The State Should Not Pardon Aaron Swartz

by Corey Robin on January 15, 2013

There is a petition seeking the pardon of Aaron Swartz. It states, “President Obama has the power to issue a posthumous pardon of Mr. Swartz (even though he was never tried or convicted). Doing so will send a strong message about the improportionality with which he was prosecuted.” I understand the sentiment that underlies the petition. But I think it is wrong-headed and misplaced. It grants the state far too much.

It’s not simply a matter, as some have claimed to me on Twitter, that Swartz was never tried nor convicted of a crime; Ford, after all, pardoned Nixon before he was tried and convicted in the Senate could be charged, tried or convicted in a court of law. The real issue is that in the court of public opinion, Swartz is the innocent—no, the hero—and the state is the criminal. It is the state, in other words, and not Swartz’s supporters, that should be seeking a pardon—from Swartz’s family, from his supporters, and from the public at large. Though, I hasten to add, it should never receive one.

Asking the state to pardon Swartz doubly empowers and exonerates the state. It cedes to the state the power to declare who is righteous and who is wrong (and thereby obscures the fact that it is the state that is the wrongful actor in this case). The petitioning language to Obama only adds to this. The statement depicts Obama as somehow the good father who stands above the fray—much like how the Tsar was depicted in the petition of the Russian workers who marched with Father Gapon on the Winter Palace in 1905 and were summarily slaughtered.

Pardoning Swartz also would allow the government, effectively, to pardon itself. As my friend Michael Pollak pointed out to me, “Under our laws, Swartz was still innocent. Therein lies the crime of what the state did to him. This would remove it.” I would merely add that even if Swartz would have been (or had been) found guilty under the law, Michael’s stricture would still hold.

I want the death of Swartz, and the prosecution that helped produce it, to hang around the neck of the state for a very long time. If the state wishes to remove it, let it start by curbing its prosecutorial zeal, of which Swartz was sadly only one victim.

{ 54 comments }

1

Wonks Anonymous 01.15.13 at 3:07 pm

I think it’s tragic he’s dead, but I don’t think it’s right to say he’s “innocent” (except in a legalistic not-yet-convicted sense). He was caught on camera, after MIT had repeatedly blocked him electronically, even cutting off all JSTOR access for a few days. Maybe it was for a good cause, but if the data he’d been accessing was anything else (say, SS numbers) nobody would deem him innocent.

2

straightwood 01.15.13 at 3:09 pm

This is not a struggle between states and individuals; it is a struggle between institutions and individuals. It is institutions, like Harvard, MIT, Disney, Microsoft, and Apple that are waging determined rear-guard actions to preserve their rental incomes. These institutions use state power to protect their franchises and monopolies. These institutions conserve scarcity and they are gravely threatened by the abundance that digital technology enables. Academic journal access was a form of enforced scarcity that Swartz attacked, and thus he became an institutional enemy who was to be punished by the state.

Pardon Swartz? Hell no. Punish his oppressors.

3

Corey Robin 01.15.13 at 3:14 pm

#2: Ordinarily, I would agree with this analysis, and often make it myself. In this case, however, you have the prosecutorial zeal that has come to define so much of the contemporary state. So in addition to the issues you raise, it also seems to be an instance of this other set of issues. But on your final three sentences: we very much agree.

#1: Michael, who I was quoting, and I meant innocent, minimally, in the legal sense. Though I would personally add more meaning to it than that — not every crime is a moral wrong — the mere minimal sense of the term is enough to indict the state.

4

mtraven 01.15.13 at 3:35 pm

It is mildly weird (yet perfectly normal) to consider the state or other institutions as moral actors. If the state is criminal, how is it to be punished? And more practically, who is capable of punishing it? Some people have tried to put the blame on Carmen Ortiz, the US Attorney who was in charge of prosecuting Swartz. That’s good, because as an individual she can be punished (fired). But it’s also bad, since it doesn’t do anything about the institutional structures and pressures that lead to this kind of abuse.

5

Fu Ko 01.15.13 at 3:55 pm

Can someone leak the JSTOR archives already?

6

Andthenyoufall 01.15.13 at 3:58 pm

If Ortiz were fired, that wouldn’t change the institutional structures overnight, but it would send a clear message to ambitious prosecutors that those ambitions are not well served by persecuting political activists.

