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How and why the US Justice Department over-prosecutes

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Re: How and why the US Justice Department over-prosecutes

#91

Post by defen »

rayiner wrote: post #19
drzaiusapelord wrote: post #8

Earlier quoted context omitted.

Why not just drop the fucking case then? Jesus, how many millions of our tax dollars were spent doing our best to drive this kid to suicide? JSTOR didn't want prosecution and arguably neither did MIT. I can't stand these justifications that seem to make everyone a slave to the machine. Heck, you and I break hundreds of laws a day, maybe even a felony or two or three. Federal prosecutors can do whatever they want with…

You're conflating two very different things. This was no case of overzealous prosecution based on vague laws for the kind of activity that everyone does every day. Swartz purposefully accessed a protected computer network without permission, and purposefully copied a huge number of documents which he had no right to copy. He did all of these things willfully, with no defense that he was incapable of understanding the…

You're now the third lawyer I've seen on HN in the past couple days who has come on here and defended Ortiz with an argument that essentially claims that she did nothing wrong, that procedures were followed, that it's the system that's broken and needs fixing. That getting rid of Ortiz won't fix anything ("it's not the relatively simple matter of stopping overzealous prosecution in one agency".)

Those things may all be true, but what you don't seem to understand is that calls for firing Ortiz aren't about fixing the system. That's a bigger fight, a job that will take a long time. They're about punishment. With your narrow legalistic thinking, you seem to be incapable of recognizing that people have means of discovering the truth other than legal procedures. It's almost certain that Ortiz followed the letter of the law and the rules of criminal procedure, but it doesn't matter. She threatened a man, a man many here consider a hero, with 35 years in federal prison for allegedly committing a crime that, at most, prevented MIT from accessing JSTOR for a few days. People have decided, using means not codified in statute, that she has done a terrible thing and must be punished. It doesn't matter that the system is broken.

You lawyers keep saying that punishing Ortiz will have no consequence, because someone else will take her place. Well, people don't care. This is not about deterrence. That's such a laughably small part of it. Here are some other reasons for punishment, courtesy of Nietzsche

> punishment as a way of rendering someone harmless, as a prevention from further harm

People would certainly like to see Ortiz rendered harmless.

> punishment as isolation of some upset to an even balance in order to avert a wider outbreak of the disturbance

Who knows what some of the more unbalanced Anons will do

> punishment as festival, that is, as the violation and humiliation of some enemy one has finally thrown down

Yep

So you see it's not just about deterrence. The sad part, though, is that the one thing punishment will never achieve is to make Ortiz have a guilty conscience. She and people like you will never realize that she is a bad person and should feel bad.

Re: How and why the US Justice Department over-prosecutes

#92

Post by rprasad »

pasbesoin wrote: post #15

A worthy lasting legacy would be for Mr. Swartz's story to shed an undeniable and transforming light upon the farce that our "adversarial" justice system has become. It is all too seldom about "justice" and all too often about "career". And... these prosecutors are public employees. Our employees. We cannot and should not divorce ourselves from their malicious malfeasance, when and as it occurs. Nor can we nor should…

4 black teens in NY went to prison for 2 decades after a white woman mistakenly identified them as her attackers. Texas has executed several innocent men. The South had a history of lynching black men without a trial, and letting whites who murdered colored folk (black or otherwise) free. People of Japanese descent were forcibly interned during WWII and SCOTUS upheld internment.

The American justice system survived all of this, and you think that Mr. Swartz is a "transforming light"? I'm sorry, but compared to these other miscarriages of justice, the Swartz case isn't even a drop in a bucket.

Re: How and why the US Justice Department over-prosecutes

#93

Post by rprasad »

ramanujan wrote: post #65
MichaelSalib wrote: post #63

Earlier quoted context omitted.

Ah, thanks for explaining. Is the "moving internationally" issue a question of travel or permanent residency? I get how a felony conviction might be a big deal for someone with a GED and no money and no connections. But Swartz had lots of connections and lots of money and was widely respected in professional circles. I really can't see any startup that he wanted to work for rejecting him over his felony conviction. A…

He had no money left, was already bankrupt after defending himself to this point...Besides, this is the wrong question - on what earth should it even be possible for a prosecutor to threaten thirty five years and a felony conviction for this sort of thing? That kind of sentence is for attempted murder, it is a few years short of life in prison. This was wrong, this was not right. Prosecutions like these mean that we…

Congress wrote the law making those acts a crime and imposing sentencing guidelines, not the USDOJ.

