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January 12, 2013

Aaron Swartz
Posted by Patrick at 07:45 PM * 123 comments

I didn’t know him. Of course I knew who he was. I was startled to discover—today, after he died—that he followed me on Twitter. (I followed him, but in the same spirit that I follow a lot of interesting open-culture activists who I don’t expect to be aware of me.) For cripes’ sake, he lived in Brooklyn. Given the number of friends and associates we had in common, I could have made his acquaintance at any time. No longer. Life goes by so fast.

Our only point of near-contact was that he wrote an afterword for Cory Doctorow’s novel Homeland, the forthcoming (February 5) sequel to Little Brother. It’s a good afterword. It basically says, hi, this stuff is real, and not only that, but you can change the world just like Marcus. I did. Here’s how.

Over today, I’ve already linked—in the sidebar—to Cory’s heartfelt eulogy, to Henry Farrell’s memories and thoughts, to a very sensible post about depression and suicidal ideation by the comic Rob Delaney, and to the mourning tweet of Tim Berners-Lee, the inventor of the World Wide Web. (It is perhaps a morbid, inappropriate, and horridly geeky thought, but I cannot escape the idea that even if you die at 26 by your own hand, if you have lived so well that you are mourned by Tim Berners-Lee, you have in some deep sense won at life.)

I want to add a few more links. Rick Perlstein demonstrates, just by listing all the things Swartz did for him, what a piece of human internet infrastructure the man was. Writing on the Electronic Frontier Foundation’s “Deeplinks Blog,” Peter Eckersley talks about how Swartz “did more than almost anyone to make the Internet a thriving ecosystem for open knowledge, and to keep it that way.” Somebody who doesn’t post their name writes a terrific Tumblr post about depression, suicide, and the tendency of people who haven’t been near the latter to try to squeeze the shock into a narrative: “the compassionate genius who was a little too good, or the activist hounded down by the government, or why would such a promising and beloved young person do something like this, or gosh there seems to be a link between creativity and mental illness, or some other well-meaning script.” Point taken. On the other hand, his family and his partner seem pretty convinced that his suicide had to do with the fact that Federal prosecutors were trying their best to get him slammed into jail for upwards of 35 years. “Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community’s most cherished principles.” And while families and partners can be mistaken, I think their views on the matter carry a certain amount of weight.

Just for perspective, here are the views of Alex Stamos, an expert in computer crime who was due to testify for the defense in Swartz’s upcoming trial, and who is now free to say what he thinks: “I know a criminal hack when I see it, and Aaron’s downloading of journal articles from an unlocked closet is not an offense worth 35 years in jail.”

If you click on one link from this post, click on this one: Lawrence Lessig. No, wait, I’m just going to reproduce two-thirds of Lessig’s post. It’s that true.

Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its. MIT, to its great shame, was not as clear, and so the prosecutor had the excuse he needed to continue his war against the “criminal” who we who loved him knew as Aaron.

Here is where we need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.

Aaron had literally done nothing in his life “to make money.” He was fortunate Reddit turned out as it did, but from his work building the RSS standard, to his work architecting Creative Commons, to his work liberating public records, to his work building a free public library, to his work supporting Change Congress/FixCongressFirst/Rootstrikers, and then Demand Progress, Aaron was always and only working for (at least his conception of) the public good. He was brilliant, and funny. A kid genius. A soul, a conscience, the source of a question I have asked myself a million times: What would Aaron think? That person is gone today, driven to the edge by what a decent society would only call bullying. I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.

For remember, we live in a world where the architects of the financial crisis regularly dine at the White House — and where even those brought to “justice” never even have to admit any wrongdoing, let alone be labeled “felons.”

In that world, the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million dollar trial in April — his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge. And so as wrong and misguided and fucking sad as this is, I get how the prospect of this fight, defenseless, made it make sense to this brilliant but troubled boy to end it.

Fifty years in jail, charges our government. Somehow, we need to get beyond the “I’m right so I’m right to nuke you” ethics that dominates our time. That begins with one word: Shame.

One word, and endless tears.

Remember yesterday, when we were all crowing about the wonderfully geeky White House response to the tongue-in-cheek “build a Death Star” petition? Just remember that the same people were in charge of the Federal prosecutors who destroyed Aaron Swartz.
Comments on Aaron Swartz:
#1 ::: P J Evans ::: (view all by) ::: January 12, 2013, 08:18 PM:

It's the same mindset that says that if you're not rich and famous, especially if you're not white, if you've been arrested you must be guilty, and the prosecutor can try you as many times as hse wants in order to get that result. (But the rich and famous get at most a slap on the wrist when they show up in court.)

#2 ::: Charlie Loyd ::: (view all by) ::: January 12, 2013, 08:43 PM:

I wrote that tumblr post (now signed at the bottom). I made the point advisedly.

I believe, as an outsider who can’t claim any special knowledge, that the ridiculous persecution was a factor in his death. I am outraged by it.

But I would like this point to be made carefully, on evidence, like what you linked here. What’s been chapping my hide is people acting as if it’s a foregone conclusion, and, worse, as if there were no significant other factors – viz., mental illness.

These things are complicated. Many factors can be culpable. Saying that his hounding was 100% culpable, which some people have, seems really irresponsible to me. My post was a reaction to that, not to the kind of grounded, reasonable, complexity-recognizing perspective presented here.

So, in conclusion, the point I tried to make was that we should be careful about these issues in general, not that the abuses Aaron suffered were irrelevant to his case. Just wanted to make that clear.

#3 ::: Patrick Nielsen Hayden ::: (view all by) ::: January 12, 2013, 08:51 PM:

Charlie Lloyd #2: Makes total sense to me. You'll notice I thought your points were worth signal-boosting, even if I do think the prosecution had something to do with it.

#4 ::: eric ::: (view all by) ::: January 12, 2013, 08:51 PM:

I wish all peace and compassion for his parents, partner, and friends.

I didn't know Aaron though, of course, I knew of him. He wouldn't have known me at all. I first remember arguing with him on scripting news's discussion area, when he was 12 or something like that. Looking back, he was probably right and I was wrong. I followed his activities over the years, as they got bigger and more central in the Internet life.

Like Aaron, my sister committed suicide a few years ago. Like him, she was bright, different, and didn't always see the world in the same way that it saw itself. And like Aaron, she kicked around with depression for years before it was fatal, apparently without those close knowing just how bad it was.

In the few months after that, my father aged 5 or 10 years. He was not old prior, he is now. It's like the machine from the Princess Bride, it sucks years from your life. Dammit, depression kills.

My condolences and sympathies are with his parents, partner, and friends. I hope that in time they find some measure of peace.

#6 ::: Teresa Nielsen Hayden ::: (view all by) ::: January 12, 2013, 09:11 PM:

I sincerely doubt the Boston prosecutor thought Aaron Swartz was a dangerous criminal. More likely the prosecutor's office thought it was a shiny high-profile case that was sure to get publicity. Why would they go after the maximum penalties on all counts? Because it made the case look like a bigger deal than it was. It's an easy way for them to look like they're actually fighting crime.

We all need to familiarize ourselves with the extraordinary latitude given to prosecutors, and the extent to which it's abused. You may be a law-abiding citizen -- most of us are -- but bad things can still happen in your vicinity. If a prosecutor sizes up a messy situation and decides to target you for prosecution, you can find yourself in a life-blighting amount of trouble.

Quick test: Were you already aware that prosecutors are allowed to lie to you? Or that witnesses have almost no legal protection? If not, read up on it.

The single most important piece of advice: learn to say "I refuse to discuss this without a lawyer present." Then stop talking. Don't talk to anyone else about it either. They can testify.

Wouldn't you rather be a helpful citizen? Sure you would. We all would. But a surprising number of helpful citizens are in prison right now.


I think it's pertinent that law enforcement in that part of the world has a long history of vindictively prosecuting anyone who knows more about technology than they do. Unfortunately, that's almost everyone.

These stories are just from 2007-2008:

31 January 2007: Boston menaced by cartoon promo; traffic grinds to a halt.
02 February 2007: Why the Boston Police Department has no credibility.
04 February 2007: A few Boston updates.
28 February 2007: More fun in Boston.
19 September 2008: Star Simpson’s first interview on the Boston airport LED sweatshirt scare.

I'm sure law enforcement there has repeatedly distinguished itself in the ensuing years.

#7 ::: Larry S ::: (view all by) ::: January 12, 2013, 09:16 PM:

It is very sad that this happened. He was alone, and for whatever reason did not have the help he needed. But as Charlie Loyd pointed out that while the persecution probably was a factor it was not the sole root cause.

My biggest fear is that his death is going to be used as political fodder by some to go on an anti-government rant or as some sort of poster boy for the "evils of copyright" due to the case.

