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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

#21

Post by newman314 »

bcoates wrote: post #17
rayiner wrote: post #12

Earlier quoted context omitted.

I think there is a strong grain of truth to what you say. My politics are fairly lawyerly,[1] and I find the anti-democratic sentiment on here disquieting, especially the constant attempts to discredit the democratic process at every turn by unsubstantiated hand waving about how the system is "bought." [1] I think the chicken came before the egg. The profession attracts people who have a strong sense of order and con…

OK, here's some substantiation: http://www.nytimes.com/2013/01/03/opinion/how-bankers-help-d... HSBC has admitted that it is for all practical purposes a criminal enterprise masquerading as a bank. This is not a paperwork mistake or a lapse of oversight, it's their business model. Nobody will be prosecuted. The people performing these admitted criminal acts will be allowed to keep their paychecks, their bonuses, and…

I'll leave this here.

http://www.npr.org/blogs/money/2012/12/14/167280430/episode-...

Planet Money talks about HSBC and well worth a listen. The problem really is why haven't any individuals been indicted from HSBC or any Wall Streeters (from the whole mortgage mess)?

On a side note, Planet Money is IMO an outstanding podcast.

Re: The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion

#22

Post by newman314 »

btilly wrote: post #19
rayiner wrote: post #12

Earlier quoted context omitted.

I think there is a strong grain of truth to what you say. My politics are fairly lawyerly,[1] and I find the anti-democratic sentiment on here disquieting, especially the constant attempts to discredit the democratic process at every turn by unsubstantiated hand waving about how the system is "bought." [1] I think the chicken came before the egg. The profession attracts people who have a strong sense of order and con…

For the record, I do not consider myself anti-democratic. I consider myself pro-democratic. However I do not see that we have a democratic process. As a concrete example, consider the last election. More than 50% of voters voted for Democrats in Congress (even when you discard seats where there was only one party on the ballot, still over 50% voted that way), and a large majority in polls want Congress to become less…

This won't change until we get rid of first past the post and gerrymandering.

And with the way things are going, I don't think there is a good chance of that happening.

Re: The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion

#23

Post by fatbird »

SoftwareMaven wrote: post #7
fatbird wrote: post #5

Kerr 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…

If Ortiz or Heymann are fired or resign under pressure, the only signal that really sends to other prosecutors is that mob justice is effective for those with a mob at their backs. And against the idea of being over zealous, you have the mentality cultivated in the legal field that one cannot be "over" zealous in playing one's role within an adversarial system.

If you want to see change, not just for people like Swartz but for all defendants, you need to remove the incentives for prosecutors to rack up the highest number of kills, and you need to make a trial something that isn't going to ruin the defendant if they choose not to plea out.

Re: The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion

#24

Post by btilly »

pdonis wrote: post #4
gnosis wrote: post #3

Earlier quoted context omitted.

"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 tho…

I don't see him as inconsistent. I just think that he didn't state his full position in a single place.

My understanding is that his full position follows from two principles:

1. The only point of punishing Aaron is to deter him, so there is no reason to punish him more than what would deter him.

2. There is a reasonable limit to what is a fair punishment for Aaron's actions, by no means should Aaron be punished more than that.

The result is that the appropriate punishment is the minimum of the two. Given that Aaron could have been deterred by punishment that is far less than #2 provides, the limiting consideration in his case is #1. But even for a much more difficult to deter person, by no means is decades acceptable for #2.

Re: The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion

#25

Post by newman314 »

btilly wrote: post #13

I think it will take me a day or two to properly digest this article. That is a good thing. Here are a few gut responses in semi-random order. 1. I absolutely agree that the whole process of plea bargains, threats, etc is unethical, immoral, etc. And we should object to it in all cases, not just when it happens to someone like Aaron Swartz. 2. I absolutely disagree that Aaron's actions would seriously threaten the re…

I'm a big fan of understanding motivations. Prosecutors try to go hard on people so that they "look tough".

Think about how disgusting it is to build your career on how many wins you have and fuck the collateral damage (pardon my French) which in this case was Aaron.

Until prosecutors are not motivated to act this way, we will continue to see excessive behavior from them.