Re: How and why the US Justice Department over-prosecutes

#94

Post by rprasad »

defen wrote: post #91
rayiner wrote: post #19

Earlier quoted context omitted.

You're conflating two very different things. This was no case of overzealous prosecution based on vague laws for the kind of activity that everyone does every day. Swartz purposefully accessed a protected computer network without permission, and purposefully copied a huge number of documents which he had no right to copy. He did all of these things willfully, with no defense that he was incapable of understanding the…

You're now the third lawyer I've seen on HN in the past couple days who has come on here and defended Ortiz with an argument that essentially claims that she did nothing wrong, that procedures were followed, that it's the system that's broken and needs fixing. That getting rid of Ortiz won't fix anything ("it's not the relatively simple matter of stopping overzealous prosecution in one agency".) Those things may all…

It should tell you something that every lawyer on HN is defending Ortiz. It's because Ortiz isn't the problem--the system, and more specifically the laws, are the problem.

Nietzsche's justifications have no relevance here. Removing Ortiz wouldn't change anything because the next US Prosecutor would simply do the same thing given the same set of facts. Prosecutors overreach. They have to, given the way double jeopardy and the rest of the criminal justice system works.

We get that you and the other technerds are angry about what happened to Swartz, but if you don't redirect your misplaced anger where it properly belongs (i.e., the laws that gave rise to this situation in the first place), you won't accomplish anything, and then Swartz really will have died for nothing.

* The sad part, though, is that the one thing punishment will never achieve is to make Ortiz have a guilty conscience. She and people like you will never realize that she is a bad person and should feel bad.*

Lawyers have feelings, too. Ortiz almost certainly went into the prosecutor's office to do good, to see justice done and to protect the innocent. Do you really believe that Ortiz doesn't feel torn up that a young white collar defendant committed suicide because she pushed him too hard? Because if you really believe that, then you are the sociopath, not her. She will spend the rest of her career second guessing herself with every defendant--both the defendants like Swartz and the murderers and drug dealers that form the rest of her caseload.

Re: How and why the US Justice Department over-prosecutes

#95

Post by rprasad »

jacquesm wrote: post #33
rayiner wrote: post #19

Earlier quoted context omitted.

You're conflating two very different things. This was no case of overzealous prosecution based on vague laws for the kind of activity that everyone does every day. Swartz purposefully accessed a protected computer network without permission, and purposefully copied a huge number of documents which he had no right to copy. He did all of these things willfully, with no defense that he was incapable of understanding the…

First off, it's Swartz, not 'Schartz' or 'Schwartz'. As for the rest of your uninformed writings I think that 'intellectually dishonest' nicely covers it. Please at least correct the name.

Rayiner's writings are some of the most informed writings on this topic that I've seen this week. They are all far more informed and intellectually honest than anything you've written.

Re: How and why the US Justice Department over-prosecutes

#97

Post by AnthonyMouse »

intended wrote: post #85
nitrogen wrote: post #81

Earlier quoted context omitted.

At the least, there would still be criminal penalties for fraud, identity theft, misappropriation of trade secrets, blackmail, espionage, sabotage, etc. When practically everything is a computer, having laws that specifically target computers seems unnecessary.

From what the trend has been, it looks like there are going to be 2 different lines of jurisprudence, one dealing with non digital works, actors and actions, vs one for the digital world. It is increasingly clear that many situations online bear superficial similarity to real world analogues, and their edge cases make massive deviations from their r/l counterparts. So laws will have to include cases for digital/compu…

If you can articulate a specific reason why e.g. "identity theft with a computer" requires different treatment than "identity theft" then we can discuss making an appropriate amendment to the laws against identity theft. But that is no excuse for the CFAA continuing to exist as written.

What I would be interested to hear is a valid argument for why "unauthorized access to a computer" (whatever that actually means) should be a felony or even a crime in cases when it doesn't occur in furtherance of any otherwise illegal act.

People talk about computers like they're property, but if you're accessing them then they're really like agents. Prohibiting "unauthorized access to a computer" isn't like prohibiting trespassing, it's like prohibiting talking to someone's agent without authorization. Which is silly. If your agent is stupid and someone convinces it to hop around on one foot or do some other such harmless thing, there is no reason for that to be illegal, you just train your agent to not do that if you don't want it to. If your agent is stupid and supplies foreign spies with copies of all your classified documents when they lie to it in the right way, anyone who does that is (or should be) guilty of espionage, and there is no utility in a separate law against "unauthorized access to an agent."

