Lawmakers slam DOJ prosecution of Swartz as 'ridiculous, absurd'
thehill.com
thehill.com
Really didn't want to bring this up, but I actually floated the idea of the community pursuing a political strategy to help Aaron here on HN: http://news.ycombinator.com/item?id=4529907
The suggestion didn't get many upvotes, and was utterly belittled by one of HN's most prolific posters. Something to keep in mind before you ridicule the small number of representatives who are actually friendly to tech. (To be clear, I could have taken action myself anyway, and I didn't find the time. That's on me.)
It's really, really unfortunate that this is the top comment.
It's a false choice. You can engage the system and change it at the same time. Of course you can.
But there is always a next person to come along. It benefits them.
And there is a possibility that in the process of investigating someone will point out to them that PACER is breaking the laws that they wrote about how much can be charged. This might lead to more than symbolic reform there.
Congresspeople aren't completely immune to responding to broad public pressure, if that is indeed what develops from this case.
I guess that makes me partially guilty, too.
The effect we can now hope for is prosecutors everywhere will learn that despite it being very unlikely that something bad will happen when they over-prosecute for career advancement, if it does, they're going straight under the bus.
A moments hesitation in the mind of the next Ortiz/Heymann duo thinking about levering up against a "soft target" is a very good thing.
I know it's cool to hate on the government and criticize everything they ever do and assume they are all idiots - and most of the time they deserve it - but if they are on our side on this that should be welcomed and they should be given credit for it.
No Congressperson ever said these things while Swartz was still alive, and his prosecution was just as ridiculous then, but saying so wouldn't have netted you nearly the positive media coverage in the tech press that it will now.
We made this a big deal after his death, consequently leading to the politicians making their claims now. Had we made a big deal before he died, perhaps the lawmakers would have done the same.
Our fault, not theirs. They really are representing us here.
Why are you blaming the victims? It's not difficult to determine that the current penal system is ridiculous, and unlike us, it's their responsibility to do so. <hyperbole magnitude="a bit"> Instead, they focus on making copyright legislation to support corporate interests. And the courts focus on whether or not the 5th Amendment was a good idea after all. </hyperbole>
I agree with you completely that we should be doing more to advocate for reform, but it is far from being our fault.
The public just needs to make sure that they do make changes and aren't just happy with them eating crow. Saying shit is broken just to look good does nothing for the people, but if they actually fix shit then they can say whatever they want imo.
Confirmed here: http://www.huffingtonpost.com/2013/01/15/darrell-issa-aaron-...
A) Worked with Aaron Swartz to fight SOPA,
B) Sits on the House Judiciary Committee, and
C) Has a history of hauling the Justice Department before Congress.
Rep. Zoe Lofgren and Rep. Jared Polis are also on the House Judiciary Committee, and could potentially lend bipartisan support to any investigation.
Not going to lie, that sentence chills my bones. Lack of judicial discretion got us minimum sentences in the "war" on drugs. I don't have much faith that lack of any prosecutorial discretion will turn out much better.
This is a power grab by congress, nothing more.
This type of shit happens every day. This is how prosecutors in this country operate.
https://action.eff.org/o/9042/p/dia/action/public/?action_KE...
The prefilled text is about the CFAA, but you can change it to say whatever you want before sending it. Don't feel apathetic, or think that you can't make a difference. One thing Aaron Swartz showed us is that Congress can be made to listen to the public, if we are loud enough.
Now we, as a community, need to keep up the pressure on lawmakers and make sure meaningful reforms are passed to make sure something like this never, ever happens again.
1. Maximum sentence cannot be more than twice any offered plea bargain.
2. Making the counts non-severable. Or the defense only needs to win half of them to be cleared of all charges. Something needs to discourage stacking on limitless ridiculous charges and hoping some stick.
3. The government needs to cover the expenses for the defense, limited to the amount spent on the prosecution. (this doesn't seem politically palatable, but it needs to be addressed somehow)
Yeah, these things are large meta-issues that aren't a political shoe-in. But pretending that merely amending the CFAA would have prevented this from happening is wishful thinking.
Also, making TOS's inapplicable (which, didn't anyone see this coming with Lori Drew? But I digress..) wouldn't have stopped the prosecution in this case from claiming that simple trespass into an unlocked network closet should be considered felony federal "unauthorized access to communication network".
I like the idea of this, the thing to watch out for is going to be accounting shenanigans. For example, if you account for resources the prosecutor uses but not the police, they'll just arrange it so that all the expensive legwork is done under the auspices of law enforcement and on paper all the prosecutor's office does is type it up and file the paperwork.
And no, it would not work that way, because if you had an open and shut case with a plausible sentence of 20 years, prosecutors wouldn't or at least shouldn't be offering plea bargains of under 10 years.
Pursuant to constitutional law, you are required to start with the charges first, so the defendant knows what they are being accused of and can prepare a defense.
In some but not all jurisdictions, prosecutors may offer "plea bargains" that reduce the sentence, or reduce or drop some of the charges, in lieu of proceeding to trial. In some jurisdictions (i.e., large portions of Texas), there are no plea bargains; you always go to trial.
Maximum sentence is set by law, as a matter of constitutional rights. Thus, your solution would simply restrict plea bargains to not being any shorter than 1/2 of the maximum sentence (in Aaron's case, 16 years).
Making the counts non-severable is a legal and constitutional impossibility. Double jeopardy requires the prosecutor to charge you with all possible crimes arising from a single act (or intertwined set of acts) in the same criminal proceedings. Once those criminal proceedings have been adjudicated (i.e., a guilty plea, a conviction, a not-guilty verdict, or charges dismissed with prejudice), the prosecutor cannot ever charge you again for any other crimes arising from that act. Your solution would either require them to choose which charges to pursue and which charges to drop forever. That's fine in cases like Aaron's, but that's not something you want when you're dealing with a rapist or a murderer (i.e, cases far more common than Aaron's).
