Alexandra Elbakyan is still alive and well, and Sci-Hub is going strong. Swartz' prosecution and persecution were totally pointless. Copyright is unenforceable.
The article says they offered a 6 month jail time plea bargain though. It sounds like from his own writing that he was cognizant of the fact he broke the law, but didn’t agree the law should have been a law in the first place. It also sounds like he didn’t really expect there would be any consequences whatsoever.
Look at this from the prosecutors point of view. They have hard evidence of a crime. They have evidence of consciousness of guilt from the perpetrator. It’s a slam dunk at trial so why should it get to that point? It’s a waste of everyone’s time and money. That’s why the plea deal was so generous compared to the downside of taking it to court. You want to entice them to take a slap on the wrist plea deal so everyone can avoid the cost of forestalling the eventuality of the jury’s verdict.
It’s true that prosecutors can be overzealous in their prosecutions, but 6 months does not sound like the disproportionate punishment many make it out to be.
Isn't incarcerating a person who's not a danger to others and who's crime had no harmful outcomes a waste of everyone's time and money?
> 6 months does not sound like the disproportionate punishment many make it out to be
I encourage you to learn about the conditions in prisons. Imprisoned persons are frequently subject to physical and sexual violence at the hands of guards and other incarcerated people. These are inhumane conditions to subject anyone to, mass murderer and copyright-infringer alike.
There’s a big difference between a maximum security prison and a minimum security camp. We probably share many opinions about the former, non-violent penny ante white boy offenders go to the latter.
“Bob’s Story:
“I was in the minimum security camp at Fairton for about nine months. It wasn’t nearly as bad as I expected prison to be. The place was clean, the food wasn’t bad, and I didn’t feel any tension between the guys. If I wanted to avoid someone, I could stay to myself.
“There were fewer than 100 guys serving sentences in the federal prison camp and I didn’t feel much in the way of harassment from anyone, staff or inmates. With the help of an orderly, I coordinated a prison job for myself in the library. It was just a small room with lots of books and I passed my days catching up on reading. I hadn’t read at all since I was in college because work kept me too busy. During the time I was at the camp I read about 30 great books and I lost 25 pounds. I’m back down to the same weight I was when I was in school and I feel better than ever. My wife loves the new look. She says the prison sentence probably gave me an extra ten years to live.”
> Isn't incarcerating a person who's not a danger to others and who's crime had no harmful outcomes a waste of everyone's time and money?
Yes, but I think the solution is to make fewer things criminal through the democratic process first. Enforcement of laws is important.
It’s one thing to put people in jail who don’t belong there. But according to this article it kinda seems like Swartz did deserve some jail time.
He knowingly broke the law and showed no remorse. Instead his view was that the law should not apply to him because he did not agree with it. That’s a dangerous mindset to have for an individual with money and power.
It’s important to show remorse and contrition in these circumstances, otherwise we can just assume the behavior will continue. And Swartz had a history of this kind of behavior starting with PACER, so really it should have been expected that failing to prosecute in this instance would have been taken by Swartz as a signal to behave like this with impunity.
> I encourage you to learn about the conditions in prisons.
I 100% agree with you, and know all about this topic, but that’s really a different conversation.
Agreed, unfortunately it seems that we selectively enforce laws based on political pressure. Look at the numerous high profile cases targeting white collar criminals, for example with Purdue and the Sackler family.
They got away with zero jail time and a slap on the wrist (financially), all because they were able to hire the right political actors who could influence the outcome of legal procedures.
I'm sure if Swartz was similarly connected (for example a family who was a Senator), this whole thing would have gone away quietly.
Alas, the laws that apply to the commoners do not apply to the elite.
Adding to this, there's the overwhelming despair of a young idealist being forced to accept an unacceptable situation. It's plain to the pragmatically disillusioned that the right course of action is to plead guilty. However, not all people, especially at that age, are prudent self-interested agents. Aaron had the choice to surrender to the system he was born into it or violently exit it.
> 6 months does not sound like the disproportionate punishment many make it out to be
From the article, it seems that he was concerned about how being a convicted felon would hurt his career prospects. It would reduce his likelihood of being able to save the world. Not that he would have, anyway, but I think that's part of the thought process.
