Patterico's Pontifications

1/17/2013

Orin Kerr on Prosecutors’ Conduct in the Swartz Case

Filed under: General — Patterico @ 7:46 am

Orin Kerr has a post about whether Aaron Swartz was treated fairly by prosecutors. It’s a lengthy and thoughtful post which is illuminating on several levels, and I recommend that you read the whole thing. However, I’m sad to say that Orin has kind of ducked the main question:

What punishment was proper? Did prosecutors go too far? To answer that, we need a benchmark of how much punishment was enough. And to answer that, we need to look at the social harms involved in the conduct. Swartz was caught before he executed his plan, so there were relatively minimal harms from the plan that was stopped before it succeeded. But as I’ve explained above, it seems like Aaron was committed to a long-term plan to continue to engage in such conduct, including through unlawful means. In his view, this was not a one-off, or an impulsive decision. Rather, he felt that there was a moral imperative to violate laws that he saw as unjust. And critically, he didn’t want to violate those laws in a symbolic way just to bring attention to laws he saw as unjust. 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 his words, he wanted to act so that the democratically-enacted laws that allowed privatization of knowledge would become “a thing of the past.”

Given that commitment, I think one appropriate benchmark for the proper punishment is based on what legal scholars call “special deterrence.” In plain English, the question is this: What is the minimum punishment that was needed to persuade Swartz not to do this sort of thing in the future? To my mind, the answer to that question provides a reasonable benchmark to determine the proper punishment. By all accounts, Swartz was a tremendously brilliant guy with an incredibly bright future. His death is a tremendous tragedy. But had he lived, we would all have been better off with a future in which Swartz directed his incredible talents to pursuing his ideas through lawful means rather than unlawful means. Many people — and many readers of this post in particular — share Swartz’s sense of good social policy. But we live in a democracy. We might not like all the rules in a democracy, but the way to change those rules is through democratic change. Swartz could have tried to be punished under the law to bring attention to the law in the hope of changing it through the democratic process. But instead he had something anti-democratic in mind. I think it’s pretty clear that in a democratic system, that kind of anti-democratic cause is something that we should disfavor. You can break the law to draw punishment, but the ultimate goal of traditional civil disobedience is achieving change through the legal means of democracy. Swartz had something else in mind, it seems; changing the law de facto by his unilateral action. Given the importance of the difference, a punishment that was the minimum sufficient to persuade Swartz to follow the law in the future seems appropriate.

This brings up the difficulty that we don’t know exactly what penalty would have persuaded Swartz to follow the law in the future. So I’ll ask those who knew Swartz best: What do you think would have been sufficient to persuade Swartz to abandon the moral imperative of civil disobedience and instead agree to pursue change through only legal means? 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? I really don’t know. It may be that the answer was unknowable.

(My emphasis.)

On a deep, philosophical level, Orin is probably right to defer to those who knew Swartz best. But this is the real world, where prosecutors didn’t know Swartz, and had to make their decisions based on the knowledge available to them. As someone with an extensive background in this subject matter area, Orin’s opinion would be particularly valuable. As someone with zero background in cybercrime prosecutions and minimal knowledge of federal sentencing standards, my opinion is considerably less valuable.

But hey, this is America, where your opinion doesn’t have to be particularly insightful for you to hold it and express it with considerable force and conviction. So I’ll give my opinion. As I do, keep in mind that while my opinion is minimally informed by my own experience as a prosecutor, I am speaking (as I always do on this blog) as a private citizen, and not for my office. Just like it says on the sidebar to the right.

My opinion is going to assume that the charges against Swartz were appropriate, both legally and factually — something I do not necessarily assume in real life. I don’t believe I know enough about the case and the law to reach that judgment.

Assuming he was guilty, what punishment was appropriate? I would look at several factors, and the following list is not exhaustive, but they are the factors that leap to mind:

  • Swartz does not appear to have been out for personal gain, and the value of the material seems to have been overblown. At the time Swartz killed himself, it was known that JSTOR had opened its archives. The Wall Street Journal reported on Monday:

    Mr. Swartz’s goal, friends said, wasn’t to steal the material for personal gain, but to make it publicly available. On Wednesday, after a 10-month trial program, JSTOR opened its archives to free reading by the public.

    Based on material I have seen elsewhere, I am not 100% certain this sweeping statement is totally accurate, but let’s assume it to be for now. This material Swartz attempted to “liberate” was allegedly worth millions of dollars, but today — and two days before Swartz killed himself — it is suddenly freely available. Legally, that may mean nothing on a technical level, but as a great prosecutor in our office once said, once a prosecutor starts using the word “technically,” he is usually in trouble. This truly is a fairly unique situation — not just because Swartz was buddies with Larry Lessig, but because the valuation of the material Swartz downloaded was debatable. If an owner can snap his fingers and erase millions of dollars of value, it’s hard for me to ignore that.

  • Swartz had no record and his crimes were nonviolent. The fact that he was a genius does not make his crimes less worthy of punishment, but someone’s lack of criminal record certainly factors into the equation.
  • When compared to other cybercrimes, this crime seems less malevolent by comparison. Remember: I was told the state penalty for swatting in California is three years maximum — and then only if someone concludes that the victim was put in danger of losing his life or being severely injured. Swartz’s prosecutors wanted 7 or 8 years in prison after trial, and a swatter can only get three years in state prison? Something is out of kilter here, no?

Stacked up on the other side are Swartz’s clear knowledge that he was doing something society saw as wrong and his open declaration that he believed it to be philosophically correct regardless of society’s beliefs. IF you assume the charges are appropriate, he has to be punished in a way that deters him.

To me, a single felony conviction and the prospect of future custody time if you violate the conditions of your supervised release would be enough. 13 felonies seems like overkill. Prison time seems like overkill.

I could be wrong about that, and my judgment could be influenced by the fact that I prosecute only murder cases. Like I said, Kerr’s insights would be far more valuable than mine. But my own less informed opinion is that it was not necessary to send this guy to prison.

That said, 6 months in a low security prison is not the end of the world if you have committed 13 felonies. I have visited such a federal prison, at Lompoc. There are no fences. Prisoners milk cows, play softball, and sleep in barracks-style bunks. Rationally, it’s not worth killing yourself over. Clearly, his suicide was not a rational act, and to blame it on prosecutors is, I think, unfair.

All that said, the thing that continues to bother me is that the prosecutors argued (at least insinuated) that the federal government did not have control over certain evidence such that they could get a search warrant, when (as I have shown) an email that they had not disclosed showed they absolutely did. I would like to see Kerr opine on that — and, frankly, I’d also like to see him opine on whether the prosecutors’ conduct was appropriate based on what they knew. Again: they had to make their decisions, like all prosecutors, based on what they knew (and could reasonably learn).

By the way, Carmen Ortiz has made a public statement about the case, defending her prosecutors. You can read it here.

117 Comments

  1. Ding.

    Comment by Patterico (8b3905) — 1/17/2013 @ 7:46 am

  2. You’re not wrong Patrick, it was prosecutorial overkill writ large. There was no valid reason to throw the book at Swartz other than self-aggrandizing attention getting for Carmen Ortiz.

    Ortiz isn’t directly responsible for Swartz’s suicide, he did that himself, but Ortiz certainly qualifies as the major contributing factor.

    Comment by ropelight (6050df) — 1/17/2013 @ 8:12 am

  3. Regarding that undisclosed email:

    Swartz clearly and intentionally committed a massive crime (granted, a harmless one from the point of view of people who consider IP laws harmful). He tried to get out of it via a technicality: the federal government waited 10 days too long to look at his computer. The government responded with a counter-technicality: we weren’t allowed to look at it sooner. This issue would have been settled in court in the fullness of time (and at great expense). Swartz’ choosing not to deal with it does not mean that some huge injustice was performed regarding this particular issue.

    Comment by LTEC (15879e) — 1/17/2013 @ 8:13 am

  4. What I don’t get is why someone would commit an act of (arguable) civil disobedience with such unwillingness to suffer the punishment. That’s the whole purpose of civil disobedience — you break a law and suffer its consequences in order to demonstrate how incredibly stupid or evil that law is.

    Comment by Rob Crawford (c55962) — 1/17/2013 @ 8:25 am

  5. As for value, the whole academic journal system is about to collapse from the failed business model. The value asserted in the indictment was always exaggerated if not outright fraudulent.

    Comment by SPQR (768505) — 1/17/2013 @ 8:47 am

  6. Patrick,

    If I get in trouble, I hope you get my case. All I know (thankfully) of criminal law is from other people’s experiences and Law and Order. Jack McCoy would have negotiated this hard for a murder case, but not for theft of intellectual property.

    I have to figure that mental health issues plus the hard-line negotiations about a plea were both factors in his suicide. Good food for thought, though.

    Comment by ukuleledave (c59551) — 1/17/2013 @ 8:52 am

  7. I have to disagree with the idea Swartz’s crime was “massive.” The problem is that the prosecutors could make it sound that way. Which is why I think section IV of Orin Kerr’s post on how to amend the CFAA is worth reading (of course the whole thing is worth reading).

    The problem is the whole law uses language that’s so vague and broad just about anything one does on line can be a crime and, as Prof. Kerr points out, the DOJ uses “the fact of overlapping federal and state crimes to try to bootstrap all 1030(a)(2) misdmeanors into felonies.”

    Kerr’s suggestions for amending the law are extremely reasonable and would prevent the DOJ from reading the language so broadly that almost anything can be a crime. Particularly his recommendation that unauthorized access should be restricted to “breaching code-based restrictions,” i.e. hacking into the system, and that exceeding authorized access should be limited to the same kind of crime. Hacking into restricted areas when one has only limited access to the system.

    Prof. Kerr doesn’t touch on this, but another area that seems to me to be too broadly written is the section of the CFAA that states that “recklessly causing damage” to a protected computer is a felony. It’s hard to see what damage Swartz could have caused when JSTOR says it suffered no loss or damage. And if JSTOR didn’t I don’t see how MIT could have.

    This Congressional Research Service report is interesting in this regard because it would imply that the law is more tightly focused than the DOJ thinks it is. That seems to be the crux of the problem; Congress thinks only a few things are felonies, while the DOJ thinks almost anything is.

    As an aside, as of Jan 8 2013 JSTOR offers free read-only access to their database. So I don’t see how he could have been accused of stealing if JSTOR has voluntarily done what Swartz wanted to do; make their information available to the public without a paywall.

    Don’t get me wrong; I do think Swartz should have been punished for what he did. MIT and JSTOR went to some trouble and certainly some expense to stop him. But I can’t see how it should have been a felony. Let alone 13 felonies. If as Prof. Kerr seems confident the Supreme Court adopts Kozinski’s reasoning in the Nosal case I don’t see how Swartz convictions could have stood at all.

    Comment by Steve57 (4c041b) — 1/17/2013 @ 9:14 am

  8. Orin could have spent more time on the valuation issue. The $5,000 threshold for the felony is problematic. How do you value something that is intangible?