Finally, the last suggestion, is not simply politically unpalatable, it is economically impossible. Most criminals are actually guilty; making the prosecution pay for every defense would increase the costs of the criminal justice system 1000fold. A better solution: make the prosecution pay the defense costs where (a) a defendant that is found not guilty or actually innocent, (b) a hung jury trial, if the prosecution does not refile, or (c) the prosecution drops charges before trial. This would accomplish what you want in a realistic manner (and is actually already the law in some jurisdictions).
No, I phrased it the way I did for a reason. A prosecutor who does not think that the crime is serious enough to warrant 16 years can still offer a lower plea bargain. In Aaron's case, they may have offered 1 year in jail, making it so that by asserting his right to trial, he would be doubling his sentence to 2 years in the worst case.
> Your solution would either require them to choose which charges to pursue and which charges to drop forever. That's fine in cases like Aaron's, but that's not something you want when you're dealing with a rapist or a murderer.
Of course I know about double jeopardy. They have to choose which charges to pursue and which to drop forever sometime. The problem as it stands is that charges are piled on in a shotgun approach, making it very hard for the defendant to concentrate on what they're actually fighting, and ballooning court costs. And shouldn't rapists and murders be getting charged with rape and murder, respectively? We certainly don't want punishment of rapists and murderers to rely on whether they also happened to be disturbing the peace at the time. And yeah, I'll give you that all-or-nothing is a bit harsh, which is why I said something else about being acquitted on the majority of counts would result in complete acquittal. Create a mechanism so that the prosecution wants to make pretty sure you're guilty of something before accusing you of it.
> Most criminals are actually guilty; making the prosecution pay for every defense would increase the costs of the criminal justice system 1000fold
So then in the name of economics, guilty criminals don't actually have a right to a trial? It would still be in an obviously-guilty defendants interest to take a half-sentence plea bargain and avoid trial. I do see it being more palatable if it only applies to non-guilty outcomes, but with the following caveats: limits increased to 2x what the prosecution spends, and the money is loaned out by the government as the case progresses and is then owed by the defendant in the event of a guilty verdict. Sorry, as you should know, justice costs money.
>Issa said he wanted to make sure “that what is paid for is as widely available as possible to the American people.”
It's good to see lawmakers paying attention to Open Access. While it is important to make sure that the unscrupulous practices of the Department of Justice are curtailed, it is also important that people pick up and carry on Aaron's campaign for Open Access.
I am upset not just because Aaron was treated unfairly, but because he was treated unfairly for doing the right thing. Freedom of Information is at the core of Internet values, and that's what Aaron fought for.
Come on, don't be that guy. You know when someone says "freedom of information is at the core of the Internet's values" they're really saying that freedom of information is at the core of the values of the people who worked hard to build and promote it (see Vint Cerf's recent statements about the ITU conference: http://venturebeat.com/2012/12/04/vint-cerf-save-the-interne...), not that the RFCs defining the Internet Protocol include those exact words.
In other fields of human endeavor there's plenty of other sources of knowledge. For example, folklore.
"The Net interprets censorship as damage and routes around it." -- John Gilmore
"History is rife with examples of governments taking actions to ‘protect’ their citizens from harm by controlling access to information and inhibiting freedom of expression. We must make sure, collectively, that the internet avoids a similar fate." -- Vint Cerf
The Internet encompasses more than its hardware and algorithms. It was created and is operated by tens of thousands of people with real values, is used by many more, and freedom of information is a very important principle for many of them.
There are people who created the internet who believe in freedom of information. There are people who were just working on a defense contract at a major defense contractor. There are people who operate it now who believes lots of different things, and even those that believe in "freedom of information" in some sense have all sorts of definitions for what they think it means.
Creators of technology don't get to decide what politics will be attached to that technology. RMS doesn't like Android, which contains GPL-ed software. Does it matter? Of course not.
That is not to say that we as a society don't have values about the use and function of the internet. But we get to decide what those values are, not the people who happened to create the hardware and the protocols.
America's slavish veneration of their constitutional text is largely responsible for this poisonous legalistic mode that has infected their discourse at all levels. Discuss.
That's why I'm being pedantic about the distinction. Vint Cerf can't imbue the Internet with his politics. Society at large has adopted a different set of politics regarding the Internet. My mom doesn't care about free information. She just doesn't want anyone to steal her credit card numbers while she's shopping on Gilt.
The Internet provides a similar boost to the free flow of information, spreading it further than it would otherwise.
Both of these outcomes have political implications, and I would go so far as to say are nearly inevitable emergent behaviors of the two inventions.
The laws he may have broken are not necessarily the ones he has been charged with, this is partly why it has been called persecution overreach.
Breaking immoral laws is our moral obligation, there is no other way around it.
Would you expect anything less if I were to enact a law that made your children sexual slave ?
Would you expect anything less if someone were to take public funded research and locked it up behind huge and crazy paywall without any competition ? Huge costs for things that are in the public domain, from a copyright prospective, but that JSTOR tried to keep that as a profit center.
They are the one stealing from the public and akin to companies like the MAFIAA at that.
If you think healthcare should be socialized then go and tell your politician and fight back with the groups that share your convictions.
In my mind he broke very little laws and this is a crazy overreaction from the persecution.
Damn you may well be a troll with your trolling attitude and 11 minutes old account (mine is only a few days old).