Speaking for me personally, six months in federal prison would feel like an almost life-ending scenario. I'd lose my job (obviously) and would have trouble finding another in the field for which I'm educated and trained. My fiancee would not have sufficient income to pay our mortgage so we'd lose our house, and I'm not sure what we'd be able to do for the many pets we love dearly. My situation's much different from Swartz's but I can empathize that a six month sentence could have such dramatic consequences that it wouldn't feel like a slap on the wrist.
A prosecutor choosing to seek a 6-month jail sentence is acceptable. A prosecutor choosing to seek a 50-year jail sentence is also acceptable. A prosecutor who is offering a 6-month jail sentence in exchange for waiving basic human rights, while threatening a 50-year jail sentence if those rights are exercised, has crossed the line into persecution.
It's an analogous situation to blackmail. Suppose Alice has found evidence that Bob robbed a bank. Alice is legally allowed to reveal that evidence to the police, but is under no obligation to do so outside of a subpoena. However, even though both choices are legally permissible, Alice is not allowed to make her choice be conditional on receiving payments from Bob, as that would cross the line into blackmail.
Plea bargains are a form of extortion, and should not be part of the legal system.
>Plea bargains are a form of extortion, and should not be part of the legal system.
So you think that every case should be tried, even if it's plainly obvious the perpetrator is guilty? After all, even if the perpetrator has a 1% chance of winning, there's no reason not to go to trial under that system.
> So you think that every case should be tried, even if it's plainly obvious the perpetrator is guilty?
If the perpetrator is willing to plead guilty, there is no need for a trial.
Threatening people with massively larger penalties if they exercise their right to a trial rather than take a plea deal (often time limited before the defense has a chance to see the evidence) is coercive extortion and is morally wrong. There is plenty of evidence of innocent people (especially poor people) taking plea deals due to these prosecutorial tacits of threat and decite.
Yes, that is correct. A guilty plea may be given, but any incrementally added incentive for somebody to give a guilty plea also incrementally removes the right to have a trial.
"The prosecutor, Stephen Heymann, told Swartz’s lawyer, Elliot Peters, that if Swartz pleaded guilty to all counts he would spend six months in jail; if he lost at trial, it would be much worse."
The prosecutor made the offer of a 6-month plea deal to Swartz's lawyer. Who presumably discussed it with Swartz, who seems to have decided not to accept it. Possibly, if you accept the analysis above, on the advice of his lawyer.
The New Yorker doesn’t link to a citation. Rolling Stones does. Which links to a statement by lead prosecutor, Ortiz. Heymann was the assistant prosecutor.
My point was how do we know this is an “analysis”. Based off Rolling Stones, this is just the prosecutors words.
If I recall the prosecutor’s future political ambitions got derailed because of this. That makes it even more likely to not believe anything they are saying without more to go on.
So yes. Not just the plea deal and not just this case. In any situation, if the only evidence of something is the word of the state prosecutor, that only means so much.
They threatened him with much, much more than 6 months to try to get him to plead guilty as a felon. They drained his financial coffers and drove wedges between him and his support network.
If it was a slam dunk at trial and 6 months was a fair sentence, then why is there a need to threaten so much more to avoid granting him his right to a trial?
Aaron's case is not unique in this regard and is indicative of the casual brutality and inhumanity inherent in the way that our justice system works. We desperately need to threaten reform how plea bargaining works and the amount of power we give prosecutors.
There was also the fact that he would be branded a felon, which as the article mentioned would have prevented him from working in the White House or other institutions from where he could continue his work
He faced nothing resembling 50 years, even on paper, even in the least charitable plausible analysis. You get to these nosebleed sentences by assuming that there are no sentencing guidelines, and no grouping of charges, and that instead you're likely to serve the sum of the maximum sentences spelled out in the statutes you violated. That makes no sense even as a story: the CFAA statutes capture behavior ranging from abusing a login you were given legally to snoop on your coworkers performance evaluations to coordinating a multinational multi-billion-dollar heist by penetrating financial services firms.
What actually happens in sentencing is that you look up the relevant sentencing guidelines in the (public, easily downloaded) federal sentencing guidelines. The guidelines are broken up by groups of statutes. They establish offense levels, from 1 (jaywalking) to 43 (mass murder). You take the offense level and look it up on a chart against your offender history (Swartz had no criminal history) and get a sentencing range.
Each guideline starts with a (usually low) base offense level, and then a series of clauses that adjust that level upwards or downwards based on the conduct charged. For CFAA, modifiers include stuff like using sophisticated means to evade detection, or making a bunch of money, or putting critical systems in danger.