7

liberal japonicus 01.15.13 at 4:18 pm

I think that there is an article by Brian Tamanaha that discusses a question similar to this in regard to the coram nobis ruling of the court in Korematsu v US. My google-fu is a bit weak at the moment, but I seem to remember it pointing out how the vacating of Korematsu was done in a way that didn’t actually hold the justice system to account, similar to the way that a Swartz pardon would ‘empower and exonerate’ the state.

8

Rich Puchalsky 01.15.13 at 4:18 pm

“The state” is an awfully big and impersonal concept. Let’s look, for a moment, at those who excuse the state in this particular case. For instance, whenever the activities of prosecutors are called into question, there will be some lawyer who comes forward to assure everyone that everything that was done was legal. Orin Kerr did the in the first part of a projected two-part series. The second part is to focus on prosecutorial discretion.

I’ll predict that the second part of this series will say that prosecutors acted well within accepted limits of prosecutorial discretion. Orin Kerr can, of course, prove me wrong, perhaps within the hour or whenever he writes and posts his post. But if he does write this, I assume that the people here who are willing to condemn “the state” will not similarly be willing to condemn Orin Kerr for being a volunteer mouthpiece for the state. After all, Orin Kerr shares a similar socioeconomic and professional background to the people here, and is more or less part of their blogging social circle. The demands of principle stop where the social circle begins.

I agree that people should not ask the state to pardon Schwartz (although I did sign the other petition to fire the prosecutor, which I expect will result in no result). I do think that people should think more about what this easy condemnation of “the state” really means. If it means that they still support the existing system in their professional work, and never confront anyone who they actually know, what does that mean, practically?

9

mpowell 01.15.13 at 4:21 pm


That’s good, because as an individual she can be punished (fired). But it’s also bad, since it doesn’t do anything about the institutional structures and pressures that lead to this kind of abuse.

This is precisely backwards. Getting Ortiz canned or refusing to voter for her for elected office is exactly the pressure and structure that reverses this kind of abuse. The default for an AG is to go head-hunting because that is what is rewarded. Make it something that’s not rewarded when you’re hunting the wrong targets.

10

Sebastian H 01.15.13 at 4:34 pm

Orin is very good at exploring what the law IS. That isn’t him being a mouthpiece, that is him exploring what the law IS. I will be unsurprised if he finds that the prosecutors acted within normal parameters of prosecutorial discretion because my understanding is that as currently practiced that discretion is practically unlimited and often abused. This is a fact which almost certainly should be changed if we want a more just society. But having a clear understanding of what the system IS can be an important component of explaining why change is needed.

11

Andrew Burday 01.15.13 at 4:41 pm

To the OP, this is not your main point, but where do you and your friend Pollak get the claim that Swartz was legally innocent? The Kerr piece in Volokh seems to offer strong arguments that, at the least, the charges were legally justified — that is, they were appropriate charges for a prosecutor to bring, given the facts of the case. Kerr seems to be accepted as a legitimate expert in these issues — Henry linked to one of his papers in a recent post here on CT. (I have not yet read it.)

I’m puzzled partly because this doesn’t appear to matter to your main point. It doesn’t address the question of prosecutorial discretion and it doesn’t address the basic question of whether Congress passed an unjust or overly broad law. I agree with you that we should be thinking about this both in terms of prosecutorial overreach in general and in terms of what’s driving the law on computer crimes and “intellectual property”. I also agree with your main argument in this post, that Obama would be pardoning his own DOJ (and arguably the Congress). So why the claims about legal innocence?