Re: The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion

#26

Post by noonespecial »

rayiner wrote: post #12
temphn wrote: post #9

Swartz had something else in mind it seems; just taking the law into his own hands I think this is really one of the core reasons so many hackers disagree with this lawyer mindset. A hacker or an entrepreneur is someone who breaks rules to create something. Innovation and consensus are antonyms, not synonyms. Innovation does not happen by committee. If you wait for a "democratic process" that is bought and rigged by…

I think there is a strong grain of truth to what you say. My politics are fairly lawyerly,[1] and I find the anti-democratic sentiment on here disquieting, especially the constant attempts to discredit the democratic process at every turn by unsubstantiated hand waving about how the system is "bought." [1] I think the chicken came before the egg. The profession attracts people who have a strong sense of order and con…

787's no. First powered aircraft. Absolutely.

Re: The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion

#27

Post by gruseom »

malandrew wrote: post #10
gnosis wrote: post #3

Earlier quoted context omitted.

"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.

I have the impression that he liked books as much as computers.

Re: The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion

#28

Post by smacktoward »

temphn wrote: post #9

Swartz had something else in mind it seems; just taking the law into his own hands I think this is really one of the core reasons so many hackers disagree with this lawyer mindset. A hacker or an entrepreneur is someone who breaks rules to create something. Innovation and consensus are antonyms, not synonyms. Innovation does not happen by committee. If you wait for a "democratic process" that is bought and rigged by…

"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"

Well, yes, but that's why we do the whole voting thing again after a period of time, rather than just once. Democracy isn't a means to ensure bad decisions won't get made, it's a means to ensure they can be un-made.

"Many times, perhaps most times, the crowd votes after someone bold has already moved and shown the way. That's what Swartz was doing."

You missed the point of Kerr's argument, which was that what you describe isn't what Swartz was doing. You're describing a Rosa Parks strategy -- do the minimum necessary to break an unjust law in order to elicit punishment, and therefore draw attention to the law's unjustness. If that's your strategy, the prospect of going to jail isn't a defeat, it's a victory.

But Swartz, Kerr argues, wasn't following that strategy; he was doing something different. He did much more than the bare minimum necessary to elicit punishment, and his actions indicate that the prospect of going to jail represented an interruption of his plans, rather than the culmination of them.

Swartz was not acting in the grand tradition of civil disobedience in which one willingly draws punishment to bring attention to the unjustness of the law. In his own words, he didn’t want to “just send a strong message opposing the privatization of knowledge.” Rather, he wanted to change the facts on the ground to make his preferred world a fait accompli. That is, he wanted to make the laws unenforceable, winning the debate unilaterally outside of Congress.

In this line of thinking, Swartz isn't Rosa Parks; he's Al Capone, if you can think of Capone's flooding the streets of Chicago with bootleg booze as a protest against Prohibition. Effective? Sure; the cops can't bust everyone if there's a speakeasy on every corner, and if the law is being routinely flouted by millions every day its absurdity is obvious. But because it involves doing much more than the minimum required to violate the law, this is something qualitatively different from civil disobedience.

Re: The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion

#29

Post by SoftwareMaven »

andylei wrote: post #15
SoftwareMaven wrote: post #7

Earlier quoted context omitted.

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…

> The value in Ortiz "paying" is to show other prosecutors what can happen when they get over zealous what i got from the article is that Ortiz was not overzealous. she was doing what most prosecutors do all the time. why should we single her out? if we wanted to fire all prosecutors that used her tactics, we'd probably have to fire the majority of federal prosecutors.

Without involving Ortiz, what could we do that would get as much press as this has gotten? If the media has no interest, your cause is going nowhere, and the media won't be interested without names and faces to talk about.

Besides, it is completely logical to believe she was overzealous and every other prosecutor is doing it. Just because everybody else is speeding, too, doesn't mean I won't get the ticket. Ortiz happens to be the one who got pulled over.

(FWIW, I'd much prefer we not have to drag her or, really, anyone down. She is a real person with feelings and passions, and is, as you mention, acting within SOP for her position. I just don't see a way to start affecting change across the country without going through her [I'm not convinced the change can happen even doing that, but we need to try.]. I'm open to alternatives that can realistically gain momentum.)

Re: The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion

#30

Post by rayiner »

noonespecial wrote: post #26
rayiner wrote: post #12

Earlier quoted context omitted.

I think there is a strong grain of truth to what you say. My politics are fairly lawyerly,[1] and I find the anti-democratic sentiment on here disquieting, especially the constant attempts to discredit the democratic process at every turn by unsubstantiated hand waving about how the system is "bought." [1] I think the chicken came before the egg. The profession attracts people who have a strong sense of order and con…

787's no. First powered aircraft. Absolutely.

Big organizations are almost by necessity not rule breakers, but just because you're not a big organization doesn't mean you are a rule breaker.
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