The actual sentencing is a phase of the trial, occurring after conviction. The court has the probation office write a PSR, which is a confidential memo suggesting a sentence based on the guidelines. The prosecution argues for upwards departures for the PSR; the defense does the opposite; the judge ultimately decides.
Crucially: the sentencing guidelines generally don't work by multiplying the number of counts against the suggested offense level. Rather: like charges group, and you're generally sentenced based on the highest offense level of the group.
We don't really have to guess about what Swartz faced. We don't just have this New Yorker article to go on; Swartz's own attorney discussed the likely sentencing ranges. This article suggests that prosecutors were looking for 6 months on a guilty plea (they seemed hell-bent on coming up with some custodial sentence for Swartz; there seems to be something to the idea that they had a grudge against Swartz). More importantly, though, we have some of their rationale for the supposed 80 month sentence they said they'd seek if Swartz went to trial: they intended to argue that Swartz incurred 2 million dollars worth of losses. That's a self-evidently stupid argument, because there's no plausible way Swartz could have recouped even $1 from his offense, let alone $2,000,000. The documents he hoped to release had virtually no commercial value. Any damage (ie: worker hours burned cleaning up for what he did) he caused was incidental, and likely well below six figures. But the guideline offense level modifier implies the opposite of this fact pattern.
Swartz's attorney believed it was likely that had Swartz gone to trial and lost on all counts, his ultimate sentence would still could have come in below the level at which the guidelines recommend straight probation; that is: he believed Swartz could have gone to trial, lost, and still did better than the plea deal offered by the prosecutors.
It's not really the fault of anyone on HN that these lurid potential sentences get tossed around in discussions, because federal prosecutors issue press releases that discuss the maximum possible sentence in those terms. The media abets that dishonesty by repeating the claim, or by doing insufficient homework and using the same math.
You should be irritated when you read written sources that talk about naive maximum sentences this way.
At any rate: there is no chance Swartz was unaware of any of this. Not just because he had an excellent attorney who no doubt explained all of this stuff very early on in the process, but because Swartz was exactly the kind of nerd who would have had the federal sentencing guidelines bookmarked somewhere in his browser.
Overcharging offenses, with the ranges of any possible punishments, is done precisely to pressure people into settling for an outcome the DA finds politically expedient. There is a TERRIBLE amount of uncertainty in EVERY STEP you've outlined, and we see examples EVERY DAY of judges who throw the book at people, especially when they are unknown loners who have offended powerful corporations. PLEASE don't suggest that being accused in this situation wouldn't place someone under ENORMOUS fear and pressure about what could have happened, even if "everyone" thinks those outcomes were unlikely.
I think you stopped reading before the last paragraph of my comment. Or, really, one of the first ones, because, again: the prosecutors are on the record with the sentence they were actually threatening Swartz with, and, as I said, and Swartz's attorney said, and this New Yorker article said: it was nothing resembling 50 years.
Whether it's 50, 20, or 6, the real number is beside the point. Potential "years" of prison will scare the crap out almost anybody, and our government ALWAYS uses this tactic to coerce people into whatever outcome looks good for their careers.
There's a pretty good Popehat article on federal sentencing guidelines from back before Ken White discovered twitter and mostly stopped writing interesting articles about law stuff.
> What actually happens in sentencing is that you look up the relevant sentencing guidelines in the (public, easily downloaded) federal sentencing guidelines
Well, it is called 'guidelines' and your post uses words like 'suggesting'. So if relevant people went crazy and just decide to ignore these guidelines and choose, say, 20 years, would such decision be legal?
It would be unprecedented and appealable, but mostly it just wouldn't happen. Judges aren't required to adhere to the guidelines (anymore), but they overwhelmingly do --- presumably, not least because the primary input to the sentencing process is a PSR that is derived directly from the guidelines.
Note here that to reach 20 years, you have to do more than disagree with the guideline offense levels; you have to somehow disagree with the grouping rules. 20 years wasn't on the table to begin with (again: the prosecutors threatened a much lower sentence), but it couldn't seriously have been put on the table either.
Thank you for the detailed reasoning and explanation.
I was unaware of these nuances, and remember at the time there was a lot of talk of using the legal sledgehammer to set an example (possibly the same media echo chamber you mention).
