The Life And Death Of 'The Internet's Own Boy'
npr.org
npr.org
No, he didn't. You can only arrive at that number by ignoring the way the federal sentencing system works, because it's based on taking the maximum penalty for any count of the offense charged and multiplying it by the total number of every count.
In reality, like charges group --- you are typically sentenced based on a single count, usually the most severe of the counts.
Prosecutors threatened Swartz not with 35 years but with 7. But 7 years is an equally ludicrous number for the actual offenses charged, which were non-remunerative, non-destructive, and applied to a first-time defendant. Which may be why prosecutors offered Swartz a plea deal with a custodial sentence just several months long.
Swartz's own lawyer, writing after Swartz's tragic death, believed that Swartz could have gone to trial, lost and been found guilty, and still not served a custodial sentence. Not implausible for a first-time offender who didn't try to make a cent from his offense.
Reporters parrot these numbers because the DOJ supplies them in press releases. DOJ is lying when it makes these outlandish claims, but deception on the part of prosecutors isn't an excuse for reporters not to talk to lawyers before amplifying those lies in the press.
As usual, you can count on Popehat --- a blog run by a former federal prosecutor turned civil rights attorney --- for a pretty excellent summary of how the system actually works:
http://www.popehat.com/2013/02/05/crime-whale-sushi-sentence...
(If you're interested, here's the sentencing guidelines for 18 USC 1030: http://books.google.com/books?id=nZu3w1y4fkYC&pg=PA299&lpg=P...)
http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR....
> AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.
Key Point: According to the actual documented statement released by the federal prosecutor, a statement which is still available on www.justice.gov, Swartz faced 35 years in prison and a one million dollar fine if convicted.
These are well known, easily verifiable, and indisputable facts. When NPR stated that "Swartz faced a maximum penalty 35 years in prison and up to $1 million in fines" they were directly citing actual statements made by the federal prosecutor's office. The federal prosecutor's office stated "SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million." That is what they said. It is not false. It is not an exaggeration. NPR is citing exactly what the prosecutor actually said.
People reporting on federal criminal justice — whether journalists or bloggers — routinely report on the statutory maximum sentence that a defendant could hypothetically get, an oft-ridiculous figure calculated by taking all the charged crimes and adding up the maximum punishment for each. This is usually followed by some sort of pronouncement that THIS PERSON CHARGED OF MINOR CRIMES FACES MORE JAIL TIME THAN YOU'D GET IF YOU BEAT A TODDLER TO DEATH WITH AN UNCONSCIOUS NUN WHILE RAPING A BLIND LIBRARIAN, or words to that effect.
The problem is this number — the sum of the maximum sentence for all the crimes charged in a federal case — usually bears almost no relation to the sentence the defendant actually faces.
Responsibility is not a zero-sum game. The Department of Justice, and its constituent U.S. Attorney's Offices, bear responsibility for repeating statutory maximums in their press releases bragging of indictments. Journalists and bloggers bear responsibility for repeating those numbers uncritically, especially if they repeat the "THAT'S MORE THAN YOU'D GET FOR DOUBLE-MURDER" meme.
Read the rest of the article, which explains in detail how sentencing actually works. White's article is written about a whale sushi case, so I provided a link to the applicable sentencing guideline for computer fraud cases.
Later
You edited your comment to make the point that NPR was reporting what the prosecutors actually said. I addressed that in my comment too, but, more importantly: no, that's not what they did. They wrote that Swartz faced a 35 year sentence. Not that prosecutors incorrectly and dishonestly claimed that he faced such a sentence --- or even that the provenance of that number was the prosecutors at all. Any reader could (and probably does) come away from that piece with the idea that Swartz actually faced a 35 year sentence. And of course, that's preposterous.
No fault != No effect.
The point is each and every action we take in this world changes it in some way. And it's simplistic to say no one in this community had any part in Swartz's death.
You entered the conversation waving a bloody shirt to slur real people, present here, as being responsible for the death of another real person, who was once present here. You couldn't even spell your adoptive martyr's name right, yet you're passing judgement, and want to assign blame to commenters – commenters! – for a death.