12

Corey Robin 01.15.13 at 4:41 pm

#7: For someone who criticizes the impersonality of the word “the state,” you’re awfully vague as to who these people are that include Orin Kerr as part of their “blogging social circle” and who engage in “easy condemnation of ‘the state’.” I for one do not include Kerr in my circle; I barely read him and certainly don’t know him. And I don’t think anyone who knows my work would ever say I’m one to engage in easy condemnation of the state. In this case I deliberately used the word “the state” because: a) prosecution is considered to be one of the hallmarks of state power; b) the zealotry displayed in this case is symptomatic of a much larger and more systemic problem in this country, which cannot be limited to one prosecutor, one office, one Justice Department, or the federal government as a whole: it is endemic to virtually every government entity (local, state, and federal) in the country today. And while I take the point that the state has its enablers and apologists throughout society (again, something I’ve written on extensively), in this case, it seemed legitimate not to so expand the circle of culpability as to take the focus off where it needs to be. (Indeed, were I to look to the ideologues and intellectual apologists who are most responsible for the penal zealotry we live with today, I’d go back to the 60s and 70s; seems to me Kerr is but a footnote and an afterthought). If I’m wrong on any of these points, I’m happy to be told so. But if you think it has anything to do with the rules of blogger politesse or black-slapping, you’re wrong.

13

Corey Robin 01.15.13 at 4:49 pm

10: Andrew, as I explained at #3, Pollak meant innocent in the minimal legal sense: Swartz had not been tried or proven guilty in a court of law. Hence the “under our laws.” I know that can seem like a quaint distinction, but one of the symptoms of our overgrown culture of the penal state is precisely the conflation between someone being charged and someone being guilty.

14

Trader Joe 01.15.13 at 4:50 pm

Is it possible that there is some aspect of what Schwartz did that has not been made public which might explain the zeal with which the prosecution and/or MIT has pursued the matter? It may not even have been something he meant to do, but some area he accessed, perhaps classified, that might have engendered the response.

Its not usual for Secret Service to be involved in matters like this. Its also not usual to demand jail for crimes of this nature. Is there something being missed in the public disclosure that might provides ome sunlight?

I say this not to excuse the conduct – Prosecutors in my view have clearly been heavy handed based on the facts which have been published. That said, while there are certainly instances of ‘rogue’ prosecutors looking to make a name for themselves, and we know the ‘system’ rewards this, its quite often also the case that there is a method to madness once all the facts are on the table.

I don’t wish to steer off-topic, but the commentary I’ve read here and on prior strands all seems rather polarized and I’ve not seen much effort to fit facts to motives – rather more effort to leap to conclusions that either “victim” or “state” was criminal and merits punishment.

15

LFC 01.15.13 at 4:52 pm

R. Puchalsky:
Orin Kerr shares a similar socioeconomic and professional background to the people here, and is more or less part of their blogging social circle

Quite a long time ago on CT there was a dust-up about something Kerr wrote about a particular case involving the Bush admin’s electronic surveillance program (was it the case called al-Haramain? I’ve forgotten the details). Anyway there was a very long thread here in which plenty of people harshly criticized him and in which Kerr himself participated. It got rather technical, as I recall, but there was no hesitancy to criticize him. Kerr himself didn’t yield an inch on the issues or on his position, insisting on having the last word about everything.

16

rf 01.15.13 at 5:08 pm

Jennifer Granick has written a bit on this (if you scroll down past her profile on the link below to ‘blog posts’) including a short reply to Kerr. Might not be anything new to those who know the case but I found it useful

http://cyberlaw.stanford.edu/about/people/jennifer-granick

17

straightwood 01.15.13 at 5:12 pm

To those seeking precision in application of the letter of the law, I suggest applying their analysis to the punishment of US government torturers or money launderers at HSBC. When the US Federal Government deliberately refuses to enforce existing laws against powerful institutions, but brings its weight to bear against weak individuals, it becomes a force for injustice.

The corruption of the Obama “Justice” Department stinks to high heaven, with rich malefactors like Corzine walking the streets, while impecunious activists and whistleblowers are hounded under Orwellian anti-terrorist laws. We are no longer in a gray zone of legal ambiguity. We are watching the open flouting of the law by Federal officials, who brazenly declare that a criminal corporation, HSBC, will not be prosecuted because it is too important. Meanwhile, Bradley Manning is facing the death penalty for revealing details of the government’s conduct of illegal wars of aggression.

The American academic community, in sharp contrast to its vocal defense of protest in the Vietnam era, remains largely silent in the face of blatant and appalling assaults on civil liberties and the rule of law in the United States. In this context, it is no wonder that MIT supported the prosecution of Swartz. So, let us not be hasty here. Let us consider more carefully reasoned excuses for crushing individuals who speak truth to power.