#8 ::: chris ::: (view all by) ::: January 12, 2013, 09:18 PM:

Re your closing point:

Paul Shawcross is Chief of the Science and Space Branch at the White House Office of Management and Budget

It seems very unlikely that Mr. Shawcross commands any prosecutors, or deserves any blame whatsoever for the prosecution and/or persecution of Swartz.

Not to say that the prosecution itself wasn't ill-advised or even abusive (and I don't know enough to say whether it had any causal role). But ISTM that if you must blame at all, blame narrowly.

#9 ::: Teresa Nielsen Hayden ::: (view all by) ::: January 12, 2013, 09:21 PM:

Larry, what he pointed out is that we don't know whether the prosecution was the sole root cause. The same applies to other possible factors: we don't know.

Anger and grief inspire rants. That's just how it works.

#10 ::: Henry Farrell ::: (view all by) ::: January 12, 2013, 09:22 PM:

You'd have liked him very much and he'd have liked you. I remember the first time I met you - and Cory - in a coffee shop in Toronto, and simply feeling completely incapable of keeping up with the ideas that you were throwing back and forth. That's what it was like with him. But also - and Rick Perlstein gets this better than anyone else I've seen - he was just a sweet, lovely, goofy, warm guy.

I wasn't one of his core group of friends, but I know enough to say that the prosecution/persecution had driven him into a very dark place, and that the anger isn't just ex-post blame-throwing, of the kind that grieving people very understandably sometimes engage in. I know you're not saying that, but I can also understand how people might reasonably wonder. His ex, Quinn Norton who knew him and loved him as much as anyone talks here about the strain that it put on them both.

#11 ::: Patrick Nielsen Hayden ::: (view all by) ::: January 12, 2013, 09:25 PM:

Larry S: "My biggest fear is that his death is going to be used as political fodder by some to go on an anti-government rant or as some sort of poster boy for the 'evils of copyright' due to the case." If that's actually your "biggest fear", you're [redacted]. Perhaps you didn't phrase this as thoughtfully as you might.

(PS: I am neither opposed to government nor to the basic idea of copyright. Think about that before you next open your mouth.)

#12 ::: Patrick Nielsen Hayden ::: (view all by) ::: January 12, 2013, 09:25 PM:

#8, chris: Nobody is blaming Paul Shawcross.

#13 ::: Teresa Nielsen Hayden ::: (view all by) ::: January 12, 2013, 09:27 PM:

Hey, everybody says thoughtless stuff in the vicinity of upsetting deaths.

#14 ::: Teresa Nielsen Hayden ::: (view all by) ::: January 12, 2013, 09:30 PM:

Even the gnomes are upset -- they've gnomed me twice in this thread, and Henry Farrell once.

#15 ::: Josh Jasper ::: (view all by) ::: January 12, 2013, 09:48 PM:

Rants aside, the info about depression is good. For those of us who proclaim all the time how we're "over medicated" please think for a moment if your talk about that might be inhibiting someone who might benefit from medication from actually getting it because they don't think medication fixes anything because of comments like that.

I've been on psych meds twice. Once for anxiety, once for depression. They helped both times. No one is weak because they're on meds for psych issues any more than people with high blood pressure are weak because they're taking blood pressure meds.

Even if you're not suicidal, if life feels like it sucks all the time, look for a decent therapist if you can find one. You're not weak for doing so. "Fixing yourself" is no more a mark of a morally good person than fixing your non-mental medical issues without seeing a doctor is the mark of a morally good person. If your liver was causing you pain every day, you'd see a doctor. If your other organ named "brain" was doing likewise, it's not smarter or the mark of a better person to just ignore it or call yourself a failure for not fixing it.

And I'm so sad about all the people (myself included) who've been taught to think otherwise.

#16 ::: Larry S ::: (view all by) ::: January 12, 2013, 09:49 PM:

Patrick: That was not directed at you. I thought that was clear and I apologize that it came across that way. I've just seen some comments at other places which bother me in their tone.

I don't think what he did deserved the treatment he got for the JSTOR stuff. And I do think it probably contributed though I have no idea how much.

#17 ::: Lizzy L ::: (view all by) ::: January 12, 2013, 09:59 PM:

I didn't know Aaron Swartz. When I read about his suicide, I was sad, shocked, grieved for his family, and furious when I read about the federal prosecution which he was facing, and the nature of the offense for which he was being prosecuted. It surprises me not at all that his family and his partner think that his legal trouble contributed to his suicide. How could it not? (Though Charlie Loyd, I hear and respect what you say.)

Patrick, you are right to point out that "the same people [who responded to the Death Star Petition] were in charge of the Federal prosecutors who destroyed Aaron Swartz." But I think it's also fair to point out that while yes, it's all the Obama administration, there is likely no overlap in the actual decision-makers.

Nevertheless: I would like to believe that the specific federal bullies who decided to make an example of Aaron Swartz had a lousy rotten day, and are having a very bad night, and are re-thinking other, similar decisions they might have made.

#18 ::: albatross ::: (view all by) ::: January 12, 2013, 10:13 PM:

I wonder how many other, less famous and connected people had their lives destroyed by this same prosecutor, with similarly trumped up charges--leading to suicide, divorce, bankruptcy, crushing depression, or prison time. And I wonder if the sum total good the prosecutor will do in her life comes close to what Schwartz did in his life.

#19 ::: Avram ::: (view all by) ::: January 12, 2013, 10:14 PM:

chris @8, sure, the Death Star thing almost certainly wasn’t physically written by the exact same guy who chose to run Swartz’s prosecution the way it was run, but they both answer to the same Chief Executive.

I’ve seen any number of people in the geekish communities coo with joy over Obama’s occasional displays of familiarity with the more popular manifestations comics and science fiction culture. But I can’t imagine anyone who was truly a member of my geekish community not cutting Swartz a break.

Teresa’s adage — “Just because you’re on their side doesn’t mean they’re on your side” — is worth keeping in mind here.

#20 ::: Dave Kuzminski ::: (view all by) ::: January 12, 2013, 10:30 PM:

Personally, I feel that it's wrong for a prosecutor or plaintiff to dog pile onto a defendent because it's my belief that tactic is used in order to impress and sway a jury that the defendent must be guilty because he has so many charges against him. If someone kills twenty people, then charge him with twenty murders. It's inappropriate to charge him also with twenty charges of attempted murder as well as twenty charges of kidnapping and so on. It's just plain ludricrous for one action to be charged as multiple charges. I think that the fact there were twenty deaths or murders should be sufficient to show how bad the defendent was. I seriously believe that the only reason prosecutors and plaintiffs dogpile is to insure that they win even if they shouldn't.

#21 ::: BigHank53 ::: (view all by) ::: January 12, 2013, 10:41 PM:

Dave @ 20

The dogpiling is meant to convince the defendant to agree to a plea deal. If the prosecutor says he can get you sentenced to 300 years you're more likely to agree to 20.

#22 ::: The Raven ::: (view all by) ::: January 12, 2013, 10:48 PM:

Many reactions here:

1. The internet freedom movement has its first martyr.

2. Like Lessig, I believe that the prosecution of Swartz was utterly out of proportion to his crimes, if any.

3. I also believe that there is a huge amount of crime and quasi-crimes on the internet that are far more worthy of prosecutorial attention than Swartz's activities: spamming, scamming, and the compiling of vast numbers of detailed dossiers on law-abiding citizens.

4. The only crimes on the internet that seem to get any serious police and prosecutorial attention are those that either embarrass the government or cost some business substantial money.

Injustice was done.

Maybe more thoughts later.

#23 ::: Xopher Halftongue ::: (view all by) ::: January 12, 2013, 11:23 PM:

While it's true that we can't be sure, and maybe never will have access to the information that would let us be sure, it sure looks like this guy was hounded to his death by relentless bullying on the part of overzealous prosecutors.

Prosecutors can do whatever they want with no consequences at all. Remember all those people who went to jail for "Satanic cult abuse" in the 80s? They were all the result of prosecutors browbeating children into telling stories the prosecutors made up. Not one of those prosecutors, to my knowledge, has ever faced any penalty for that. IMO they should all be in jail for the total amount of time their victims were.

We really need to change this system. If prosecutors charge someone with a crime they know s/he probably didn't actually commit, that should be a felony.

#24 ::: P J Evans ::: (view all by) ::: January 12, 2013, 11:57 PM:

It also makes them look tougher to the voters (or to the politicians who appoint them, if they're not elected). Winning is important; justice, not so

Swartz isn't be the first one hounded to death this way. The government never admits that it's the result of their actions: they always blame it on the victim.

#25 ::: Kip W ::: (view all by) ::: January 13, 2013, 12:06 AM:

And now JSTOR has made it possible to view papers (some? all? not sure) without charge on a limited basis (three papers per two weeks, I think). Prompted by this tragedy, I expect. I could be wrong.

Anyway, I can't think of anything else to say. I know so little, but I'm certain we've lost a good one.

#26 ::: thomas ::: (view all by) ::: January 13, 2013, 12:30 AM:

The Raven:

4. The only crimes on the internet that seem to get any serious police and prosecutorial attention are those that either embarrass the government or cost some business substantial money.