Swartz was a principled free-speech absolutist – see http://bits.are.notabug.com/ – so you do him no honor when you suggest commenters owe penance, or silence, for expressing certain opinions.
The only thing "preposterous"--to use Thomas's word--is that the debate here is a mostly semantic one about how much jail time Aaron "faced," rather than a substantive one about why he was facing any jail time at all. That's the debate that should be taking place, and it's one worth having.
It is absolutely true that Aaron was treated incredibly poorly by this community when he was most in need. See https://news.ycombinator.com/item?id=5056279. Though much has since been deleted, I saw it happen, and I've been on the receiving end of similar treatment myself.
I'm planning to revisit this topic later. But for now, shame on those whose cynicism knows no bounds. And shame on Y Combinator for allowing a useful tool for discussion to devolve so clearly into a toxic mess.
I know people who have received the maximum penalty even though it defied all logic and reason. For a first time offender. That didn't profit a cent. And had already been driven to bankruptcy.
But hey, it doesn't usually happen, so maybe possibly it won't this time as well! I hope you never have to roll the dice.
The key is that it just doesn't matter what usually happens. Or what's most common. Or how it almost always works. At the end of the day it's a dice roll and the odds may overwhelmingly be in one direction but if there's a chance then there's a chance. It's a terrifying prospect no matter how slim the odds may be.
But that doesn't excuse Ortiz and Heymann. They destroyed a global treasure, and shouldn't be permitted to continue in their jobs, no matter how protected they are from liability.
For whatever it's worth, I think the behavior of the prosecutors in this case was abusive, and the idea of filing federal charges for what Swartz did is as preposterous as the fiction that he faced a 35 year sentence. Don't succumb to the is-ought fallacy. I'm just pointing out how the system works, and how NPR is failing to report it properly. It is better to know than not know.
[1] http://en.wikipedia.org/wiki/United_States_Federal_Sentencin...
They lie to the public and exaggerate to the accused, in order to instill fear, prop up careers, and coerce the accused. Correcting the number of years doesn't qualitatively change how I feel about it much, and probably the same for Swartz.
Maybe people should focus more on it being a felony. The documentary left me with the feeling that Swartz was more distraught by the threat of becoming a felon[0], than with what length of time he'd be in jail. And it fits with the spirit of what most people are saying when they throw around "35 years": Is such a harsh punishment for downloading academic papers really fair?
[0] possibly the emotional and monetary burden of his defense on his family and friends, too
It's reasonable to expect for the media to accurately interpret this, but clearly that isn't happening.
It's really immaterial whether the accused knows the fine print or not. Here's a thought experiment I did on myself. I have to chose between the following two.
1. Challenge the accusation. There's a net probability of 1% of me sent to prison for 35%.
2. Plead guilty and face prison time of 7 years.
I'd chose #2 because the prospect of spending 35 years in prison terrifies me!
Reporters parrot 35 years probably because for an accused facing 35 years is a real prospect, however improbable.
The plea deal offered wasn't for 7 years (that would have been insane). It was for something like six months. Six months in prison is still a travesty, but it is nothing at all like 7 years.
Please pardon my ignorance here; but was there a non zero probability of Swartz being sentenced for 35 years? That is key here in my opinion. Because if there was even a remote chance then that's sufficient to play on the mind of Swartz and psyche him up.
And if the probability of 35 years sentence was exactly zero then one ought to sue the media and the ecosystem who have kept drumming up 35 years.
As the studies by the Nobel laureate and multiple others have shown when it comes to loss aversion, with such high stakes, humans don't think "logically". The capability of counsel is also irrelevant here.
It should be a factor, for sure, but it should be a very small one. Swartz had much more information than the "35-year" number thrown out by the government. He had the benefit of his lawyers' advice, who thought that he could very well avoid any custody at all, and of the plea deal in which he would only have served a few months.
Also bear in mind that DOJ was not actually lying: a 35-year sentence was theoretically possible under the law. A judge could have imposed it. It was just extremely extremely unlikely.
