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

Imagine, you need to download a file from a server, but your wireless connection keeps dropping. You don't really know why. Maybe some problem on the network, or improperly configured web server. You don't know. What would you do?

Would you go, and start soliciting network administrators, or contact web server administrators? Probably no, right? You'll just try to fix things. Solve the problem, so it would work. You will try downloading from another network or another IP address. Tweak your download settings, and so on.

I think that's what Swartz was doing. Not breaking in, but just trying to make download script work. He didn't know that network administrators were trying to stop him. And he though that network problems that he was facing were just that - random network problems. Unreliable wireless with some bugs in the traffic management system.

The fact of the matter is that in the United States a trial over a supermarket slip and fall is more fair than a federal criminal trial. Federal trials are trials by ambush. A defense lawyer has no opportunity to depose the witnesses against his client and usually only learns of their identities after the jury is empanelled. There is no way to determine if the witness has lied in the past or has reason to tailor his testimony to the prosecution’s case. The war on defense attorneys in the 1980’s was successful. Now almost all federal defense attorneys are underfunded public defenders or panel attorneys. The prosecutor has the resources not only of his own office, but of investigative agencies as well. Panel attorneys have no one and not only that, often have to finance the defense out of their own personal funds.

It is a pleasure to try a case against a federal prosecutor who is fair and does not game the system. Based on the comments from Swartz’ defense attorneys, that was not the situation in Ortiz’ office.

If you look within those pyramids you'll find that most of the time the innovations that made the larger pyramid succeed were the result of small, focused teams. For instance consider the famous aircrafts designs for the U-2, the SR-71 Blackbird, the F-117 Nighthawk, and the F-22 Raptor. Large pyramids, right? Wrong. All were the result of small teams at Lockheed under Kelly Johnson. (Who had a famous list of rules for successful projects, the third of which was, The number of people having any connection with the project must be restricted in an almost vicious manner.)

Was this unusual? No! You brought up putting men on the moon and Space X. Both were utterly dependent upon the efforts of a small community of people studying liquid rocket fuels in the 40s-60s. What kind of people were those? According to http://library.sciencemadness.org/library/books/ignition.pdf (that copy didn't load for me right now, but http://web.archive.org/web/20121013085952/http://library.sci... did) there were at most 50 men scattered across multiple companies who understood the field, all of whom were "howling individualists".

The same is true in computer science. Major projects with huge impact created by a handful of people. Examples include Lisp, Smalltalk, C, Unix, patch, emacs... Companies which, when you tear back the curtain, truly were dependent upon very small numbers of people. Ask anyone who follows tech if Apple would have been Apple without Steve Jobs. Ask anyone who has worked at Google whether Google could have become Google without Jeff Dean.

Large groups working together on a known goal are essential to our society. We could not have the world we have today without them. But find me an example of great engineering that requires those pyramids, and when you tear back the curtain you'll find in technology after technology, in component after component, that critical pieces were absolutely dependent upon small groups of people. And those people, far more often than anyone in charge would like to admit, were rule breakers.

Those rule breakers who were the ones who got things done are, for technologists both then and now, heros. You may wish that the world of technology was better behaved. But you cannot understand or appreciate it without accepting the fact that it really is that messy.

It is this kind of argument that seeks to undermine the call to action mentioned in the (rather brilliant) grandpost. Unfortunately, it is often the case that if any action at all is to take place, it must be drastic. Subtle actions tend to fall apart.

Perhaps Ortiz's career will be ruined by this. Let us say that's unfair. But what if that outcome leads directly to a change in the entire system? What if, because she lost her job, prosecutors no longer bully defendants into taking bad plea deals by throwing the book at them because we made Ortiz into an example? Would that be worth it?