I would have said Aaron Swartz was a counterexample to this. The JSTOR downloads didn't cost anyone any money and didn't involve the government. PACER/RECAP might qualify under embarassment, but he wasn't charged for that.

Perhaps a revision would be more accurate:
The only crimes on the internet that seem to get any serious police and prosecutorial attention are those involving people who have either embarrassed the government or cost some business substantial money.

#27 ::: Teresa Nielsen Hayden ::: (view all by) ::: January 13, 2013, 12:40 AM:

As long as we're making wishes, I wish law enforcement would go after the spammers. There's nothing glamorous about it, but it would be genuinely useful. Spam costs millions of people untold hours of vexation, pointless repetitive cleanup, and slowed comprehension when reading their mail queues, not to mention all the mail lost to spam filters.

(Don't tell me spammers are untraceable. They work for money.)

Going after Aaron Swartz was just grandstanding.

#28 ::: The Raven ::: (view all by) ::: January 13, 2013, 12:43 AM:

thomas, #26: the JSTOR downloads, had Swartz made the archive public, would have ended JSTOR's economic model. I will give you that JSTOR is non-profit, rather than a business, however.

JSTOR's decision to allow access came three days before Swartz's suicide.

Here is the press release from the prosecutor's office, courtesy of Wired. The prosecutorial staff is named. In the press release, US Attorney Carmen M. Ortiz makes the remarkably wrong-headed remark: “Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away.”

Rick Perlstein also writes in memory.

#29 ::: The Raven ::: (view all by) ::: January 13, 2013, 12:50 AM:

tnh, #27: "I wish law enforcement would go after the spammers."

Yes. I also wish a national and international small claims courts would be set up, so that we would not have to rely on the private dispute resolution procedures run by the likes of eBay and PayPal.

And then there's the new crime: hoovering up everyone's personal lives via social media. Facebook: the book which reads you.

I suppose there's something science-fictional in living in a time in which new crimes are invented, but this isn't the part of the future I hoped for.

#31 ::: clew ::: (view all by) ::: January 13, 2013, 12:59 AM:

Just remember that the same people were in charge of the Federal prosecutors who destroyed Aaron Swartz.

Who's in favor of escapism and against escape? Clever jailers.

#32 ::: Teresa Nielsen Hayden ::: (view all by) ::: January 13, 2013, 01:01 AM:

The public servants responsible for the case against Aaron Swartz as of July 2011:

U.S. Attorney Carmen M. Ortiz
Special Agent in Charge Steven D. Ricciardi
Assistant U.S. Attorney Stephen P. Heymann
Assistant U.S. Attorney Scott L. Garland
Cambridge Police Commissioner Robert C. Haas
The U.S. Secret Service’s Electronic Crimes Task Force
The Cambridge Police Department
The MIT Police Department

May they be remembered.

#33 ::: thomas ::: (view all by) ::: January 13, 2013, 01:17 AM:

The Raven: I think it's important to note that JSTOR (the only credible injured party) was not part of the prosecutions. To quote Lessig on this point
Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its.

#34 ::: Stefan Jones ::: (view all by) ::: January 13, 2013, 01:43 AM:

Why the hell hadn't I heard about Swartz before now?

For all of my involvement with the EFF and immersion in the web I feel incredibly insular at times.

Time to learn about this guy's contributions . . .

#35 ::: The Raven ::: (view all by) ::: January 13, 2013, 02:23 AM:

thn, #32: "The public servants responsible for the case against Aaron Swartz as of July 2011 [...]"

But what is to be done? Enormous abuses of executive power go unpunished in these times. I do not see how there is any hope of getting any of these people stopped, or even censured. We have two decades of cyberactivism behind us now. Nothing has managed to refocus legislation and prosecution away from the service of the wealthy and powerful, to stem the reactionary tide; at most we have been able to mitigate the worst abuses of power.

#36 ::: thomas ::: (view all by) ::: January 13, 2013, 02:39 AM:

Michael O'Hare at RBC says it well "Don't mourn, organize"

I dreamed I saw...

#37 ::: abi ::: (view all by) ::: January 13, 2013, 03:48 AM:

Two closely related thoughts:

1. I always thought Cory did a very good job with the ending of Little Brother. <spolier gravity="minor">gur snpg gung Znephf pna'g rfpncr uvf vagrenpgvba jvgu bssvpvnyqbz hagvy ur cyrnqf thvygl gb fbzrguvat</spoiler> is telling. There's no way to tangle with these people without leaving a macula on your record: a taint, a smudge.

They feel that it's their right to mark you, and they have the power to do it. And then, of course, your credibility is damaged, because you have that plea, that conviction, that little bit of grubbiness. Even if you were right then, even if you're right in the future, you're damaged goods and your voice lessened. (See also, convicted felons and the franchise.)

2. Leaving aside accusations of causing his suicide, the prosecutors certainly made his life as unlivable as possible. Psychological pressure is a consequence-free tactic: they can mash that button as long and as hard as they like, and no one can complain. (Indeed, it's encouraged.)

I know it's always been the case that people's emotional well-being is not society's problem. (Look at how much crushing anxiety economic conditions and employment law inflict on people with no cost or consideration entering the public debate.) But why the fuck not?

(Yes, yes, I know, malingerers, emotional stability as a proxy for alpha male status, stigmatization of mental illness, let's not boil the ocean, but I wanted to raise my hand and ask the question anyway.)

#38 ::: Kevin Riggle ::: (view all by) ::: January 13, 2013, 04:01 AM:

Aaron Swartz was a friend-of-friends.

God fucking dammit all to hell.

What Josh Jasper @15 said, with bells on. The brain has little chemical factories in it. When the brain's chemical equilibrium gets out of whack, sometimes the chemical factories can produce sufficient quantities of the necessary chemicals to bring the brain back into working equilibrium.

Other times, however, either the brain's chemical equilibrium gets so out of whack, or the brain's chemical factories' production is compromised, and you can no longer produce enough chemicals to restore a working equilibrium. In that case, medication can be used to restore working equilibrium.

Which is to say, willpower is a chemical. (Don't believe me? I can show you the studies. [0]) "Not feeling like the world is pointed directly at your head all the goddamn time" is a chemical too. The equilibrium can get out of whack for all sorts of reasons. It's all just chemicals. Sometimes they need tweaking a bit.

[0] And the point at which this digression wraps around is that I know I can show you the studies because I've got a somewhat interesting collection of medical issues, and I've done a great deal of reading of the academic and medical literature through my university access. I have no idea how anyone without that access would be able to have any hope of getting as much utility from their care as I have. As worried as I was by the implications of Aaron's actions, I really want to see the walls around that kind of knowledge torn down.

#39 ::: Dreampod ::: (view all by) ::: January 13, 2013, 04:03 AM:

I have always thought that prosecutorial discretion combined with prosecutorial immunity and the pressures to show how 'tough on crime' they are (plus legal creep and penalty creep) combine to create a toxic and immoral justice system in the US. While the prosecutorial immunity isn't relevant in Swartz's case it contributes to the malignant way that prosecutors consistently mistreat innocent and guilty alike.

#40 ::: Wyman Cooke ::: (view all by) ::: January 13, 2013, 04:44 AM:

I respectfully disagree with Evans @ 1. Being a rich white guy is no longer a protection. I recently saw a story on Conrad Black, a multimillionaire whose assets were frozen in a prosecution, preventing him from retaining one of the best law firms in the country. If a prosecutor wants someone badly enough, they can get them. And they will go after anybody, regardless of race or status.

I may have other thoughts, but I will post them later.

[Gnomed for "law firm" which, alas, is a common topic of spam. — Idumea Arbacoochee Cooper, Duty Gnome]

#41 ::: Wyman Cooke has been gnomed ::: (view all by) ::: January 13, 2013, 04:46 AM:

I wonder why.

[Using the words "law firm" did it. I wonder if reporting lawyers who advertise by comment spam to their state ethics boards would help? -- JDM]

#42 ::: Dave Bell ::: (view all by) ::: January 13, 2013, 05:29 AM:

Teresa @27 and others.

One of the root pieces of US Federal legislation on computer crime is the Computer Fraud and Abuse Act of 1986, with amendments. It defines a "Protected Computer" and sets a level of minimum damage before Federal Law can be invoked.

The protected computers are those of financial institutions and the US Government, and also the usual interstate commerce catch-all.

If you access a computer without authorisation, and cause more than $5000 worth of damage, you're liable under the law. Even without inflation, I think you could argue that it's easy to get to $5000-worth of anti-virus scanning and other checks on a compromised computer system.

I was looking this up recently in connection with apparent extortion. "Pay me money or I will crash the server you are using."

The history shows us that corporate computer owners find it very easy to convince Federal investigators that they ran up a a big bill after a security breach, and sometimes their accounting has been worthy of a Hollywood studio.