    We are not talking about stealing jewelry or cash. If someone hacked into one of my clients’ computers, say an author client of mine, and stole a copy of the novel they were writing how to value that? The author has already gotten say a $10,000 advance against royalties, he’s midlist so he’d be happy if it earned out. But the person who stole a copy of the novel can’t sell it for $10,000 to anyone. And the author isn’t prevented from delivering it to the publisher given a backup … Did they commit a felony CFAA violation? Obviously not.

    Comment by SPQR (768505) — 1/17/2013 @ 9:32 am

  9. Swartz does not appear to have been out for personal gain, and the value of the material seems to have been overblown.

    How can anyone really determine this? We cannot know with any certanty – where Swartz was going with this, it could have been just the beginning of the mass theft of databases on the flimsiest of rationales - we just dont know.

    One thing we also dont know everyone is what was Swartz and his attorney’s demeanor during all these negotiations – this was the same attorney who could be as responsible for prolonging the Armstrong Saga as Armstrong himself – I dont think he is a bastion of full disclosure – yet we leave the door open to condemning a prosecutor who was just doing his job mainly based upon still a one sided story – by the guilty side – this is patently unfair and really unnecessary – all of us dont look good arguing debating either side of a story that none of us have really any facts on.

    6 months in prison is a laughably short sentence, Its seem by some as the government almost telling someone well, we think you didnt do anything wrong but you know – the law says you got to be punished, and 35 years is waay to long, but 2 years and a lifetime ban on computer programming would have been what my office probably would have reccomended.

    Comment by EPWJ (d84fb0) — 1/17/2013 @ 9:44 am

  10. 5. As for value, the whole academic journal system is about to collapse from the failed business model. The value asserted in the indictment was always exaggerated if not outright fraudulent.

    Comment by SPQR (768505) — 1/17/2013 @ 8:47 am

    That’s one of the ridiculous aspects of this case (and there are several). I don’t see how the DOJ could have sustained that bogus assertion that Swartz “stole” millions of dollars worth of value when JSTOR says he didn’t. I’ve seen that referenced in several reports but for now this New Yorker article will have to do:

    The act was harmless—not in the sense of hypothetical damages or the circular logic of deterrence theory (that’s lawyerly logic), but in John Stuart Mill’s sense, meaning that there was no actual physical harm, nor actual economic harm. The leak was found and plugged; JSTOR suffered no actual economic loss. It did not press charges. Like a pie in the face, Swartz’s act was annoying to its victim, but of no lasting consequence.

    I doubt that anyone from JSTOR would have been a great witness for the prosecution. But the “victim” might have been pretty good for the accused:

    JSTOR says it mourns ‘tragic loss’ of Aaron Swartz

    We have had inquiries about JSTOR’s view of this sad event given the charges against Aaron and the trial scheduled for April. The case is one that we ourselves had regretted being drawn into from the outset, since JSTOR’s mission is to foster widespread access to the world’s body of scholarly knowledge.

    I honestly don’t see how the feds could have supported those farcical charges that Swartz “stole” millions of dollars worth of stuff or “recklessly damaged” a protected computer when the victim says he didn’t cause them any loss.

    Comment by Steve57 (4c041b) — 1/17/2013 @ 9:44 am

  11. Professor Lawrence Lessing (a friend and colleague of Swartz) has an insightful article in The Atlantic which is linked at Instapundit. Here’s an excerpt:

    Aaron Swartz is dead — in my view, as a friend who knew him well for more than a decade –at least in part because of this breach of its duty by the government. Carmen Ortiz, the U.S. Attorney overseeing the prosecution, demonstrated that breach with the ignorance she displayed when this indictment was announced. As she said then, “Stealing is stealing, whether you use a computer command or a crowbar,” — demonstrating she knows nothing about computers, and apparently nothing about crowbars. And the line prosecutor working for her breached that trust when he made it clear that his first priority was not decency or proportionality but one more notch on his prosecutor’s belt, for a prosecution that had nothing to do with keeping America safe from “criminals.”

    Comment by ropelight (6050df) — 1/17/2013 @ 9:52 am

  12. I think its dicey to listen to a family’s attempt to extract revenge and to ruin someone’s career when we dont know really what really went on.

    I know someone died but we are assuming wrongfully that the family is right when they have no clue as to the motivation of the prosecutor or they are not letting us know.

    If there is a documented history of gritty abuse by this prosecutor then it would have come flooding out around now – but I havent seen anything. Has anyone else?

    Thts it I’m done opining on the subject…

    Comment by EPWJ (d84fb0) — 1/17/2013 @ 9:53 am

  13. The New Yorker is wrong about a pie in the face:

    a UA student, and Wolff were charged with criminal damages, a felony, and misdemeanor counts of disorderly conduct, vandalism, and assault without injury. The felony charge resulted from damage to a backdrop that school officials estimated at $3000

    I believe both were harsh sentences

    Comment by EPWJ (d84fb0) — 1/17/2013 @ 10:00 am

  14. This is when 2 morons threw a whip cream pis at Ann Coulter

    Comment by EPWJ (d84fb0) — 1/17/2013 @ 10:00 am

  15. Likes James Letten in N. Orleans, like Fitz in Chicago, Welch, Morrow, et al in Anchorage,

    Comment by narciso (3fec35) — 1/17/2013 @ 10:02 am

  16. “...Thts it I’m done opining on the subject…...”

    If only that were true.

    Comment by Simon Jester (7d77b7) — 1/17/2013 @ 10:03 am

  17. Swartz does not appear to have been out for personal gain, and the value of the material seems to have been overblown.

    How can anyone really determine this? We cannot know with any certanty – where Swartz was going with this, it could have been just the beginning of the mass theft of databases on the flimsiest of rationales – we just dont know.

    First of all, if you read Orin Kerr’s post you’ll see that he quotes extensively from Swartz’s “Open Access Manifesto.” In the essay Kerr notes that Swartz argues “that there is a moral imperative to engage in civil disobedience and break laws that limits access to academic articles and to make those articles available wherever they are restricted.”

    If Swartz was really as dedicated to making these academic articles publicly available as he appears then I’m sure there’s are a lot more where that came from stating his exact motives. How could an internet pioneer resist the temptation to lay everything out on line?

    I don’t see, again, how many of the charges could have been maintained. For instance the two counts of wire fraud:

    (the four essential elements of the crime of wire fraud are: (1) that the defendant voluntarily and intentionally devised or participated in a scheme to defraud another out of money; (2) that the defendant did so with the intent to defraud; (3) that it was reasonably foreseeable that interstate wire communications would be used; and (4) that interstate wire communications were in fact used)

    I don’t see how “we just don’t know” can establish intent. You’d have to be a little more certain than that.

    Some of the other charges also rest on “intent to defraud.” How do you establish such an intent when Swartz left a years-long paper trail stating that wasn’t his intent?

    Comment by Steve57 (4c041b) — 1/17/2013 @ 10:07 am

  18. 13. The New Yorker is wrong about a pie in the face:

    Comment by EPWJ (d84fb0) — 1/17/2013 @ 10:00 am

    Yes, but the relevant point wasn’t how accurate the New Yorker’s analogy was but whether JSTOR suffered any loss or damage that are a crime under the CFAA. According to several reports I’ve read they didn’t.

    Comment by Steve57 (4c041b) — 1/17/2013 @ 10:13 am

  19. However, I’m sad to say that Orin has kind of ducked the main question

    I think he got right to it in his first paragraph:

    On the first question, I think that some kind of criminal punishment was appropriate in this case. Swartz had announced his commitment to violating the law as a moral imperative in order to effectively nullify existing federal laws on access to information. When someone engages in civil disobedience and intentionally violates a criminal law to achieve such an anti-democratic policy goal through unlawful means — and when there are indications in both words and deeds that he will continue to do so — it is proper for the criminal law to impose a punishment under the law that the individual intentionally violated. (Indeed, usually that is the point of civil disobedience: The entire point is to be punished to draw attention to the law that is deemed unjust.) As that appears to be the case here, I think some punishment was appropriate.

    THis is the end all response to whether there was any prosecutorial misconduct

    A lot of people think these tactics were out of line, and they want the prosecutors to be punished for their apparent overreaching. There’s no question that the prosecutors had created a difficult and intimidating picture for Swartz as he faced trial.

    If these tactics are out of line, though, I don’t think it’s appropriate to blame the two prosecutors who happened to bring this case. What the prosecutors did here was what federal prosecutors often do. Congress has given the DOJ very broad powers. The law is vast and punitive

    Okay now I’m really really done…

    Comment by EPWJ (d84fb0) — 1/17/2013 @ 10:22 am

  20. Our host wrote, “But this is the real world, where prosecutors didn’t know Swartz, and had to make their decisions based on the knowledge available to them.”

    That’s true. And we don’t know exactly what they did, or didn’t know, meaning that any attempt to second-guess them is ultimately doomed to being based on incomplete information.

    So, too, is any attempt by any of us to duplicate the process in which those prosecutors engaged.

    Thus we do not know if they made the “perfect” or even, broadly speaking, the “right” decision.

    But nothing I’ve read yet has persuaded me that they made a demonstrably wrong decision, much less on that would justify the punishment of these individual prosecutors — much, much less that we need to radically revise the criminal justice system to diminish the amount of prosecutorial discretion it now permits and to move that power elsewhere.

    Comment by Beldar (008c16) — 1/17/2013 @ 10:34 am

  21. Kerr does a good job of pointing out the flaws in “the system” and in the laws. I don’t think the heat that the prosecutors are getting, including the White House petitions, is entirely a bad thing, insofar as it shines a light on these flaws. However I don’t think they should lose their jobs and are not at fault for Swartz’s suicide. But Ortiz should have kept her silence rather than issuing a statement that sounds too much like the “I was only following orders” response of a foot soldier in a tyrannical regime.

    EPWJ writes: “2 years and a lifetime ban on computer programming would have been what my office probably would have reccomended”
    Well then, you’re part of the problem. Swartz’s programming skill contributed a lot to our society (whether you know it or not). A lifetime ban on programming for him would be like banning Mozart from composing music because he lifted a few bars from Salieri.

    Swartz deserved some punishment, but felony charges and jail time for copyright or IP issues is absurd and points to much that is wrong in our society.

    Patterico, you think a felony conviction is appropriate? That follows you for life, makes it tough to get a job (probably not for Swartz though). I’d trade a few months in jail for not having the lifetime felony label.

    All in all an excellent analysis by Patterico. Would like to see more of this, might make me start coming by more often. You should consider making this more of a legal blog; your political content is “less unique” than your legal analysis.

    Comment by Bruce B (ff6a96) — 1/17/2013 @ 10:37 am

  22. Patrick, do prosecutors who are willing to accept no prison or jail time plus a guilty plea to one felony — to make a point in the pursuit of justice when a misdemeanor conviction would be inadequate and unjust — always start their bargaining by only charging, or threatening to charge, one felony?

    Or do they not often charge, or threaten to charge, multiple counts as part of the bargaining process, even if they’re perfectly willing to accept a plea for just one felony?

