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Holder: DOJ Used Discretion In Bullying Swartz, Press Lacked Discretion In Quoting Facts
from the convenient dept
Fresh off of explaining why the President can use drones to kill Americans on American soil, Attorney General Eric Holder apparently feels emboldened to say just about anything to justify ridiculous government actions. The latest? Defending the Aaron Swartz prosecution at a Congressional hearing called by Sen. John Cornyn, who has already expressed his concerns over the prosecution.
As you might expect, Holder stuck with the official line that what the DOJ did in the Swartz case was perfectly reasonable. The key to his argument, as we've been hearing from others who defended the government's actions: the DOJ never intended to put Swartz in jail for 35 years. Also, apparently it was unfair of the media to use that 35 year number.
Separately, concerning the insistence that they never wanted him to spend more than 6 months in jail, they leave out the fact that this was only if Swartz agreed to plead guilty to multiple felonies. According to various reports, the DOJ, via Assistant US Attorney Steve Heymann made it clear that if Swartz did not agree to the plea, then he would seek somewhere around seven years in jail.
Cornyn goes on to ask about why the DOJ pursued the case even after the supposed "victim," JSTOR said it didn't want to have anything to do with the case. Cornyn specifically asks if it makes sense to threaten someone with 35 years in prison when the victim doesn't even seem to feel harmed by the situation. Holder than tries to spin this around and, incredibly, argue that the fact that they didn't pursue the full 35 years is an example of good prosecutorial discretion. Seriously.
How do we let these people into positions of power?
As I've talked to the people who have looked into this matter, these news reports about what he was actually facing is not consistent with what the interaction was between the government and Mr. Swartz. A plea offer was made to him of 3 months, before the indictment. This case could have been resolved with a plea of 3 months. After the indictment, an offer was made and he could plead and serve 4 months. Even after that, a plea offer was made, of a range of zero to 6 months, that he would be able to argue for a probationary sentence. The government would be able to argue for up to a period of 6 months. There was never any intention for him to go to jail for a period longer than 3, 4, potentially 5 month range.These claims are not only misleading, but also total and complete bullshit. First off, if you never intended for him to spend more than 6 months in jail, and you're upset at the "media" for using the 35 year number... why is it that the DOJ's own press release on the arrest played up the 35 years:
AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.I'm sorry, but you don't get to push that number around in your own damn press release and then whine and complain about how "unfair" it is that the media uses the number you gave them.
Separately, concerning the insistence that they never wanted him to spend more than 6 months in jail, they leave out the fact that this was only if Swartz agreed to plead guilty to multiple felonies. According to various reports, the DOJ, via Assistant US Attorney Steve Heymann made it clear that if Swartz did not agree to the plea, then he would seek somewhere around seven years in jail.
Cornyn goes on to ask about why the DOJ pursued the case even after the supposed "victim," JSTOR said it didn't want to have anything to do with the case. Cornyn specifically asks if it makes sense to threaten someone with 35 years in prison when the victim doesn't even seem to feel harmed by the situation. Holder than tries to spin this around and, incredibly, argue that the fact that they didn't pursue the full 35 years is an example of good prosecutorial discretion. Seriously.
Cornyn: The subscription service didn't support the prosecution. Does it strike you as odd that the government would indict someone for crimes that would carry penalties of up to 35 years in prison and million dollar fines and then offer him a 3 or 4 month prison sentence?In other words, the only thing Holder is really saying here is that there was perfectly reasonable prosecutorial discretion if and only if Swartz agreed to a plea bargain in which he plead guilty to all felony charges against him. Basically, it's a "good use of prosecutorial discretion" to bully someone into pleading guilty to a crime they don't believe they've committed, and as long as they accept that, go to jail, and be okay with being labelled a felon for life, then there's no problem.
Holder: Well I think that's a good use of prosecutorial discretion. To look at the conduct, regardless of what the statutory maximums were, and to fashion a sentence that was consistent with what the nature of the conduct was. And I think what those prosecutors did in offering 3, 4, 0 to 6 was consistent with that conduct.
