was doing had no value. Since what he was doing was at the core of who he was (obviously, since it drove him to kill himself when he was deprived of it), it is more accurate to say society had no place for him. Whether that's moral, or ethical, right, or wrong, I leave to you. But that is why he died.
You make it sound as if the legal system represents society's will, which is obviously not the true (and never was). Society had a place for him, but those who rule did not, and despite any illusions you may have of living in a democracy, rest assured those who rule are not the people.
Re:Pleading guilty compulsary (Score:5, Insightful)
Re:Pleading guilty compulsary (Score:5, Insightful)
That certainly is a much more reasonable explanation than thinking that maybe a lot of innocent people simply plea guilty because they cannot take the change of being judged guilty and spending a few decades in prison.
Re:Pleading guilty compulsary (Score:5, Insightful)
"Show me the part of the constitution where it says 'And the state shall not do anything that might make administration of the judicial process cheaper, faster, and more efficient.'"
In this case, "Constitutional scholar" bedamned. You err in citing the Constitution -- or lack of mention in the Constitution, that is -- for justification.
Our legal process is mostly based on Common Law, which predates the Constitution by a rather large margin. Most of it has very little to do with the Constitution, per se.
Regardless, I have to side with GP. Plea bargaining might have started out as an attempt to find ways to keep criminals off the street when cases are difficult to prove. BUT, it has become not just a way to make trials more efficient. It has become a major instrument of coercion on the part of government. The deal offered Aaron Swartz was coercion, plain and simple. It was not an attempt to enforce justice. Hell, it was not even close to anything like justice. They tried to get him to plead guilty to a felony, for the act of downloading files which he had legal right and authorization to download. His "crime" was not even really a crime; he violated an online service's TOS. If you don't think the charges represent a real, genuine threat to freedom then you aren't thinking very clearly.
The proper role of government is neither to make its own job simple at the expense of citizens, or to be coercive in order to "make an example". Coercion has no rightful place in government, and government has no right to be coercive. No, the government did not kill Aaron Swartz. Yes, it was blackmail. Worse than blackmail, really. He was given the option to plead guilty to a felony, or to face charges for far worse felonies, when he hadn't even really broken the spirit of any laws.
Re:All the way to the top. (Score:5, Insightful)
People have funny ideas about how the justice system works.
In that they simply would like to see justice?
Re:Pleading guilty compulsary (Score:5, Insightful)
Except the transfer of ownership on a vehicle involves a voluntary transaction for both parties.
This is more like "Okay, either you buy this car for $4000 or I'm gonna flip this coin. Heads and the car is $2000. Tails and I shoot you."
Re:Pleading guilty compulsary (Score:5, Insightful)
How about that fuzzy part about being tried by a jury of your peers? And what about that part about facing your accusers? or a Speedy trial? Any thing else is not constitutional.
Instead we have a process that is designed to abuse the accused and give the prosecutors political points. If the prosecutor cannot convict the accused for what they were charged then maybe the prosecutor should not be wasting the taxpayer's money in the first place especially when the "victims" did not want to press charges. This is a case of prosecution for political gain which seems to be a favorite pass time of prosecutors [of both parties] who want to get political traction.
If Judges are forced to used guidelines prosecutors should as well.
Holder should be fired for this bit of stupidity...
Be nice if DOJ went after harmful criminals (Score:5, Insightful)
Today, Holder testified before the Senate: "US Attorney General Eric Holder testified before the Senate Judiciary Committee on Capitol Hill today, and discussed the lack of criminal cases against financial institutions in the aftermath of the financial crisis." -- Forbes magazine online [forbes.com]
Contrast this with Aaron Swartz. A soft target. It's unclear how much, if any, of a net cost he imposed with his illegal downloads of journal articles. "Illegal Downloads Of Journal Articles." It even sounds trivial. And they hounded him for it. To death. They presented the credible possibility of decades in jail to him.
But, as always, follow the money. Wall Streets spends a tremendous amount of money on federal politicians so they can keep running their swindles and funnel part of the proceeds back to Washington. Swartz was paying little if anything to the politicians as he was trying to provide information to the public at no personal gain.
To understand what's going on here, you have to understand politicians: "No one will really understand politics until they understand that politicians are not trying to solve our problems. They are trying to solve their own problems — of which getting elected and re-elected are number one and number two. Whatever is number three is far behind." -- Thomas Sowell [nationalreview.com]
Re:Pleading guilty compulsary (Score:5, Insightful)
Effectively it's denying people a their right to a trail. At some point the whole thing becomes a variant of Pascal's wager, in that the worst case outcome is so severe it makes sense to plead guilty even if you're innocent.
Re:Derp (Score:4, Insightful)
Re:All the way to the top. (Score:3, Insightful)
"Uh. What he did was really illegal."
Uh. No, it wasn't.
He had authorization to download files from the source in question, though the TOS said he was not authorized to do it automatically. He wasn't "stealing" anything, or even violating copyright.
He had authorization to be on campus. A sign said he did not have authorization to be in that particular room. BUT... it is important to note that he simply walked through the door. He did not "break and enter" or pick any locks or anything of that nature.