I agree that what Swartz did should not be a federal crime (though it's easy to come up with similar conduct that should be). But there is a huge difference between a crime that will likely have been punished by 35 years' imprisonment (as many would have us believe) -- it's not easy to get up to that number even with a crime of violence -- and one punishable by a few months' imprisonment, or none at all.
For example:
> [A] district court retains discretion under 18 U.S.C. § 3584(a) and the sentencing guidelines to order that sentences be served consecutively notwithstanding the dictates of U.S.S.G. § 5G1.2. This discretion, however, is not sui generis; it is simply another manifestation of the district courts' departure power. Because this is so, a district court can only impose consecutive sentences in derogation of U.S.S.G. § 5G1.2 if it follows the accepted protocol for guideline departures.
United States v. Quinones, 26 F.3d 213, 217 (1st Cir. 1994)
But this distinction -- discretion to disregard 3D1.2 v. discretion to disregard 5G1.2 [2] -- is largely academic. Section 3 of the guidelines deals with determination of the "total punishment." Section 5 deals with how to actually implement that punishment -- that is, how to use the traditional "one sentence per count" approach to implement the guidelines' "total punishment" approach. When there are multiple counts/offenses of conviction, the district court groups the offenses, and determines a total punishment for each group (that's 3D1.2). Then it implements that sentence by imposing it for each count (note: not "group") of conviction, to run concurrently. (5G1.2) But, under Quinones (in the First Circuit) it appears clear that a district court, after adequate explanation, may depart from the 5G1.2 methodology and impose the "total punishments" consecutively instead of concurrently. So, even if grouping under 3D1.2 remains mandatory (which I doubt), it would seem that the court would still be free to depart from the implementation methodology provided in 5G1.2 to impose that "total punishment" more than once, consecutively. Here that means that even if the district court grouped all five counts together and arrived at a total punishment of seven years, under 3D1.2, it could still impose that sentence five times, consecutively, under 5G1.2.
It's worth emphasizing that it would be quite unusual for a judge to do this, and she would have to quite clearly articulate her reasons for doing so in order for the sentence to not be vacated on appeal. This, I suspect, is why Popehat, for example, describes the operation of the guidelines as though it were mandatory -- typically an attorney can take for granted the fact that a judge will follow them or, at any rate, not depart too wildly. If you are trying to make a realistic prediction/determination of a defendant's sentence, the guidelines are where you look. But it also remains true that a district court may, with adequate justification, disregard the guidelines and have the sentence affirmed on appeal -- this includes the possibility here, however remote, of five statutory maximum sentences all to run consecutively.
Still, you are not addressing what a felony conviction would mean. After spending millions (according to his father on the documentary) on defense, say he is convicted, sentenced to a best case of some community service, probation, and no jail time. He's now spent all his money, his name is sullied in the public mind, he may be barred from voting, he may be restricted by the terms of probation, he may have difficulty finding a job and housing[0], and hopes of a political career are pretty much demolished. On the documentary, Quinn Norton says, "He just didn't believe that he could continue in his life, with a felony, you know. He said to me one day-- We were walking by the White House, and he said to me, 'They don't let felons work there.' ... He really wanted that to be his life." (around 52:00)
So, you can say "he should have known what he was getting into" if you want, but "he didn't face much prison time" really rings hollow to me. The prison time was probably one of the last concerns on his mind, especially if he was "only" expecting a few months of prison. It would have been followed by several years of parole/probation and the rest of life as a felon.
And if a 35-year sentence was actually possible, then yes, the DoJ wasn't lying, but it only reinforces the arguments of everyone talking about how disgusting is the threat of 35 years for downloading articles.
>As long as the DOJ are allowed to essentially lie to the public like this, why shouldn't it be fair to factor [the purported 35-year maximum sentence] in when trying to get an idea of how Swartz felt? . . .They lie to the public and exaggerate to the accused, in order to instill fear, prop up careers, and coerce the accused.