How do we let these people into positions of power?
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Good question. A better one would be How do we let these people STAY in power?
But again this is but a symptom of a broken system at the judicial and legislative process.
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Blame it on all the money corrupting all parts of our government.
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AGs must be approved by the Senate..
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Do you even listen to yourself talk or do you just post whatever spews out of your mouth indiscriminately?
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Say someone gets elected to power and the people don't like the results. We can vote that person to have all of their assets forfeited to charity and banned from holding a public position ever again.
That was an extreme example, but you get the point.
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How do we get these people OUT OF positions of power?
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Yeah, but not so different on civil liberties, privacy, transparency (except with the current administration being maybe the least transparent ever), campaign finance reform, corruption, gerrymandering, concentration of executive power... did I miss any? And I'm not sure they're so far apart on corporate rights either. What do you see either party doing to curtail corporate power?
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Yeah, the ones Republicans are responsible for trying to curtail...women's reproductive rights, voting rights, and equal rights regardless of race, religion, or sexual orientation.
Stuff like that, boy.
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I was ready to take you seriously until you pulled that. Do you realize that makes you look like nothing other than a condescending asshole?
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Thanks, I'd managed to forget about Alberto Gonzalez until now. :-(
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If they do, who's going to pay Social Security and Medicaid to their over-65s, Medicare, workman's comp, and welfare to the mostly white-trash sorts who collect it in those states, and, of course, billions in subsidies to farmers?
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"There are four boxes to be used in the defense of liberty: soap, ballot, jury and ammo. Please use in that order."
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We are still going downhill and it takes years to end a good thing.Took rome a long time to die as well.All Empires have their Rise, Their Plateau, and Their Fall.............Everyone one of them have done this in the past.
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A lot of that reversal was due to the Boer War, which Britain entered out of pride and "won", sort of, but at colossal expense, ending up looking a lot less invincible to challengers like Germany. Today the US has the Afghan war. Hmmm.
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I think all the various international interpretations of "democracy" and "justice" are fundamentally flawed, having completely failed to evolve to cope with modern society and especially the advent of modern media
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Because Game of Thrones is on, and Americans just don't give a damn about anything else (until it's too late).
This country is getting worse, and this isn't just hyperbole. It's getting worse.
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Because Game of Thrones is on, and Americans just don't give a damn about anything else (until it's too late).
Would be nice if more Americans were capable of paying more attention to "Game of Drones" than Game of Thrones.
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Get that hurdle out of the way so we can watch this chow and then pay the appropriate amount of attention to the government!
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How do we let these people into positions of power?
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Re: How do we let these people into positions of power?
Much more interesting that way.
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How do we let these people into positions of power?
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Re: How do we let these people into positions of power?
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Computer Fraud and Abuse Act
Aaron Swartz had gained unauthorized access to MIT's JSTR computer system in 2011 by patching via a wired connection. He was not authorized to do so. This explains the DOJ's phtoto's that they had found of him in 2011. Aaron Swartz's first initial charges were actually dropped when the prosecutors over at the FBI had agreed that there was no crime committed by Swartz in 2008.
The DOJ has had its budget cut continually over the years and had quite a lot less funding than the FBI. This case against Swartz by the DOJ was nothing more than a money grab. From a psychological standpoint, while I cannot justify the reasoning the DOJ had, I can honestly tell you all that the DOJ acted out to not only to save face, but to get more funding. The DOJ gets money for each successful conviction after an arrest.
What the FBI offered Aaron Swartz was an Alford Plea at best.
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Re: Computer Fraud and Abuse Act
Aaron Schwartz gained access to JSTOR via the access granted to it through MIT. Access which anyone on MIT's open network automatically had.
He gained access via WiFi, which is open to anyone on the campus, with the campus itself being an open campus. There was nothing preventing him from gaining access either to the campus or the network itself.