All Aaron Swartz violated were other peoples' rules. He didn't violate any laws. Despite government's claim that violation of TOS amounts to violation of CFAA, that is a ridiculous -- I mean really, really ludicrous -- "interpretation" of the law. It is clear as an azure sky of deepest summer that Congress did not intend that when it passed the law. Sooner or later, somebody will demonstrate that in court and the prosecution's whole theory will be out the window, as it should be. (Arguably, Swartz was in an ideal position to do exactly that, but he opted for a different "solution".)
So, he violated a TOS. As for entering that room... technically, I don't think he's even guilty of trespass. The sign apparently did say "Do Not Enter" or maybe "Authorized Personnel Only" but those are ambiguous. They are not the same as a "No Trespassing, This Means You" sign.
So the only conceivable thing that Swartz was guilty of (unless you are a Federal prosecutor, who is apparently capable of conceiving some pretty wild and stupid things) was trespassing, and even that is shaky.
Re:All the way to the top. (Score:5, Insightful)
Re:Pleading guilty compulsary (Score:3, Insightful)
You made the false assumption that when an individual (plea) bargains with the government that both have an equal standing in the bargain. The prosecutors have nothing to lose by over charging. There is no personal cost that the prosecutor(s) has to bear. An individual as a defendant on the other hand can lose even if they win. There's no Constitutional right to a free trial and defending yourself in a Federal trial such as Aaron's would have a significant cost.
The Supreme Court has ruled that prosecutors have full discretion to charge a defendant with what ever crimes they see fit. That means that the prosecution didn't violate any law or the Constitution. They did, however, violate the intent and spirit of the Constitution by not seeking JUSTICE as their sole and primary goal.
As Supreme Court Justice George Sutherland put it in a 1935 case that Balko quotes, a prosecutor is "representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." (http://reason.com/blog/2012/04/16/how-can-overcharging-be-ethical)
If you're saying that the prosecutors were seeking justice then you're flat out wrong. If you're saying that they used good discretion as Eric Holder testified, then you're wrong along with Eric Holder. If you're saying that the prosecutors had the right to do what they did, then you're right, but what the prosecutors did was wrong. Just because what the prosecutors did is common practice and legal doesn't mean we should stand for it. It also doesn't mean that Aaron wasn't guilty of doing something wrong (even if for the right reasons).
Comment removed (Score:5, Insightful)
Re:What an ass. (Score:2, Insightful)
Aaron Schartz was caught in a computer closet with his laptop hooked into a network that had specifically denied him permission to connect to their system.
If he was caught in a TLA government agency in similar circumstances I'd agree with you. But this is a school, where you have to expect students to misbehave. The appropriate response should have been somewhere between a severe talking to, expulsion, or a lengthy discussion on how he should have randomised the requests to cover his tracks better ;)...
Re:Pleading guilty compulsary (Score:5, Insightful)
Duty? (Score:4, Insightful)
Did I read right? Does having been born in your country come with a duty to fulfill the desires of long-dead politicians who would most probably not understand the world as it is today?
Many countries have a common story with yours, at least in the topic you mention. Countries founded on dreams, aspirations and ideals, and with debates and rationalizations serving as an ideological base. Mine (Mexico) does. And yes, many of those ideals are current, noble and worth defending — "El Generalísimo" José María Morelos, a half-black man, introduced the abolition of slavery (in 1812). Guadalupe Victoria and Vicente Guerrero (first and second presidents) fought for the country to be a democratic republic. But some of the ideals (i.e. assuring there would be only one accepted and tolerated religion, Catholicism) are just anachronic, and had to be completely scraped and rethought — Even within 50 years of their procclamation!
So, yes, very nice that your Founding Fathers had some vision on what they were seeking. But principles must be debated all along as progress is made, as time passes. Read, yes, the Federalist Papers. But debate them, don't follow them blindly! If you disagree, please make sure your fellow citizens understand your disagreeing! Shape your country different wherever it needs to be reshaped!
Re:Duh. (Score:4, Insightful)
Or that "due process" as used in the constitution does not mean judicial process, just any kind of process, such as the president making a decision in private based on secret accusations without any oversight.
http://www.salon.com/2012/03/06/attorney_general_holder_defends_execution_without_charges/ [salon.com]
Re:Duty? (Score:4, Insightful)
some ideals are timeless and beyond debate.
life
liberty
freedom from oppression
those are the core ideals, around whcih the rest are based. it is only the rest that need be logically debated and considered and reexamined from time to time.
one such "reexamining", led to the civil war, and resulted in the 14th amendment.
another resulted in women sufferage
another the civil rights movement
these reexaminings of the logical constructs we have made based on the core ideals are important. we said "liberty for all", but originally only applied it to white male property owners. we've since gotten past that.
but when people start to question the core ideals, then it's time to start over because the society itself has lost its way and needs a refresher course.
and yes, Duty. freedom/liberty has a price. it is not self-perpeuating. it needs constant pushing against outside and inside forces that would snuff it out.
Re:Duh. (Score:4, Insightful)
The same asshole claims that no criminal prosecutions should be launched against big banks because this would "jeopardize whole financial system". Even if this is HSBC laundering drug cartels money en masse and financing Al-Queida terrorist operations (I'm not joking - just search through news from last 3 monts and read this yourself!).
So you see who this asshole is working for - certainly not for you. Not for me. His view of "justice" means serving US oligarchic elites and fuck everyone else. Whole justice system of US is fucked up far beyond repair and if Eric Holder's isn't clear manifestation of this rotteness, then I don't know what is.