MIT to Conduct Internal Probe on its Role in Aaron Swartz Case

MIT announced it will conduct an internal probe of its role in the events that led to Aaron Swartz' suicide. MIT President Raul Reif writes:

I have asked Professor Hal Abelson to lead a thorough analysis of MIT's involvement from the time that we first perceived unusual activity on our network in fall 2010 up to the present. I have asked that this analysis describe the options MIT had and the decisions MIT made, in order to understand and to learn from the actions MIT took. I will share the report with the MIT community when I receive it.

Also Sunday, Anonymous hacked MIT's website, posting a tribute to Aaron and calling for reform. [More...]

There will be a lot of debate over the Justice Department's policies in charging computer crimes.

The "victim" in Aaron's case, JStor, asked that the prosecution be dropped. The Justice Department refused to do so.

Elliot Peters, Swartz's attorney, told The Associated Press on Sunday that the case "was horribly overblown" because JSTOR itself believed that Swartz had "the right" to download from the site. Swartz was not formally affiliated with MIT, but was a fellow at nearby Harvard University. MIT maintains an open campus and open computer network, Peters said. He said that made Swartz's accessing the network legal.

JSTOR's attorney, Mary Jo White — formerly the top federal prosecutor in Manhattan — had called the lead Boston prosecutor in the case and asked him to drop it, said Peters, also a former federal prosecutor in Manhattan who is now based in California.

One source of friction is the law.

"The government used the same laws intended to go after digital bank robbers to go after this 26-year-old genius," said Chris Soghoian, a technologist and policy analyst with the American Civil Liberties Union's speech, privacy and technology project.

Existing laws don't recognize the distinction between two types of computer crimes, Soghoian said: Malicious crimes committed for profit, such as the large-scale theft of bank data or corporate secrets; and cases where hackers break into systems to prove their skillfulness or spread information that they think should be available to the public.

JStor noted in its statement:

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

Aaron's attorney, Elliot Peters, outlined the deal the Government wanted Aaron to take:

As of Wednesday, the government took the position that any guilty plea by Swartz must include guilty pleas for all 13 charges and the possibility of jail time, Peters said. Otherwise the government would take the case to trial and seek a sentence of at least seven years.

JStor agreed with Aaron's attorney that the terms of the offered deal were excessive.

MIT, on the other hand, didn't do enough.

According to Peters (and also confirmed by Harvard Law Professor Lawrence Lessig, who advised Aaron early on:)

The university eventually took a neutral stance on the prosecution, Peters said. But he said MIT got federal law enforcement authorities involved in the case early and began releasing information to them voluntarily, without being issued a subpoena that would have forced it to do so.

Aaron's family issued a harsher statement, condemning the ovverreaching of the U.S. Attorneys office.

Aaron's death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney's office and at MIT contributed to his death. The US Attorney's office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community's most cherished principles.

Professor Lessig wriote:

[Aaron] is gone today, driven to the edge by what a decent society would only call bullying. I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.

According to Aaron's friends, Aaron was overwhelmed by the criminal charges and had been for months. His former girlfriend Quinn Norton, eloquently writes of the toll the case took on him.

I tried to take care of him while he was being destroyed, from inside and out. I struggled so hard, but not as hard as he did. I told him, time and again, that this was his 20s. It would be better in his 30s. Just wait. Please, just hold on.

He loved my daughter so much it filled the room like a mist. He was transported playing with her, and she bored right into his heart. In his darkest moments, which I couldn’t reach him, Ada could still touch him, even if only for a moment. And when he was in the light, my god. I couldn’t keep up with either of them. I would hang back and watch them spring and play and laugh, and be so grateful for them both.

Quinn told the New York Times :

He had “struggled with chronic, painful illness as well as depression,” she said, without specifying the illness, but he was still hopeful “at least about the world.”

On his webpage, Aaron's last few posts are movie reviews -- of the Dark Knight Rising and Looper, and he references suicide in both:

Thus Master Wayne is left without solutions. Out of options, it’s no wonder the series ends with his staged suicide.

.... Movie Joe somehow is able to foresee this future and concludes the only way to prevent it is to kill himself.

Aaron also wrote of his struggle with depression on his website. In 2007 he wrote:

Surely there have been times when you’ve been sad. Perhaps a loved one has abandoned you or a plan has gone horribly awry. Your face falls. Perhaps you cry. You feel worthless. You wonder whether it’s worth going on. Everything you think about seems bleak — the things you’ve done, the things you hope to do, the people around you. You want to lie in bed and keep the lights off. Depressed mood is like that, only it doesn’t come for any reason and it doesn’t go for any either. Go outside and get some fresh air or cuddle with a loved one and you don’t feel any better, only more upset at being unable to feel the joy that everyone else seems to feel. Everything gets colored by the sadness.

At best, you tell yourself that your thinking is irrational, that it is simply a mood disorder, that you should get on with your life. But sometimes that is worse. You feel as if streaks of pain are running through your head, you thrash your body, you search for some escape but find none. And this is one of the more moderate forms. As George Scialabba put it, “acute depression does not feel like falling ill, it feels like being tortured … the pain is not localized; it runs along every nerve, an unconsuming fire. … Even though one knows better, one cannot believe that it will ever end, or that anyone else has ever felt anything like it.”

It is hard to believe the Government was unaware of Aaron's struggle with depression. In an 8 page letter from the prosecutor to Aaron’s first lawyer (Via PACER, Document 20-1 filed 09/27/11), outlining the discovery in the case, the prosecutor writes the material includes:

....numerous relevant statements not made to government agents drafted by Defendant Swartz before the date of his arrest contained in electronic media, such as Twitter postings, websites and e-mail.

The Government added to the pressure by forcing his former girlfriend, Quinn Norton, to testify before the grand jury. In the same letter to his lawyer outlining the discovery, in a section on promises and inducements to witnesses, the prosecutor writes:

Promises, rewards, or inducements have been given to witness Erin Quinn Norton. Copies of the letter agreement with her and order of immunity with respect to her grand jury testimony are enclosed on Disk 3.

Was it really necessary for the Government to intrude on Aaron’s most private and intimate relationship and require his girlfriend to testify against him to make its case?

One misperception I keep reading online is that Aaron broke into the wiring closet at MIT to download the documents. There was no unauthorized entry or trespass into either the wiring closet or the university’s network. The wiring closet was not locked and was accessible to the public. If you look at the pictures supplied by the Government, you can see graffiti on one wall. This was not a hands-off area. Also, MIT had an open campus policy.It welcomed guests and invited them to log onto their network while on campus. It didn't take steps to verify who logged on. Using a pseudonym when logged on is not a violation or a crime.

Guests can register online to connect to MIT’s network.

You can also connect wirelessly to the MIT GUEST wireless network. This network does not require authentication, is not encrypted, and is not intended to access internal resources. Learn more about connecting to the MIT GUEST wireless network.

The University says here:

How to Connect

It is easy to connect to the MIT GUEST wireless network with a wireless device. Since there are no restrictions to connecting, your device should be able to "see" the network as one of the open wireless options and connect instantly. If your device can not see the network, contact the IS&T Help Desk for assistance.