    Because if I’d been Swartz’ poorly-prepared (becasue I practice mostly civil law) court-appointed defense counsel, I would certainly have told him that the fact that the prosecution insists on multiple felonies when we’re only willing to discuss misdemeanor please does not mean that the prosecutor will definitely demand pleas to multiple felony convictions if you’re willing to plead to one.

    Don’t prosecutors reevaluate the strengths of their cases, and the resulting pleas they ought be willing to accept, continuously up through and beyond the beginning of the trial evidence itself?

    Indeed, I am pretty sure that if a defense lawyer failed to mention that — to point out to his client the possibility that the prosecution’s current offer might not be its last or final offer — then said defense lawyer would be constitutionally ineffective.

    I believe in the system. I know the system sometimes behaves poorly, and sometimes it breaks down. But sometimes the people who put themselves into that system — which Swartz very deliberately and dramatically did to himself — also behave poorly, and sometimes they break down. Some of them were doing so, to one degree or another, before they injected themselves into the system, and their desires to become legal martyrs to their causes prompts them to behave unwisely. Nothing yet has persuaded me this was a case of the former rather than the latter.

    Comment by Beldar (008c16) — 1/17/2013 @ 10:43 am

  23. The phrase above “we’re only willing to discuss misdemeanor please” ought to have read “we’re only willing to discuss misdemeanor pleas.” Strange and unintended double entendre I guess.

    Comment by Beldar (008c16) — 1/17/2013 @ 10:45 am

  24. A lifetime ban on programming for him would be like banning Mozart from composing music because he lifted a few bars from Salieri.

    Last I checked Mozart didnt try to steal all of the great composers copyrighted works so they could be distributed as MOZART saw fit.

    Mozart also didnt write a manifesto proclaiming that he was going to steal anything that he felt needed stealing.

    And Aaron also could have taught after his 2 years – he could have been a shining example of ethics and restraint and perseverance – oh but that required sacrifice and character.

    But lets ruin other people’s lives becaused a guy decided to break the law….

    And that would have been explained to him by the office I worked for and we would have personally assisted him in that as we do all excons – I work with excons today, I ony hire excons to work for me.

    Comment by EPWJ (d84fb0) — 1/17/2013 @ 10:48 am

  25. Here is an excerpt and link to one of the better articles I’ve read trying to understand Aaron’s work, his goals, and motivations. It includes some family background which may help explain (whether you believe he was right or wrong) his open access mindset and his perhaps naive and impractical, but firmly held and boldly acted- upon vision. I think it’s worth a read.

    But with his death, his cause has gained new momentum. Hundreds of researchers Monday posted links to free copies of their work in an online tribute to Swartz, while some who promote open access to academic papers say the movement might have reached a turning point.

    One who responded was Steve Jones, a communications professor at the University of Illinois at Chicago. He said academic publishing has loosened in recent years, with more papers than ever available for no charge. While questions remain about how to pay for it all, he said, many agree with Swartz’s belief that the information should be open. “For research to be optimally useful, it has to be available,” Jones said. “If we keep it from other people, it’s questionable what the purpose of it is.”
    ….
    At the same time, his family emphasized the importance of advocacy. His grandfather, William Swartz, founded the Albert Einstein Peace Prize Foundation and was honored for his work with the Pugwash organization, which seeks to reduce armed conflicts. Pugwash won a Nobel Peace Prize in 1995, the year Aaron turned 9 years old. “He grew up in an environment where those sort of things were held in high esteem, the notion of making the world a better place,” Robert Swartz said.

    That outlook became clear at 13, when he gained national acclaim for creating a do-it-yourself online encyclopedia that predated the launch of Wikipedia. It was the height of the dot-com boom, yet his site, The Info Network, was bereft of advertising, subscription fees or any other way to generate money. “That’s not what the Internet was made for,” he told the Tribune at the time. “It was based on open standards and freedom, not ads.”

    http://articles.chicagotribune.com/2013-01-14/news/ct-met-aaron-swartz-0115-20130115_1_open-access-internet-access-local-tech

    Comment by elissa (f0ffcc) — 1/17/2013 @ 10:49 am

  26. Consider our host’s bullet-point list:

    * Swartz does not appear to have been out for personal gain, and the value of the material seems to have been overblown….
    * Swartz had no record and his crimes were nonviolent….
    * When compared to other cybercrimes, this crime seems less malevolent by comparison….

    Each of these points could, should, and would have been considered at sentencing. Each could justify a lighter sentence. None is inconsistent, however, with the notion that a crime has been committed for which a criminal conviction is appropriate.

    (I’m also entirely unconvinced that the third point is factually true, but let’s concede that for the nonce.)

    Comment by Beldar (008c16) — 1/17/2013 @ 10:50 am

  27. “To me, a single felony conviction and the prospect of future custody time if you violate the conditions of your supervised release would be enough.”

    If that’s precisely what these prosecutors believed, but Swartz wouldn’t move in that direction, do you think prosecutors should have thrown away all their bargaining leverage by immediately dropping their demands in plea negotiations to that level?

    Comment by Beldar (008c16) — 1/17/2013 @ 10:53 am

  28. Beldar,

    I think there is a problem when high-profile prosecutions raise public concern because they can undermine confidence in the legal system. It’s incumbent on prosecutors to educate and reassure the public when that happens. Unfortunately, that didn’t happen in cases like the David Gregory case, the Fast & Furious investigation, and the Duke rape case. I guess we’ll see about this case.

    It would be nice if we still lived in a society where the public generally believed prosecutors should get the benefit of the doubt that they do their jobs professionally and with integrity. But we don’t.

    Comment by DRJ (a83b8b) — 1/17/2013 @ 10:53 am

  29. DRJ, I don’t disagree with your point, although there are very important limits to what prosecutors can say or do by way of public education without compromising their on-going work that requires more discretion.

    But now we’re down to criticizing prosecutors for their decisions about what to say at a press conference.

    Comment by Beldar (008c16) — 1/17/2013 @ 10:57 am

  30. DRJ@28–that’s a very good and well stated point.

    Comment by elissa (f0ffcc) — 1/17/2013 @ 10:58 am

  31. EPWJ, I doubt that’s even the end all argument about whether there was prosecutorial misconduct. You may claim that it’s the end all argument whether Orin Kerr thinks there was in this case but I think if you read the entire post you’ll see that it really isn’t. Should prosecutors over charge just because they can? They do all the time simply because they can, especially under the CFAA. But ethically they’re supposed to seek justice.

    I think a more applicable case study is of Lori Drew, a client Prof. Kerr defended against a charge of violating the CFAA. As Orin Kerr points out she was not the sympathetic figure Aaron Schwartz was:

    We deal with the sense of shocking and unimaginable and senseless loss by pinning the blame on someone to create a tidy narrative of wrongful actor and wrongful act. I saw this upclose in the Lori Drew case. Drew was charged with violating the Computer Fraud and Abuse Act for aiding and abetting the violation of MySpace’s terms of service. But we all knew the case wasn’t really about that. The case was really about blaming someone for Meier’s suicide. Drew hadn’t actually had much to do with the MySpace profile: It wasn’t her idea, and she didn’t create it. She merely had helped others to create it and went along. But Drew had made callous comments about Meier’s death after it had occurred, and those comments were so out of place that it made her The Most Hated Woman in America. So prosecutors stretched the law to find a theory — any theory — to punish her for the suicide, and the suicide was always there during the case. When I was arguing the motion to dismiss, for example, even Judge Wu kept returning to the fact that a young girl had died.

    Is that justice? Since there was no law that made her responsible for the suicide, they tried to find an inapplicable law and stretch it to punish her.

    I bring up Lori Drew because I’m not making this argument because I find the people accused of violating the CFAA particularly appealing. I don’t find Aaron Schwartz very sympathetic. But I don’t believe that should be the standard I should go by.

    From “A Man For All Seasons:”

    William Roper: So, now you give the Devil the benefit of law!
    Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
    William Roper: Yes, I’d cut down every law in England to do that!
    Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake

    I believe Aaron Swartz should have been punished. I pretty much loath the leftist types who think they should be able to get away with ever they want, especially under the cloak of “civil disobedience” which they actually don’t have the guts to commit. And his suicide was a selfish act no matter what his mental state.

    But I still find the CFAA too broad and vague. Anybody, not just Swartz or Drew or the Devil himself, could be found guilty of violating for almost anything. I do think there was prosecutorial misconduct. The value of what the DOJ claims Swartz “stole” is laughably ridiculous. The idea he “recklessly damaged a protected computer” is also laughable given the fact JSTOR says he didn’t. And the wire fraud charge? Please. He didn’t have unauthorized access as MIT had an open system where everyone and anyone could have access. He didn’t exceed his authorized access because anyone and everyone could access JSTOR. The idea that it’s bad he kept registering under an alias using throw-away email accounts is irrelevant. Had he merely just accessed the JSTOR data under the aliases they wouldn’t have had a problem. MIT and JSTOR weren’t even trying to stop him from downloading JSTOR documents. It was only when he tried to download too much that they tried to stop him.

    But I don’t see how any of these CFAA-based violations apply to that. Unless we let the DOJ stretch the law beyond all recognition and sense. But if I don’t want that done to me then I don’t want that done to anyone else, no matter how unappealing I find them.

    Maybe there was a more appropriate charge they could have brought. Orin Kerr notes JSTOR wasn’t the only victim. MIT also had interests at stake, and so did the copyright holders. But, like the idea he commited a breaking and entering when he got into the networking cabinet, I don’t see any charges that has anything to do with any of that.

    Comment by Steve57 (4c041b) — 1/17/2013 @ 11:03 am

  32. “Orin could have spent more time on the valuation issue. The $5,000 threshold for the felony is problematic. How do you value something that is intangible?”
    SPQR

    “I honestly don’t see how the feds could have supported those farcical charges that Swartz “stole” millions of dollars worth of stuff”
    Steve57

    Kerr makes the point that at the time of Swartz’s actions JSTOR was charging large universities up to $50,000 for annual subscriptions to the database, a portion of which was passed on to the authors of the articles contained therein. Swartz’s publicly stated goal was to make the database completely open access. Unless you think math is hard, it is not tough to arrive at a valuation in the millions, although Swartz was stopped before he could complete his scheme.

    Comment by daleyrocks (bf33e9) — 1/17/2013 @ 11:07 am

  33. For everyone who argues that the value of what Swartz misappropriated has been overblown:

    The financial harm he did, or didn’t do, is certainly relevant for multiple purposes. I don’t dispute its relevance for sentencing; as I’ve written elsewhere, were I the sentencing judge I would probably rely heavily on that evidence in deciding to suspend any jail or prison time as part of my sentencing decision. So yes, it’s important for sentencing.

    It’s also important for the guilt-innocence determination, but for those purposes, and for purposes of evaluating this case pre-trial (before a jury was sworn and any evidence was presented), it’s only important in a much more limited context: There are minimum dollar-amount thresholds for some types of felonies.