18

Rich Puchalsky 01.15.13 at 5:14 pm

I agree that the problem is “endemic to virtually every government entity (local, state, and federal) in the country today.” I also agree that this isn’t something that just popped up on the contemporary scene — I’d put the widespread U.S. social predilection for unrestrained law-n-order down to our history of racism and slavery. But a reaction to Aaron Schwartz’s death isn’t an explanatory tract that goes back to the 60s and 70s. Kerr, whatever his status as a footnote and afterthought in the larger sense, is writing today about this case.

I haven’t read your particular writings about this, and I’d be interested to be directed towards those that you think are your best. But Orin Kerr is surely part of the social circle of the posters here considered as a group. That may be a nebulous group of people but is a lot less nebulous than “the state”.

I’ll also be clear that I’m only calling for speech to be countered with more speech. If Orin Kerr is writing descriptively, “exploring what the law is” — an assertion which I don’t believe, given his rhetorical framing — then other people should equally well be willing to explain why the law at it is is unjust, and why a technocratic description of the law that doesn’t mention why it is unjust should be condemned.

19

Andrew Burday 01.15.13 at 5:19 pm

12, I didn’t understand what you meant by “minimal legal sense”. I don’t think there’s anything quaint about innocent until proven guilty. But look:

‘As my friend Michael Pollak pointed out to me, “Under our laws, Swartz was still innocent. Therein lies the crime of what the state did to him…”‘

How can the fact that Swartz was not yet convicted make it a crime to indict him and go through the usual pre-trial negotiations?

Even if what you’re saying is that the negotiations involved abuse of prosecutorial discretion (which I would agree with), the problem can’t be that this happened before he was convicted. You can’t say “therein lies the crime”.

20

rf 01.15.13 at 5:23 pm

“then other people should equally well be willing to explain why the law at it is is unjust”

That’s what virtually every post on this site has been trying to explain

21

Rich Puchalsky 01.15.13 at 5:34 pm

“That’s what virtually every post on this site has been trying to explain”

Actually, no. The previous posts here that have assigned partial blame have assigned it to the particular prosecutors involved and to MIT.

22

rf 01.15.13 at 5:48 pm

Wouldn’t the general support around here (at least from my reading) in favour of open access (if that’s the term, I don’t know) and for Aarons’ position more generally (if not tactics) imply that people do find the law unjust? (Not wanting to derail, so I’ll leave it after that)

23

straightwood 01.15.13 at 5:54 pm

The fundamental cause of injustice in the Swartz case is the institutional bias toward treating knowledge as private property, to be rented by “owners” at their discretion. Knowledge, which, in the modern era, is instantly transmissible in bulk is not something that should be treated like beef cattle or gold ingots. When the knowledge has been produced by public institutions (e.g., court decisions), or developed for the good of mankind (journal articles), it should be freely accessible.

It is the misapplication of legal structures governing material property and real estate to intellectual property that has generated an enormous ideological conflict between rent seekers and the general public. It is a battle between greed and need, and the inevitable outcome will be the defeat of greed. The greedy will, of course, purchase the services of eloquent, ingenious, and self-deceived defenders. There is always a plentiful supply of intelligent and articulate people eager to protect the powerful against the weak. These are the people who will denounce the actions of Swartz.

24

blavag 01.15.13 at 6:50 pm

25

Phil Perspective 01.15.13 at 7:52 pm

straightwood @ 16:
Have you seen Emptywheel, or Bmaz, post about how the DOJ treated Scott Bloch(Dubya-era DOJ’er)? Just another example how we have a two-tiered justice system.

26

praisegod barebones 01.15.13 at 8:04 pm

Rich Puchalsky:

What’s unjust about the law? Here’s a brief attempt (IANAL)

What’s criminal are violations of a sites terms of service. That’s problematic, since a) its the sort of thing which, if it didn’t involve computers, would fall within the domain of civil, rather than criminal law and b) it’s a classic case of an overly broad statute, since it makes criminal something which almost everyone does sometimes. (If you’re confident that you don’t, you must spend an awful lot of time reading TOS agreements which most people just click through)

Re Orin Kerr: as I understand it, he’s on record prior to this as being a critic of the relevant statute as it currently stands, because he thinks it criminalizes too much. This I fond on the basis of only a little googling, amd a reading of the previous thread.