The only thing, as has been repeatedly pointed out elsewhere, that he was definitely not authorized to do was access the network via an attached cable in the "closet" where he left his laptop. As such, the only thing he could have been charged with was trespassing for accessing said closet, which was not locked in any way.
Wally, I've seen numerous people question/challenge you on numerous points, and lately I've seen it happening more often. In this case, your misstating facts and conflating issues with something else entirely (DOJ budget cuts) and attempting to spin that into something else (that he was now being prosecuted not because he did something wrong, but because the DOJ needed the prosecution and potential conviction to increase their budget which had been drastically reduced). I'm sorry to say but that is pretty ridiculous and if you really want to earn some respect around here you need to either clarify your comment or admit that you're in the wrong regarding almost everything you stated above and are trying to spin the facts to suit your own preconceived notions about what actually transpired and why.
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"From a psychological standpoint, while I cannot justify the reasoning the DOJ had, I can honestly tell you all that the DOJ acted out to not only to save face, but to get more funding . The DOJ gets money for each successful conviction after an arrest."
Amazing how anyone smart enough to read could miss that
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What are you talking about here, Wally?
I can't find anything that resembles "cash for convictions" in the DOJ's Current Budget.
Please provide a citation to back up this assertion or otherwise I will have to regard it as you pulling random facts from your ass, again.
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So I believe it is safe to say that, like good little pundits, they have to look like they are doing something in order to get more money. Otherwise, they get their funding cut.
My assertion on what he was trying to access is only based on every single news story I have read on the internet, in the news paper and on TV news broadcasts....I am bound to mix things up a little. I can assure you that the assertions I made about the US Government (specifically the DOJ's motives)are correct, even if I was wrong about how the case went down.
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I'm not sure it's safe to say that at all.
I am marginally aware of how government budget funding works. The most important thing is to make sure you spend (waste?) the current budget in order to justify an equal or greater amount in the next fiscal year.
I've just never much seen them tied to actual results of anything. The amount of successful convictions doesn't really mean all that much as long as the budget allocation gets used up. At least that's the way I understand it.
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To be fare...it is a waste of money to wrongfully convict people. The DOJ has made a habit of it knowing full well that they will get extra funding. They had to use all those resources to make Aaron Swartz's charges bigger than what they were. Maybe that was the goal outside of saving face.
"I've just never much seen them tied to actual results of anything."
Oh dear God I think you nailed it. They still get funding no matter what that way. The conviction bit may just be the bonus like a drug bust for local law enforcement.
I think between the two of us, you and I might have accidentally stumbled upon the criminal motif of the DOJ.
I am glad we are working this out like adults :-)
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So you're speculating. That is perfectly fine, but look again at your original statement: "I can honestly tell you all that the DOJ acted out to not only to save face, but to get more funding." That reads very much like a factual claim. This is the pattern I was talking about, of basically making stuff up and passing it off as fact.
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"I can honestly tell you all that the DOJ acted out to not only to save face, but to get more funding ."
Narrowed yet again for someone missing the point and ignoring the logic behind my speculation. Do I really have to refer you and that AC to my discussion with Gwiz? Yes? Oh well here goes links to each comment between Gwiz and I in order:
>My response to the AC above me:
http://www.techdirt.com/articles/20130306/13444122220/holder-doj-used-discretion-bullying-swart z-press-lacked-discretion-quoting-facts.shtml#c372
>Gwiz's response (likely asking for clarification on what I was thinking):
http://www.techdirt.com/articles/20130306/13444122220/holder-doj-used-discretion-bullyin g-swartz-press-lacked-discretion-quoting-facts.shtml#c471
>My response to his comment:
http://www.techdirt.com/articles/20130306/13444122220/holder-doj-used-discretion-bullying- swartz-press-lacked-discretion-quoting-facts.shtml#c549
>Gwiz's next response:
http://www.techdirt.com/articles/20130306/13444122220/holder-doj-used-discretion-bullying -swartz-press-lacked-discretion-quoting-facts.shtml#c580
>My response knowing full well Gwiz pointed something out that I missed (whether he/she liked it or not):
http://www.techdirt.com/articles/20130306/13444122220/holder-doj-used-discretion-bullying-s wartz-press-lacked-discretion-quoting-facts.shtml#c656
That wasn't so bad was it?