Also, MIT's policy stated that a court order is necessary to turn over DHCP usage logs:

MIT is required to comply with a court order or valid subpoena that requests the disclosure of information contained in DHCP logs. Failure to comply could have serious consequences for the individuals, IS&T, and the Institute. MIT's Office of the General Counsel is qualified and authorized to confirm that a request for information contained in logs is legitimate and not an improper attempt to gain access to confidential information.

Aaron had a lot of good arguments for the suppression hearing set for Jan. 25. You can read a summary of them here.

Just last week, both sides filed briefs over the prosecutor's disclosure of an email he received in June, 2011 from the Secret Service Agent on the case, that he claimed to have somehow "overlooked" and was turning over now. The e-mail directly contradicted what the Government had previously told the court on a suppression issue.

Aaron was seeking to suppress evidence seized from his laptop, hard drive and a usb drive, which state police had seized without a warrant. One of the issues was the delay in seeking a search warrant. The feds didn't seek a search warrant for 34 days. Then they let that warrant expire without executing it, and sought another one, resulting in the search not occurring until 48 days after the computer and drives were seized. The Government was forced to admit that an earlier representation to the Court was not factually accurate. It had written in its initial response to one motion to suppress:

The Secret Service did not seize [Swartz’s] 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 interest in his equipment until it executed warrants. … 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

The email the AUSA turned over a year and a half late stated:

The laptop and external hard drive have been logged into evidence with MIT police. Cambridge Police will take the laptop and hard drive to process them for prints this morning. I am prepared to take custody of the laptop anytime after it has been processed for prints or whenever you feel is appropriate. As far as I know no one has sought a warrant for the examination of the computer, the cell phone that was on his person or the 8gb flash drive that was in his backpack. (My emphasis)

This is not the first time the Mass. U.S. Attorney's office has delayed turning over evidence favorable to the accused. In 2008, a prosecutor in that case begged the judge for mercy in deciding whether to sanction her for withholding evidence.

The Judge, while noting she has admitted the mistake and that it was not intentional or strategic, has taken the matter under advisement, stating it's hardly the first such lapse in the Boston U.S. Attorney's office: [

One of the many articles I read yesterday) compared Aaron's alleged misconduct to taking too many books out of the library. Perhaps the Government legitimately believed Aaron should be prosecuted. But judging from the pleadings, and I read all of them of PACER this weekend, their case was far from a slam-dunk. If they had any inkling of his bouts with serious depression, and it seems they should have, the overcharging is hard to reconcile with their sworn duty to seek justice.

It's good that MIT will review its actions. The Justice Department needs to do the same.

< Golden Globes Night | Did the Justice System Fail Aaron Swartz? >
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    digby writes much better than I do (5.00 / 1) (#1)
    by MO Blue on Mon Jan 14, 2013 at 07:18:31 AM EST
    so I will let her speak for me.

    That's just for starters. There is a huge discussion to be had about the government's almost mystical paranoia about its secrets being exposed in this brave new world of the internet and its willingness to use the full force of its power to prosecute citizens on trumped up charges to serve as "examples" for others. This is supposed to be a democratic, free society.  The behavior exhibited toward Swartz is more akin to something we might have seen in the Eastern Bloc during the Cold War.  There's is also a badly needed discussion about the government's willingness to intercede heavily on behalf of business interests while simultaneously allowing business to go unpunished for their crimes. That's always been true to some extent but we've reached a point at which they aren't even hiding it. link

    ...U.S. Attorney Carmen Ortiz, whose office prosecuted Aaron with such recklessly disproportionate vigor, and who is reportedly considering a run for governor.

    If this case is an example of the quality of U.S. Attorney Ortiz's judgment, I would not want her anywhere near the governor's mansion.  

    Petition to White House to remove Carmen Ortiz (5.00 / 1) (#74)
    by MO Blue on Tue Jan 15, 2013 at 12:14:34 PM EST
    A new White House petition has been launched to remove the US Attorney whose bullying tactics are believed to have contributed to the death of Aaron Swartz. The petition has already crossed the 25,000 threshold.

    The petition states:

    We Petition the Obama Administration To:

    Remove United States District Attorney Carmen Ortiz from office for overreach in the case of Aaron Swartz.

    It is too late to do anything for Aaron Swartz, but the who used the powers granted to them by their office to hound him into a position where he was facing a ruinous trial, life in prison and the ignominy and shame of being a convicted felon; for an alleged crime that the supposed victims did not wish to prosecute.

    A prosecutor who does not understand proportionality and who regularly uses the threat of unjust and overreaching charges to extort plea bargains from defendants regardless of their guilt is a danger to the life and liberty of anyone who might cross her path. link

    Sadly, this critique (none / 0) (#76)
    by Peter G on Tue Jan 15, 2013 at 12:29:15 PM EST
    would arguably apply to most if not all U.S. Attorneys.

    I guess this hits home so much (5.00 / 1) (#77)
    by MO Blue on Tue Jan 15, 2013 at 12:47:46 PM EST
    because of all the cases where a great deal of harm was perpetrated against so many ordinary citizens and the DOJ  chose a mere slap on the wrist if they pursued any action at all.

    Where is the outrage (none / 0) (#80)
    by Peter G on Tue Jan 15, 2013 at 01:42:38 PM EST
    against the routine use of the same tactics to put thousands of young black and hispanic men away, not for six months, but for ten years, fifteen years, for equivalently overprosecuted drug cases?

    Pretty Sure... (none / 0) (#78)
    by ScottW714 on Tue Jan 15, 2013 at 01:15:48 PM EST
    ...life in prison was never on the table.

    And while the prosecution was overzealous, it's pretty hard to make the argument that it contributed to someone's death when they had a history of depression.  Even the letter doesn't argue that.

    What is worse, is this kind over of over-the-top pursuit of internet 'criminals' seems to be something the administration is perfectly fine with.  What I can't figure out is are they doing it because they truly fear this kind of activity, or because the law hasn't caught up and they can get away with so much more.  Like with kim.dot and destroying the data on the servers, if that was tangible property they would have never done that.


    More thoughts by Tim Lee (5.00 / 1) (#3)
    by MO Blue on Mon Jan 14, 2013 at 08:05:13 AM EST
    I worry that Swartz's prosecution is a sign that America is gradually losing the sense of humor that has made it the home of the world's innovators and misfits. A generation ago, we hailed Pentagon Papers leaker Daniel Ellsberg as a hero. Today, our government throws the book at whistleblowers for leaking much less consequential information.