    The prosecution would have been required to prove at trial that Swartz’ crimes met that dollar threshold — indeed, to they had to prove that specific point beyond a reasonable doubt, and the judge would have instructed the jury that Swartz had no burden whatsoever to disprove that points.

    Moreover, not only did he have no burden to disprove the prosecutor’s valuations, Swartz and his counsel would still have been free to impeach and contradict the prosecution’s evidence without presenting any alternative evaluation. (That’s not trivial, because Swartz would have a very hard time coming up with a rational valuation any more persuasive than the prosecutions, whether it was at zero or a misdemeanor dollar-figure.)

    But only if the value of what Swartz “stole” (using that term loosely to describe all misconduct that might be attributed to him) was zero, as a matter of undisputed and indisputable fact, was Swartz innocent. And I’ve seen no persuasive argument for that yet from anyone, including Swartz’ own lawyer (as his statements have been recounted by our host here or in the mainstream media).

    So as far as I’m concerned, those of you who’re arguing about whether there’s such a thing as intellectual property, for example, are debating something not very crucial to this case, nor much implicated by its facts.

    Comment by Beldar (008c16) — 1/17/2013 @ 11:07 am

  34. To add to DRJ’s comment about citizens increasingly being unable to trust the system, there’s this:

    In the case of prosecuters, blase under-charging is often more serious (and deadly) than zealous pusuit of charges. In Chicago this week the Cook County States Attorney suspended two attorneys in her office for 60 days for their decision to deny felony charges against a man who threatened to kill his whole family three months before he did set them ablaze, killing himself and two others.

    Anita Alvarez’s office declined to file felony charges against 29-year-old Nathaniel Beller in a domestic violence case in Cicero in September. In the September case, Beller was accused of filling a bathtub with gasoline and threatening to kill his family, according to a Cicero police report, which stated prosecutors cited a “lack of evidence” in declining charges against Beller.

    Cicero police officers in September had to force their way into an apartment after negotiating with Beller to release his two children. At one point, Beller lit a cigarette while in the apartment, according to a police report. Officers also inventoried gas cans and a lighter as evidence from inside the apartment, the report stated.

    An Assistant State’s Attorney interviewed Beller at the hospital but after returning to the Cicero police department, informed police that no charges would be filed, according to a Cicero police report. A different attorney, according to the report, later cited a “lack of evidence” and Taniya’s lack of cooperation as reasons why he could not approve felonies.

    http://articles.chicagotribune.com/2013-01-16/news/chi-nathaniel-beller-domestic-violence-fire-cook-county-states-attorney-anita-alvarez-suspended-attorney-20130115_1_cicero-police-report-felony-charges-smoke-inhalation

    Comment by elissa (f0ffcc) — 1/17/2013 @ 11:20 am

  35. That’s not trivial, because Swartz would have a very hard time coming up with a rational valuation any more persuasive than the prosecutions, whether it was at zero or a misdemeanor dollar-figure.

    I don’t think so, Beldar. From JSTOR’s press release following Swartz’s death:

    Aaron returned the data he had in his possession and JSTOR settled any civil claims we might have had against him in June 2011.

    Wouldn’t JSTOR’s valuation of what the data was worth be more credible than DOJ’s?

    And why would the value have to be zero, since registered users are authorized to download JSTOR documents? Those documents, too, have value. But it’s not a crime for registered users to download data worth more than zero dollars.

    Comment by Steve57 (4c041b) — 1/17/2013 @ 11:25 am

  36. Steve57, the fact that JSTOR had settled its civil claims and wasn’t agitating for a conviction is one more fact that could be presented in sentencing.

    It does not mean that what Swartz took had no value, or that he didn’t commit a crime.

    You confuse the ability to access something under restrictions for free with it being freely available. Anglo-American law started distinguishing between those two things at least back in the Nineteenth Century.

    Comment by Beldar (008c16) — 1/17/2013 @ 11:38 am

  37. “Aaron returned the data he had in his possession and JSTOR settled any civil claims we might have had against him in June 2011.”

    Steve57 – The press release says nothing about the value of the database. Also, are you suggesting that if a stolen car is returned to its owner, no crime has occurred or the sentence should be reduced?

    Comment by daleyrocks (bf33e9) — 1/17/2013 @ 11:39 am

  38. JSTOR does not agree — and it would be misleading to suggest that it did agree, by the way, so I’m glad you’re not doing that — that the value of what Swartz took was zero.

    Comment by Beldar (008c16) — 1/17/2013 @ 11:42 am

  39. Also re JSTOR: Those who are now assailing the prosecutors presume that JSTOR’s public position can be accepted uncritically as some sort of endorsement of Swartz or some sort of admission that JSTOR had been wrong in complaining of him previously.

    But that’s a logical fallacy, and it’s almost certainly untrue. The far more obvious and persuasive theory about JSTOR’s behavior is that it realized that if it appeared to be vengeful, or anything less than politically correct, it would end up contributing to — and probably losing — a public opinion controversy that might well, in turn, result in legislative action that would indeed confirm that what JSTOR has previously treated as valuable is, by law, henceforth valueless and free for anyone to steal.

    There are other entities who depend to a much greater degree on the protections (rational or non-) from these laws, who might therefore be willing to take the public relations hit that would accompany a hard-line position. Disney, for example, ain’t gonna be sending the Swartz family any flowers. But JSTOR? Why would anyone be surprised it it developed a sudden case of qualms (some would say gutlessness) in aggressively and public protecting its second- or third-level interests?

    Comment by Beldar (008c16) — 1/17/2013 @ 11:57 am

  40. 1. Thoreau willingly went to jail. Saved on lawyer’s fees.
    2. Prosecutors who withhold anything at all need jail time.

    Comment by Richard Aubrey (a79e47) — 1/17/2013 @ 12:01 pm

  41. I’m saying that JSTOR would be better at valuing it’s own data then the DOJ. If JSTOR presented it’s determination of the value of its own data that Aaron downloaded then if I were a juror I’d find that far more credible than the DOJ’s estimate.

    daley, I don’t think math is hard. Which is why it appears to me the DOJ finds it difficult. Consequently I believe the technical folks at JSTOR are far more capable of it.

    Just one thing. I don’t know how difficult it is to register as a student at MIT. But I can absolutely guarantee that there are students at some universities who find it “kind of a hassle” to do so and therefore keep reregistering for guest accounts using aliases.

    Apparently if they download just one thing, which on many systems like MIT’s they’re allowed to do as guests, they are definitely guilty of a crime. If they download anything the DOJ values at more then $5k then it goes from a federal misdemeanor to a felony.

    To my understanding it’s precisely for this reason at least three federal circuit courts have rejected the DOJ’s overly broad reasoning of what constitutes a crime under the CFAA. Orin Kerr seems confident that the Supreme Court will accept Judge Kozinski’s ruling that narrows what constitutes a crime under the CFAA so that you’d actually have to hack into the system to be guilty.

    Comment by Steve57 (4c041b) — 1/17/2013 @ 12:04 pm

  42. Steve57, thinking about it further:

    I’m reasonably sure that in presenting the proof it would have to offer on the subject of the value of what Swartz misappropriated, the prosecution would have indeed relied initially, and probably primarily, upon JSTOR’s testimony through its top management. And the prosecution would have been happy to do that despite JSTOR’s lack of enthusiasm, and it would have been effective despite JSTOR’s lack of enthusiasm.

    I can easily compile a list of 40 or 50 open-ended questions to such a JSTOR spokesperson that would assuredly reveal that JSTOR not only treated this information as valuable, but that it routinely and consistently devoted significant resources (probably involving out-of-pocket expenditures of tens of thousands of dollars on IP lawyers and such) toward protecting its legal rights to that information — just as it did in this case, before the case attracted the publicity it did with Swartz’ suicide.

    Were I a prosecutor, I might designate and have on stand-by one other potential source of such proof in addition to the witness(es) from JSTOR, but I doubt he/she would be needed.

    In no event would someone from DOJ be the testimentary basis of this element of proof: It’s not ultimately DOJ’s evaluation of the value that counts, because no one from DOJ will be testifying (at least not on that subject), and what the prosecuting attorneys say on their own isn’t evidence, but argument.

    Comment by Beldar (008c16) — 1/17/2013 @ 12:17 pm

  43. DRJ – my take would be that a prosecutor is entitled to the same benefit of the doubt that I would extend to anyone else.

    I keep running into the notion, online and in interactions with people IRL, that prosecutors, police, active duty military, firefighters, doctors, etc, are somehow more deserving of respect, and of trust, and of the benefit of the doubt, than ordinary people. They aren’t; they *are* people, with the same human virtues and the same human flaws that everyone else has.

    Which isn’t to say they’re *less* deserving of trust, respect, and the benefit of the doubt.

    Comment by aphrael (e0cdc9) — 1/17/2013 @ 12:17 pm

  44. And please quit comparing what Swartz did to what a one-time-only single-user-getting-a-free-download does.

    Swartz deliberately set himself at the polar opposite extreme from that situation.

    Comment by Beldar (008c16) — 1/17/2013 @ 12:20 pm

  45. A life time ban on computer programming as punishment? That’s outrageous and utterly unconstitutional.

    Comment by SPQR (768505) — 1/17/2013 @ 12:49 pm

  46. The $5,000 threshold for the felony is problematic. How do you value something that is intangible?

    (#8) Easily, and the same way you value any other asset: the amount of money someone is willing to pay for that asset. In this case, it is likely the present value of the cash flows from customers of the data base.

    Swartz and his counsel would still have been free to impeach and contradict the prosecution’s evidence without presenting any alternative evaluation

    Beldar: True, in theory, but as we discussed a while back, not presenting a contrary valuation of damages can blow up in the defendant’s face.

    Comment by steve (369bc6) — 1/17/2013 @ 12:56 pm

  47. A life time ban on computer programming as punishment? That’s outrageous and utterly unconstitutional

    Why? People convicted of securities fraud get a lifetime ban from that business.

    Comment by steve (369bc6) — 1/17/2013 @ 12:58 pm

  48. SPQR, a lifetime ban on computer access certainly wouldn’t be unconstitutional if accepted by a defendant as part of a negotiated plea.

    Do you have a citation to show that a court has previously so ruled even in another context? Because I see the argument, and I think it’s not a very strong one without some really good precedent on point. Lots and lots of other constitutional rights — e.g., the right to bear arms, the right to vote — may lawfully be abridged as a consequence of a felony criminal conviction.

    Comment by Beldar (008c16) — 1/17/2013 @ 1:25 pm

  49. Our host wrote:

    To me, a single felony conviction and the prospect of future custody time if you violate the conditions of your supervised release would be enough. 13 felonies seems like overkill. Prison time seems like overkill.

    I agree with every bit of this. What I’d like someone to explain is how the prosecutor is supposed to persuade the reluctant defendant to plead guilty to even a single felony (with no prison time) without ever even threatening him with anything worse, if he goes to trial and loses, than a single felony (with no prison time).