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I got your point fine and I have no issue with your speculation. What I was pointing out is that your original statement didn't sound like speculation.
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If you want to state your beliefs that's fine, but don't try and present them as fact. And if you have no citations for what you read just say so. Don't use "I have Asberger's" as an excuse for not being able to present evidence to backup your assertions (a.k.a. your opinion).
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It should be noted that there may be a reason why he gets so defensive. He keeps getting harassed by trolls. Asperger's Syndrome is sort of like Autism, once you loose their trust or completely countermand or betray their trust...it looses trust for those in the first place. Besides, why point out that he might not have Asperger's Syndrome....he does...that doesn't make him less human, just makes him think outside the box.
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He didn't.
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I should point out that almost every story I've read about this simply stated that after he was denied wireless access, he patched in using an Ethernet cable.
First off, I never mentioned how Aaron Swartz might have gained connection in the first place. What makes you so certain you are correct about the claim you made that I quoted above? Could it be that since I might have gotten something wrong that you automatically "know" that I am wrong and then state the opposite, even if I had gotten the part where you thought I was wrong correct...isn't that a form of trolling??....
Initially, I only mentioned what I thought he gained illegal access to. That is quite a blatant assertion you make there. As he did in fact violate the Computer Fraud and Abuse Act in this time around, it should also be noted that the system he was trying to patch into (which was JSTR) was not at all a government computer and the works stored inside it were in fact public domain. Which, at maximum, is a 5 year prison sentence...for a Government computer system..in which case the system he tried to tap into wasn't which would have lead to lesser charges including 6 months probation. All major college campuses have a JSTR server or a number of JSTR servers. That is how it operates. The Ohio State University alone has 3 itself for several different departments. It is not a government database.
Two ways Aaron Swartz could have used a laptop hidden in a box in a network closet or a server in a small room:
1. He patched in using a wired connection through a laptop ...connected the laptop to a hub or switch or router or directly to the server via Ethernet Cable....and wirelessly connected to the laptop to download the information there in.
2. He set the Laptop to automatically backup the data he was looking for.
Video evidence shows the latter though I would not be surprised with the former either. Both of which fit in because they blocked his wireless MAC address (Setup number one) and he probably had to go back and retrieve the data after he got blocked from the wireless network.
I am not saying what he did was punishable by what the DOJ stacked up against him, but since the JSTR server he was trying to gain access to was that of a private institute, it was not at all agreeable as to what the DOJ did.
I've got news for you, the MPAA and RIAA sue people for hundred of thousands of dollars over backing up DVD's and CD's and strong said backups on File Storage Lockers...the DOJ's overreach is partly the same shit. Their losing money with each false arrest and they don't even realize that their own actions are the cause of their lack of funding. I have sounding reason to believe that it was not just a way to save face, but also a money grab for funding. That doesn't make there actions humanly justifiable, or legally for that matter. It just makes them greedy sons of bitches who wine if they don't get there way. We don't need an attorney general who will do that.
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Re: Computer Fraud and Abuse Act
If the affected party (in this case, the univeristy) chooses to press charges.
The university declined to press charges, boy.
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As for your comment:
""...a first time offense on unauthorized access to non-government material and/or computer was a maximum of 5 years in a regular minimum security prison and a fine of $5,000."
If the affected party (in this case, the univeristy) chooses to press charges.
The university declined to press charges, boy."
Seriously...."... ,boy,"???? I mean do you strive to be rude or something?
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Why not cover THIS, Mike:
Take a loopy tour of Techdirt.com! You always end up at same place!
http://techdirt.com/
All the news you saw last week on other sites, re-written to cherry pick points that fit Mike's agenda.
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Re: Why not cover THIS, Mike:
Second, how is it tech related?
