It's nice to see the mainstream media taking less of a conservative 'anti-hacker, pro-government' stance on that tragedy. Hopefully this is just the beginning.
I'm glad too to see that it's getting widespread coverage. Most people I talk to aren't aware of what happened. I think it has been really positive how much support we have all been showing for his family and friends. It's sad that the rally of support had to follow such a tragic event.
My wife is a surgery PA and today one of the scrub techs asked her if she heard about the internet hacker suicide. She said her husband (I) was very disturbed by the news and that based on what she read, the prosecutors pushed the kid too far for something that is barely a crime. The scrub didn't know about the open case, just that it was some hacker who was depressed.
t's quite easy to calculate the likely sentence. The Federal Sentencing Guidelines provide for a base level of 6, plus an 18 step increase for fraud between $2,500,000 and $7,000,000. The sentencing range at this level assuming no criminal history is 57-71 months. Expect supervised release (no computers) for three years. The fine would be up to the sentencing judge within statutory limits.
The government estimated the value of the JStor documents at $5 million. Even if the government's estimate was exaggerated, the documents were worth something--and this figure would drive the sentence to be imposed. The judge could also depart upward based on aggravating factors such as PACER and a lack of remorse. Swartz faced with no good choices. When he did not take the offered plea, they superseded and racheted up the counts. The number of counts doesn't really matter for Guidelines purposes but there is always the risk that the sentencing judge could impose the sentences for each count consecutively.
I'm genuinely perplexed by the ongoing coverage of this story and many of the comments here.
First, the discussion of the legal situation lacks any perspective. Only people who spend all their time focused on technology policy would interpret Aaron's death as a call for technology-crime reform. Compared to the rest of the western world, the US has longer sentences for crimes across the board. Every day, people get sentenced to many years in prison (and it's disingenuous of Lessig to suggest Swartz would have gotten anything close to decades in prison for these charges) for nonviolent drug offenses, get life imprisonments for mere possession of child pornography often downloaded without plausibly motivating any child abuse, and so on. Even violent crimes in the US lead to sentences that in Europe seem inhumane to most people. I don't mean to sound insensitive to the recently departed here, but Aaron was a very lucky person who had significantly more opportunity to comply with the law than many. Civil disobedience can be great, but regardless of whether it is or not in any particular case, it usually comes with penalties. It's very hard to see Swartz as a victim of the United States Attorney's Office nearly as much as whole swaths of poor people and African American communities, for example, are victimized by laws and by simple situation. Again, perspective is important. What's happening here seems very much like an insular group of people like us, some of whom (like Lessig) happen to be connected with some journalists, understandably upset about the death of a friend and lashing out. But that is irresponsible, and I don't just mean politically; it is very likely also unfair to the family, who are probably not in a great position at the moment to assess how public they'd prefer their son's death to be (even if they know they are angry at the people who prosecuted him).
Second, and related, the message of Lessig and of many others seems to be "don't turn the death of my friend into a discussion of mental illness; turn it into a discussion of my pet causes." But it obviously has a profound connection to mental illness and also to the social and psychological pressures that people who seek "fame" in the technology community seem routinely to experience. That is a far better subject for critique, in response to this kind of heartbreaking tragedy, than US sentencing policy writ large (a topic about which few programmers have significant experience). There's a whole online subculture that feeds off people's insecurities and need for attention, their desire to feel "influential" or "famous" in a tiny but vocal community of like-minded people. I am virtually certain that that subculture hurt Aaron as much as any prosecutorial discretion did here. It is worth reminding everyone that a vanishingly small number of criminal defendants in the US commit suicide, despite whatever injustice they feel about their charges and despite any accusations of prosecutorial overreach.
Third, there is a significant overemphasis in the press of the "debate" among a relatively small but vocal community of people like, frankly, us. The NY Times confidently reported today that Swartz's death triggered a widespread debate, when the political debate really is just among people who were already activists, most of whom knew Aaron personally. Just because someone is friends with journalists and people like Lessig does not imply that that person's tragic death is the subject, much less the proper subject, for a public debate, unless of course what we're really talking about is a self-styled internet "high society" that wants to turn one of its own into a martyr. But that would be manipulative and shortsighted, and it is hard to see how it could possibly be a praiseworthy method for achieving social change. Lessig's immediate, political response to Aaron's death took him down a significant notch in my view.
Fourth, but less important, as with many deaths and many suicides in particular, there is very little realism in the discussion of the recently dead. As most people do, Aaron touched many. That should be praised and discussed, but the rest should not be inflated. It would be insensitive to point out particular inaccuracies in the coverage of him, but a big part of me does think that truth is more important than whitewashing memory.
Remembering people for what they were is a far better honor than remembering grandiose caricatures of them.
The response I urge for those who knew him personally is private grief and personal reflection, though perhaps that is suited to a different age in which the goal of motivated people is not to attract as much personal attention on the internet as possible. And yes, sentencing in the US should eventually be totally reformed, but technology crimes are hardly the most important or most pressing piece of that puzzle. It's easy for us to forget that just because it interests us.
