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More on the Swartz Prosecution

[ 58 ] January 27, 2013 |

Orin Kerr has a typically thoughtful two-part series on the Swartz prosecution. The first part confirms what I assumed to be true — the charges were plausible under the letter of the law. The second — which is essentially a defense of Ortiz that is sympathetic to Swartz’s dilemma — is very much worth reading but more problematic. I certainly agree with Kerr that the central problem is that “[f]elony liability under the statute is triggered much too easily.” A too-broad statute, to borrow Robert Jackson’s phrase, “lies about like a loaded weapon,” and if it wasn’t Ortiz and Swartz another prosecutor was going to bring excessively harsh charges eventually. The key to his defense of Ortiz, though — “[w]hat the prosecutors did here was what federal prosecutors often do” — is less convincing. Not because it isn’t true, but because it comes too close to being a “no justice for x until justice for y (and hence no justice for anyone)” argument. The fact that overcharging for nonviolent offenses to coerce plea deals is common doesn’t make it appropriate, and any high-profile case in which it happens merits criticism. It would be best if the discretion of prosecutors was substantially reduced — Radley Balko is good on this — but given the reliance of the system on prosecutorial discretion criticism of common abuses is appropriate.

Even more problematically, there’s the question of priorities, which Kerr doesn’t address at all. Kerr accepts that “special deterrence” was required for Swartz’s “anti-democratic” actions. The problem here is that we have recent examples — financial fraud, torture — in which the federal government has used its discretion not to bring criminal charges in cases of people seeking to “anti-democratically” undermine public policy in ways that caused far, far more harm than Swartz. Yes, lest I be accused of contradicting myself the fact that the federal government decided to let class of serious potential criminals x and y get off scot free doesn’t in itself mean that they can’t pursue the much less severe alleged criminality of z. But particularly given the extent to which Kerr’s defense requires on Swartz meriting “special deterrence,” the more cautious treatment of much more serious crimes is highly relevant. Of all the illegal behavior that undermines public policy the state might go after, I’d have to say that “undermining firewalls that obstruct access to obscure academic articles the authors weren’t compensated for” would have to rank pretty close to the bottom. Hence, I don’t find the case that “special deterrence” was required in this case very convincing.

The fact that both one of the alleged victimized parties and the local authorities also didn’t think that “special deterrence” was required also seems relevant:

State prosecutors who investigated the late Aaron Swartz had planned to let him off with a stern warning, but federal prosecutor Carmen Ortiz took over and chose to make an example of the Internet activist, according to a report in Massachusetts Lawyers Weekly.

Middlesex County’s district attorney had planned no jail time, “with Swartz duly admonished and then returned to civil society to continue his pioneering electronic work in a less legally questionable manner,” the report (alternate link) said. “Tragedy intervened when Ortiz’s office took over the case to send ‘a message.’”

The evaluation made by J-STOR and the local authorities seems, ultimately, quite a bit more persuasive to me than Kerr’s.

Meanwhile, conservative who is…less thoughtful Ann Althouse has some very tasteful comedy stylings to share on this subject:

Is the prosecutor getting bullied? If she were to commit suicide — Swartz-style — would everyone feel ashamed of what they did to her?

Haw-haw-haw! It’s funny because state coercion is just the same as criticizing someone on the internet! And the idea that public officials with substantial discretion over that coercive apparatus should be subject to some measure of public scrutiny, what are you, some kind of free-thinking anarchist?

Comments (58)

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  1. Vance Maverick says:

    The fact that overcharging for nonviolent offenses to coerce plea deals is common doesn’t make it appropriate, and any high-profile case in which it happens merits criticism.

    To be clear, any case at all in which it happens merits criticism. The high profile gives a chance for the criticism to be heard. This is arguably unfair, but I think not seriously so, especially if the point is to reflect on the common case.

    • Scott Lemieux says:

      Right, exactly.

      • This case has been upsetting me from the beginning, evoking from me a negative reaction to Swartz’s defenders, and I’m sorry to say that this has only intensified since his death.