Anyway, I would really like to nail the spammers, and they'd easily run up a big enough bill to come under this law, but I really don't want to have a court accepting that sending an email is unauthorized access. Using a botnet to send the emails is.

I don't really think much of having elected prosecutors. It seems to bring out the worst of the vote-chasing and headline-grabbing.

#43 ::: Rob Hansen ::: (view all by) ::: January 13, 2013, 08:07 AM:

"unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge"

Can someone unpack that for me? On what legal basis was he prevented from seeking financial help to fight his corner?

#44 ::: Henry Farrell ::: (view all by) ::: January 13, 2013, 08:37 AM:

A horribly over-stretched interpretation of the Computer Fraud and Abuse Act was at the heart of Aaron's indictment. The DOJ has been consistently arguing that breaches of terms of service fall under this kind of abuse - this was one of the key elements in the case against Aaron. There is a circuit split on this - one judicial circuit ruling in favor of the DOJ, one against. Orin Kerr, who is in general very definitely on the right on these issues has written about the problems this is creating, here for a general audience, here for a general audience (section IIA has most of the relevant arguments).

#45 ::: Rob Thornton ::: (view all by) ::: January 13, 2013, 09:14 AM:

I am going to write a postcard to the US Attorney's Office in Boston. It will say: "R.I.P. Aaron Swartz."

#46 ::: Nancy Lebovitz ::: (view all by) ::: January 13, 2013, 09:21 AM:

Radley Balko has a long and distinguished record of opposing justice system atrocities.

Other than that, there's the ACLU,Amnesty International, and the EFF. Any other suggestions?

I don't see this as mostly a problem about copyright law. The fundamental problem is a culture of cruelty to anyone who's been accused of a crime.

#47 ::: Nancy Lebovitz ::: (view all by) ::: January 13, 2013, 09:22 AM:

I've been gnomed. How about some very calming herb tea?

#48 ::: Jim Macdonald ::: (view all by) ::: January 13, 2013, 09:35 AM:

Lawrence Lessig said:

"It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed."

That's exactly what they thought they'd done.


Two days after Hammond's arrest, on March 7th, 2012, FBI Director Robert Mueller, who has frequently said that cyberthreat will soon overtake terrorism as the bureau's top priority, warned Congress that terrorists might recruit politically motivated hackers like Hammond into launching cyberattacks against the U.S. "You want to identify the individuals who are responsible for these crimes, investigate them, prosecute them and put them in jail for a substantial period of time," Mueller said. In early October, Defense Secretary Leon Panetta, arguing for stricter laws against hacking, warned that the country is in a "pre-9/11 moment."
#49 ::: Henry Farrell ::: (view all by) ::: January 13, 2013, 09:58 AM:

My comment above should read "here for a general audience, here for a legal audience," with links preserved

#50 ::: Nancy Lebovitz ::: (view all by) ::: January 13, 2013, 11:33 AM:

I've bumped The Honor Code: How Moral Revolutions Happen by Kwame Anthony Appiah up on my reading list.

From the introduction: he found that the moral and practical arguments against dueling, foot-binding, and Atlantic slavery, were well-known for a long time-- what it took to actually end those practices was enlisting people's sense of honor.

If I understand him correctly, he's looking at morality as partially a group effect.

#51 ::: Adam Lipkin ::: (view all by) ::: January 13, 2013, 12:16 PM:

One more piece to read: Dana Boyd's wonderful (and angry) tribute.

Money quote: "When the federal government went after him – and MIT sheepishly played along – they weren’t treating him as a person who may or may not have done something stupid. He was an example. And the reason they threw the book at him wasn’t to teach him a lesson, but to make a point to the entire Cambridge hacker community that they were p0wned. It was a threat that had nothing to do with justice and everything to do with a broader battle over systemic power."

#52 ::: Adam Lipkin ::: (view all by) ::: January 13, 2013, 12:17 PM:

Sigh. And even the power of the preview button couldn't prevent me from misspelling Danah Boyd's name.

#53 ::: The Raven ::: (view all by) ::: January 13, 2013, 12:27 PM:

Nicole Belle:

"This, by the way, is not the first time that Ortiz has sought penalties that seemed disproportionate to the crime, ostensibly to build a platform for her own political ambitions (she is expected to run for Governor of Massachusetts)."


#54 ::: Fragano Ledgister ::: (view all by) ::: January 13, 2013, 12:42 PM:

US Attorney Carmen Ortiz, and her assistants Steven Heymann and Scott Garland should feel proud that they've hounded a young man to his death. Isn't that what we pay our taxes for? To persecute the creative people who make this a better world.

#55 ::: Henry Farrell ::: (view all by) ::: January 13, 2013, 02:18 PM:

#52 it's actually danah boyd - she insists on the lower case (and fought a wikipedia battle over it.

For those who would like to show support for the family, and based in the Chicago area, or able to get there, Aaron's funeral has been confirmed for 10am this Tuesday at Chabad of Highland Park, followed by internment at Shalom Memorial Park in Arlington Heights, Illinois.

#56 ::: Michael Roberts ::: (view all by) ::: January 13, 2013, 04:37 PM:

I'm really torn up by this, given I didn't know him or he me. But damn were his politics close to mine, and the solutions he envisioned as well. I'd been kind of slowly realizing he existed over the past year or so - you know, a person condensing out of the vapor of hearsay, as it were - and I've naturally been doing a lot of reading these past two days.

Also we shared a birthday. He was exactly 20 years younger than I.

I choose to do my best to carry on his legacy. It sucks that I have to, but he truly is an example I want to live up to.

#57 ::: Estelendur ::: (view all by) ::: January 13, 2013, 04:50 PM:

#22: that "martyr" remark actually sums up perfectly why my feelings about this are really complicated.

My dad works for JSTOR. Has since I was in elementary school or slightly before. So I never could decide how I felt about the original incident - I agree that scientific/academic information should be easier to access, but I also, selfishly, want my father to continue to have a well-paying job.

The whole thing is a tragedy, especially that apparently some combination of brain chemicals and unnecessary persecution drove someone who apparently was a massively amazing person to die by his own hand.

I'm just afraid people are going to use this to further reduce the complexity inherent in any discussion where one of the options is "destroy the livelihood of hundreds of people" and another is "perpetuate wealth-based societal imbalances".

#58 ::: Michael Weholt ::: (view all by) ::: January 13, 2013, 06:09 PM:

Teresa Nielsen Hayden @ #32: May they be remembered.

I have no knowledge of any plans being prepared for their remembering, and I haven't the skills to prepare such rememberings myself, but I suspect, yeah, they will all be pretty much remembered. To their dismay.

And the sad thing is, regarding your earlier post, I believe the reason prosecutors were originally given so much discretion was so they could look at cases EXACTLY like this one and say: "Well, he shouldn't have done it, yeah, but I think we can chill on this one a bit..."

One more way in which a reasonable and humane feature of the past is used to bring us something sordid.

#59 ::: Wyman Cooke ::: (view all by) ::: January 13, 2013, 10:22 PM:

Adam @ 51:

I've been treated as an example. I despise it with a white heat. I won't say any more, lest I trigger myself.

#60 ::: TomB ::: (view all by) ::: January 14, 2013, 12:17 AM:

Michael Weholt @58: If Ms. Ortiz ever tries to run for office, the facts of this case would make a devastating issues ad. I think there are a lot of people, myself included, who stand with credit cards ready.

It's too bad because otherwise Ms. Ortiz is someone I'd support as a candidate. But this was an opportunity to show how much wisdom and independence she had, and she failed.

#61 ::: heckblazer ::: (view all by) ::: January 14, 2013, 02:05 AM:

Wyman Cook @ 40:
Conrad Black's assets weren't frozen to make it easier for the US Attorney to prosecute him. They were frozen because he was the target of multiple civil lawsuits alleging tens of millions of dollars worth of fraud and a Canadian judge was successfully convinced that there was a risk that Black would make a judgement impossible by disappearing the money. This left Black with a mere $25,000 monthly allowance and court supervision of all other expenditures. I suspect even this didn't hurt his chances of getting decent counsel too much as he had an agreement with Hollinger that they would pay 75% of his criminal attorney's fees.

#62 ::: paul ::: (view all by) ::: January 14, 2013, 11:08 AM:

I am imagining what would have happened if this case had gone away. "Rich White Kid Skates for Hack Attack." (And as someone old enough to remember when a non-rich acquaintance went away for a year and a day for not particularly hurting anyone, I would have been among those at least a little annoyed.)

Non-rhetorical: what level of discretion do prosecutors have to stop being assh*les once they've gotten an indictment, and what level of discretion to their superiors have?

#63 ::: Wyman Cooke ::: (view all by) ::: January 14, 2013, 01:34 PM:

Heckblazer @ 61

First of all it's Cooke with an "e". It's my name, which I use most everywhere. It means in this context that I stand behind what I say. wll frbr frm tlkng bt yr nm, r ls.