    If you know how to work that magic consistently, I’ll support you for the next GOP nomination as Attorney General someday.

    Comment by Beldar (008c16) — 1/17/2013 @ 1:38 pm

  50. And btw and fwiw, Patrick, while I share your regard for Prof. Kerr — whom I think is a brilliant scholar and writer, and who has much more real-world legal experience as a practicing lawyer, especially in appeals, than most law profs — I don’t value his opinion on these issues any more highly than those of a career state-court felony prosecutor who’s been promoted to handling the most serious of those (murders).

    All of us, though, regardless of our individual backgrounds and experiences and credentials and expertise, are using 20/20 hindsight based on an incomplete record of what information was available to both prosecutors and defense team.

    Comment by Beldar (008c16) — 1/17/2013 @ 1:44 pm

  51. Easily, and the same way you value any other asset: the amount of money someone is willing to pay for that asset. In this case, it is likely the present value of the cash flows from customers of the data base.

    steve, you’ve confused two things here, the value of the asset, and obtaining a copy of an intangible asset does not diminish the value of the asset, and the value of the services that JSTOR provided. The individual academic papers were nearly worthless, what value JSTOR provided was in convenient access to them – a service.

    Comment by SPQR (768505) — 1/17/2013 @ 1:46 pm

  52. Beldar, a lifetime ban on computer programming as a punishment would be unconnected to a probation condition. Its a prohibition upon his earning a living. There is no connection between a prohibition upon computer programming and any harm that Swartz was accused of or could be argued would pose a threat of. He wasn’t committing fraud like a Mitnick. He wasn’t luring children via the internet.

    Comment by SPQR (768505) — 1/17/2013 @ 1:49 pm

  53. “I’m saying that JSTOR would be better at valuing it’s own data then the DOJ. If JSTOR presented it’s determination of the value of its own data that Aaron downloaded then if I were a juror I’d find that far more credible than the DOJ’s estimate.

    daley, I don’t think math is hard. Which is why it appears to me the DOJ finds it difficult. Consequently I believe the technical folks at JSTOR are far more capable of it.”

    Steve57 – Pro-tip, valuations are always easier in hindsight. The idea that institutions were willing to pay JSTOR $50,000 annually for the right to access the database and that JSTOR took actions to protect the database provide significant clues with respect to its value. The reason that the government stepped into JSTOR’s shoes in pursuing this case I think is persuasively argued by Beldar. Subsequent changes in JSTOR’s pricing and access models are arguments for counsel to raise at trial.

    Comment by daleyrocks (bf33e9) — 1/17/2013 @ 2:21 pm

  54. I skipped a bunch because people seem to mostly be repeating themselves from the other threads.

    A misdemeanor conviction, 500 hours of community service over two years. Change to a felony conviction if he repeats this crime during those two years.

    Comment by htom (412a17) — 1/17/2013 @ 2:56 pm

  55. A lifetime ban on computer programming — in this society — is rather like a lifetime ban on practicing law because you’ve lost a case.

    Of course, that would rapidly reduce the number of lawyers ….

    Comment by htom (412a17) — 1/17/2013 @ 3:03 pm

  56. …obtaining a copy of an intangible asset does not diminish the value of the asset, and the value of the services that JSTOR provided. The individual academic papers were nearly worthless, what value JSTOR provided was in convenient access to them – a service.

    Comment by SPQR (768505) — 1/17/2013 @ 1:46 pm

    Assuming JSTOR had obtained these papers, categorized them, scanned them or whatever had to be done to digitize them, and maintained the data base, with the expectation that they could then sell subscriptions to interested parties, wouldn’t copying the files and posting them online for anyone who cared to see them without paying a subscription fee diminish the value of JSTOR’s asset?

    Comment by CalFed (5b899d) — 1/17/2013 @ 3:16 pm

  57. CalFed, Swartz wasn’t charged with posting the files online. That was his plan but he didn’t do it, and wasn’t charged with it.

    As an aside, BTW, scanning the papers does not create a property interest in the IP. This is black letter Supreme Court precedent in copyright law. The doctrine is called “sweat of the brow” and it isn’t a basis for claiming copyright on something that would not otherwise be protectable (not that the papers were unprotectable per se).

    Comment by SPQR (768505) — 1/17/2013 @ 3:32 pm

  58. Compare these two statements and see if you think that they are consistent:

    http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.html

    http://blogs.wsj.com/law/2013/01/17/us-attorney-statement-on-the-prosecution-of-aaron-swartz/

    Comment by SPQR (768505) — 1/17/2013 @ 3:34 pm

  59. SPQR, I’m not saying a “lifetime ban on programming” — which would be devilishly hard to define or enforce as anything short of a lifetime ban on touching a computer (and arguably even a smartphone or an iPad-like tablet) — would have been a wise condition of a plea deal for the prosecution to seek or the court to approve.

    I’m just not accepting at face value your assertion that such would be unconstitutional, which I know you know is not a synonym for “unwise.”

    Comment by Beldar (008c16) — 1/17/2013 @ 3:35 pm

  60. CalFed — the reason to use JSTOR is because you don’t have to go to the library and find the paper in the paper journal on the shelf, or borrow that paper issue of the journal through inter-library loan. JSTOR was at least looking into changing its business model before any of this happened.

    Comment by htom (412a17) — 1/17/2013 @ 3:37 pm

  61. To have no contact with a computer … how about those ankle things containing computers, using GPS and radio to keep track of people in house arrest?

    Comment by htom (412a17) — 1/17/2013 @ 3:49 pm

  62. Well consider how this will be enforced;

    http://abclocal.go.com/wabc/story?section=news%2Flocal%2Fnew_york&id=8958116

    Comment by narciso (3fec35) — 1/17/2013 @ 3:56 pm

  63. There is no connection between a prohibition upon computer programming and any harm that Swartz was accused of or could be argued would pose a threat of. He wasn’t committing fraud like a Mitnick. He wasn’t luring children via the internet.

    He wrote an manifesto that he would not stop and would do it again. He also showed no remorse, and there is little proof thatthis would have bankrupted him, he could have managed a programming company, become a professor, become a lawyer.

    Comment by EPWJ (d84fb0) — 1/17/2013 @ 4:06 pm

  64. I am shocked that a ban against ever programming again is even a possible punishment.

    Comment by JD (b63a52) — 1/17/2013 @ 4:19 pm

  65. He wrote an manifesto that he would not stop and would do it again. He also showed no remorse, and there is little proof thatthis would have bankrupted him, he could have managed a programming company, become a professor, become a lawyer.

    Because the important thing is to crush him, not to have justice?

    Sure, give him probation and prohibit him from ever touching MIT’s network, hacking into anything, masking his identity online , or violating a TOS, but telling him not to program would be like telling someone not to speak in public or write for publication.

    And I would like to see someone thread the needle of managing a programming company while not programming. A manager who could never correct his employees work, because to correct an error in programming would be programming.

    Comment by Bruce B (ff6a96) — 1/17/2013 @ 4:24 pm

  66. 44. And please quit comparing what Swartz did to what a one-time-only single-user-getting-a-free-download does.

    Swartz deliberately set himself at the polar opposite extreme from that situation.

    Comment by Beldar (008c16) — 1/17/2013 @ 12:20 pm

    I would like to point out that in the Nosal decision Judge Kozinski seemed to arrive at the same decision. While the two types of behaviors may be at the opposite ends of the spectrum, per the DOJ’s reasoning both would be crimes.

    DISCUSSION

    [3] …But “exceeds authorized access” is
    used elsewhere in the CFAA as a basis for criminal culpability
    without intent to defraud. Subsection 1030(a)(2)(C)
    requires only that the person who “exceeds authorized access”
    have “obtain[ed] . . . information from any protected computer.”
    Because “protected computer” is defined as a computer
    affected by or involved in interstate commerce—effectively
    all computers with Internet access—the government’s interpretation
    of “exceeds authorized access” makes every violation
    of a private computer use policy a federal crime.
    See id.
    § 1030(e)(2)(B).

    [4] The government argues that our ruling today would
    construe “exceeds authorized access” only in subsection
    1030(a)(4), and we could give the phrase a narrower meaning
    when we construe other subsections. This is just not so: Once
    we define the phrase for the purpose of subsection 1030(a)(4),
    that definition must apply equally to the rest of the statute
    pursuant to the “standard principle of statutory construction
    . . . that identical words and phrases within the same statute
    should normally be given the same meaning.”

    …In the case of the CFAA, the broadest provision is subsection
    1030(a)(2)(C), which makes it a crime to exceed authorized
    access of a computer connected to the Internet without
    any culpable intent. Were we to adopt the government’s pro-
    posed interpretation, millions of unsuspecting individuals
    would find that they are engaging in criminal conduct.

    …The government assures us that, whatever the scope of the
    CFAA, it won’t prosecute minor violations. But we shouldn’t
    have to live at the mercy of our local prosecutor. Cf. United
    States v. Stevens, 130 S. Ct. 1577, 1591 (2010) (“We would
    not uphold an unconstitutional statute merely because the
    Government promised to use it responsibly.”). And it’s not
    clear we can trust the government when a tempting target
    comes along.

    I realize that what Swartz did is the polar opposite of what some lazy student might do in my earlier, non-hypothetical. Keep reregistering for guest accounts simply because it’s easier than registering for a student account. But I don’t see how you can criminalize Swartz’s behavior without criminalizing the latter. If the terms of use say that students may use a two week guest account initially but then must register for a student account then they are exceeding authorized use. And then if (rather when, for why else are they registering) they obtain information they are committing a crime.

    Comment by Steve57 (4c041b) — 1/17/2013 @ 4:28 pm

  67. JD

    Here is a case where a lifetime ban should have been imposed instead of just 3 years

    Comment by EPWJ (d84fb0) — 1/17/2013 @ 4:30 pm


  68. CalFed, Swartz wasn’t charged with posting the files online. That was his plan but he didn’t do it, and wasn’t charged with it.
    Comment by SPQR (768505) — 1/17/2013 @ 3:32 pm

    Welll…partly.

    I agree that Swartz didn’t actually post the material on a file sharing site, but apparently the Government included his intent to do so in the overview of the offenses that it charged Swartz with having committed.

    According to the indictment, Swartz was charged with, among other things, violating Title 18 section 1343 (Wire Fraud). On page 3 of the indictment, under the heading “Overview of the Offenses”, is a list of various acts alleged to have been committed by Swartz

    OVERVIEW OF THE OFFENSES

    11. Between September 24, 2010, and January 6, 2011, Swartz contrived to:
    a. break into a restricted computer wiring closet at MIT;
    b. access MIT’s network without authorization from a switch within that
    closet;
    c. connect to JSTOR’s archive of digitized journal articles through MIT’s
    computer network;
    d. use this access to download a major portion of JSTOR’s archive onto his
    computers and computer hard drives;
    e. avoid MIT’s and JSTOR’s efforts to prevent this massive copying,
    measures which were directed at users generally and at Swartz’s illicit conduct
    specifically; and
    f. elude detection and identification;

    all with the purpose of distributing a significant proportion of JSTOR’s archive through one or more file-sharing sites.