Out of the blue just hates it when copyright maximalists go too far and the public reacts with outrage (SOPA, Aaron Swartz, DMCA phone unlocking) or secret overreaching treaties fizzle and die instead of getting signed (ACTA, coming soon: TPP).
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Re: Why not cover THIS, Mike:
Like now.
We won't even fault you if you drop a pre-prepared and totally off-topic and lengthy "post" when you do so, just like you did last time you were here.
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Re: Why not cover THIS, Mike:
http://www.techdirt.com/articles/20111208/12500917012/riaa-doesnt-apologize-year-long-blog-cen sorship-just-stands-its-claim-that-site-broke-law.shtml
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How do we let these people into positions of power?
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Re: How do we let these people into positions of power?
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Re: How do we let these people into positions of power?
Look, I'll make it simple, the whole 'It's the democrats fault!' vs. 'It's the republicans fault!' is nothing more than a distraction from the real problems.
When you've got people that have almost no accountability whatsoever in positions of great power, individuals, groups or companies with influence vastly greater than their numbers would suggest, an election system that is gamed to both require massive amounts of funding to have any chance of winning, setting up a system with politicians owing favors to whoever 'donated' the most to them, as well as set up to basically exclude any competition from the two main parties...
The list goes on, but suffice it to say claiming that it's a single political party responsible for the troubles in the country is nothing more than useless finger pointing, ignoring the root cause of the problem, and instead trying to find a nice, easy to blame 'bad guy', rather than having to realize that it's not even close to that simple.
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Re: How do we let these people into positions of power?
https://en.wikipedia.org/wiki/John_Ashcroft#Political_issues
https://en.wikipe dia.org/wiki/Alberto_Gonzales#Achievements_and_controversies
https://en.wikipedia.org/wiki/Wedtech_ scandal
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That's the way it works. Plea bargain = certainty. Trial = risk. Why would anyone accept a plea bargain if they'd get the same penalty if they lost at trial?
If he really didn't think he was guilty (conduct notwithstanding) he should have gone to trial. Again, no one but Swartz put himself in this position. After his PACER episode he should have known he was playing pi�ata with a hornet's nest. But he carries forth his manifesto knowing the risk and bemoans the penalty he brought upon himself.
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You mean after his *completely legal* downloading of *public domain* documents?
Really?
But he carries forth his manifesto knowing the risk and bemoans the penalty he brought upon himself.
You are rewriting history in a dangerous way. You don't know what Swartz was doing with those documents, and you don't know if his plans were perfectly legal.
But either way, you DON'T respond to the basic claim: that Holder is full of shit in arguing that Swartz never would have spent more than 6 months in jail. That's simply false.
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You mean after his *completely legal* downloading of *public domain* documents?
Really?
He was investigated by the FBI who did not press charges. And it was the *public domain* aspect that prevent the charges from being filed. He knew that as he FOIA'ed his case file. So yes, he had complete knowledge that pulling the same stunt with JSTOR was illegal because unlike the PACER court documents which were not subject to copyright, JSTOR was very different.
"But he carries forth his manifesto knowing the risk and bemoans the penalty he brought upon himself."
You are rewriting history in a dangerous way. You don't know what Swartz was doing with those documents, and you don't know if his plans were perfectly legal.
Given his manifesto, what he did with PACER and the similar circumstances surrounding JSTOR, only the most ardent climate change denier-type could reach your conclusion.
But either way, you DON'T respond to the basic claim: that Holder is full of shit in arguing that Swartz never would have spent more than 6 months in jail. That's simply false.
It would have been true if he took the plea. If he went to trial, he was looking at anywhere from acquittal to seven years. Looking at the sentencing guidelines, I have a hard time seeing how the judge could have indulged the prosecutors request for seven years though.
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You are making assumptions about Aaron's motives that may very well not be true.
Who is to say that after Aaron obtained all the documents, his intention was parse them all and destroy the copyrighted ones and release only the public domain ones? And if that was the case, how would that differ from the PACER case?
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Yes, I have. It's here.