The NY Times confidently reported today that Swartz's death triggered a widespread debate, when the political debate really is just among...
I live in far away India. I know friends (not from a software background) who have read about it and were wondering why the US justice system would try to harm one of its brightest young minds over copying some scientific journals. Trust me, the charges are unthinkable in pretty much the entire rest of the world.
> It is worth reminding everyone that a vanishingly small number of criminal defendants in the US commit suicide, despite whatever injustice they feel about their charges and despite any accusations of prosecutorial overreach.
That's interesting. Do you have any cites for the numbers of suicides amongst the charged and the imprisoned?
I'm not sure of the US definition of suicide (is it the same across different states?) nor how deaths are recorded, especially for people charged with but not yet tried for a crime.
I mostly agree with the rest of what you say. The US criminal justice system is barbaric and inhumane. It is fantastically expensive. Reform of all of it would do the US a lot of good.
More interesting to HN is, perhaps, how to hack a system that has become locked because of politics. Anyone suggesting drug reform or criminal justice reform or immigration reform is going to face, very early, huge entrenched well-funded campaigns of opposition. "How can change happen?" could be an interesting discussion.
I'm sorry, I'm a bit thick so I struggled to follow your forbite reasoning here. I think a translation will help thick people like me.
First, the discussion of the legal situation lacks any perspective
"Hey, it's ok that we screw poor/black people, and to be fair, it ain't gonna change; this time we screwed one of ours by mistake... shit happens, deal with it".
Second, and related, the message of Lessig and of many others seems to be [..] turn it into a discussion of my pet causes.
"Hey, let's make sure the death of a young man is as pointless and useless as possible. Please don't even try to use it as a way to help the causes he fought for when alive."
It is worth reminding everyone that a vanishingly small number of criminal defendants in the US commit suicide
there is a significant overemphasis in the press of the "debate" among a relatively small but vocal community of people like, frankly, us.
"I'd rather leave control of mass-media to bankers, politicos, lobbyists and their friends, like it happens on every other topic. I'm scared I might actually have to, y'know, know what I'm talking about."
But that would be manipulative and shortsighted, and it is hard to see how it could possibly be a praiseworthy method for achieving social change.
"I am incredibly naïve about politics and I like being abused, please keep doing it! I've enjoyed the last 15 years like mad!"
Remembering people for what they were is a far better honor than remembering grandiose caricatures of them.
"Honestly, the guy was a depressed loser."
The response I urge for those who knew him personally is private grief and personal reflection
"Please shut up! I'm trying to think about the Golden Globes and Bieber's haircut here."
technology crimes are hardly the most important or most pressing piece of that puzzle
"It's all broken anyway, politics is hard, let's go shopping!"
It's easy for us to forget that just because it interests us.
I'm not sure 'we do it to black and poor people all the time' makes it any better. If the fact it has happened to someone else raises the profile of the issue that should be a good thing to come out of a bad situation.
From the outside (the UK) it seems like the US plea bargain system has become a cause of miscarriages of justice is some cases. The fact that the rational choice for an innocent person can often be to accept a guilty plea is something that should be of real concern. The system of bargaining combined with the ability to charge multiple counts for tightly related acts means the threat side can be very large even where the real levels of wrongdoing are small or illegality borderline.
His public actions were stronger than I usually think of myself as being. Despite that, he "chose" (like you choose between a rock and a hard place) to die with a whimper. What is there to understand besides the fact that human frailty resonates with people? A bright, humanity-focused individual with very human frailties said, in a very quiet and personal way (he didn't leave a note; he didn't have a press release) that he simply thought tomorrow wasn't necessary.
1) If you don't think the prosecution was a combination of payback and a convenient "example" for the purpose of intimidation, you haven't been paying attention.
2) Yes. Prosecutorial and other forms of government (e.g. police, etc.) injustice are widespread and often hit the disadvantaged hardest. It's not fair, and perhaps it is not fair that Swartz's case is receiving so much more attention. But, it is receiving attention. Including amongst people with the power (perhaps not always conventional or "blue chip" power) and influence to change things.
Maybe it can stand and serve for a call to action. Even as the need is much deeper and much broader than this "technology" case of itself might indicate.
3) The prosecutor, just this past week, was apparently unwilling to budge from a plea agreement targeting at least 6 or 7 years in jail. Again, for a plea agreement, presumably with enough softening of terms over an expected judicial outcome to provide some compulsion for acceptance by the defense. It appears that the prospect of several years of jail time, along with a lifelong, serious limiting label of "felon", was real.
[SUBSEQUENT EDIT: Apparently, I read an incorrect description of the terms of the proffered plea agreement, or I mis-read an accurate description. The Wall Street Journal describes ( http://online.wsj.com/article/SB1000142412788732458150457823... ) a discussion of a prosecution target of 7 years with the proffered plea agreement offering 6 - 8 months. The felony conviction, however, would have apparently remained.]