27

Harold 01.15.13 at 8:12 pm

The security state/corporate textbook/and newsmedia and entertainment business have become deeply enmeshed and probably have been ever since Time Magazine, WW II, and the blacklists, when it was decided that business would run the country.

28

Brian Geppert 01.15.13 at 8:18 pm

Has anyone begun a petition on “We the People” to get a response from the White House on the insanely disproportionate prosecution of an activist and on the overbroad CFAA?

29

Mark Jamison 01.15.13 at 8:21 pm

The reference to the Nixon pardon is apropos. The effect of a posthumous pardon may be less a vindication of Swartz than a way of making the details of the alleged case against him go away. It would be instructive know what conditions made the prosecutors of this case so zealous. Was an individual crusade? Or was there some sort of compelling evidence that served as justification?
Rather than accepting a pardon which as Dr. Robin says confers too much power upon the state perhaps the best response to this tragedy would be a wrongful death suit that has as its goal the turning over of every stone and piece of evidence involved. Maybe the good in this is an exposure of the state’s zealotry for secrecy and the mechanisms by which so much of our public interest becomes classified and hidden.

30

Bloix 01.15.13 at 8:35 pm

The odds that Barack Obama will pardon Aaron Swartz are somewhere between zero and nil, so Prof. Robin will certainly prevail in this case.

31

Rich Puchalsky 01.15.13 at 8:39 pm

I would be a lot more broad than that, praisegod barebones. What’s unjust about the U.S. legal system is that it gives prosecutors effectively unlimited discretion to pursue whoever they want to pursue who aren’t protected by an important power structure. The particular law about violations of terms of service is unjust as a particular case of what’s happening to huge numbers of people who were never involved with computers at all. And that’s the sense in which Orin Kerr can claim that all the i’s have been dotted and all the t’s crossed to make this legal, and in which he can be a critic of certain laws while defending the system in which this occurs. The bits about violations of site terms of service may seem extra ludicrous, but they are not different in any important way from any other area of American justice.

Or, to put it another way, the U.S. is a society with the highest acknowledged percentage of its people in prison of any country in the world. Very few of those people got there by breaking site TOS’s.

32

Billikin 01.15.13 at 9:31 pm

“It’s not simply a matter, as some have claimed to me on Twitter, that Swartz was never tried nor convicted of a crime; Ford, after all, pardoned Nixon before he was tried and convicted in the Senate.”

Unlike Nixon at the time, Swartz is dead. The pardon of Nixon forestalled any future prosecution for his past crimes. Swartz is beyond the reach of the law courts.

33

max 01.15.13 at 9:39 pm

1) The law as written is unjust – it (felony) criminalizes what are offenses that should barely rate as felonies. The tricky part is that that particular law was supposed to protect national security (which is where the secret service comes into it) and was in turn invoked in defense of MIT’s need to protect a grant of (intellectual) monopoly. (It is akin to trying to convict someone of murder based on the fact that they play-acted a murder on stage.)

2) The ridiculous leeway granted prosecutors (particularly federal ones) is ridiculous and would have been barely respectable in a totalitarian state. (Which is how we would up as one of the largest prison states in the world.)

Pardoning Swartz also would allow the government, effectively, to pardon itself.

It also doesn’t matter because the DoJ is effectively blocking all pardons because criminals. So it isn’t worth it to try to get a pardon past DoJ to clear a dead man’s name. You can’t clear the living innocent using the federal pardon system at this point.

(So:) 3) The DoJ is totally out of control at this point, and while it seemed like the O administration was trying to get it under control, it appears those efforts have failed (at best) or that they just like the whole authoritarian thing (at worst). Color me officially annoyed at this point.

4) There are thousands (possibly a hundred thousand) stories like this (minus the suicide) every year or so in the US. The usual sorts have succeeded in wringing out any justice from the justice system.

max
['So there we are.']

34

Bloix 01.15.13 at 10:07 pm

#1 – “I think it’s tragic he’s dead, but I don’t think it’s right to say he’s “innocent” (except in a legalistic not-yet-convicted sense).”

One of the hallmarks of a totalitarian society is that the criminal laws are so broad, vague, and unrealistic, and the penalties so punitive, that the government can imprison anyone it chooses for any sentence it chooses. Everyone is always guilty, and people walk freely only by the grace of prosecutorial discretion.