    Our nation's growing humorlessness won't just mean that insubordinate idealists like Swartz lose their freedom or their lives. As our culture becomes steadily less accepting of people with Swartz's irreverant attitude toward authority, we'll all be poorer as a result. Revolutionary new technologies and ideas don't come from people with a reverence for following the rules. They come from iconoclasts like Jobs, Wozniak, and Swartz. It's a bad idea to lock them up and throw away the key. link

    I don't think the government ever had a (5.00 / 3) (#12)
    by Peter G on Mon Jan 14, 2013 at 12:28:27 PM EST
    "sense of humor" about conscientious civil disobedience to its criminal laws. Ellsberg was not treated as a harmless dissenter; he was prosecuted under the Espionage Act. The Berrigans and other religious activists were repeatedly prosecuted both federally and by various states, and sent to prison, for symbolic acts of "disarmament" against the draft system and then against nuclear weapons.  Eugene V. Debs was sentenced to decades in prison for distributing leaflets and speaking against World War One. Suffragists were arrested and imprisoned under miserable conditions for blocking the gates of the White House seeking the right to vote.  Conscientious Objectors to the draft in WW I and the Civil War were subjected to military tribunals and suffered terribly (some fatally) in prison.  Freedom riders and lunch counter sit-in participants were brutally beaten and jailed for nonviolent (and generally lawful) resistance to Jim Crow.  I could go on and on.  Gradually losing our sense of humor?  I think not.

    The government has a great sense of humor (5.00 / 1) (#16)
    by MO Blue on Mon Jan 14, 2013 at 01:47:43 PM EST
    when it comes to those too big to jail Wall St. entities and their CEOs. Whistle blowers not so much.

    I can't speak for Tim Lee, but I don't (5.00 / 2) (#29)
    by Anne on Mon Jan 14, 2013 at 03:50:06 PM EST
    think humorlessness is the problem; if he means that he wants the government to treat whistleblowers and those attempting to shed light on things that really need to see the light of day as casually as they do, say, the people who willfully and greedily nearly brought the country's economy down, I don't think that's really the way I'd like to see this go, either.

    What intrigues me is what I read in Marcy Wheeler's post today: that the Secret Service inserted themselves in this case just two days before Swartz was arrested.

    From the suppression motion (pdf):

    On the morning of January 4, 2011, at approximately 8:00 am, MIT personnel located the netbook being used for the downloads and decided to leave it in place and institute a packet capture of the network traffic to and from the netbook.4 Timeline at 6. This was accomplished using the laptop of Dave Newman, MIT Senior Network Engineer, which was connected to the netbook and intercepted the communications coming to and from it. Id. Later that day, beginning at 11:00 am, the Secret Service assumed control of the investigation. [my emphasis]


    A lot of people are justifiably furious with US Attorney Carmen Ortiz and AUSA Heymann's conduct on this case.

    But the involvement of the Secret Service just as it evolved from a local breaking and entry case into the excessive charges ultimately charged makes it clear that this was a nationally directed effort to take down Swartz.

    I actually find nothing at all amusing about the government's growing affection for big-footing the little guy in what seems to be an effort to suppress dissent and maintain a hold on power.


    While I certainly wouldn't rule out some (none / 0) (#39)
    by Peter G on Mon Jan 14, 2013 at 05:03:58 PM EST
    "nationally directed effort to take down Swartz," it seems at least as likely to me that the Cambridge police didn't have the technical expertise to deal with the computer forensics issues in the case, while the Secret Service (like several other federal police agencies) did, so it was decided that the case would be handled by the local U.S. Attorney's Office and a federal law enforcement agency, rather than by the county DA and city police.

    I think what I read this afternoon over (5.00 / 2) (#81)
    by Anne on Tue Jan 15, 2013 at 01:53:17 PM EST
    at Charlie Pierce's is about as succinct a couple of conclusions as I've seen drawn from this awful case:

    After saying that he had thought long and hard about the case, in an effort to truly understand the various aspects of it, Charlie says he came to two conclusions:

    The first is that every government ever conceived has taken as a kind of internal imperative that the governed out there cannot be trusted with too much information. Of course, the Founders said a lot of brave things about how an informed populace is necessary to the survival of self-government. Jefferson said he'd prefer newspapers without a government rather than the reverse. John Adams talked about the "indisputable, indefeasable, divine" right of the people to that most dreaded and envied kind of knowledge...of the conduct and characters of their rulers." Once in high political office, however, even these guys behaved the way that rulers always behave. Too much information dispersed too widely may be essential to self-government, but it also can be a threat to the public order, and we cannot have that, even if later generations will cast us in marble and make HBO miniseries about how great we are.

    There is no longer any question that the current administration has decided that the people have an "indisputable, indefeasible, divine right" to only that information which the administration sees fit to release. It has pursued leakers with a vigor that would have impressed the late Egil (Bud) Krogh, except using U.S. Attorneys and not Cuban burglars for hire. It has slapped Bradley Manning into what passes in the 21st Century for a dungeon. It has made a cartoon villain out of the WikiLeaks phenomenon, and out of Julian Assange in particular. I believe that part of the reason that it has adopted the laughable "Look forward and not back" legal strategy as regards to the people guilty of torture, and as regards to the people who wrecked the economy, is that it doesn't want the detailed information about either of those scandals released to the public, which cannot be trusted to behave itself properly. And this administration pursued Aaron Swartz not because he downloaded information, but because he dispersed it. It was the dissemination of the information that brought down on him the abandoned wrath of Carmen Ortiz and her superiors in Washington. It was because Aaron Swartz told us what he knew.


    Which brings me to my second conclusion -- Aaron Swartz ran facefirst into a law-enforcement and prosecutorial culture that we have allowed to run amok for far too long. It began with drugs. It intensified with the "war on terror." Preventive detention -- though they don't call it that -- has been mainstreamed, due process sacrificed to efficiency. Investigation without cause has been normalized in our daily lives, through mandatory drug testing and roadblocks and a dozen other ways we barely think about any more. Personal privacy has been rendered less important than official secrecy in the general scheme of things. We want -- nay, demand convictions, and all barriers to them be damned.


    ... Aaron Swartz ran into this culture here in Boston and now he's dead, and people are angry at how the system operated in this case. They should be, but they should be angry not because the system failed, but because the system worked. It operated in exactly the way we have said as a society we want it to operate every time we cheer for "terrorist" arrests based on evidence produced by agents of the FBI.  It operated in exactly the way we have said as a society it should operate every time we support warrantless wiretaps, or undercover provocateurs, or the denial of counsel to defendants who scare us the most. Our conduct, all of us, is accessorial to his death.

    Can't find anything there that I don't agree with.


    My innate conspiracy meter (none / 0) (#41)
    by NYShooter on Mon Jan 14, 2013 at 05:36:31 PM EST
    would question that reasoning. MIT isn't in Mayberry, it's in Cambridge (Boston.) And, Boston is a major, sophisticated city, in a major, intellectually rich state. Furthermore, Boston boasts, and hosts, the largest concentration of internationally acclaimed universities that I'm aware of. Were it someplace more rural I might agree, but I would be surprised if the Boston PD, and D.A. aren't equipped to handle technologically complicated cases.

    I could be wrong, but The Secret Service's involvement exudes something more than simply having "smarter" agents.


    Exactly. MIT gets major federal research funding (5.00 / 1) (#61)
    by Towanda on Mon Jan 14, 2013 at 09:53:09 PM EST
    and heaven help us all as to what it was afraid that Swartz had found in its cyberfiles.

    Thank you, Peter. (none / 0) (#63)
    by Towanda on Mon Jan 14, 2013 at 10:06:10 PM EST
    The ahistoricity exhibited by Lee is appalling.

    According to this MIT would not sign off (none / 0) (#68)
    by MO Blue on Tue Jan 15, 2013 at 07:50:05 AM EST
    on a purposed plea bargain.