    So, Government did alleged that it was the purpose of Swartz’s scheme to post the JSTOR’s archive on a file sharing website and included it in the overview of offenses.

    Comment by CalFed (5b899d) — 1/17/2013 @ 4:31 pm

  69. *Judge Kozinski seemed to arrive at the same decision conclusion.*

    Comment by Steve57 (4c041b) — 1/17/2013 @ 4:33 pm

  70. Because the important thing is to crush him, not to have justice?

    Swartz isnt my client, the people are. Our office was tasked to defend the people, and this person was a real danger to society in that he strongly felt that he could impose his will without a democractic process and showed he would not give up until apprehended.

    Comment by EPWJ (d84fb0) — 1/17/2013 @ 4:33 pm

  71. I don’t think the “not for personal gain” thing should be part of the moral equation. The measurement of a crime, for the purpose of punishment, should the the degree of harm to the victim(s) (which is not great here, in any case.) If an altruist-criminal robs a bank, then throws the cash to the winds so that the public can get it, or donates his booty to the Salvation Army, he should still do the same time.

    Comment by Brian (9209a0) — 1/17/2013 @ 4:36 pm

  72. Swartz isnt my client, the people are. Our office was tasked to defend the people, and this person was a real danger to society in that he strongly felt that he could impose his will without a democractic process and showed he would not give up until apprehended.

    Comment by JD (b63a52) — 1/17/2013 @ 5:04 pm

  73. I’m frankly having trouble finding the bad faith on the part of the prosecutors that Patrick sees in the search warrant matter.

    From the documents, it appears that the following occurred:

    1/6/2011–Swartz is arrested and his laptop and hard drive are found in the networking closet at MIT. The MIT police secure them.

    1/7/2011—Agent Pickett, is apparently told that the Cambridge Police will pick up and process the laptop and hard drive for prints that morning. He emails the prosecutor to that effect and advises: “I am prepared to take custody of the laptop anytime after it has been processed for prints or whenever you feel is appropriate”

    2/3/2011—Agent Pickett and Detective Murphy pick up the laptop at the MIT Police Department and transport same to the Cambridge Police Department for fingerprinting.

    2/10/2011—The Cambridge Police finally process the laptop for prints.

    2/25/2011—The Secret Service executes a search warrant and secures the laptop from the Cambridge Police.

    In summary, it appears that Agent Pickett was told on 1/7/2011 that the Cambridge Police would pick up the laptop from the MIT Police that morning and process it for prints. Agent Pickett communicates this to the prosecutor that same day and advises that he is prepared to take custody of the laptop anytime AFTER it has been processed for prints or whenever the prosecutor thinks it is appropriate.

    On 2/3/2011, Agent Pickett, having discovered that the Cambridge Police never picked up the laptop from the MIT Police, corrals Cambridge Police Detective Murphy and goes to the MIT Police and has Detective Murphy secure the laptop and transport same to the Cambridge Police for processing. On 2/10/2011, the Cambridge Police finally processes the laptop for prints (34 days after having promised to do so). On 2/25/2011, the Secret Service executes a search warrant and secures the laptop from the Cambridge Police.

    Frankly, Patrick, I’m not seeing any bad faith on the prosecutors part in this. Can you explain where you see it? Is my time line off?

    Comment by CalFed (5b899d) — 1/17/2013 @ 5:34 pm

  74. The prosecutors apparently erred in their original answer to Swartz’s motion because they believed that the Cambridge Police had the laptop in their possession from 1/7/2011 until 2/25/2011. They apparently were unaware that the Cambridge Police had never picked up the laptop until 2/3/2011, when Agent picket discovered that the MIT Police still had the laptop and that it had never been processed for prints.

    Comment by CalFed (5b899d) — 1/17/2013 @ 5:39 pm

  75. The key point, however, is that they knew their agent could take it at any time — yet they implied otherwise.

    Comment by Patterico (8b3905) — 1/17/2013 @ 5:42 pm

  76. I came to this thread late and don’t have time to read all of the materials and comments, so if this has been covered I apologize: What I would like to ask is whether Professor Kerr is correct in , apparently, only asking the question in the excerpts ” what would keep the (defendant) from repeating the conduct in the future?” Isn’t it more correct to ask what would deter the defendant and others who may think about violating the law in the future?

    Comment by Steve A. (fd7cd4) — 1/17/2013 @ 5:43 pm

  77. The fingerprinting was supposed to happen “that morning.” Did the feds check in the next day?

    Comment by Patterico (8b3905) — 1/17/2013 @ 5:44 pm

  78. The key point, however, is that they knew their agent could take it at any time — yet they implied otherwise.

    I don’t think that is clear. Apparently Agent Picket had made an agreement that the Cambridge Police would process the laptop for prints. This makes sense, because if the USSS is anything like the FBI, the laptop would have had to be sent to the lab in Washington for latent print processing.

    It is not clear to me that the prosecutors could have or would have picked up the laptop before the local police had completed the print processing.

    Comment by CalFed (5b899d) — 1/17/2013 @ 5:55 pm

  79. 78. It is not clear to me that the prosecutors could have or would have picked up the laptop before the local police had completed the print processing.

    Comment by CalFed (5b899d) — 1/17/2013 @ 5:55 pm

    It seems to me it makes a huge difference if it’s “could have” or if it’s “would have.”

    That’s the heart of Swartz’s motion to suppress.

    EXCLUSIVE: Attorney for Aaron Swartz: Prosecutors’ Arguments Were “Disingenuous and Contrived”

    [T]he Government remarkably suggests the Secret Service cannot be held responsible for its lackadaisical attitude toward seeking a search warrant because the Cambridge Police Department, not the Secret Service, was in possession of the computer equipment during the thirty-four day delay. It is telling that the Government fails to cite a single case in support of this proposition. Accepting this argument would allow one government agency to end-run Fourth Amendment requirements in the easiest manner imaginable–by leaving wrongly seized evidence in the possession of some other, closely cooperating agency. Here, the Secret Service was plainly in charge of the investigation at MIT. It is absurd to suggest that it had no control over the seized computer.

    To paraphrase what the lead investigator told the prosecutor in the email in question, he was prepared to take control of the laptop anytime after the Cambridge police processed for fingerprints or anytime the prosecutor told him to.

    What does the second part of that sentence mean if the federal government wasn’t in charge of the investigation?

    Comment by Steve57 (4c041b) — 1/17/2013 @ 6:15 pm

  80. The fingerprinting was supposed to happen “that morning.” Did the feds check in the next day?

    I doubt that anyone understood that the actual fingerprinting would occur the day that the Cambridge Police picked up the laptop. I’m sure that Agent Pickett meant that the laptop would be submitted that day for prints.

    You can see, even with Agent Pickett taking Det. Murphy to the MIT Police on 2/3/2011 and having him pick up the laptop, it still took a week for the actual fingerprinting to occur.

    That being said, I have no personal knowledge of Agent Pickett’s contacts with the Cambridge Police. I can say, however, that in my experience, local departments sometimes operate at their own pace, which on occasion is slower than I might have wished. This is particularly true when a case is taken over by the Feds.

    But this seems to be getting further and further from bad faith on the part of the prosecutors and makes Elliot Peter’s assertions that the ” Government had actual control over all the computer hardware at issue as of January 7, 2011″ even less credible.

    Comment by CalFed (5b899d) — 1/17/2013 @ 6:16 pm

  81. The actual quote in the email from the investigator to the prosecutor:

    I am prepared to take custody of the laptop anytime after it has been processed for prints or whenever you feel is appropriate.

    Italics, of course, mine.

    Comment by Steve57 (4c041b) — 1/17/2013 @ 6:22 pm

  82. “What does the second part of that sentence mean if the federal government wasn’t in charge of the investigation?”

    The question is not who was in charge of the investigation, it is who had control of the laptop from 1/7/2011 until 2/25/2011.

    I would say that once an agreement was made that the Cambridge Police were going to process the laptop latent prints, they effectively controlled the laptop, regardless of what Agent Pickett said in his email.

    At any rate, it is clear that the Cambridge Police were responsible for the delay and that is what the prosecutors argued in their brief.

    Comment by CalFed (5b899d) — 1/17/2013 @ 6:39 pm

  83. That is not at all clear.

    Comment by JD (840c05) — 1/17/2013 @ 6:42 pm

  84. BTW, Swartz had been arrested on local charges, by local officers and the laptop had been seized by local officers.

    Agent Pickett had an understanding that the local officers were going to process the evidence that local officers had seized. Whatever he may have believed about his ability to take that evidence from those local officers before they were done processing it, it isn’t clear that he actually could have. Nor is it clear that it would have been reasonable for him to do so.

    This

    Comment by CalFed (5b899d) — 1/17/2013 @ 6:49 pm

  85. That is not at all clear.

    Seems pretty clear from the timeline, JD

    Comment by CalFed (5b899d) — 1/17/2013 @ 6:59 pm

  86. If the investigator, Pickett, was able to pick up the laptop anytime the AUSA, Heymann, felt it appropriate then the delay was entirely the responsibility of the DOJ.

    It doesn’t matter if the Cambridge police effectively had custody. The Cambridge police only retained custody just as long as the DOJ permitted it.

    Again, that’s the heart of Swartz’s motion to suppress.

    Accepting this argument would allow one government agency to end-run Fourth Amendment requirements in the easiest manner imaginable–by leaving wrongly seized evidence in the possession of some other, closely cooperating agency. Here, the Secret Service was plainly in charge of the investigation at MIT. It is absurd to suggest that it had no control over the seized computer.

    It’s telling that the DOJ’s response never addressed whether or not they allowed the Cambridge PD to retain custody of the laptop. They avoided the entire issue by simply giving a timeline of who had possession of it when. In the passive voice, as if no one in charge controlled who had custody of the laptop.

    Then they attempted to change the subject:

    For all the reasons given above, the Cambridge Police Department did not seize or hold onto the equipment impermissibly long. The Cambridge Police Department was supporting a valid investigation and prosecution by the Commonwealth. But if the Court disagrees, then Swartz cannot simply morph allegations that local police held evidence too long in a local prosecution into a claim that federal law enforcement officers did so in a subsequent federal case.

    Emphasis Patterico’s.

    But that isn’t what Swartz was claiming at all. Swartz never claimed that local police held it too long; simply that it was entirely at the discretion of the prosecutor when he chose to obtain a warrant to search the computer.

    Again, I find it telling the prosecutor was trying to dodge the issue entirely.

    Comment by Steve57 (4c041b) — 1/17/2013 @ 7:00 pm

  87. If the investigator, Pickett, was able to pick up the laptop anytime the AUSA, Heymann, felt it appropriate then the delay was entirely the responsibility of the DOJ.

    This.

    Comment by JD (840c05) — 1/17/2013 @ 7:04 pm

  88. 84.