That's what I am responding to. Beyond that, it sounds like we're not disagreeing much, except for this small point: it is true, as you say, that being convicted of any felony at all is a huge deal. And probably even more so for Aaron Swartz. But that doesn't mean that the difference between a six-month sentence and a 35-year sentence is not also incredibly significant!
I sympathize with those who think that this debate over the length of Aaron's potential and likely sentences misses the point. But I think that is just another criticism that ought to be leveled at media outlets and activists who continue to repeat the 35-year number without explanation or qualification. Those people repeat the 35-year figure precisely because they do regard it as significant and, often, reiterate it as a way of inflaming people's passions. I think this is a dishonest way of framing and spurring the debate. I, like you it seems, think that we would be better off reevaluating what is criminalized in the first place than flailing about, speculating about how long Aaron's sentence would have been, what the government "threatened him" with, etc.
In short: I take issue with the 35-year number not because I think that, in reality, the sentence was so short that Aaron had nothing to worry about, but because it is a misleading (because it is misinformed) starting point for any meaningful discussion.
But, if that maximum-possible-but-unlikely number is "true enough" for blustery prosecutors – officers of the court! – to put in all their press releases and interviews, then it's also true enough to be relayed by other sources.
Yes, everyone should understand that any actual sentence, by plea deal or conviction, will essentially always be less. But unless another expert like Popehat goes on record, with their own offense-levels & history-categories sentencing-chart analysis, what's available for reporting is the prosecutor's claim. And since every prosecutor does the same "maximum" puffery, there is still rough comparison value from those press-release numbers.
Example: Shalom Weiss was sentenced to 845 years in prison for a white collar crime (current projected release date: November 23, 2754). One of his co-defendants received 750 years. http://en.wikipedia.org/wiki/Sholam_Weiss
This rarely happens, however, and likely would not have happened in this case. More likely than not, he would have accepted a plea and wound up doing probation or a very light sentence (~6 months) in a minimum security prison. But a much longer sentence was in fact legally possible.
http://www.plainsite.org/asymptote/
We also need help finishing an IE version of RECAP (http://www.recapthelaw.org, started by Stephen Schultze, profiled in the movie). See:
https://github.com/yinglei/recap-ie
Law firms use IE. They download tons of legal documents. If we can get RECAP working on IE, we can make a pretty big dent in PACER.
You're also the only person in this thread so far with a technical comment, so there's that.
Personally I'm in the same bucket as you. I read plenty about it when it was happening, I'm not sure that anything I'd learn would be worth the time and frustration of re-hearing a story I already know.
When they hit this fundraising goal, he tweeted, "That's it. We did it. For US. For @aaronsw. Tears, and sleep, and endless thanks. #MayDayPAC" (https://twitter.com/lessig/status/485233905545400321).
"For @aaronsw." Lessig says in the documentary that it was a conversation with @aaronsw a few years back that convinced him to move on from issues of copyright and into "root issues" in politics, like campaign finance and corruption.
MayDay may not succeed, but it has already raised $5M and Lessig has a good track record for achieving change, so one must assume something positive will come out of it.
Though I identify with your anger, I think you can channel it positively.
As RFK said,
"Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring those ripples build a current which can sweep down the mightiest walls of oppression and resistance.”
Examples?
http://en.wikipedia.org/wiki/Creative_Commons http://creativecommons.org/licenses/
Aaron Swartz gave us granularity to what the term "hacker" should be used for, when it comes to malicious intent. It was likely possible for lawyers to argue that anyone who used a computer to download something could been seen as having malicious intent. However Aaron's case has proven that you have to look at what was being downloaded, how and why before you can paint a broad brush such as malicious intent.
Maybe it started out as civil disobedience, then depression kicked in and he felt hopeless and took his own life. It's hard to say, and honestly I'm sick of the post-mortem psychoanalysis of a kid who was trying to make sense of his life (as we all were at that age). But either way, Swartz was not a mere victim of circumstance; he made choices that painted a target on his back, malicious intent or no.