Harvey Silverglate was the Forbes writer where I got my information. Let me quote the relevant paragraphs:

"Prior to 2004 Conrad Black was a columnist, as well as chairman and chief executive of Hollinger International (now part of Sun-Times Media Group), a newspaper publishing giant whose holdings include the Chicago Sun-Times and the Daily Telegraph. He remains a highly regarded historian and author. In a case of enormous (and unnecessary) complexity, the Securities and Exchange Commission and the Department of Justice went after him on the basis of a dubious and controversial theory that in arranging the sale of Hollinger’s assets, he finagled and structured the deal so as to personally receive a larger share of the proceeds than his ownership percentage entitled him. Rather than test their theory by filing a civil lawsuit on behalf of the minority shareholders, the feds brought an indictment running 75 pages, with 15 complex counts. After many years of litigation and several partially successful trips to the Supreme Court, Black found himself still convicted on two criminal counts, for which he served 42 months in prison.

"It is quite possible that Black might have totally prevailed in his case, unnecessarily obscure and complex though it was, had he been able to employ from start to finish his initial legal counsel of choice: the fabled Washington, D.C. firm of Williams & Connolly, which had been representing him with considerable vigor in the pre-indictment stages. But the DOJ did what it routinely does in well-defended cases brought against well-heeled targets: it froze the bulk of Black’s considerable assets, including the $9 million proceeds from the sale of his New York apartment that Black had specifically allocated for his legal defense. Black could no longer fight utilizing his “A” team."

I look forward to seeing your cite from which you got your information, being as it was so detailed.

As an aside, Silverglate is the author of Three Felonies A Day. I don't know if he's going to address the Swartz case, but I would be interested in seeing what he has to say if he did.

#64 ::: Wyman Cooke ::: (view all by) ::: January 14, 2013, 01:54 PM:

Walter Russell Mead has an essay on Swartz.

#65 ::: cajunfj40 ::: (view all by) ::: January 14, 2013, 01:57 PM:

Kevin Riggle @#38:
"...willpower is a chemical ... I can show you the studies."

Please give a citation - I would like to read these studies. I have access to journals via my local library's EBSCOHOST subscription.

Lack of the commodity known as "willpower" is very evident in my household.

#66 ::: Eli Rabett ::: (view all by) ::: January 14, 2013, 02:45 PM:

#35 ::: The Raven ::: (view all by) ::: January 13, 2013, 02:23 AM:

thn, #32: "The public servants responsible for the case against Aaron Swartz as of July 2011 [...]"

But what is to be done?

Well, something is being done. Nothing will bring Aaron Swartz back

But a good week of getting punched in the nose (INTERNET style) which leaves a google trail will cause Ms. Ortiz, Mr. Heymann and their colleagues to give a thought in the future.

Everyone knows what the White House response to the petition(s) is going to be, but they will be noticed. Eli suspects that the people with connections to Swartz who are megarich might be calling some of those needy Senators and Reps up and bitching. That would be a good thing.

#67 ::: abi ::: (view all by) ::: January 14, 2013, 02:56 PM:

Wyman Cooke @63:

I know you're under stress, but you're being unduly personal at someone who was not attacking you, merely presenting a different interpretation of events than yours.

I've removed some vowels, but even the remaining comment had best be a high-water mark for your interpersonal aggression in this conversation.

#68 ::: Wyman Cooke ::: (view all by) ::: January 14, 2013, 03:56 PM:

Abi, I'll try not to be aggressive. It's just that I get a little short when my name is misspelled. But lets move on then.

In other news, I see that hackers have taken down DoJ and MIT's websites in response to Aaron Swartz's death. Not good. Not good at all.

#69 ::: Estelendur ::: (view all by) ::: January 14, 2013, 04:18 PM:

I thought I would leave this here: JSTOR's statement

#70 ::: albatross ::: (view all by) ::: January 14, 2013, 05:10 PM:


I wanted to go down a sideline on academic publishing. I agree that this particular bit of prosecutorial overeach is not particularly closely related to what's happening wrt academic publishing. In fact, prosecutorial misconduct and abuse and overreach happens in all kinds of cases where nobody really disputes that the crimes being charged should be on the book.

In academic publishing, I think what's happening is simply that technology and society are changing in ways that will make the industry either go away or radically change. In my own field (cryptography), I find it hard to see what value the publishers bring--the research is done and reviewed and revised and re-reviewed by volunteers. My casual impression from attending several years of IACR meetings where the topic always comes up is that we continue to use academic publishers mainly because it's easier to be taken seriously as a journal or conference if your articles are published by a known academic publisher, and it's nice to keep good relations with our main publisher so we can keep member access to old articles relatively uncomplicated. Also, we actually have had good relations with them for a long time, and they've always treated us pretty well as a community, so there's not some urgent desire to get out from under them. (If we had bad relations with them, we would probably have stopped using them a few years ago, so this is an example of treating your customers well paying off.)

Lots of perfectly decent people and perfectly decent industries have been clobbered by social and technological change. I expect academic publishing will be one more.

On the technology side, most people in my field prefer not to be given the paper copies of proceedings and journals anymore. A PDF file on my iPad is enormously more valuable to me than a paper copy in a book on my shelf. I think this is extremely common. The internet is the distribution mechanism for scientific results, rather than the mail delivering a copy of a journal to a university library somewhere. So the main thing that the academic publishers are good at is just not very important for getting science done anymore. They have other skills, but the process of getting specialist papers with weird notation and terms and diagrams typeset and printed and distributed is the thing that made them really valuable for getting Alice's clever new insights distributed to Bob and Carol and Dave so they could build on them, and that's just not how it's done anymore.

On the social side, the internet allows anyone to study and read and learn all kinds of stuff. And while there are plenty of ways this leads people off a cliff, I think it's the most important social change going on right now, in terms of impact on our grandkids. Podcasts and blogs and open courseware and online free books and Wikipedia have opened up access to all kinds of knowledge to all kinds of people. When the hosts of TWIV talk about a paper, or Orac at Respectful Insolence writes about one, it's awfully nice if I can go read the damned thing instead of just reading the abstract and being hit up for some money if I want to read the rest. It's even nicer if I don't have to go to my office and go through some kind of formal steps to get access to some journal we have access to.

The potential upside for this is bigger than I think I can express. Like the computer revolution, which largely was driven by letting a bunch of nobodies without any PhDs or references or anything do crap like, say, write an operating system or a new programming language or design a protocol for doing something new over the net. And suddenly, a huge explosion of innovation took place.

But for that to happen, it has to be possible to get access to the information. Once, many years ago, I was a nobody with no access to obscure information about a field I eventually would enter and establish myself in. If I hadn't lived in a university town and kept some access to the university library, I simply could not have studied enough to know that this was what I wanted to do.

There are moral arguments for this (like, it's hard to justify having research funded by US taxpayers and then making them pay again if they want to read it), but mainly, the internet allows for much fewer barriers to knowledge and learning, and I believe we will get a better world the lower those barriers are.

#71 ::: albaross gnomed ::: (view all by) ::: January 14, 2013, 05:21 PM:


#72 ::: Bruce E. Durocher II ::: (view all by) ::: January 14, 2013, 05:41 PM:

I think that Aaron Swartz was hounded to death, and I hope that those involved get it good: with luck at least Carmen Ortiz will find her potential political career in flinders.

That being said I need to comment on prosecutors. Now, as an attorney's son I have no love for prosecutors, and I think the bad ones (Ortiz, the SOB's that fight against DNA testing on old cases, the one that went after the three teenagers down south and made them sign away their rights to sue as part of letting them out years later) have a special place in Hell. The problem I have is with the sentiment that all prosecutors file charges again and again as some sort of vendetta, because I know of one case where it wasn't true and got labeled that way. I hate to bring it up (the last time I did someone lambasted me over supporting "the brave prosecutor" when the individual involved is to my mind seven types of ass), but it does matter.

I won't go into recognizable details, but there was a case in this area where a well-respected individual was charged with an outstandingly ugly crime, and each time the case fell apart in court the prosecutor filed charges again. The local news began to suggest prosecutorial misconduct, and I might have thought the same thing, but I was taking courses in computer forensics and it was brought up in class by one of the instructors. The reason the prosecutor kept filing charges was that a cop who thought he knew more than he did about evidence went to work on the accused's computer when he arrived after the initial complaint and found a series of videos taken featuring the accused doing the same damn thing to several victims. The problem was that this bitched up the evidence chain beyond recovery: they had videos of him doing it but they were unusable in court. The prosecutor didn't want to mess up the case by referencing the videos in any way, so s/he kept after it until they could find a way to present what they had that was admissible and make it stick.

This DOES NOT mean that I assume prosecutors are always correct, or that they ride in on a white charger to protect the public good. This does mean that I think that each case deserves to be looked at carefully before blanket statements start to be thrown. In the case of Aaron Swartz, I think that the blanket should be elephant sized rather than horse sized, because what they wanted to get him for was infinitely larger than the actual offense warranted.