    Swartz and his lawyers were not looking for a free pass. They had offered to accept a deferred prosecution or probation, so that if Swartz pulled a stunt like that again, he would end up in prison.

    Marty Weinberg, who took the case over from Good, said he nearly negotiated a plea bargain in which Swartz would not serve any time. He said JSTOR signed off on it, but MIT would not. TPM

    Since the Globe is not free, I was unable to read the article that was the basis of TPM's comment.


    Not much to add, but thank you (5.00 / 1) (#15)
    by jerry on Mon Jan 14, 2013 at 01:31:25 PM EST
    Hi Jeralyn,

    I've been following this semi-closely as I have long admired Swartz and have taken his suicide to heart.

    Anyway, though I have been trying to keep up, much of this material was new to me, and so I greatly appreciate your digging it out and highlighting it.

    Thank you.

    thank you Jerry (none / 0) (#45)
    by Jeralyn on Mon Jan 14, 2013 at 06:17:09 PM EST
    I had so much more but my first post which I wrote Saturday was 4,000 words and I hit the wrong button on my laptop and it went down the rabbit hole. This one was a recap. I may try again.

    If there are any particular aspects of the case you (or anyone else) wants info on, let me know, and if the court documents shed any light, I'll answer.

    Some of the documents remain under seal, like most of the search warrant affidavits. The only one I could find that was filed publicly in the criminal case is the 2/24 affidavit for the ACER, USB drive and external hard drive. The govt filed it as an exhibit to its response to the motions to suppress. (Doc 81)


    I'm actually surprised (none / 0) (#47)
    by Peter G on Mon Jan 14, 2013 at 07:23:39 PM EST
    that Aaron Swartz, who so strongly believed in open access to information, didn't post all the documents from his own case on his website for free public access.  As I understand it, J, you had to go to PACER and buy your copies, even though, ironically, Swartz's first run-in with the law was when he mass-downloaded a million PACER documents for posting to an alternative (free) site, to make the point that the government shouldn't be able to charge for access to public court records. In that instance, it turned out that even the FBI had to admit that he had, indeed, broken no law, and the investigation was dropped.

    Would it have been advisable for him to do that? (none / 0) (#54)
    by nycstray on Mon Jan 14, 2013 at 08:26:55 PM EST
    No, of course not, but (none / 0) (#56)
    by Peter G on Mon Jan 14, 2013 at 08:37:21 PM EST
    clearly Aaron Swartz was not on a path of doing what was "advisable" in any ordinary sense.

    Peter, yes I paid (none / 0) (#64)
    by Jeralyn on Mon Jan 14, 2013 at 10:09:35 PM EST
    10 cents a page and read every pleading and attachment. My PACER bill for TalkLeft research (as opposed to my own cases) is usually about $500 a quarter (they bill every three months.)

    But thanks to a warning on the Mass. district court's website, I learned about Recap -- they sure are afraid of it. I haven't seen this warning on any other district court's website.

    The court would like to remind fee-exempt PACER users of the terms of the exemption and of potential issues associated with a new software application called RECAP. It was designed by a group from Princeton University to enable the sharing of court documents on the Internet. Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. A fee exemption applies only for limited purposes. Any transfer of data obtained as the result of a fee exemption is prohibited unless expressly authorized by the court. Therefore, fee exempt PACER users must refrain from the use of RECAP. The prohibition on transfer of information received without fee is not intended to bar a quote or reference to information received as a result of a fee exemption in a scholarly or other similar work.

    The court would like to make CM/ECF filers aware of certain security concerns relating to a software application or .plug-in. called RECAP, which was designed by a group from Princeton University to enable the sharing of court documents on the Internet. Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. RECAP captures District and Bankruptcy Court documents, but has not yet incorporated Appellate Court functionality. At this time, RECAP does not appear to provide users with access to restricted or sealed documents. Please be aware that RECAP is "open-source" software, which can be freely obtained by anyone with Internet access and modified for benign or malicious purposes, such as facilitating unauthorized access to restricted or sealed documents. Accordingly, CM/ECF filers are reminded to be diligent about their computer security practices to ensure that documents are not inadvertently shared or compromised. The court and the Administrative Office of the U.S. Courts will continue to analyze the implications of RECAP or related-software and advise you of any ongoing or further concerns.

    I've also read that Aaron contributed the huge trove of PACER documents he downloaded a few years ago to Recap.

    I refuse to download any software that can grab items from my computer, especially that might pertain to a client. Better to  log on to the court docket and just read -- even though that means $.10 a page.


    Unless the reporting on the charges is incorrect (5.00 / 1) (#34)
    by MO Blue on Mon Jan 14, 2013 at 04:28:58 PM EST
    he was not charges with Criminal Infringement of Copyright or Trademark as described in your post. Instead the 13 federal felony charges against him were as follows:

    Wire Fraud - 2 counts
    Computer Fraud - 5 counts
    Unlawfully Obtaining Information from a Protected Computer - 5 counts
    Recklessly Damaging a Protected Computer - 1 count

    I deleted the comment (5.00 / 1) (#60)
    by Jeralyn on Mon Jan 14, 2013 at 09:52:40 PM EST
    saying his guidelines would be calculated using the copyright infringement guidelines. That's not how the guidelines are determined in computer fraud cases. Criminal Copyright Infringement cases have their own guideline, §2B5.3. (Criminal Infringement of Copyright or Trademark)

    There is no guideline called computer fraud. But the Statutory Index tells you which guidelines apply. From the Guidelines Statutory Index (The ones applicable to Aaron are highlighted):

    18 U.S.C. § 1030(a)(1) 2M3.2
    18 U.S.C. § 1030(a)(2) 2B1.1
    18 U.S.C. § 1030(a)(3) 2B2.3
    18 U.S.C. § 1030(a)(4) 2B1.1
    18 U.S.C. § 1030(a)(5) 2B1.1
    18 U.S.C. § 1030(a)(6) 2B1.1
    18 U.S.C. § 1030(a)(7) 2B3.2
    18 U.S.C. § 1030(b) 2X1.1
    18 U.S.C. § 1343 2B1.1, 2C1.1

     From the Department of Justice Manual on the Computer Fraud and Abuse Act (p. 131): The Guidelines treat most network crimes as basic economic offenses for which U.S.S.G. § 2B1.1 determines an offender's sentence.

    This guideline applies to § 1030(a)(2), (4), (5), (6) and wire fraud, 18 USC § 1343.

    For Aaron, based on the above, it seems 2B1.1  would be used for Counts 1 and 2 (the wire fraud counts ); Counts 3 to 7, charging violations of 18 USC 1030(a)(4) (Computer Fraud), Counts 8 to 12, charging violations of 18 USC 1030(a)(2) (Theft of Information From a Computer) and  Count 13, charging a violation of 18 USC 1030(a)(5)(B), Recklessly Damaging a Computer.)

    It's not the base guideline level, but the enhancements that might be applicable that could have resulted in a high sentence. The commentary to the various guidelines outline the enhancements, including those for computer offenses.

    Trademark and Copyright infringement guidelines are not helpful.