        And I really am sorry to say this: I’m very ambivalent and I feel terrible for being less than totally sympathetic to the outrage at how Swartz was treated.

        You point is trenchant, though — regardless, this was injustice, not justice, it was a tragedy that rightly illustrates an endemic wrong that badly needs correcting. Whatever the context of how this is brought more into the public consciousness, it’s good that it has been and hopefully change will follow.

        That said, I nevertheless find that the wide outrage about this actually inspires some opposing outrage in myself because this particular case exemplifies the sorry truth that only when privileged people like ourselves (white, male, smart, middle- or upper-class, educated … and, not incidentally, people who know people with media influence) find themselves at the wrong end of systemic injustices that are perpetuated every single day against those less privileged and, usually, effectively invisible … do people suddenly begin to care.

        More to the point, usually this closely measures the extent of their care. Am I to believe that all, or most, of those outraged about Ortiz’s excess will remember this the next time they read in their paper about various other, and similar, prosecutorial decisions? I doubt it.

        What upsets me is that a reflection upon their prior inattention to such injustices is rare among commentators about Swartz’s case. Their attention is to Swartz and Ortiz, less so to similar cases in the future, and almost not at all to the past and present cases in which essentially the same injustices have been perpetrated while these commentators remained blissfully unconcerned. Ortiz and other prosecutors are in the wrong, surely; but the ultimate responsibility is with the polity in general who is content to look the other way on the assumption that the status quo is delivered justice, where we normally don’t look, and with regard to people unlike ourselves. Indeed, to the degree to which these commentators have influence now, they have had potential influence in the past, not utilized because the victims weren’t people they knew.

        I think some outrage, some culpability, ought to be directed in that direction, as well.

    • Bijan Parsia says:

      The trick is to make sure it ends up benefiting the common case. If all that happens is that Ortiz has no political career, then, ok, but it’s not satisfactory.

      Fortunately, that sort of narrowness of focus doesn’t seem to be happening. A related sort, i.e., focusing on computer crime laws rather than abusive prosecutor tactics does seem to be occurring.

      Positive steps in the space generally are hard to get, so I’ll cherish any movement. But still.

    • DrDick says:

      Yes, but under capitalism, property rights are the most sacrosanct and no infringement may ever be allowed, especially if those rights belong to a corporation. Human rights are mere trifles by comparison.

  2. Bijan Parsia says:

    When I first got to the part of the second post where Kerr started talking about “special deterrence” I thought he was going to point out that, in Aaron’s case, it was pretty clear that punishment sufficient to deter him was less than the plea bargin offer. Of course, this is extremely evident, given is suicide, but I feel pretty confident that it was knowable and perhaps known before hand…certainly by the State prosecutors. Indeed, I think Aaron’s team offered a deferred prosecution.

    But, alas, Kerr didn’t go there. So, I’m left wondering what actual purpose the 6 month offer was nominally supposed to achieve. (it’s real purpose, natch, was to secure a high profile victory which is so crap a reason that I have trouble typing it straight.) Aaron was clearly easily deterrable and restitution could have taken the form of working for MIT or JSTOR or setting up other means of access via legal means.

    It’s so sad. Even sadder is how often it must happen without triggering widespread attention.

  3. Manta says:

    Well said.

    The actions of the prosecutors were eminently political, and should be treated as such: “federal Carmen Ortiz took chose to make an example of the Internet activist”.

    • bluefoot says:

      One of the local public radio stations here in Boston reported that a case was dismissed of the federal govt trying to seize a motel under civil forfeiture laws. According to the charges, there were 15 reported drug-related incidents over 14 years.

      According to the article, “During the four-day trial in November, U.S. Attorney Carmen Ortiz released a statement saying her office wanted to send a message by going after the motel.”