#73 ::: j h woodyatt ::: (view all by) ::: January 14, 2013, 06:46 PM:

Not to excuse the U.S. attorneys involved here, but considering the conviction rate of federal criminal cases, it occurs to me that practical considerations now dominating the operation of our criminal justice system have possibly resulted in the system only remaining functional now by driving as many cases as possible into a plea bargain, especially cases where a jury might have anything remotely challenging to consider and the likely verdict is anything less than an absolutely predictable conviction.

The system really seems not to be set up to handle innocent defendants who refuse to make bargains over matters of fact, refuse on principle to defect in a prisoner's dilemma, et cetera. It's a system that depends, I believe, for its continued functionality on crushing such defendants ruthlessly and moving on to the next plea bargain deal. I wonder if that's what happened to Aaron Swartz.

I also wonder how well *I* would hold up if presented with a Hellerian choice like this: we'll knock the charges down to something you can live with personally, if only you'll just admit that you're not fighting for truth, justice and the American way. I might pull a Yossarian too, steal a life raft, and try to paddle to Sweden.

#74 ::: Xopher Halftongue ::: (view all by) ::: January 14, 2013, 07:02 PM:

TomB 60: If Ms. Ortiz ever tries to run for office, the facts of this case would make a devastating issues ad.

Certainly her political career should be over. I'd really like her prosecutorial career to be over too. She's a scumbag who hounded a bright young man to his death!

Nasty thought: I'm sure some overzealous prosecutor could find something to charge her someone on the radio was saying today, there are so many obscure laws that nearly everyone has broken one or another of them. Wouldn't it be dandy if SHE wound up in prison?

Bruce 72: I have no love for prosecutors, and I think the bad ones ... have a special place in Hell.

What I don't understand is why they don't have a place in prison. Abuse of prosecutorial power? Maybe Ortiz was within her discretion, but there are plenty who are just criminals and should be locked the hell up.

#75 ::: Tom Whitmore ::: (view all by) ::: January 14, 2013, 08:14 PM:

Xopher @74 -- the person I heard saying that about obscure laws on public radio today was Lawrence Lessig, and he should know.

#76 ::: Xopher Halftongue ::: (view all by) ::: January 14, 2013, 08:30 PM:

That was him, Tom! I couldn't remember who it was, but we were listening to the same thing.

#77 ::: Bruce E. Durocher II ::: (view all by) ::: January 14, 2013, 09:03 PM:

Xopher Halftongue: What I don't understand is why they don't have a place in prison.

You're asking the son of an attorney who was in general family practice? I've always assumed that some variant of Sturgeon's Law was involved...

#79 ::: thomas ::: (view all by) ::: January 15, 2013, 03:45 AM:

albatross@70: hear, hear!

I'm in statistics rather than crypto, and the majority of the top journals are from professional societies and only moderately overpriced, but we (academics) still do nearly all of the work, for free. I'm a bit grumpy at the moment, since I've spent a lot of time this new year in reformatting papers for new journals (as an author) and finding reviewers (as an editor).

It's even worse for academic books: in my field they do follow Yog's Law, but they provide a tiny fraction of the editing and publicity services that, say, Tor does for the same cut of the cover price.

I do think you do want to be careful with "research is funded by US taxpayers". My research mostly isn't, now that I'm in New Zealand, but the costs and benefits of open access haven't changed a lot since I moved from Seattle.

#80 ::: Kevin Marks ::: (view all by) ::: January 15, 2013, 04:56 AM:

Albatross @70: sharing scientific results is exactly what TimBL invented the web for in the first place, it's just taken a while for the Kuhnian paradigm shift to work through.

#81 ::: heckblazer ::: (view all by) ::: January 15, 2013, 05:53 AM:

Wyman Cooke @ 63:

My apologies about misspelling your name. It was completely unintentional. My real surname is pretty commonly misspelled despite being fairly simple, so I can understand the frustration.

Mr. Silvergate's timeline is a bit off. Hollinger first filed suit against Black in January 2004, alleging that he breached his fiduciary duties. A minority shareholder class-action followed that September. In November the US SEC started an enforcement action against Black. The Ontario Securities Commission followed suit in March 2005. In November 2005 the US DoJ finally filed criminal charges against Black; the US Attorney was one Patrick Fitzgerald. In August 2006 a Canadian court froze Black's assets; that this happened in Ontario and not Illinois tells me that the US DoJ was not the prime mover behind the hearing.

Given that after his criminal trial Black successfully appealed some of his convictions to the US Supreme Court with a team that included the likes of Alan Dershowitz, I think he still was able to get some pretty good lawyering despite the asset freeze.

#82 ::: albatross ::: (view all by) ::: January 15, 2013, 10:44 AM:


I'm sure there are many bad reasons why prosecutors seldom suffer serious consequences like jail time or civil liability for their actions in office. But surely one good reason is because the fear of that kind of consequences might otherwise dissuade a prosecutor from seeking justice, particularly against rich, well-connected, powerful people who are likely to be able to push back.

And there's still some of this happening--Nifong, the prosecutor in the Duke lacrosse team rape case, apparently did all kinds of overtly bad things, appears to have been intending to railroad the accused lacrosse players, and got reprimanded pretty hard for it. And that's a good thing. But it's hard not to notice that this only happened when he tried to railroad a bunch of relatively well-off white kids. I don't know, but I do suspect, that if he'd confined his prosecutorial misconduct to poor defendents with no connections, he'd still be in office today, while various innocent people (perhaps generally bad people who were innocent of the specific charges against them) would be sitting in prison.

Federal prosecutors have been extremely reluctant to take on powerful and rich people for a long time anyway, probably because those people can afford effective legal defenses and can match the prosecutors' self-serving PR in those cases. But I have to guess that, if the usual outcome after a hard-fought prosecution on insider trading was a well-funded lawsuit against the prosecutor, seeking to take every dime he would ever make, we might never see an insider trading prosecution again.

#83 ::: chris ::: (view all by) ::: January 15, 2013, 10:55 AM:

Wouldn't it be dandy if SHE wound up in prison?

No, I don't think it would. Partly because the U.S. prison system is so terrible I wouldn't wish it on Stalin, but mostly because a system-wide problem can't be solved by hunting the heads of particular participants. The problem is way bigger than Ortiz, and so must the solution be.

It would be dandy if the way prosecutions work in this country was reformed. But there's no particular reason to believe Ortiz is any worse than any of the others, or that she didn't believe she was doing her job. It's the system of prosecution that told her it was her job to do this sort of thing, not some special evil unique to her that can be fixed by replacing her with someone else who will occupy the same office and most likely make the same decisions.

And furthermore, ISTM that there's something unfair about sacking *only* those prosecutors whose cases happen to explode into a firestorm of publicity, while overlooking all the similarly behaved prosecutors whose victims are obscure or just go quietly to prison.

Power corrupts, and prosecutors have way too much power over the criminal justice process, especially plea bargaining. But if we the people create, maintain, and fund the institutions that shape prosecutors, ISTM wrong to scapegoat them for being the shape they are.

And especially wrong to do so to only particular ones based on the famous or sympathetic nature of their victims. Ultimately I fear the message that would be received by other prosecutors, if any, would be "be careful with the defendants who are famous or well liked, but you can do whatever you want to the proles." They hear too much of that already.

#84 ::: chris ::: (view all by) ::: January 15, 2013, 10:57 AM:

My post 83 crossed with albatross's 82 making similar points; no dogpile was intended, but I generally agree with what albatross said too.

#85 ::: Wyman Cooke ::: (view all by) ::: January 15, 2013, 11:45 AM:

Just when you think it can't get any worse, Buzzfeed has news that an Ortiz assistant was linked to another death:
“Prosecutor Stephen Heymann has been blamed for contributing to Swartz’s suicide. Back in 2008, young hacker Jonathan James killed himself in the midst of a federal investigation led by the same prosecutor. . . . Swartz’s family has accused Heymann, U.S. Attorneys Scott Garland who was the lead prosecutor, and Massachusetts U.S. Attorney Carmen Ortiz of contributing to their son’s death.”

To Heckblazer @ 81, thanks for the reply.

#86 ::: Wyman Cooke ::: (view all by) ::: January 15, 2013, 12:29 PM:

Tom Dolan, AKA Carmen Ortiz's husband, has gone on Twitter to defend his wife by saying that Swartz was only facing 6 months.

Oh, is that all?

I'm not sure which is weirder, that they made the 6 month claim. or that it was Ortiz's husband, and not a Justice Department spokesman, who made it.

#87 ::: Nancy Lebovitz ::: (view all by) ::: January 15, 2013, 12:58 PM:

albatross, I think you have a point. On the other hand, there should probably be a cost for causing that much damage.

Jail time might be excessive. Is losing the job excessive?