There's still a lot to the argument that they were taking a sledgehammer to Swartz in order to make an example of him. It's just that no part of the real argument involves him doing 50 years.
Thank you 10,000x over. The reporting about this aspect really couldn’t have been any worse and drove too many equally misinformed opinion pieces.
And agree completely with your assessment of prosecutors and press releases - I told my US Attorney that I only wanted to see him on TV after a conviction. Alas, I hate defending prosecutors, but it seems completely unfair to blame her for his death.
As you suggest, my guess was that the sentence was largely going to be driven by the damages. My understanding is that the “victims” had been sufficiently browbeat into being reluctant witnesses and as you suggest, it would have just been cleanup costs.
This, to be fair, is the biggest problem with the CFAA. It's sort of an inchoate statute (you generally use computers as a means to conduct other offenses --- in fact, some of the reason we have a CFAA in the first place is that legislators felt that there weren't statutes that addressed computer crimes that didn't have immediate financial benefits, which themselves could be charged as fraud). The major sentencing knob CFAA comes with is 2B1.1(b), which is a table of offense level by dollar loss incurred.
There are crimes where I think 2B1.1(b) probably makes sense (like, if you're literally stealing, or deliberately incurring monetary damage --- remember, your intent in committing a crime is extremely important, despite a common message board belief that it is somehow unknowable and a non-factor in legal decisions). But in a lot of cases, it's literally just the induction variable in a loop, and it makes no sense to boost an offense by 10 levels because you wrote "2000" in your for-loop instead of "20".
It's 2B1.1(b) that takes you from offense level 8 (0-6 months, probation eligible) to level 24 (5 years) based on 2 million dollar of incurred loss.
Again, though: the 2 million dollar figure is highly implausible. Prosecutors could have argued for it (they can argue anything they want), but it's hard to see them getting it for a non-remunerative crime that involved publishing academic journal articles.
Swartz's attorney was probably a bit rosey-eyed here, though: figure any charged computer offense probably incurs losses at least in the mid-5 figures (almost mechanically, because real companies have insurance obligations to conduct external forensic investigations when incidents like this happen), and you get to a year and change sentence pretty easily.
> Again, though: the 2 million dollar figure is highly implausible. Prosecutors could have argued for it (they can argue anything they want), but it's hard to see them getting it for a non-remunerative crime that involved publishing academic journal articles.
Actually this ran in parallel with the tail end of the Jammie Thomas-Rasset lawsuit, in which the various damage figures thrown around for sharing two albums' worth of stale, degraded-quality top-40 songs did include one in the seven-figure range.
Says the judge when you admit to what you did and plead. He’s the same one that gave Lori Laughlin and Mossimo 6 months in minimum security “camp” and not the bazillion years the prosecutor originally threatened.
> Says the judge when you admit to what you did and plead. He’s the same one that gave Lori Laughlin and Mossimo 6 months in minimum security “camp” and not the bazillion years the prosecutor originally threatened.
The prosecutor was trying to railroad Aaron for political gain and used every shenanigan in his bag of tricks to leverage Aaron into confessing -er- agreeing to a plea bargain. It was wrong, and very much revisionist to say otherwise.
White boys don’t do hard time for hiding in the closet to copy the library’s computer.
The judge appears to be a conservative old navy man. I haven’t dealt with him, but I think I’ve been in front of the type. Trial would go something like this: On the morning of day 3, so before the second day of testimony, the judge calls the attorneys into chambers and lays into them, sometimes loud enough for half the courthouse to hear, for wasting everyone’s time on such a stupid case, and that the prosecutor better have really good evidence of hard damages otherwise he’s going to be pissed. And then you go out, talk to your clients, and settle.
> the judge calls the attorneys into chambers and lays into them, sometimes loud enough for half the courthouse to hear, for wasting everyone’s time on such a stupid case,
You're basically writing fan fiction here. There's no evidence this would have been the case, and frankly I rather doubt it. There's nothing to suggest the judge would have reacted this way, nor that Swartz should have anticipated that he would.
Blind to what? You just stated “white boys”. So you agree justice isn’t blind. Then bringing up a rich, famous, American icon celebrity and how they were handled does not make sense.
Edit: as sibling post says. The rest of the comment is equivalent to fan fiction.
Yes. Unless this family is absurdly rich like hundreds of millions. If that’s true I am wrong. Otherwise, the wealthier American icon is still different enough where a [direct] comparison does not work.