This is complete speculation. Why include this in the article other to sway a certain demographic to view you in a favorable light?
I know the HN community treats him like some kind if freedom of information hero, but I don't.
He illegally copied information that he didn't own..and then cracked when the authorities went after him.
He made millions of dollars from Reddit, he should have had plenty of money to take care of any mental health issues he had.
> [H]e should have had plenty of money to take care of any mental health issues he had
Sadly mental health doesn't work this way. Many people refuse to admit they may have a problem or to seek treatment for it.
Of course we don't know how much of a role his (alleged?) mental health issues played in all of this.
http://arstechnica.com/tech-policy/2011/07/reddit-founder-ar...
Here is the result of his research:
http://www.stanfordlawreview.org/print/article/punitive-dama...
It found that there was extensive corruption in law journal publications which were often commissioned for specific upcoming cases.
That research work led to his position as Harvard Fellow continuing that specific work of analyzing large journal datasets to find corruption. That is why he downloaded the journals - to continue his research into analyzing large datasets to find connections that indicate corruption.
There can be no doubt that many people were unhappy about the corruption in the legal industry which he uncovered using his analysis methods. He was continuing that research on a broader scale, which he plainly indicates in his response to Ars Technica and is substantiated by his biographical, research and publication history.
As a Harvard Fellow, and as a MIT visitor, and as the son of a MIT employee visiting, he has the right to access those articles, and MIT paid for that access to JSTOR, which JSTOR had no legitimate right to withhold from a credentialed researcher with valid access. He only had to circumvent anything because JSTOR implemented access countermeasures which were contrary to their access agreement with MIT. His circumvention was only for the purpose of obtaining the access he was legally entitled to, and thus was valid.
The arguments that he was planning to redistribute articles are without merit and are nothing more than propaganda spread by the criminals at the Justice Department who targeted him for destruction. He was someone who had already revealed systematic corruption in their legal system and published about their corruption in Stanford Law Journal.
But as far as the data goes, the study takes "punitive damages" as an example topic and finds, out of a sample set of thousands, only 14 potential culpable studies that were industry-funded. The author attempts to make a case that these studies were more influential than their numbers suggest, but the fact remains that they represent only about a couple of percent of the sample size.
At least as far as that study is concerned, it does highlight a real concern, but I could find no indication of "systematic" or "extensive", or indeed any real "corruption" in it.
2. Despite all the whitewashing folks try to do with respect to the Swartz, MIT, Harvard and access to JSTOR, it does not change the fact that he hid his face from the camera when sneaking into the closet where he hid his machine, and he ran from the authorities when they approached him. If he felt he truly was in the right, he did not need to act like a common criminal.
Trying to avoid being seen does not imply that one believes one's actions to be morally wrong. It may suggest that one is afraid of others knowing of one's actions.
In addition, one can be afraid of legal repercussions while believing that what one is doing is legal.
I don't know specifics about his actions, and you may have already taken these things into account, but I thought that these things were worth mentioning.
Your comment is ignorant and stigmatising. Apply it to different illnesses:
{Jobs} made millions of dollars from {Apple}, he should have had plenty of money to take care of any {cancer} that he had.
Some mental health problems are resistant to treatment, especially when the person is being subject to immense amounts of stress.
If I say something that anyone here even remotely disagrees with, I am down voted.
This is why people like me will stop coming here and eventually leave the HN community completely.
I will keep posting this until I get my point across.
The fact that opinions aren't objective doesn't magically make them all worthy of consideration. HN is basically an online dinner party. If someone makes ugly statements in the middle of a conversation, the rest of the participants aren't obliged to stop and say "now, now, that's something we have to consider." They'd most likely just roll their eyes and move the conversation on to something else.
Down-voting is basically the digital equivalent of the conversation participants rolling their eyes and trying to continue on with the conversation.
That does strike one as being a bit disingenuous and lawyerly. Allowing that his actions might have been for the purposes of liberating information already in the public domain does not make the fact of his prosecution any less unjust. Furthermore, it obscures the vial necessity of the cause that he was fighting for.