For that matter, is it a good thing for there to be an incentive for suicide? See also the Arab Spring.

I agree that what's needed is a better system with better incentives-- any thoughts about how we get from here to there?

Meanwhile: Petition to fire Steve Heymann.

#88 ::: Lee ::: (view all by) ::: January 15, 2013, 02:24 PM:

chris, #83: It occurs to me that if more prosecutors did wind up in prison for malfeasance (which this case absolutely is), we might start to see some serious pressure for reforms in the prison system -- which IMO should start by getting it back out of the hands of private companies.

ObSF: In Memory, Simon Illyan mentions that he once spent some time in an ImpSec prison cell, and has since thought that it might be a salutary experience for any high-level ImpSec officer, by way of "providing perspective". It's also noted that after that experience, he built a new prison section with a less dungeon-like feel, and turned the old one into the Evidence Rooms.

#89 ::: SamChevre ::: (view all by) ::: January 15, 2013, 03:05 PM:

Nancy Lebovitz @ 87

I agree that what's needed is a better system with better incentives-- any thoughts about how we get from here to there?

I've long been in favor of a proportional loser-pays system. So, if a prosecutor charges 50 years, and the person is sentenced to 5 years--the prosecutor pays 90% of the defense costs. (Loser pays is the norm for civil suits in the rest of the world--I see no reason it shouldn't be the rule for all legal cases.)

Radley Balko is probably the person who's thought about the question of "what needs to be done" the most.

#90 ::: Nancy Lebovitz ::: (view all by) ::: January 15, 2013, 04:46 PM:

interview about the kids for cash scandal

The part I'm emphasizing is the bit about how the legal emphasis was on the kickbacks from a juvenile detention center, not what was done to the kids.

I'm not going to say it's impossible to change the culture of cruelty in the US, but it's looking like an impossibly hard problem to me at the moment.

#91 ::: Lori Coulson ::: (view all by) ::: January 15, 2013, 05:03 PM:

Wyman Cooke @86:

The husband is speaking up because DoJ policy probably doesn't allow Ortiz to do so.

There are a whole bunch of hoops a Federal employee has to go through to speak to the press on the record.

#92 ::: Wyman Cooke ::: (view all by) ::: January 15, 2013, 06:29 PM:

Lori @ 91

I didn't considered that when I posted. Has there been official word from a DoJ spokesperson, or are they taking a page from the Fast and Furious playbook and running silent?

#93 ::: Jennifer Baughman ::: (view all by) ::: January 15, 2013, 06:32 PM:

Prosecutorial overreach happens frequently at the state and local level, in areas in which prosecutors are elected. An essential part of reforming the prosecutorial function should be to quit electing prosecutors; as long as they feel they have to respond to public opinion, incidents like this will keep happening as prosecutors try to "make their name". That wouldn't directly affect people like Ortiz, who are using their job as a springboard into a political career, but changing the overall climate of the profession to be more concerned with justice and less with convictions couldn't hurt.

Another part should be the reform of prosecutorial immunity. Surely there's some way it can be re-tooled so that it protects prosecutors from the legitimate exercise of their position, while still providing for appropriate actions in cases of misbehavior. Just as an example, prosecutors that fail to "make timely disclosure to the defense of all evidence or information ... that tends to negate the guilt of the accused or mitigates the offense" (per Rule 3.8 of the ABA Model Rules of Professional Conduct) should be at the very least sanctioned by their state bar associations. Perjury and obstruction of justice do carry prison sentences and fines; prosecutors shouldn't be immune to legitimate charges thereof.

The misuse of plea bargains also needs to be reviewed. Personally, I think that increasing funding for public defenders could help; having a bigger pool of competent public defenders might mean more reasonable caseloads. In which case, the defense might be less willing to accept a bad plea bargain just to clear a case.

We also need, as a society, to come up with better ways to measure how well a prosecutor does their job than number of convictions. On that, however, I have no ideas; how do we quantify justice?

#94 ::: Jennifer Baughman is Unjustly Gnomed! ::: (view all by) ::: January 15, 2013, 06:34 PM:

Attica! Attica! Or maybe some oatmeal-honey bread?

#95 ::: Wyman Cooke ::: (view all by) ::: January 15, 2013, 07:13 PM:

MIT's Technology Review apparently does not share the schools' attitude about Swartz. Interesting links there, as well.

#96 ::: Kevin Riggle ::: (view all by) ::: January 15, 2013, 08:47 PM:

cajunfj40 @65: Please give a citation - I would like to read these studies. I have access to journals via my local library's EBSCOHOST subscription.

Lack of the commodity known as "willpower" is very evident in my household.

It turns out, having said that, that I was conflating two threads of research that I've followed, and the best literature on the topic I have access to is popular science literature and Wikipedia.

In particular, research into decision fatigue and ego depletion turns out to suggest that blood glucose levels among other things have a huge impact on willpower. (See also Patrick's recent sidebar link on environmental lead levels and criminal behavior.)

#97 ::: Kevin Riggle has been gnomed ::: (view all by) ::: January 15, 2013, 09:08 PM:

I am returned to Gnometown again. During the day, the long light makes stark the fjords, and at night a cool breeze blows a fine mist up between the granite walls and frosts the glow of the gaslamps on the wrought iron foot-bridges. It is quiet here, and peaceful, but I should not wish to tarry long. The light fails early, and though I share my spare repast with the gnomes, I will camp in a sheltered crevice under a blanket of spruce, and be off again down the coast at first light.

Wyman Cooke @95: Technology Review is owned by MIT but has editorial independence, as I understand it. Incidentally, current president Rafael Reif has an impressively-thoughtful letter up, which I shall not link lest I prolong my stay.

#98 ::: Jeremy Leader ::: (view all by) ::: January 15, 2013, 09:10 PM:

Wyman Cooke @95: That Tech Review piece has a header saying "View". It's written by MIT TR's "online editor", but the impression I get is that it's a personal opinion, not necessarily that of the editorial board of MIT TR, nor of MIT's administration. From my experiences of much more minor issues at Caltech decades ago, I would assume that many individuals at MIT don't agree with the administration's actions in this case.

#99 ::: Laertes ::: (view all by) ::: January 15, 2013, 09:54 PM:

65, 96: The bit about willpower being a chemical is also covered at some length in Daniel Kahneman's 2011 book Thinking, Fast and Slow.

#100 ::: Andrew Plotkin ::: (view all by) ::: January 16, 2013, 01:22 AM:

Jeremy Leader @98: "I would assume that many individuals at MIT don't agree with the administration's actions in this case."

I believe there is a certain appreciation for freespirited rannygazoo in the MIT zeitgeist, yes.

As someone said to me last week in a completely unrelated context: "This is a university where the students throw a piano off a roof once a year."

#101 ::: Dave Bell ::: (view all by) ::: January 16, 2013, 03:27 AM:

From a British point of view, it's hard to avoid thinking of Gary McKinnon, who faced a lengthy extradition process, who had a diagnosis of clinical depression, and whose fight shifted from the courts to politics. One issue was that the US prosecutor was threatening 70 years in prison, if McKinnon didn't cooperate, and only 4 years if he had "voluntarily" gone to the USA and plead guilty.

Sometimes, the US legal system still seems to maintain the image of Strange Fruit.

#102 ::: Paul A. ::: (view all by) ::: January 16, 2013, 04:50 AM:

SamChevre @ #89: I've long been in favor of a proportional loser-pays system. So, if a prosecutor charges 50 years, and the person is sentenced to 5 years--the prosecutor pays 90% of the defense costs.

I'm getting the idea that the point of charging ridiculously large sentences is to pressure the suspect into bargaining for a guilty plea and bypassing the trial-and-sentence entirely. If that tactic fails, and they go to trial and have to pay a big cost for the gap between the charge and the sentence, the lesson isn't that they shouldn't be charging large sentences, it's that they should have pressed harder. Next time, try a larger sentence...

#103 ::: janetl ::: (view all by) ::: January 16, 2013, 10:23 AM:

I heartily share the desire to go after these prosecutors, but I agree with the opinion in the Sidelight* that it's important to also go after the lousy law that makes it too easy to abuse people. Here's the petition the author linked to: Reform the Computer Fraud and Abuse Act to reflect the realities of computing and networks in 2013.

*"These petitions...serve the purpose of pretending that Swartz’ treatment was abnormal. It was not."

#104 ::: SamChevre ::: (view all by) ::: January 16, 2013, 10:28 AM:

Paul A @ 102

My intent would be for the same rules to apply to plea bargains--it's really plea bargains that idea is designed to pressure. The proportion of defense costs that the prosecutor paid would be the proportion of the initial charges that weren't reflected int eh sentence--that would ap-ply even if the sentence was based on a plea bargain. (Which should, among other things, make it possible to get a reasonable review of any offered plea bargain.)