But there is great harm in prohibiting it, especially if the penalties are nontrivial, because depending on what "unauthorized" and "access" mean, we all arguably do it on a regular basis without even realizing it, and it makes us all subject to felony charges. So I'm waiting for someone to provide any good justification for why we shouldn't just repeal it.

Re: How and why the US Justice Department over-prosecutes

#98

Post by defen »

rprasad wrote: post #94
defen wrote: post #91

Earlier quoted context omitted.

You're now the third lawyer I've seen on HN in the past couple days who has come on here and defended Ortiz with an argument that essentially claims that she did nothing wrong, that procedures were followed, that it's the system that's broken and needs fixing. That getting rid of Ortiz won't fix anything ("it's not the relatively simple matter of stopping overzealous prosecution in one agency".) Those things may all…

It should tell you something that every lawyer on HN is defending Ortiz. It's because Ortiz isn't the problem--the system, and more specifically the laws, are the problem. Nietzsche's justifications have no relevance here. Removing Ortiz wouldn't change anything because the next US Prosecutor would simply do the same thing given the same set of facts. Prosecutors overreach. They have to, given the way double jeopardy…

I agree that the system is the problem. Never said it wasn't. Seeing Ortiz punished is not mutually exclusive with fixing the system. I was simply attempting to offer an explanation as to why people are calling for punishment given that it will not fix the system or prevent future Aaron's (as you've been so enthusiastically pointing out for the past two days). That's why Nietzsche is relevant - clearly deterrence is not the motive here, so what is? Do you have a better explanation?

As for your last paragraph, I'm happy to let my fellow technerds judge who is the sociopath here. I do believe that Ortiz has egregiously failed if her intent were to do good. I do not believe in the prima facie legitimacy of duly enacted laws in a representative democracy - especially one made up of such morally degraded citizens as our current United States.

Re: How and why the US Justice Department over-prosecutes

#99

Post by AnthonyMouse »

jamesaguilar wrote: post #54
alan_cx wrote: post #46

Earlier quoted context omitted.

I'm sure "thinking persons" would have considered this, but just in case: "Never forget". Godwin's Law wants you to. Worse still his "law" encourages the mocking of those who want say if they think something is getting a bit Nazi. Which you have done by implying a disconnect between his comment, thinking persons, seriousness and understanding. Why? Perhaps so no one dares point it out if it looks like its happening a…

> Look at it, it is Nazi in its self. Do and think as you are told. Wow, what a silly take on it. The law's admonition is to not make a genocide out of a molehill. If that's Nazi and conformist, so is telling children not to fucking cry wolf. Nazis were bad, we get it. Not every policy you dislike can usefully be equated with the murder of millions of Jews and the subjugation of the European continent. Particularly,…

>Particularly, this case of a prosecutor prosecuting someone under a lawfully passed rule bears scarcely more relation to the Nazis than to unicorns.

There is a distinctly "just following orders" vibe to the argument that a prosecutor is right to prosecute someone completely regardless of any proportionality of the penalties to the alleged acts of the accused, just because the law allows it.

Re: How and why the US Justice Department over-prosecutes

#100

Post by AnthonyMouse »

jamesaguilar wrote: post #56
mrtron wrote: post #39

Earlier quoted context omitted.

So either plead guilty to a felon and get a slap on the wrist, or due to some concept of 'wasting time' the prosecutor goes after the maximum of 30 years in jail? I guess you are write, we should give the prosecutor the benefit of the doubt and be angry with the system that creates such a situation instead.

> So either plead guilty to a felon and get a slap on the wrist, or due to some concept of 'wasting time' the prosecutor goes after the maximum of 30 years in jail? I don't know the right answer to this question. On the one hand, it does seem wrong to send someone to jail when you were willing to give them probation if they bargained with you. On the other hand, if the bargain deal and the worst case outcome of a tri…

I think the flaw is in thinking of the justice system as some kind of factory where "expensive" needs to be taken into account because we're working on volume.

We need to stop charging so many people with crimes. Widespread criminality can only have two causes: The first is that we've criminalized too much, and the solution is obvious, repeal the unnecessary laws. The second is that society is suffering from a systemic failure of societal institutions to make a normal life superior to a life of crime, but the solution in that case should never be to increase the rate of incarceration, the solution should be to repair the social fabric -- which is where the money we currently spend on mass incarceration should be going instead.

Once you stop having so many accused, you stop needing to worry about cost, and you can just prohibit plea bargains and afford to give everyone who is accused their day in court. In fact, making prosecutions more expensive is actually a feature, because it impedes the ability to create just the sort of mass imprisonment we have today.

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