    BTW, Swartz had been arrested on local charges, by local officers and the laptop had been seized by local officers.

    Agent Pickett had an understanding that the local officers were going to process the evidence that local officers had seized. Whatever he may have believed about his ability to take that evidence from those local officers before they were done processing it, it isn’t clear that he actually could have. Nor is it clear that it would have been reasonable for him to do so.

    This

    Comment by CalFed (5b899d) — 1/17/2013 @ 6:49 pm

    If it isn’t clear it’s because the prosecutor chose not to make it clear in his response to Swartz’s motion (just the first relevant paragraph since the second is quoted earlier):

    In yet another aspect, Swartz’s assertion that the Secret Service infringed his possessory interests by delaying in obtaining a search warrant does not quite fit this situation or his legal theory. The Secret Service did not seize his laptop, hard drive, or USB drive on January 6, 2011: the Cambridge Police Department did. Nor did the Secret Service possess this equipment before obtaining the warrants: the Cambridge Police Department did. Thus, the United States did not affect Swartz’s possessory interests in his equipment until it executed warrants.

    He certainly could have made it clear that the DOJ couldn’t take custody of the laptop until the Cambridge PD was done processing it. He didn’t.

    And if Heymann chose not to take custody because he decided it wasn’t reasonable then it’s patently untrue that “the United States did not affect Swartz’s possessory interests in his equipment until it executed warrants.”

    By exercising his discretion the United States certainly did have exactly that affect.

    You don’t think a judge might be a tad upset if that were what happened?

    Comment by Steve57 (4c041b) — 1/17/2013 @ 7:09 pm

  89. As Patrick has also said, the issue of whether Swartz would have prevailed in this motion is one of reasonableness. Were the Government’s actions reasonable.

    Would it have been reasonable to expect the Federal Government to seize evidence from a local agency while it was being processed for latent fingerprints?

    No one doubts that the Federal Government could have attempted to obtained a warrant at any time. I do not believe that is the issue. Without seeing the affadavit for the search warrant, I can’t say for sure, but it is possible that the Federal Government was waiting for the results of the latent fingerprint examination to see whether Swartz’s fingerprints were on the laptop, in order to shore up their probable cause.

    It also occurs to me that this argument hinges on a single clause of a single sentence in a single email, the truth of which we can not say, written by someone other than the prosecutor. That seems an awfully thin reed to hang a charge of bad faith on the part of the prosecutor on.

    Comment by CalFed (5b899d) — 1/17/2013 @ 7:17 pm

  90. It also occurs to me that this argument hinges on a single clause of a single sentence in a single email,

    This is exactly what the practice of law is all about.

    Comment by JD (840c05) — 1/17/2013 @ 7:20 pm

  91. I noticed you left out the “the truth of which we can not say” part ;)

    Comment by CalFed (5b899d) — 1/17/2013 @ 7:29 pm

  92. I don’t think the practice of law has anything to do with finding the truth.

    Comment by JD (840c05) — 1/17/2013 @ 7:31 pm

  93. This is exactly what the practice of law is all about

    A single sentence to ruin a career? In the matter of someone else’s criminal acts?

    I have to disagree – its exactly this that attorneys dont understand the real depth of disgust why we the great unwashed have and howwe are fed up with things like this and are not fooled by the insignificance of it.

    Comment by EPWJ (d84fb0) — 1/17/2013 @ 7:38 pm

  94. I don’t think the practice of law has anything to do with finding the truth.

    I admire your candor.

    Comment by CalFed (5b899d) — 1/17/2013 @ 7:39 pm

  95. 92.I don’t think the practice of law has anything to do with finding the truth.

    I really hope you dont feel that way, I think it is, the firms I’ve worked with were honorable and in Louisiana – I thought that was something

    Comment by EPWJ (d84fb0) — 1/17/2013 @ 7:40 pm

  96. 88. Would it have been reasonable to expect the Federal Government to seize evidence from a local agency while it was being processed for latent fingerprints?

    No one doubts that the Federal Government could have attempted to obtained a warrant at any time. I do not believe that is the issue.

    Comment by CalFed (5b899d) — 1/17/2013 @ 7:17 pm

    It certainly is an issue. If you, like many of us, don’t doubt that the prosecutor could have obtained a warrant earlier then doesn’t it raise the question why the prosecutor didn’t attempt to defend the the delay on the basis of reasonableness? Instead of on the basis of who seized and retained custody on what dates?

    Then again there’s this statement:

    Thus, the United States did not affect Swartz’s possessory interests in his equipment until it executed warrants.

    That would be a false statement if the prosecutor could have executed a warrant early but chose not to because he didn’t think it was reasonable to do so.

    If, as you say you don’t doubt, the federal government could have attempted to obtain a warrant at any time then by choosing to delay (for whatever reason) the federal government did “affect Swartz’s possessory interests in his equipment” before it executed the warrants.

    It certainly looks to me this little tempest in a teapot rests on more than just one phrase in an email.

    Comment by Steve57 (4c041b) — 1/17/2013 @ 7:40 pm

  97. *…if the prosecutor could have executed attempted to obtain a warrant early earlier…*

    Comment by Steve57 (4c041b) — 1/17/2013 @ 7:42 pm

  98. If the investigator, Pickett, was able to pick up the laptop anytime the AUSA, Heymann, felt it appropriate then the delay was entirely the responsibility of the DOJ.

    Comment by Steve57 (4c041b) — 1/17/2013 @ 7:00 pm

    I’m arguing that as a practical matter, once it was decided that the Cambridge PD was going to conduct the latent fingerprint examination, Pickett, could no longer make good on his statement. I do not believe that AUSA Heymann can fairly be held responsible for the delay in processing.

    Comment by CalFed (5b899d) — 1/17/2013 @ 7:44 pm

  99. What the prosecutor did was what most, if not all, prosecutors do… massively overcharge to try to force a plea-bargain. Swartz was not the first, and won’t be the last, person to kill themselves in this situation. The amazing thing to me is that more people don’t “go out in a blaze of glory” taking down their persecutors in the process.

    Comment by Mike R (a58010) — 1/17/2013 @ 7:53 pm

  100. CalFed, I’m unclear as to what you’re arguing.

    Would it have been reasonable to expect the Federal Government to seize evidence from a local agency while it was being processed for latent fingerprints?

    No one doubts that the Federal Government could have attempted to obtained a warrant at any time. I do not believe that is the issue.

    or

    I’m arguing that as a practical matter, once it was decided that the Cambridge PD was going to conduct the latent fingerprint examination, Pickett, could no longer make good on his statement. I do not believe that AUSA Heymann can fairly be held responsible for the delay in processing.

    I don’t see how it was up to Pickett to decide whether he could or could not make good on his statement. As he stated in his email he left it up to Heymann to decide when it was appropriate to do so.

    I’m arguing that Heymann should have defended his decision on the basis it wasn’t reasonable to do so. If, as we all agree, the federal government could have attempted to obtain a warrant at any time then he should have had to explain that practical matter.

    But nowhere in that response do I see any hint that’s the case. Instead it seems to strongly imply it was a question of jurisdiction.

    This certainly seems to me to be very relevant. Because, again, the heart of Swartz’s motion to suppress was the issue of ultimate control over the laptop.

    It’s a 4th Amendment matter. And he told the court that the United States had no material influence over the chain of events until it executed the warrants.

    I do not see how that can be.

    Comment by Steve57 (4c041b) — 1/17/2013 @ 8:17 pm

  101. What the prosecutor did was what most, if not all, prosecutors do… massively overcharge to try to force a plea-bargain

    Comment by Mike R (a58010) — 1/17/2013 @ 7:53 pm

    Does this include our host?

    Comment by CalFed (5b899d) — 1/17/2013 @ 8:28 pm

  102. I’m arguing that as a practical matter, once it was decided that the Cambridge PD was going to conduct the latent fingerprint examination, Pickett, could no longer make good on his statement. I do not believe that AUSA Heymann can fairly be held responsible for the delay in processing.

    Just so I’m clear myself, things don’t just get decided. Someone decides. Someone has the power to decide. If it was up to Heymann to decide to take custody of the laptop whenever he thought it was appropriate then he needed to explain that decision.

    Not tell the court it was entirely beyond his control.

    Of course, if it actually was entirely out of his control and he really could not influence events, then that means the federal government could not have attempted to obtain a warrant earlier.

    Comment by Steve57 (4c041b) — 1/17/2013 @ 8:31 pm

  103. Of course, if it actually was entirely out of his control and he really could not influence events, then that means the federal government could not have attempted to obtain a warrant earlier.

    Actually, no it does not…as I explained the Government can always attempt to get a warrant. The question is can they actually get one.

    The answer to that question is determined by whether there is sufficient probably cause to believe that a crime has been committed and whether the item to be seized is evidence or fruits of that crime. As I mentioned, it is possible that the Prosecutor was waiting for the results of the fingerprint exam to bolster the probable cause to support the warrant. I would need to know the results of the fingerprint exam as well as whether, if positive for Swartz’s fingerprints, the results were contained in the affidavit supporting the search warrant.

    Comment by CalFed (5b899d) — 1/17/2013 @ 8:51 pm

  104. Calfed – though I do believe what I said above, I really think that more about the system, rather than the individuals. Given the way the DOJ is being run now, I have no confidence in their pursuit of truth or honesty. But I also know that throughout the system, there are honest people. But I really don’t think the courtroom, or to a greater extent, the process has anything to do with the truth.

    Comment by JD (b63a52) — 1/17/2013 @ 9:37 pm

  105. CalFed, then that explanation goes to the reasonableness of the delay in obtaining the warrant. So why is that not in the response to Swartz’s motion to dismiss?

    In yet another aspect, Swartz’s assertion that the Secret Service infringed his possessory interests by delaying in obtaining a search warrant does not quite fit this situation or his legal theory. The Secret Service did not seize his laptop, hard drive, or USB drive on January 6, 2011: the Cambridge Police Department did. Nor did the Secret Service possess this equipment before obtaining the warrants: the Cambridge Police Department did. Thus, the United States did not affect Swartz’s possessory interests in his equipment until it executed warrants.

    For all the reasons given above, the Cambridge Police Department did not seize or hold onto the equipment impermissibly long. The Cambridge Police Department was supporting a valid investigation and prosecution by the Commonwealth. But if the Court disagrees, then Swartz cannot simply morph allegations that local police held evidence too long in a local prosecution into a claim that federal law enforcement officers did so in a subsequent federal case.

    Why did they tell the court that local police were holding the evidence in support of a separate local prosecution? If they were awaiting for the fingerprint exam then that would have been part of their investigation as well. There wouldn’t have been a subsequent federal case. The two cases would have been proceeding simultaneously, not one after the other.

    In any case, the federal government still is obligated to observe Swartz’s 4th Amendment rights. Again, it seems to me that your explanation would explain why it was reasonable to delay getting warrants. Instead they told the judge they could not get warrants while the Cambridge PD had the laptop in their custody.