Have you read Quinn Norton's version of the events?
She states that the manifesto was actually written by four people, not just Aaron.
She also states that the prosecutors weren't even aware of the manifesto until four months into the investigation - when she inadvertently told them about it.
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A few points that you ignore:
1. The manifesto was written by a group of people, not just Swartz.
2. It was written years earlier. People's views change.
3. About a year earlier, Swartz had set up another script to download a similar batch of research publications which he used for his own research and which he never released to the public.
It's that last point that is most inconvenient for you. Swartz was working at Harvard and was releasing research, and given his own past ACTIONS, he had a history of downloading large collections of academic papers *for data mining in his research* not for releasing them.
But, of course, you assume the worst. Sick.
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2. It may have been written years earlier, but his subsequent actions were entirely consistent with it. People's views change, but Swartz certainly made statements consistent with his manifesto long after he authored it.
3. I don't know why you think that's compelling. And he may well have planned to release it after he was finished with it or reorganized it.
And you seek every excuse and raise every doubt you can find to support illegal behavior simply because you don't like the law.
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And you are trying to justify the DOJ's actions (why is that btw?) by speculating about unproven motives that we will now never know.
To be honest, at this point, I am more concerned about Steve Heymann's motivation. What motivated a civil servant representing my government to continue his fishing expedition (and spending my tax dollars) for the months prior to being aware of the manifesto? What motivated him to continue after his "victim" repeatedly asked the DOJ not to prosecute Aaron?
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MIT did report it - at the local level. The local LEO's (I believe) didn't think it was anything more than a misdemeanor offense.
Anyway, victims do not decide whether or not to prosecute, the government has an interest in deterring future crime by prosecuting reported crimes.
Yes, I do understand this. But, if the victims aren't claiming any wrongful damages, what exactly are we then trying to deter? Are we, at that point, trying to deter future victimless crimes against society or are we trying to deter people from disrespecting the authority of the government?
I really believe the majority of this fiasco this was a result of Mr. Heymann's desire to get a high profile "cybercrime" conviction on his resume.
But at the end of the day, I think a deal of six months (3 in Club Fed and 3 in a community based halfway house) was reasonable.
I don't disagree with you that the deal of six months is all that bad. The problem lies with having to plead guilty to Federal felony charges. I'll give you 10 to 1 odds if that same deal came with a plea of guilty to misdemeanor charges, Arron probably would have taken it.
Again, none of this would have happened were it not for Swartz own personal conduct. I don't know if he foresaw the gravity of the potential consequences, but he certainly knew there'd be some consequence if he was caught.
I would have to believe that as smart as Aaron was he would have learned from the PACER affair and would have believed what he was doing was either legal or at the most minor misdemeanor charges and/or civil copyright infractions and he was willing to take that chance. I also don't believe that anyone with an iota of intelligence would think what he was doing warranted charges like what the DOJ leveled at him.
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That was his plan.
But, in general, what you say isn't precisely true. I think the average person, if falsely accused of a serious crime, would seriously consider accepting a plea bargain regardless of their innocence.
A trial is uncertain, as you say, and trials also have a nasty tendency to seriously harm a person's life even if they are found not guilty in the end. This what allows the government to use plea bargains as a means of extorting people.
That plea bargains are allowed at all is one of the most visible indications that our justice system is seriously corrupt and untrustworthy.
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One of the common themes on this blog is doing boneheaded things and then getting upset about the consequences. It's pretty clear that most of you are the products of exceedingly poor parenting.
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If we are going to go that route...
Your argument is based on that the system is perfect. If that were true, we wouldn't be complaining at all.
This can be argued in another whay: What is the difference between a criminal killing someone and a vigilanty killing someone?
Your answer would be: None, they killed someone and that is illegal.
The better answer is: Motive.
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That's a false dichotomy, because a vigilante is a criminal.
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Re: How do we let these people into positions of power?
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Was he a bright young man obviously with a future in front of him or was he facing a prison sentence and therefore a criminal?
Is prison the new USA conscription?
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