    Thanks (none / 0) (#65)
    by MO Blue on Mon Jan 14, 2013 at 10:32:53 PM EST
    That makes more sense to me.

    For TL readers not familiar with fed sentencing (5.00 / 1) (#37)
    by Peter G on Mon Jan 14, 2013 at 04:46:27 PM EST
    you should add that the federal sentencing "guidelines" are truly only "guidelines."  A judge can sentence more harshly (all the way up to a statutory maximum) or more leniently (all the way down to probation), so long as s/he gives reasons that are tied to the proper purposes of punishment. Judges follow the Guidelines over 80% of the time, but 20% is still a fairly large number of cases.

    So Peter are Federal judges (none / 0) (#43)
    by fishcamp on Mon Jan 14, 2013 at 05:44:44 PM EST
    able to also sentence to less than the minimum?

    there is no minimum unless (none / 0) (#46)
    by Jeralyn on Mon Jan 14, 2013 at 06:35:09 PM EST
    it's a statutory mandatory minimum, like in drug cases. Then the judge can only go below the mandatory minimum if the government requests a reduction for cooperation or the defendant meets the safety valve

    There are no mandatory minimums for the offenses Aaron was charged with, so theoretically, the judge could have sentenced him to probation. The likelihood of that happening: zero in my opinion.

    These are the offenses he was charged with:

    18 usc 1343 Wire Fraud, Counts 1-2
    18 USC 1030(a)(4) Computer Fraud, Counts 3-7
    18 USC 1030(a)(2) Theft of Information From a Computer, Counts 8-12
    18 USC 1030(a)(5)(B) Recklessly Damaging a Computer Count 13
    18 usc 981. 982, 1030 & 28 usc 2461,  Forfeiture
    18 usc 2 Aiding and Abetting counts 1-13


    Assuming conviction on those charges (none / 0) (#52)
    by Peter G on Mon Jan 14, 2013 at 07:43:16 PM EST
    I'm looking at a Guidelines Sentencing Range of at most 4-10 months, and on a guilty plea only 6 months at most, assuming the judge found no intended financial loss.  Of course, on the theory that Swartz intended to make all of JSTOR's materials, for which it charges libraries a subscription fee, and private users a per-item download fee, available instead for free from another source, in perpetuity, then the "intended loss" is all of JSTOR's revenues forever, which I suppose is unlimited in amount -- or perhaps the entire "market value" of JSTOR as an enterprise -- and there would be no telling how high the guidelines range might go under USSG 2B1.1(b)(1). I'm sure none of the publicly available materials reveals what ranges the lawyers were discussing in their negotiations.

    Turns out, according to a news story today (none / 0) (#55)
    by Peter G on Mon Jan 14, 2013 at 08:35:35 PM EST
    that I hit the nail on the head, so far as the Guidelines are concerned. His attorney told the AP today that the prosecutor offered a deal for six months "or slightly less" if Swartz would plead guilty to all counts. Since the Justice Dept., at least officially, always asks for a "guidelines sentence," this indicates my calculation was on target.

    Are federal judges able to change the charges (none / 0) (#44)
    by MO Blue on Mon Jan 14, 2013 at 05:58:18 PM EST
    from Wire Fraud, Computer Fraud etc. to Criminal Infringement of Copyright or Trademark and use the sentencing guidelines for that offense even if the prosecutor refuses to deal the charges down?

    The judge could not "change the charges" (none / 0) (#48)
    by Peter G on Mon Jan 14, 2013 at 07:29:41 PM EST
    of which he (hypothetically) might have been convicted (by verdict or plea).  But as I said above, the judge is not bound by the Guidelines.  The judge could look at the Guidelines sentencing range applicable to the offense(s) of conviction, decide that the range overstated the seriousness of the actual criminal conduct, and then look for guidance to a different range that better described that conduct, in the judge's considered opinion.  That would be entirely lawful.

    Where the offense conduct (none / 0) (#69)
    by Reconstructionist on Tue Jan 15, 2013 at 08:54:36 AM EST
     does not clearly establish a specific guideline as applicable the court must determine which guideline is the most appropriate to apply. The appendix to the guidelines which contains statute-guideline cross references is not controlling. the parties can each argue as to which guideline to use to establish the base offense level.

      That's not "changing the charges"  but if a court determines the actual conduct is more closely akin to the conduct for which a guideline is intended he can apply it.

      As Peter has suggested, in this matter the defendant may actually have been better off under § 2B1.1 which is a broadly applicable guideline used for "theft/larceny" type offenses than the copyright infringement (although it instructs to use the loss table in §2B1.1 where loss to the victim is a factor)but the discretio9n of the court to apply a guideline other than one crtoss rtefereced to the statute does exist.

      In any event, my real point was that some of the neews reports tended to overstate the real world exposure he was facing because it just added up all the statutory maximums cumulatively.


    I doubt that many TL readers are interested (none / 0) (#71)
    by Peter G on Tue Jan 15, 2013 at 10:10:40 AM EST
    but this is not correct, Recon:
    The appendix to the guidelines which contains statute-guideline cross references is not controlling. the parties can each argue as to which guideline to use to establish the base offense level.
      That's not "changing the charges"  but if a court determines the actual conduct is more closely akin to the conduct for which a guideline is intended he can apply it.

    That used to be the rule, but USSG 1B1.2(a) was amended in 2000 (amendment 591) to make the Appx A offense-guideline references mandatory. Of course, if the judge is dissatisfied with the sentence that guideline suggests, s/he can depart or vary the sentence. Thus, the rest of what you wrote is correct, and consistent with what Jeralyn and I posted yesterday. In the Swartz case, the offenses charged all pointed unambiguously to USSG 2B1.1 as the applicable offense guideline.

    THANKS (none / 0) (#73)
    by Reconstructionist on Tue Jan 15, 2013 at 11:18:36 AM EST
      I appreciate the correction. It's obviously been a long while since I had a case where that was in issue.

    no (none / 0) (#49)
    by Jeralyn on Mon Jan 14, 2013 at 07:32:48 PM EST
    the judge cannot change the charges. Charges are set by the grand jury (and based on what the prosecutor asks for.)

    Plea bargains to lesser crimes are at the option of the prosecutor. There is no right to a plea bargain. Again, the prosecutor picks the charges, not the judge.

    The judge has to begin with the guidelines for the offense of conviction. They are the startign point. He or she can then
    grant a downward variance based on the factors in 18 USC 3553.

    Here is a Congressional Research Services Report explaining the crimes under the Computer Fraud and Abuse Act.

    Also see what Aaron's expert witness would have testified to at trial.


    the "no" is in response to (none / 0) (#51)
    by Jeralyn on Mon Jan 14, 2013 at 07:34:49 PM EST
    the question posed, not Peter's reply, which I agree with

    And I agree with Jeralyn's response, too (none / 0) (#53)
    by Peter G on Mon Jan 14, 2013 at 07:54:52 PM EST
    So there! (Big hug)

    There should be (none / 0) (#2)
    by Abdul Abulbul Amir on Mon Jan 14, 2013 at 07:26:04 AM EST

    There should be a DOJ probe into the behavior of the prosecutors.