4) The SOPA/PIPA debacle, in which Swartz played a critical role, was a topic for widespread, public debate. Regarding this, see again my point 1), above.
(The government also was effectively slapped down fairly well in the PACER fiasco, including by "insiders" within the judicial and academic systems who were using the PACER system out of necessity but with great resentment and its attendant financial burden.)
5) I think you've misread (or failed to put adequate effort into reading) Mr. Swartz and perhaps also the community you describe. Swartz appears to have been much more direct in and motivated by his stated interests than in any seeking of fame, particularly "for fame's sake". And the community -- at least, the part I've seen -- has been fairly openly, honestly, inquisitively, and in a cautionary fashion been discussing suicide.
(Admittedly, I'm no expert in this either, and I'm not familiar with more than a sampling of Swartz's works (e.g. his posts and essages), so perhaps I'm wrong in this.)
--
As I've said elsewhere, Swartz's case gains much -- perhaps outsized -- attention through his prominence. But then, so did Steve Jobs' case including his cancer and his abrasive but apparently effective personality. As did Postel's, some years ago, when his death brought retrospective attention to his quiet but extremely efficient and effective, seemingly single-handed management of the early Internet's address space.
Thousands of others go through similar circumstances. But a few seem fated to draw particular attention to them. And at such times, society may perhaps be brought to enough attention for more widespread knowledge and, perhaps, some productive change.
Aaron was charged with a federal crime for what should have been a civil matter. He was charged with 35 years in prison and his legal defense would have cost him over $1MM.
That's wrong. I don't want to live in a society where that is acceptable.
Yes, this issue happens to resonate strongly with this particular community whereas the disenfranchisement of the poor and other issues do not.
That doesn't make what happened to Aaron any less wrong or invalidate the anger that this community feels.
Regarding legal costs, Lessig has made up the $1MM figure apparently based on nothing, or (at best) his intuition. He also didn't say the defense would cost $1MM. He said Aaron could have feared it would cost that much.
As for sentencing, in cases like this, the sentences for the different charges would almost always run concurrently. We're talking a few years of imprisonment upon actual conviction, and reportedly the government offered to settle. Aaron could very likely have gotten a suspended sentence ("probation") upon settling. The judge in the case is known for harsh sentencing and favoring the government, but even then, it's hard to predict what he'd have gotten even if he had been convicted. My best guess, as a techie lawyer, is 12-18 months. The rhetoric here is all just Lessig's attempt to get people like us riled up, and I'm tired of that.
Not that I'm defending the government either. I don't like the law here. I'm asking only for some perspective. A rich or at least middle-class white kid knowingly and purposely engaged in an act of civil disobedience and got caught. If he'd looked different, the state trespassing charge probably wouldn't even have been dropped.
It's quite easy to calculate the likely sentence. The Federal Sentencing Guidelines provide for a base level of 6, plus an 18 step increase for fraud between $2,500,000 and $7,000,000. The sentencing range at this level assuming no criminal history is 57-71 months. Expect supervised release (no computers) for three years. The fine would be up to the sentencing judge within statutory limits.
The government estimated the value of the JStor documents at $5 million. Even if the government's estimate was exaggerated, the documents were worth something--and this figure would drive the sentence to be imposed. The judge could also depart upward based on aggravating factors such as PACER and a lack of remorse. Swartz faced with no good choices. When he did not take the offered plea, they superseded and racheted up the counts. The number of counts doesn't really matter for Guidelines purposes but there is always the risk that the sentencing judge could impose the sentences for each count consecutively.
$1MM is not a fantastical figure. Not every lawyer can mount an adequate defense in a federal criminal case and the ones that can cost a lot of money.
As for sentencing, it doesn't matter. He shouldn't have been charged in the first place and it shouldn't be policy to throw an absurd amount of charges at someone knowing that only a few will stick.
As for his socioeconomic status, I am also a white middle class kid who likes computers and so I identify with him. That's why I care more about this issue. That seems to be your point, but it's just a basic reality of human psychology and it's not revelatory or significant. It doesn't change the fact that what happened to him is wrong.
Remember, Lessig's point was that Aaron SHOULD have been punished but that the sentence was disproportionate.
And we can rise above our prejudices and instinctive "identifications." I don't accept that we have to follow our instinctive "psychology" (which is quite more nuanced than you are suggesting) instead of something more logical.
Rising above our prejudices and instinctive "identifications" would be acknowledging that maybe there's something wrong with the drug laws that incarcerate 1 in 3 poor black men. Not denying that there's also something wrong with threatening 35 years in prison for downloading publicly-funded research papers. In other words, don't invalidate one injustice simply because we can't fix all injustices.
This is a fantastic article. It brings about some important points regarding how free information should be and how much leeway prosecutors should have when deciding what charges to bring.