America isn’t there yet, of course. But when you read about the laws that Swartz was accused of breaking you’ll see that, as the prosecutors interpret them, they criminalize broad swathes of behavior that most of us would view as perfectly acceptable and at worst mildly anti-social. Certainly nothing that should carry a prison sentence measured in years.

35

Matt 01.15.13 at 10:33 pm

Its not usual for Secret Service to be involved in matters like this. Its also not usual to demand jail for crimes of this nature. Is there something being missed in the public disclosure that might provides some sunlight?

I always assumed that the involvement of the Secret Service and the unusual zeal in this case stemmed from Aaron’s earlier work liberating PACER records. In 2008 he publicly shared 20 million pages of public records that the Administrative Office of the United States Courts charges 8 cents per page to access. The FBI investigated for 2 months but couldn’t find anything to charge him with. So when the opportunity presented itself with MIT and JSTOR, a minor transgression was prosecuted with maximum zeal as compensation for the time he “got away.”

36

rf 01.16.13 at 12:36 am

Just as an addendum Jennifer Granick has a follow up post on it

http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-losing-aaron-swartz-part-2

“As for removing the prosecutors, yes, I am angry. But, I am the kind of person who tends to blame the system rather than the individual, and I believe systematic change is more likely to make a difference than a campaign against these particular officials. I want to know how and why the decision to charge was made in Aaron’s case. I want to know why they were pushing for felonies and incarceration. I want to know what JSTOR and MITs role was. I want to better understand funding, incentives, evaluation metrics, bonuses and other perks prosecutors receive, for cybercrime and for other cases. I want to insulate future prosecutors from the incentives to build their careers on conviction rates rather than crime prevention, to train them so that they don’t get myopic, so that in their bones they know that behind their conviction rates are the hearts, minds and bodies of real people and their families. I want to change the conditions so that a newly-minted bully won’t just take these prosecutors’ places”

37

Rich Puchalsky 01.16.13 at 12:50 am

That second Jennifer Granick post is quite good.

38

js. 01.16.13 at 1:42 am

rf @38:

I’m all for blaming the system myself, but I don’t see that it follows that we should let the individual off the hook so easily (at least in this case, and many like it). Ortiz seems after all to have pursued the case with a particular zeal, and while the system might incentivize such zeal, it certainly doesn’t require it. So I don’t see why shouldn’t bear a significant part of the responsibility for how the case went down.

That aside, I agree with Granick that we should change the incentive structures. But on this, see Andthenyoufall @6 and mpowell @9, which I think are exactly right.

39

js. 01.16.13 at 1:45 am

That should be rf @36 of course. Also, rf is simply quoting of course, and I don’t mean to assume that s/he is endorsing Granick’s position. So, the above is not so much directed to rf as to the position articulated in the Granick quote.

40

Harold 01.16.13 at 1:56 am

37, yes, excellent, because plea bargaining has replaced jury trials all over the USA and millions are probably unjustly imprisoned because of this. One people get caught up in the prison /parole system it really does become like Jean Valjean in Les Miserables.

41

Harold 01.16.13 at 1:56 am

I mean “once” not one.

42

Timothy Scriven 01.16.13 at 2:05 am

Absolutely agree with this post. I think calls for a pardon are symptomatic of the way the Liberal left orients it’s thinking around what the state child do, rather thanwhat we should do.

43

PJW 01.16.13 at 2:09 am

Interesting insight Matt @35.

44

Main Street Muse 01.16.13 at 2:26 am

Though I very much liked both of Jennifer Grannick’s posts, I do not necessarily agree with her conclusion quoted above via RF in @36. Just as I do not believe “corporations are people,” I do not believe “systems” are solely responsible for prosecutorial malfeasance and overreach. Corporations and systems are upheld by people who should be held accountable for their actions.

I continue to find it baffling that the DOJ was so intent of prosecuting Swartz for the crime of downloading millions of academic papers, but not at all interested in prosecuting those who created innovative techniques that obfuscated the truth – i.e. cooked the books (like Lehman’s Repo 105 – http://bit.ly/11y8kcw.)