    I wonder if he had SAD? (none / 0) (#4)
    by Militarytracy on Mon Jan 14, 2013 at 09:06:31 AM EST
    Just some of the things his ex said, makes me wonder.  People with SAD don't commit suicide during episodes because they know the feelings will lift, they have experienced the cycle since childhood and they lack the terror that it will never end that comes with other forms of depression and often causes other sufferers to give up.  SAD does get much better though in your 30s and continues to subside as you age.

    Suffering and having an enormous life threatening and damaging pressure applied to you probably changes up that whole dynamic though.  Poor guy

    It's apparent (none / 0) (#5)
    by CoralGables on Mon Jan 14, 2013 at 09:23:55 AM EST
    he suffered from depression for years. Whatever issues were eating at him started long before his current legal issues.

    What I don't quite grasp is, when people intentionally do things they know are wrong there are usually three ways they approach it when caught: Claim innocence; take a plea deal; or fight it on principle following the philosophy of damn the torpedoes, full speed ahead.

    Independently wealthy at 20 years old, supposedly broke at 26, facing a possible lengthy sentence, he turns down a plea deal and gives himself a life sentence. There is no logic to the approach he chose.

    Here is his blog post that had friends thinking he was on the verge of suicide in 2007

    This wasn't an MIT issue, or a federal prosecutor issue. It was a mental health issue.


    On his blog though he identifies it as a Mood (none / 0) (#6)
    by Militarytracy on Mon Jan 14, 2013 at 09:49:47 AM EST
    Disorder and mood disorders are not a garden variety clinical depression.  If you have SAD you will suffer every winter.  The farther from the equator you winter dictates how much you suffer or better description is probably hibernate.

    If it was SAD, people who suffer often have horrible winter depressions in their 20's but do not commit suicide.  It became such a curiosity that research was dedicated to it, and the best they could come up with is that it is due to the learned response that the feelings lift.  You have experienced milder cycles before, you have gone through it many times before before it becomes really crappy for you.

    You don't handle stress well though in the winter.  Over half of the women in my family suffer from SAD, only one male cousin. Where does it come from?  Many researchers think we are still expressing genes that are demanding that we migrate with the seasons or we hibernate.  I don't really have symptoms any longer, probably due to my age and my location South.  I have all the research on SAD though, and mood disorders are not clinical depression.


    I looked on the SAD site (none / 0) (#8)
    by Militarytracy on Mon Jan 14, 2013 at 09:57:42 AM EST
    And clinical depression is also classified a mood disorder.  Sorry, for some reason I thought they were in different categories.  That isn't where they begin to break things down though.

    I was thinking dysthymic disorder, sorry (none / 0) (#9)
    by Militarytracy on Mon Jan 14, 2013 at 09:59:56 AM EST
    I posted this once before... (none / 0) (#7)
    by Dadler on Mon Jan 14, 2013 at 09:51:54 AM EST
    Aaron was not a Anonymous type hacker (5.00 / 1) (#10)
    by Jeralyn on Mon Jan 14, 2013 at 11:26:52 AM EST
    If the case went to trial, the defense would  have called expert Alex Stamos, the CTO of Artemis Interne. Stamos, with permission of Aaron's lawyers, Saturday wrote about what his testimony would have been at trial.

    In short, Aaron Swartz was not the super hacker breathlessly described in the Government's indictment and forensic reports, and his actions did not pose a real danger to JSTOR, MIT or the public. He was an intelligent young man who found a loophole that would allow him to download a lot of documents quickly. This loophole was created intentionally by MIT and JSTOR, and was codified contractually in the piles of paperwork turned over during discovery.

    There really isn't... (none / 0) (#20)
    by Dadler on Mon Jan 14, 2013 at 02:41:51 PM EST
    ...a specific TYPE of Anonymous hacker. But your point on this young man is legit.

    well, there turned out to be a few kinds (none / 0) (#21)
    by Dadler on Mon Jan 14, 2013 at 02:42:16 PM EST
    I provided a link to that article... (none / 0) (#66)
    by unitron on Mon Jan 14, 2013 at 11:08:34 PM EST
    ...yesterday or the day before, as well as a mention of one of the commenters who was a JSTOR engineer at the time, in this post.

    The color scheme... (none / 0) (#67)
    by unitron on Mon Jan 14, 2013 at 11:14:29 PM EST
    ...of this site makes links do the opposite of stand out.

    oooops (none / 0) (#14)
    by DFLer on Mon Jan 14, 2013 at 01:17:36 PM EST
    youtube link sez:

    "We Are Legion: The Story of..." This video is no longer available due to a copyright claim by VHX.


    boom (none / 0) (#18)
    by Dadler on Mon Jan 14, 2013 at 02:37:30 PM EST
    boom (none / 0) (#19)
    by Dadler on Mon Jan 14, 2013 at 02:40:32 PM EST
    Ta (none / 0) (#58)
    by DFLer on Mon Jan 14, 2013 at 09:20:43 PM EST
    got it

    Trial court dismisses the (none / 0) (#11)
    by oculus on Mon Jan 14, 2013 at 11:45:28 AM EST


    Yes, a criminal case "abates" (none / 0) (#13)
    by Peter G on Mon Jan 14, 2013 at 12:29:52 PM EST
    if the defendant dies before conviction, or even if s/he dies before the conviction becomes final through the appeal process.

    It's tragic no doubt (none / 0) (#17)
    by Reconstructionist on Mon Jan 14, 2013 at 02:32:16 PM EST
     and the Feds known for their sennse of humor, but this was not a harmless prank either.

      Frankly, what he did is serious. I've seen a lot of analogies tossed around but I'll compare it to if a supermarket left its door open after closing because someone failed to push the right button on the automatic locks and then a person came in and stole food and gave it poor people for free. That is still stealing even if the person deeply believed he was serving the greater good and because the stealing was accomplished through a trespass it's more serious than simply picking up someone's property left in a publc place.

       The motive or "good intentions" is very relevant for sentencing but not readily portrayed as justified or a necessity in terms of the law. I'm not sure why he wished to challenge the case at trial. I'll assume idealism but otherwise if he thought the six month offer was unacceptable, I'm not sure why he didn't try to plead straight up to one count, make all his arguments at sentencing, and then hope the court felt incarceration was not appropriate. If that happened the U.S. Attorney would likely elect to dismiss the other charges believing the court would find it had already considered all relevant conduct in imposing that sentence and it would not be worth the resources to simly achieve a greater number of convictions resulting in the same effective sentence.

    Per his lawyer pleading straight up to one count (5.00 / 2) (#22)
    by MO Blue on Mon Jan 14, 2013 at 02:55:09 PM EST
    was not an option.

    Mr. Swartz's lawyer, Elliot Peters, first discussed a possible plea bargain with Assistant U.S. Attorney Stephen Heymann last fall. In an interview Sunday, he said he was told at the time that Mr. Swartz would need to plead guilty to every count, and the government would insist on prison time.

    Mr. Peters said he spoke to Mr. Heymann again last Wednesday in another attempt to find a compromise. The prosecutor, he said, didn't budge. link

    For the Analogy to Work... (5.00 / 2) (#24)
    by ScottW714 on Mon Jan 14, 2013 at 03:40:23 PM EST
    ...you should make note that the goods were returned, the supermarket didn't want charges pressed, and most importantly, the supermarket has since opened the doors and those goods are free for the taking in limited quantities.  IOW, it would seem that they agree with the Swartz's reasoning.

