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by btilly 4885 days ago
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.
1 comments
tptacek 4885 days ago
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.

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btilly 4885 days ago
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.
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tptacek 4885 days ago
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.

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tptacek 4885 days ago
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...

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btilly 4885 days ago
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.)

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tptacek 4884 days ago
It bugged me that I didn't have a better answer, so I tracked down the applicable 2012 sentencing guidelines:

https://www.justia.com/criminal/docs/sentencing-guidelines/s...

... and in the interpretation most generous to the DoJ I came up with a sentencing grade of 27, which works out to 7 years for a first-time offender.

I think if you read through the guidelines (they're interesting!) you'll see right away that there was no way he could have gotten 35 years. I stand by "the DOJ lied about the sentence in the press release".

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