    What is or is not in the search warrant affidavit doesn’t seem to have a bearing on what’s in the prosecutor’s response to Swartz’s motion to suppress.

    If they chose to wait for the results of the Cambridge PD’s fingerprint exam to bolster their probable cause to support their warrant, then by making that decision the United States most certainly did affect Swartz’s right to possess and control his property. But they could have explained that they did so for a reasonable reason.

    Instead they told the judge that they did not affect Swartz’s rights because they did not have custody of the laptop.

    Can you explain the prosecutor’s response to Swartz’s motion and how it’s compatible with your educated speculation about why the delay was reasonable?

    Comment by Steve57 (4c041b) — 1/17/2013 @ 9:42 pm

  106. The Cambridge Police Department was supporting a valid investigation and prosecution by the Commonwealth.

    I take that to mean the Cambridge PD was not supporting the federal investigation and prosecution.

    Comment by Steve57 (4c041b) — 1/17/2013 @ 9:46 pm

  107. What the prosecutor did was what most, if not all, prosecutors do… massively overcharge to try to force a plea-bargain

    Comment by Mike R (a58010) — 1/17/2013 @ 7:53 pm

    Does this include our host?

    Comment by CalFed (5b899d) — 1/17/2013 @ 8:28 pm

    Just to get a win? I would hope not, but it is a standard prosecutorial tool. From what I understand plea-bargains are reached in 90%+ of cases so it is obviously a tool that is frequently used, justly or not. Obviously I personally feel that plea-bargains are frequently unjust as they remove most legal protections from the defendant and lead to a situation that juries seem to assume anyone they see must be guilty.

    Comment by Michael (d0cc37) — 1/18/2013 @ 3:52 am

  108. The government can always attempt to get a warrant. The question is why they didn’t try. The reason for that they profer, doesn’t seem reasonable.

    Comment by htom (412a17) — 1/18/2013 @ 6:15 am

  109. These copyright and unauthorized access laws were written by attorneys for RIAA and the entertainment industry so they could jail people that download music illegally, regardless of atual harm.

    It is no surprise that prosecutors would use the law like a hammer to destroy peoples lives over unauthorized downloading, regardless of actual damages, given the political advantage and rewards some of them get by doing so. That is how political careers are built by using positions of public trust for self serving careerist ends.

    I think prosecutors should be barred from seeking public office for 10 years after they leave their positions as prosecutors. Maybe we’d have less politically career minded and motivated selective prosectutions designed to burnish election chances and more application of actual justice.

    Comment by SGT Ted (506d69) — 1/18/2013 @ 6:59 am

  110. The answer to that question is determined by whether there is sufficient probably cause to believe that a crime has been committed and whether the item to be seized is evidence or fruits of that crime. As I mentioned, it is possible that the Prosecutor was waiting for the results of the fingerprint exam to bolster the probable cause to support the warrant. I would need to know the results of the fingerprint exam as well as whether, if positive for Swartz’s fingerprints, the results were contained in the affidavit supporting the search warrant.

    I did not see that offered as a justification in the response.

    Look: the motion might have been meritless, and the prosecutor’s delay might have been justified. What bothers me is that the prosecutor’s responses implied the feds had nothing to do with Swartz’s lack of access to his computer, hard drive, etc. — while they were holding onto an email that showed the opposite, and that the prosecutor knew it.

    It just doesn’t strike me as being totally forthright with the court.

    Comment by Patterico (8b3905) — 1/18/2013 @ 7:14 am

  111. Just to get a win? I would hope not, but it is a standard prosecutorial tool. From what I understand plea-bargains are reached in 90%+ of cases so it is obviously a tool that is frequently used, justly or not. Obviously I personally feel that plea-bargains are frequently unjust as they remove most legal protections from the defendant and lead to a situation that juries seem to assume anyone they see must be guilty.

    Sorry, Michael, but imho, the opposite is usually the case…prosecutors fairly charge a defendant and then give away the store to get a guilty plea.

    Murder becomes manslaughter, aggravated assault becomes simple battery, etc.

    Comment by CalFed (5b899d) — 1/18/2013 @ 7:15 am

  112. 110. What bothers me is that the prosecutor’s responses implied the feds had nothing to do with Swartz’s lack of access to his computer, hard drive, etc. — while they were holding onto an email that showed the opposite, and that the prosecutor knew it.

    It just doesn’t strike me as being totally forthright with the court.

    Comment by Patterico (8b3905) — 1/18/2013 @ 7:14 am

    Obviously that’s what bothers me (in my more long-winded way). But even more to the point, it appears to me the prosecutor stated in no uncertain terms that the federal government had nothing to do with delay. After recounting the timeline of who had custody of the equipment on what dates, at the end of the first paragraph the prosecutor said:

    Thus, the United States did not affect Swartz’s possessory interests in his equipment until it executed warrants.

    I’ll rephrase that in my own words. “As a consequence (of the foregoing), the federal government did not influence Swartz’s right to possess and control his property until 24 February 2011 (the date I believe the feds executed their search warrants).”

    That doesn’t seem to me to imply anything. That’s coming out and saying it.

    Also, I don’t see how anyone can read that and conclude the prosecutor was avoiding the issue entirely. The issue Swartz’s motion to suppress raised was one of control. The response to the motion avoided the issue of control entirely. Events just happened. No one shaped them.

    The email tells a different story.

    Comment by Steve57 (4c041b) — 1/18/2013 @ 1:44 pm

  113. Patterico, if I wrote something that misleading in a pleading, I’d expect to be investigated by attorney regulation. But then, I practice in a state with an effective attorney regulation branch …

    Comment by SPQR (768505) — 1/18/2013 @ 2:11 pm

  114. The email tells a different story.
    Comment by Steve57 (4c041b) — 1/18/2013 @ 1:44 pm

    I do not believe the email is dispositive.

    Again, according to the documents filed in this case, the Secret Service was not brought into this investigation until 1/04/2011—3 days before the Pickett’s email. Swartz was identified and arrested at approximately 2:00 pm on 1/06/2011. Pickett’s email is date/time stamped at 3:25pm he following day.

    I believe it highly unlikely that an AUSA, who may not have yet seen any reports on this matter and may have only been briefed in telephone calls, was “in charge of the investigation”, which is what you have claimed, Steve. I’m betting at this early stage, facts were still being sorted out and the question as to whether this case would even be pursued in Federal Court was still being considered. I do not know at what point that Federal authorities decided that this matter should be tried in Federal Court, but I doubt that it was within a mere 25 hours of the defendants arrest for activities that had been going on for months.

    At any rate, the filings show that the laptop was found by MIT staff, and was given to the MIT Police. Aaron Swartz was charged by the Commonwealth of Massachusetts in a criminal complaint alleging breaking and entering into MIT’s property with intent to commit a felony, and was subsequently
    indicted by a Massachusetts grand jury for the same charge along with stealing JSTOR’s electronically processed or stored data, and accessing a computer system without authorization. So the laptop was in the custody of local authorities and was being held as evidence to support local charges that were filed by those same local authorities.

    The Federal prosecutors have argued that the laptop was in the custody of the local authorities as evidence to support charges which they had filed against Swartz, all of which is true. They also stated that while the State authorities pursued their own investigation, the United States Attorney’s office began their own investigation. So when you assert that the AUSA was “in charge of the investigation”…which investigation are you talking about? You certainly can’t mean the State case, in which Swartz had been charged and in which the laptop was being held as evidence.

    What do you really have? An email, with a rather ambiguously worded statement by a Secret Service agent about what he is prepared to do. What you do not have is any solid evidence that the AUSA had actual control of the laptop in question, which is what Elliot Peters claimed in his motion.

    Should the AUSA have turned over the email sooner? Sure, but they stated that as soon as they found it and realized its significance, they had it hand delivered to Peters. I have no evidence that this is not true.

    Comment by CalFed (5b899d) — 1/18/2013 @ 3:33 pm

  115. CalFed, you don’t think the email raises any questions?

    It’s a simple declarative sentence to which we’re referring.

    I am prepared to take custody of the laptop anytime after it has been processed for prints or whenever you feel is appropriate.

    There’s nothing ambiguous about it.

    I believe it highly unlikely that an AUSA, who may not have yet seen any reports on this matter and may have only been briefed in telephone calls, was “in charge of the investigation”, which is what you have claimed, Steve.

    I’m not claiming anything. The lead federal investigator told the federal prosecutor he was prepared to take custody of the laptop whenever the Cambridge PD completed the fingerprint exam or at any other time the AUSA said it was appropriate to do so.

    We know, as you point out, that Pickett didn’t take custody of the laptop when the fingerprint exam was completed but the USSS did not attempt to take custody but rather let the local authorities hold onto the hardware as physical evidence in the Mass. case.

    Who made that decision? You keep avoiding that central question.

    Comment by Steve57 (4c041b) — 1/18/2013 @ 4:23 pm

  116. I suppose I am “claiming” that Heymann was directing Pickett’s activities. On the flimsy excuse that Pickett told Heymann he’d defer to his judgement.

    In no ambiguous terms.

    Comment by Steve57 (4c041b) — 1/18/2013 @ 4:28 pm

  117. CalFed, you don’t think the email raises any questions?

    Comment by Steve57 (4c041b) — 1/18/2013 @ 4:23 pm

    Yeah, I think the email raised questions…and I think the Government answered those questions in their answer to Peters’ motion to suppress.

    We know, as you point out, that Pickett didn’t take custody of the laptop when the fingerprint exam was completed but the USSS did not attempt to take custody but rather let the local authorities hold onto the hardware as physical evidence in the Mass. case.

    Comment by Steve57 (4c041b) — 1/18/2013 @ 4:23 pm

    This is incorrect …Pickett DID take custody of the laptop when the fingerprint examination was complete. Within a few days of its completion, Pickett executed a search warrant on the Cambridge PD and secured the laptop.

    Who made that decision? You keep avoiding that central question.

    Comment by Steve57 (4c041b) — 1/18/2013 @ 4:23 pm

    I disagree. The central question in a infringement of possessory interest matter is who actually possessed the item in question. In this case, that item was in the possession of the local authorities and was being held as evidence of Swartz’s involvement in state crimes for which Swartz was ultimately indicted.

    It really doesn’t matter what the Federal Government could have done, what matters is what they didn’t do, which is to take possession of the items that Swartz claimed he had a possessory interest in.

    BTW, the laptop was found under a desk at MIT, where Swartz abandoned it. Swartz never made a request for its return, nor would he have. The computer was an instrumentality of his crime and contained the fruits of that crime. No competent lawyer would have had Swartz admit that the computer was his as he would have had to have done to exercise his possessory rights to the computer.

    It would be akin to a bank robber ditching his gun in a dumpster outside the bank, and then claiming that the police should have returned it to him when the found it there.

    The key here is that until the Federal Government had a reasonable amount of time to collect and analyze facts before deciding to go forward in Federal court with this matter. That is what the Government argued and I find their argument persuasive.

    Comment by CalFed (5b899d) — 1/20/2013 @ 8:25 pm

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