The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion
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Re: The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion
#2Interesting follow-up by Orin Kerr. Brief summary of his summary:
[quote]
I’m going to break down the question into four different issues: First, was any criminal punishment appropriate in the case? Second, if so, how much criminal punishment was appropriate? Third, who is to blame if the punishment was excessive and the government’s tactics were overzealous? And fourth, does the Swartz case show the need to amend the Computer Fraud and Abuse Act, and if so, how?
On the first question, I think that some kind of criminal punishment was appropriate in this case.
On the second question...here’s the key question: What punishment was the minimum necessary to deter Swartz from continuing to try to use unlawful means to achieve his reform goals? I don’t think I know the answer to that question, but that’s the question I would answer to determine the proper level of punishment.
On the third question...I think it’s important to realize that what happened in the Swartz case happens it lots and lots of federal criminal cases...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.
On the fourth issue, yes, the Swartz case does point to a serious problem with the Computer Fraud and Abuse Act. But that problem is not the definition of “unauthorized access,” as some people seem to believe...Rather, the problem raised by the Swartz case is one I’ve been fighting for years: Felony liability under the statute is triggered much too easily.
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Re: The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion
#3Interesting follow-up by Orin Kerr. Brief summary of his summary: [quote] I’m going to break down the question into four different issues: First, was any criminal punishment appropriate in the case? Second, if so, how much criminal punishment was appropriate? Third, who is to blame if the punishment was excessive and the government’s tactics were overzealous? And fourth, does the Swartz case show the need to amend th…
"What punishment was the minimum necessary to deter Swartz from continuing to try to use unlawful means to achieve his reform goals?"
Let's say no punishment would deter Swartz. Would that justify a sentence of life in prison?
Re: The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion
#4Interesting follow-up by Orin Kerr. Brief summary of his summary: [quote] I’m going to break down the question into four different issues: First, was any criminal punishment appropriate in the case? Second, if so, how much criminal punishment was appropriate? Third, who is to blame if the punishment was excessive and the government’s tactics were overzealous? And fourth, does the Swartz case show the need to amend th…
"What punishment was the minimum necessary to deter Swartz from continuing to try to use unlawful means to achieve his reform goals?" Let's say no punishment would deter Swartz. Would that justify a sentence of life in prison?
Kerr says later on: "decades in jail would have been extreme overkill". So apparently he was willing to at least set some limits without even knowing the answer to his question. A little earlier he says: "I’ll defer here to the people who knew Swartz best, with whatever they think the right answer is. Would probation have been enough? A month of home confinement? Jail time?" Which also sets some bounds on what he thought was reasonable.
So I don't know if Kerr really meant for his question to be taken at face value. OTOH, he does seem to consider it important that the punishment be sufficient to cause the person to switch from illegal to legal means for achieving his goals. So he doesn't seem fully consistent on this point.
Re: The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion
#5Kerr does a good job reminding readers that what happened to Swartz was absolutely standard for federal prosecutors, and the outrage is triggered largely because he has a powerful constituency looking for redress on his suicide. The important takeaway from this, though, isn't about the injustice that happened to Swartz as much as the ongoing injustice of a system of federal prosecution that does this to many, many more defendants who are far less powerful and connected than Swartz.
Re: The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion
#6Interestingly, Kerr is apparently expecting to assist Aurenheimer at his appeal for similar convictions under CFAA this year.
Re: The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion
#7Kerr does a good job reminding readers that what happened to Swartz was absolutely standard for federal prosecutors, and the outrage is triggered largely because he has a powerful constituency looking for redress on his suicide. The important takeaway from this, though, isn't about the injustice that happened to Swartz as much as the ongoing injustice of a system of federal prosecution that does this to many, many mo…
I think a lot (most?) people understand that. Aaron is the rallying cry to spark action. Ortiz is an initial heading to point that action. And while I hope Ortiz does pay (see https://news.ycombinator.com/item?id=5071218 for hope it might be), I hope even more that it doesn't stop there.
The value in Ortiz "paying" is to show other prosecutors what can happen when they get over zealous. There is only value in that if it is continually monitored and other prosecutors are "punished" when they do the same.
To that end, it would be nice to have a way to monitor that activity, because it is nigh impossible to change what you can't measure, if the problems are systemic enough (as I believe this one is).
Re: The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion
#8Interesting follow-up by Orin Kerr. Brief summary of his summary: [quote] I’m going to break down the question into four different issues: First, was any criminal punishment appropriate in the case? Second, if so, how much criminal punishment was appropriate? Third, who is to blame if the punishment was excessive and the government’s tactics were overzealous? And fourth, does the Swartz case show the need to amend th…
For other readers, please read the whole post, not just the summary, before you comment.
Re: The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion
#9 Swartz had something else in mind it seems; just taking
the law into his own hands
As for the fetishization of "democracy" in Kerr's post, sometimes elections produce good outcomes. But often the wisdom of crowds isn't so wise; I'd hate to have the value of the gravitational constant or the next CEO of Google determined by public plebiscite. And many times, perhaps most times, the crowd votes after someone bold has already moved and shown the way. That's what Swartz was doing. What is legal and what is moral are not the same thing, and all those who argue "it's bad, but it was the law" are the moral inverses of Swartz: "it's good even if it's not the law".
Re: The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion
#10Interesting follow-up by Orin Kerr. Brief summary of his summary: [quote] I’m going to break down the question into four different issues: First, was any criminal punishment appropriate in the case? Second, if so, how much criminal punishment was appropriate? Third, who is to blame if the punishment was excessive and the government’s tactics were overzealous? And fourth, does the Swartz case show the need to amend th…
"What punishment was the minimum necessary to deter Swartz from continuing to try to use unlawful means to achieve his reform goals?" Let's say no punishment would deter Swartz. Would that justify a sentence of life in prison?
Given that he, like many of us, lived his entire life on the internet, simply taking away all computer and internet access for 12 months should be enough to deter him. During those 12 months, if he violates that probationary periods he could be automatically hit with 6 months of jail time.
For many of us, the possibility of being deprived the tool that gives most of us the power we have should be enough to deter.