    But even if that weren't true, would you expect this kind of heavy handedness has he actually stolen food from grocery store.  Keep in mind, the goods were free all along, they were charging for their overhead costs of keeping those free goods available to the public.

    I don't think anyone is arguing that he didn't commit a crime (had he been convicted), just the degree the government came down on a crime that the 'victim' didn't want prosecuted, a crime that in my mind is pretty low on the crime meter and a crime not worthy of jail time for a 1st time offender.


    Yeah, that is valid (5.00 / 1) (#28)
    by Reconstructionist on Mon Jan 14, 2013 at 03:49:16 PM EST
      to an extent, but there a couple of things that must be considered.

      Not only is a larceny complete when property is taken withthe intent to permanently deprive the owner, with intellectual property the owner is permanently deprived the minute one unlicensed publication to a third party ensues.

     Additionally, the victim does not have control over a criminal prosecution. His wishes are relevant but whether it's the local supermarket or JSTOR or any other victim it can only express an opinion.

      Moreover, even if the victim then decides to give away its product doesn't make it legal to have taken it before that.

      I agree that imprisoning the guy for what he did is excessive but he did willfully (he  admitted as much) take IP he knew was not being given away for free because he thought it should have been.



    I Agree... (5.00 / 2) (#36)
    by ScottW714 on Mon Jan 14, 2013 at 04:40:13 PM EST
    ...with your points somewhat.

    But there is no intellectual property, the charge was for overhead, the property was always free.  Not being a lawyer, this seems closer to absconding, rather than theft.  He deprived MIT the $1/page they charged for the free materials.

    And my point was since MIT has decided to post these for free, it's pretty hard to make the case, at least in my mind, that he committed a crime worthy of Secret Service involvement.

    And I think the it varies from jurisdiction in regards to the victim filling charges, I know they changed a lot of laws so Domestic Violence charges could be filed without a the victim wanting to.  But in the case of theft, if the victim doesn't feel like they were wronged, the government shouldn't be so hot to act like that has no bearing on anything.

    It matters in this case in that they went after this kid hard, made his life a hell, and there isn't anyone who feels like they were wronged by this kid.  Theft is not a victimless crime, but in this case they are saying it can be.

    They should be spending their resources perusing crimes in which victims exist.  Maybe they didn't want him walking away, but a plea for something without jail would have been enough.  And it's not like I am the only one with this view, it's the reason this story is making it's rounds, the prosecutor's behavior was more than what most people think is acceptable.


    But whose intellectual property? (5.00 / 2) (#62)
    by Towanda on Mon Jan 14, 2013 at 10:00:21 PM EST
    JSTOR does not hold copyright.  Nor, actually, do the journals, hundreds, for which it simply provides a cybervenue.

    I have articles on JSTOR.  They are my intellectual property.  And, by the way, few scholars are paid for articles; we publish for free, because we're just over-the-moon happy to have scholarly work read by more than our mothers.

    Nobody asked those of us who created the intellectual property on JSTOR whether the government ought to persecute Swartz.  


    JSTOR does not hold copyright (none / 0) (#70)
    by Dr Molly on Tue Jan 15, 2013 at 09:40:18 AM EST
    But the academic journals it services do, no? I have stuff on JSTOR as well - each time I've published an article, I've signed a copyright form over to the journal.

    It should also be noted, though, that academia is moving ever closer to open source on everything, and it won't be long until all published data and articles are open. I suppose Aaron was pushing this along...


    I signed off on copyright (none / 0) (#72)
    by Towanda on Tue Jan 15, 2013 at 11:13:57 AM EST
    for one journal but not others.  Interesting that you had to do so in all in your field.

    Thing is, the journals were not involved in this case, so I don't see how intellectual property law was involved.  Perhaps the journals sign over rights to JSTOR?  If so, those to which I did not sign over copyright violated my intellectual property rights. . . .


    Your analogy only holds (5.00 / 4) (#27)
    by shoephone on Mon Jan 14, 2013 at 03:44:44 PM EST
    if the supermarket refuses to pay the food producers for their products. JSTOR doesn't pay the authors of the journal articles any royalty when users download the materials. And the materials were being charged at a pretty high price. The fact that they were academic materials should not give the distributor carte blanche to gouge the customers -- who are, after all, other academics doing research -- and pay nothing to the producers of the materials.

    At least JSTOR saw the error of its ways and said they would now provide more articles for free download. Most importantly, you left out the fact that JSTOR, the distributor (your analogous supermarket) said they were not being harmed and did NOT want the prosecutor to press charges.

    MIT, on the other hand, can go choke on itself. As well as the over-zealous prosector.

    I don't think your analogy is applicable.


    Pretty sure from what I read that JSTOR (none / 0) (#33)
    by Peter G on Mon Jan 14, 2013 at 04:25:22 PM EST
    is not moving to free downloads.  It offered a limited number of opportunities to read articles on its database for free, but not to download or print them.

    You're correct Peter (none / 0) (#35)
    by shoephone on Mon Jan 14, 2013 at 04:32:58 PM EST
    They are making them available to read, not download. Up to three articles every two weeks, for free.

    Which is hardly much of a relaxation (5.00 / 1) (#40)
    by Peter G on Mon Jan 14, 2013 at 05:19:52 PM EST
    if you ask me. I use JSTOR articles from law reviews in my legal work.  Fortunately, the alumni association of one of the schools I went to has made a deal with the university library allowing alums to access JSTOR's database as if we were still members of the campus academic community.  The last one I needed was a 1949 historical article from the Univ of PA law review.  It's frankly absurd that that article - originally written for no pay by a professor who was never entitled to royalties, published in the not-for-profit, student-edited journal of a not-for-profit university - is not now freely available, 63 years after publication.  

    Totally agree (5.00 / 1) (#42)
    by shoephone on Mon Jan 14, 2013 at 05:39:35 PM EST
    I wonder if the Swartz tragedy will inspire the people who run JSTOR to significantly alter their policies. I hope so.

    For every one of those articles that's read... (none / 0) (#59)
    by Mr Natural on Mon Jan 14, 2013 at 09:25:19 PM EST
    Gotta wonder how many remain unread, not returning a nickle of whatever the cost of digitizing them was.

    According to Prof. Lessig's account (none / 0) (#26)
    by Peter G on Mon Jan 14, 2013 at 03:43:08 PM EST
    linked by Jeralyn above, Swartz was unwilling to accept a felony conviction, as would result from a plea to any count, regardless of the likely sentence.  Rational or not, that's what Lessig seems to say was the stumbling block.

    Yeah, my impression is that (none / 0) (#30)
    by Reconstructionist on Mon Jan 14, 2013 at 03:53:22 PM EST
     he was quite idealistic and steadfast in his beliefs. That's why I prefaced my little digression with "otherwise" because the  case against him in pure legal terms seemed quite strong considering both the investigation and his own comments which made it pretty clear he acted with the requisite intent.