#105 ::: Lori Coulson ::: (view all by) ::: January 16, 2013, 10:45 AM:

Wyman Cooke @92:

Most Federal Agencies have a person designated to handle contacts with the media. This person is generally a member of the head of the agencies staff. The agency I worked for discouraged media contact with the rank and file employees.

Now this may have been because some of the entities we audited or investigated ended up explaining how they defrauded the government in Federal court. But most agencies "run silent" or have VERY orchestrated dealings with the press.

#106 ::: Nancy Lebovitz ::: (view all by) ::: January 16, 2013, 12:17 PM:

I'm reading how the German legal system doesn't have plea bargains-- a part of it is that they set up trials to be efficient, so it's possible to afford trials for everyone who's been accused.

#107 ::: heckblazer ::: (view all by) ::: January 16, 2013, 04:16 PM:

Wyman Cooke @ 85:
I'm always happy to show my sources. I didn't at first because I wanted to avoid being gnomed, of course that was before I knew the "L"-word was a Word of Power. Your point about asset freezes being potential for abuse is a good one, too, I just don't think Conrad Black is a good example. The drug forfeiture laws are really horrible in that regard. They're civil cases that the government brings against the *property* - there really are cases with titles like United States of America v. $124,700 in U.S. Currency. Since they're civil actions that means that the owner does not get a court-appointed attorney. That also means that the burden of proof is the preponderance of the evidence and not the much higher reasonable doubt you'd have in a criminal case.

SamChevre @ 104:
I think it's important to clarify how what's going on with federal plea bargains. At the federal level they currently have very strict sentencing guidelines. Murder for example has a minimum sentence of 43 years, which IIRC is twice the maximum such sentence in Sweden. The upshot is that the prosecutor determines the sentence by choosing the charges. So in the case of David Mckinnon mentioned above the prosecutor wasn't asking for a sentence of 70 years, the prosecutor had charged McKinnon with a combination of crimes that carried a statutory penalty of 70 years. IMO a better judicial reform would be to can the current sentencing guidelines and let federal judges have discretion in sentencing again.

Oh and a reminder to the non-Americans, most American criminal prosecutions occur at the state level and state practices can vary quite a lot. Since the death penalty was reinstated by SCOTUS in 1976 there have been 1320 executions in the US. Most of those executions occurred in the South, with Texas alone accounting for 37%.

Nancy Lebovitz @ 106:
Japan also doesn't have plea bargains. It still has a national 99% conviction rate though.

#108 ::: Terry Karney ::: (view all by) ::: January 16, 2013, 07:12 PM:

I just want to chime in and say that I've been preaching the mantra Teresa has at #6, since I learned to interrogate.

The only response you should make for any event you were not a direct witness to the crime, remaining at the crime scene until the police arrive is, "I'll be glad to talk when my lawyer gets here."

#109 ::: Kevin Riggle ::: (view all by) ::: January 16, 2013, 10:13 PM:

It seems like prison time in particular was a thing that weighed on Aaron (as I know it would weigh on me). I think this ties in with our discussions of prison reform here.

From the Boston Globe:

Andy Good, Swartz’s initial lawyer, is ­alternately sad and furious.

“The thing that galls me is that I told Heymann the kid was a suicide risk,” Good told me. “His reaction was a standard reaction in that office, not unique to Steve. He said, ‘Fine, we’ll lock him up.’ I’m not saying they made Aaron kill himself. Aaron might have done this anyway. I’m saying they were aware of the risk, and they were heedless.”
Swartz and his lawyers were not looking for a free pass. They had offered to accept a deferred prosecution or probation, so that if Swartz pulled a stunt like that again, he would end up in prison.
Marty Weinberg, who took the case over from Good, said he nearly negotiated a plea bargain in which Swartz would not serve any time. He said JSTOR signed off on it, but MIT would not.
Elliot Peters, the San Francisco lawyer who took the case over from Weinberg last fall, could not persuade prosecutors to drop their demand that Swartz plead guilty to 13 felonies and spend six months in prison. Peters was preparing to go to trial and was confident of prevailing.
But the prospects weighed heavily on Swartz.

If a 26-year-old kid looking at the prospect of six months in prison decides that killing himself is the better of the two options... I think that says something very not-good about how we run our system.

#111 ::: SamChevre ::: (view all by) ::: January 17, 2013, 09:42 AM:

Follow-up to Henry Farrell @ 44

Orin Kerr has posted the second half of his legal analysis of the Swartz case here.

The paragraph that ties into my concerns is the following:

On the third question, the issue of who was to blame if the prosecution was too severe, I think it’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 evem more in to 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.

Following up my 104 in response to heckblazer @107, I'm somehow not making myself clear. My proposal is that if the initial charges would get a 50-year sentence, and the accepted plea, trial verdict, or whatever the final sentence is based on is for a sentence of 5 years, the prosecutor would pay 90% of the defense costs. The goal is that using "pile on the charges so going to trial is too risky" as a tactic gets very expensive.

#112 ::: Charlie Dodgson ::: (view all by) ::: January 17, 2013, 08:48 PM:

A few belated comments: Ms. Ortiz actually did issue a statement a little while ago, saying once again that a six month deal was on the table, and wondering why anyone was talking about maximum sentences. (Her husband earlier took the same line on twitter, then thought better of it and hastily deleted his account. She apparently hadn't learned much from that.)

The most effective responses are ones like this, which just take the statement, and then refute it with verbatim quotes from earlier releases on the Swartz case from her own office.

It's also worth noting that views on how to handle this case were far from unanimous within MIT. The (unconfirmed?) reports that the administration was insisting on prison time in any plea deal have caused no small amount of distress within the community, and if Prof. Abelson's investigation substantiates those, the parties responsible may find themselves in a *very* uncomfortable position.

#113 ::: Xopher Halftongue ::: (view all by) ::: January 17, 2013, 08:53 PM:

So Ortiz is not only an overzealous prosecutor, she's a lying sack of shit.

I'm not surprised.

#114 ::: Sumana Harihareswara ::: (view all by) ::: January 19, 2013, 12:55 PM:

Are any of you coming to the 4pm memorial service today at Cooper Union in Manhattan? Speakers include Aaron's partner Taren Stinebrickner-Kauffman, Doc Searls, Edward Tufte, Quinn Norton, and other friends. It's in the Great Hall and it'll be 4-6.

#115 ::: chris ::: (view all by) ::: January 19, 2013, 06:28 PM:

Ms. Ortiz actually did issue a statement a little while ago, saying once again that a six month deal was on the table, and wondering why anyone was talking about maximum sentences.

Assuming for the sake of argument that this statement is true, I would think that the answer is obvious: because the threat of maximum sentence if you refuse the deal and are convicted is exactly what coerces defendants to accept deals, even when they actually believe in their innocence (or are innocent), etc. Terrorizing the defendant is how the system works, and Ortiz is just one more example, not that different from any of the other examples.

#116 ::: Wyman Cooke ::: (view all by) ::: January 23, 2013, 09:10 PM:

Lawrence Lessig has written an elegant and touching followup to his previous post that's in the sidelights. In part he condemns Ortiz's statement. So do I, but he does it much better.

#118 ::: Dave Harmon, gnomed. ::: (view all by) ::: February 02, 2013, 08:08 PM:

Dunno it it was format or link.

[Some markers within the format of the link, actually. -- JDM]

#119 ::: Dave Bell ::: (view all by) ::: February 03, 2013, 02:16 AM:

I've seen recent documentaries on US Prisons. Not history, but the current environment.

I don't know what the follow-on might be to a Federal Felony Conviction. How does it affect voting rights.

Even six months of prison time looks pretty dreadful. We know what Aaron Schwartz did do, and I've seen reports that he blogged about depression. If he'd accepted the deal, would he have lived through the prison experience? Was the prosecutor threatening with prison a person who had reason for a special fear?

Ortiz is a blackmailer, operating under the protection of the state. It's left unsaid, and nobody takes responsibility for it, but the threat is of a world of violence, including rape. It's a part of a persistently corrupt American system which has only slightly moderated its methods from those of the lynch mob.

And, if you want to rise to the top, whatever your apparent ethnicity you have to step into the shoes of the slave-owners.

Thomas Jefferson's Tree of Liberty is bearing strange fruit.

#120 ::: Dave Harmon ::: (view all by) ::: February 03, 2013, 07:27 AM:

Dave Bell #119: I know that as far back as Captain Crunch, the Mafia had a "special interest" in hackers and such.

#121 ::: Tom Whitmore ::: (view all by) ::: February 04, 2013, 01:29 AM:

A point that seems relevant here: A NYT editorial on "Why Police Officers Lie under Oath". So it seems quite possible that evidence in court is fundamentally biased (not much of a surprise, though).

#123 ::: Wyman Cooke ::: (view all by) ::: July 19, 2013, 02:18 AM:

A FOIA request for documents in the Aaron Swartz case is being challenged by MIT. Apparently this school has forgotten the first rule of holes. Or else they're afraid there's something red hot that they don't want exposed at all costs.

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