[tptacek]

The DOJ lied in the press release. They have a habit of doing that. There was no possibility that Swartz would face 35 years in prison. You can be upset about that, and that's reasonable, but you cannot synthesize from that upset the idea that Swartz actually could have spent 35 years in prison.

The consensus among former prosecutors and defense attorneys writing about this case is that if Swartz had been convicted on all counts, he might have faced as many as 2 years, but that he also might have avoided a custodial sentence even if he was convicted.

[btilly]

The DOJ did not lie. They just made a correct yet misleading statement.

Incidentally according to Aaron's lawyer, the prosecutors were going to be trying to convince a judge of a lot more than 2 years. Whether they would have succeeded in that is an unknown question.

[tptacek]

Yes, the nightmare scenario they scared Swartz with was 6-7 years. Which clearly does qualify as a nightmare. Aaron's last lawyer did not believe that was a realistic threat.

Either way: my understanding is that 35 years is an overt misstatement of how sentencing for repeated counts under CFAA works. I stand by the word "lie", both in its technical and moral senses.

[btilly]

I still disagree on the technical sense. 35 years is within the ability of the judge to assign. Of course the judge wouldn't, and if the judge did it would be reduced on appeal. But they claimed that that was the statutory maximum, and if you read the statute you can readily confirm that.

[tptacek]

I believe but cannot (due to crappy airplane wireless and the fact that I'm using my phone to read) confirm that there are elements missing from Swartz's offense that would have prevented a maximal sentence.

Either way, I assume we agree that the DOJ published the press release knowing full well Swartz would not actually be subject to 35 years.

[tptacek]

Here is a great article illustrating my point (but with whale sushi, not the CFAA):

http://www.popehat.com/2013/02/05/crime-whale-sushi-sentence...

[btilly]

That is a good article.

Ironically I've eaten at that restaurant. It was quite good before it was shut down. (No, I never had the whale sushi.)

[wglb]

While they lied in the sense that you are using here, there was clearly a game of intimidation going on: they upped the number of charges from four to 13 late in the game. And as a negotiating technique, the pressure was increased.

I am reminded of a quote attributed to Emanuel Lasker ‘A threat is more powerful than its execution’.

[tptacek]

I'm not sure what that point has to do with mine or 'tzs'. In any case, we agree.

[analog]

Did anybody write this before Aaron's suicide?

And based upon what evidence?

[tptacek]

Go look it up yourself.

[analog]

It's your claim. You provide the evidence.

[tptacek]

If you'd like to go from "wrong" to "militantly wrong", that is your right.

[analog]

Your claim is that he would have faced a maximum of 2 years, which differs substantially from what Swartz's own defence have claimed.

Now, if these sources of yours had provided their opinions before Aaron's suicide then I'd be more inclined to believe them. That they presumably only developed these opinions after the suicide seems a little convenient to me.

[tptacek]

That is neither what I claimed nor an accurate statement about what Swartz's attorney said.