    Acting with intent (5.00 / 1) (#32)
    by MO Blue on Mon Jan 14, 2013 at 04:19:45 PM EST
    Last week the United States Department of Justice announced with great fanfare a "record" $1.92 billion settlement with HSBC, a British bank with extensive U.S. operations, for laundering billions of dollars for repugnant governments under international sanctions, including state sponsors of terrorism and the genocidal Sudanese regime; other organizations suspected of ties to terrorists; and the Colombian and Mexican drug cartels. "HSBC is being held accountable for stunning failures of oversight," Lanny Breuer, the head of the DOJ's criminal division said in a prepared statement. "The record of dysfunction that prevailed at HSBC for many years was astonishing."
    HSBC did say they were sorry for laundering billions of dollars for terrorists, genocidal regimes and drug cartels. "We accept responsibility for our past mistakes," Stuart Gulliver, HSBC's CEO said. "We have said we are profoundly sorry for them, and we do so again." The settlement also "would most likely tarnish the bank's reputation," so maybe HSBC executives will feel embarrassed at holiday parties.

    Acting with intent to launder money for entities including state sponsors of terrorism and the genocidal Sudanese regime; other organizations suspected of ties to terrorists; and the Colombian and Mexican drug cartels according to our DOJ does not require jail time but downloading documents "JSTOR itself believed that Swartz had "the right" to download from the site." requires numerous years in jail.



    And... (none / 0) (#38)
    by ScottW714 on Mon Jan 14, 2013 at 04:50:42 PM EST
    ...I believe the agreement included a part where they didn't have to include account holder names.

    It's classic, rich people evading the law and the deals with HSBC & UBS let them basically walk.  For UBS they were allowed to pay the taxes they owed with no punishment.

    There are some bad characters and HSBC actually pursued people after the UBS scandal, but it's not fair that the majority of the people with these accounts, rich Americans, were able to walk away unscathed while the government goes after the little guy, as in this story, with such zeal.

    Tax evaders should be prosecuted, not allowed to pay they money they tried to hid and allowed to walk away because of some backroom deal to save executive hides.  Executive that will invariably end up benefiting from these deals by landing jobs because they made sure rich people didn't get prosecuted for crimes they helped them commit.


    Pleading "straight up" (none / 0) (#23)
    by Reconstructionist on Mon Jan 14, 2013 at 03:15:31 PM EST
     means doing so without a plea agreement. The prosecutor cannot stop a person from doing that. It's uncommon but there are situations where it is the best option.

      It's uncommon because there are benefits to an agreement. The obvious one is that some charges are dismissed, but that is less of a consideration in federal cases where the "real offense conduct" principles guide the guidelines, so to speak. In federal court even if you are convicted of only one count the guideline offense level is determined with refertence to all "relevant cinduct" which includes conduct for which a person is not convicted if it is part of a common scheme or plan or the same course of conduct, etc. Multiple counts that embody the same course of conduct only serve to increase the potential maximum sentence not the guideline range. thus, in effect getting convicted of one count is only better than being convicted of 5 if the guideline range based on the relevant conduct exceeds the statutory maximum for the one count conviction.

      The "relevant conduct" approach often hurts defendants, but it can occasionally, as I suggested above provide a tactical reason to plead straight up to a single count. If he had done so and then been sentenced on that one coutn there would be a very good chance he would not get more time even if ultimately convicted of other counts withing the same course of conduct. The risk, of course would be getting a sentence greater than what the prosecutor offered as a deal and eliminating the possibility of an acquittal on all charges.

    Thanks for the info (5.00 / 1) (#25)
    by MO Blue on Mon Jan 14, 2013 at 03:42:27 PM EST
    Evidently he and his attorney chose not to pursue that approach.

    More on charges.

    Not only that, but JSTOR was not the entity pressing charges. It had stopped the downloading and secured the "stolen" content, along with receiving assurances from Swartz that the files would not be distributed. Despite this, the feds felt compelled to arrest Swartz and charge him with four felony counts (one each for Wire Fraud, Computer Fraud, Theft of Information from a Computer and Recklessly Damaging a Computer). At this point, Swartz was looking at a possible 35-year sentence and over $1,000,000 in fines.

    Whoever's pushing this case must really dislike Swartz and/or his activities. A "Superseding Indictment" (pdf) has been filed, raising the number of felony counts from four to thirteen. Seth Finkelstein at Infothought has a brief rundown of the new charges (h/t to Nate Hoffelder for the link):

    There are now 13 felony counts in the new indictment, derived from claims of multiple instances of breaking those four laws. ....
    So, how do the new charges stack up in terms of a sentence? Tough to say. Each of the charges carries the possibility of a fine and imprisonment of up to 10-20 years per felony. Depending on how many of the counts Swartz is found guilty of, the sentence could conceivably total 50+ years and fine in the area of $4 million. All this over publicly accessed research documents that JSTOR doesn't even feel the need to pursue further than it did. link

    To put these charges in perspective Think Progress put together a list of sentence for various federal crimes.

    Manslaughter: Federal law provides that someone who kills another human being "[u]pon a sudden quarrel or heat of passion" faces a maximum of 10 years in prison if subject to federal jurisdiction. The lesser crime of involuntary manslaughter carries a maximum sentence of only six years.

    Bank Robbery: A person who "by force and violence, or by intimidation" robs a bank faces a maximum prison sentence of 20 years. If the criminal "assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device," this sentence is upped to a maximum of 25 years.

    Selling Child Pornography: The maximum prison sentence for a first-time offender who "knowingly sells or possesses with intent to sell" child pornography in interstate commerce is 20 years. Significantly, the only way to produce child porn is to sexually molest a child, which means that such a criminal is literally profiting off of child rape or sexual abuse.

    There are 7 more serious federal crimes listed in the Think Progress post.


    another hacker committed suicide (none / 0) (#57)
    by desmoinesdem on Mon Jan 14, 2013 at 09:13:04 PM EST
    a few years ago in a case involving assistant U.S. Attorney Stephen Heymann.

    Some of Swartz's friends have accused Assistant United States Attorney Stephen Heymann of contributing to Swartz's suicide, with his unwillingness to compromise on the prosecution of Swartz in a case involving scholarly journal articles.

    Back in 2008, another young hacker, Jonathan James, killed himself after being named a suspect in another Heymann case.

    James, the first juvenile put into confinement for a federal cybercrime case, was found dead was two weeks after the Secret Service raided his house as part of its investigation of the TJX hacker case led by Heymann -- the largest personal identity hack in history. He was thought to be "JJ," the unindicted co-conspirator named in the criminal complaints filed with the US District Court in Massachusetts. In his suicide note, James wrote that he was killing himself in response to the federal investigation and their attempts to tie him to a crime which he did not commit

    Coral Gables for the win! (none / 0) (#82)
    by Towanda on Tue Jan 15, 2013 at 01:56:24 PM EST
    "Face it, girls.  I'm older, and I have more insurance."  

    Aaron was a decent idealistic kind caring (none / 0) (#83)
    by samsguy18 on Tue Jan 15, 2013 at 02:12:08 PM EST
    And brilliant young man......What happened to him was unjust and a tragedy for his family.