45

Daniel 01.16.13 at 2:48 am

Pardoning Swartz, empty symbolism. Time better spent: devote one’s efforts to shaming the RIAA, MPA and their corporate sponsors. Demand that they immediately back off suing the scores of petty malefactors who did nothing more than download a few songs or films off the net.

Individuals and families have been financially ruined by the unremitting zeal of the RIAA and MPAA. Others will be ruined shortly. Ahh, but the RIAA and MPAA and, more importantly, their money lean left liberal. Hmm, problem.

46

Walt 01.16.13 at 8:06 am

Daniel, do you think history began today? People did demand they immediately back off suing the scores of petty malefactors — probably literally the exact same people both times. Surprise! Those with power sometimes ignore your demands.

47

Harold 01.16.13 at 8:24 am

44 finds it “baffling” “that the DOJ was so intent of prosecuting Swartz for the crime of downloading millions of academic papers, but not at all interested in prosecuting those who created innovative techniques that … cooked the books.”

Baffling? Those who cooked the books have deep pockets and can defend themselves. It is so much easier and more convenient to go after relatively defenseless teenaged or twenty-year old hackers and grind them into the dust as an example to the others.

48

Both Sides Do It 01.16.13 at 9:10 am

49

Harald Korneliussen 01.16.13 at 10:04 am

From twitter I see that Zoe Lofgren (D, California) has launched a concrete proposal reining in the Computer Fraud and Abuse Act so that simple TOS violations would no longer be criminal, calling it “Aaron’s law”. Lawrence Lessig endorses this. This seems doable.

50

rf 01.16.13 at 10:13 am

Js
Yeah I see your point. Personally, I don’t know what my position is on it as I don’t know enough about the case, but I’m generally sympathetic to Granicks perspective. I can see what you mean by it being potentially useful/justified to remove the prosecutor in this specific case, though I’d need to know more about it than I do at the minute

51

Tim Wilkinson 01.16.13 at 12:46 pm

Trader Joe, 13

Is it possible that there is some aspect of what Schwartz did that has not been made public which might explain the zeal with which the prosecution and/or MIT has pursued the matter?

It’s possible, yes, and quite a promising line for apologists to take. I’d not be surprised if key media figures were being fed largely confidential, and entirely unattributable, look-but-don’t-copy briefings along some such lines.

once all the facts are on the table Or: once the official narrative has been finalised.

52

Cian 01.16.13 at 12:59 pm

@14 Is it possible that there is some aspect of what Schwartz did that has not been made public which might explain the zeal with which the prosecution and/or MIT has pursued the matter? It may not even have been something he meant to do, but some area he accessed, perhaps classified, that might have engendered the response.

No. There’s absolutely no way given what was described. There’s a range of possible reasons for the response. People trying to build their careers on a ‘cyber-crime’. The deputy DA clearly has daddy issues, and so felt the need to prove himself. Possibly pay back for Aaron’s previous actions liberating the PACER records. Or maybe this was just an everyday example of prosecutor overreach which this time happened to touch a ‘famous’ person.

One point that’s got a little lost here is that the tactics used by the prosecutors are VERY common. You pile up the maximum charges possible, in the most aggressive way possible – thus creating maximum pressure for a plea bargain. It’s a despicable tactic, that uses the disparities in power to avoid a jury trial on the prosecution’s terms.

53

Tim Wilkinson 01.16.13 at 1:31 pm

There’s a range of possible reasons To add another, I’d have thought that to any person or organisation that regards internet freedom as a major threat, AS’s various achievements in that area, and the prospect of much more to come, would have made him appear a very dangerous person, worth going to some lengths to stop.

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James 01.16.13 at 6:30 pm

“House lawmakers blasted federal prosecutors on Tuesday for pushing aggressive hacking charges against Internet activist Aaron Swartz, who killed himself on Friday.
Rep. Darrell Issa (R-Calif.) says his Oversight panel will look into whether federal prosecutors acted inappropriately.”

Read more: http://thehill.com/blogs/hillicon-valley/technology/277353-lawmakers-blast-trumped-up-doj-prosecution-of-internet-activist#ixzz2IAGqkFiV

http://thehill.com/blogs/hillicon-valley/technology/277353-lawmakers-blast-trumped-up-doj-prosecution-of-internet-activist

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