      Though even more damning: “The idea to go after the Motel Caswell sprung from the Drug Enforcement Administration, the trial revealed. The DEA has an agent who testified his job is to seek out targets for forfeiture by watching television news and reading newspapers. When he finds a property where drug crimes occur he goes to the Registry of Deeds. Finding the Motel Caswell had no mortgage and was worth almost $1.5 million, the DEA teamed up with the Tewksbury Police, who were offered 80 percent of the taking, the agent testified.”

      • Jeremy says:

        Also covered by Charlie Pierce, who’s always worth reading.

      • max says:

        According to the article, “During the four-day trial in November, U.S. Attorney Carmen Ortiz released a statement saying her office wanted to send a message by going after the motel.”

        It doesn’t seem to occur to anyone that they could send a message by carrying out sensible prosecutions, handing out just verdicts and generally doing their job properly. (Message: ‘I am not a sadistic self-aggrandizing douchebag.’)

        That said, it seems like it would be better if Ortiz were in the Governor’s Mansion so we could get her the hell away from prosecutions, and she could be replaced by someone who doesn’t suck.

        max
        ['Kick her upstairs to someplace she can do less harm.']

    • Manta says:

      The message the DoJ is sending is pretty horrible: they will protect war criminals and the parasitic classes (bankers and academic publishing houses) at any cost.

  4. arguingwithsignposts says:

    conservative who is…less thoughtful Ann Althouse

    Is this “Be Kind to Idiots Day” and I just missed it on my calendar?

  5. Eli Rabett says:

    Now some, not Eli to be sure, might think that the load of crap that hit Ortiz and her Sancho Panza Heymann were the “special deterrence” that the public needs to use on feral prosecutors. The Internet has changed the asymmetry of “special deterrence” and prosecutors had better pay attention before there are more of their political ambitions roasting on the spit of public notice.

  6. longwalkdownlyndale says:

    Another thing to remember is the dynamic of how a local prosecutor and a federal one can approach a case can be incredibly different reasons of budgets and capacity. Since the Fed’s can finance prisons via deficit spending and tend to have a lot more capacity to do things like investigate a case and bring it to trial they can do things like credibly threaten decades in prison for a first time non-violent offense. Middlesex prosecutors are faced with the very real reality that prosecuting Schwartz would mean less resources for domestic violence or other cases. This kind of dynamic has been going on for decades in the war on drugs and other realms. Yes threatening someone with decades in prison unless the plead guilty to a felony is very much a perversion of our system, but it is nothing new.

  7. Peter Hovde says:

    Kerr actually glosses over one prosecutorial practice that certainly facilitates abuse, at least in high profile cases, and could be stopped fairly easily, namely the practice of giving wildly inflated estimates of likely punishment to the media. Even if they don’t do this to pressure the defendant, it’s likely to have that effect, and a simple gag rule would stop it.

    • Peter Hovde says:

      By “glosses over,” I mean he talks about it, but not as something problematic that should be forbidden-instead, he blames the gullible journalists for accepting these estimates.

      • John says:

        Swartz had top-notch defense attorneys, as do most defendants in high profile cases. They should have been telling him that those estimated were wildly exaggerated, and he should have believed them. Any case where prosecutors are going to be using the media to give out exaggerated sentence predictions is almost certainly a case where the defendant has a good lawyer who knows that what they are saying is bullshit. This doesn’t seem like a particularly significant problem.

        • justaguy says:

          Sure, most defendants don’t get intimidated through press releases, they get intimidated in personal meetings with an assistant prosecutor. Lets turn that around for a second. That is, if its incredibly stressful for someone with top notch defense attorneys and a large social support network to go through this process, what must it feel like for someone with a public defender?

  8. jeer9 says:

    Breaking News: Orin Kerr discovered making subtle arguments which defend government’s abuse of power.

  9. Joe says:

    The problem here is that we have recent examples — financial fraud, torture — in which the federal government has used its discretion not to bring criminal charges in cases of people seeking to “anti-democratically” undermine public policy in ways that caused far, far more harm than Swartz.

    The REASONS for it in the various cases, especially torture, are quite different and using torture in the same breath as an excessive six months in jail in this case is overkill.

    Also, his summary of his argument doesn’t just say “this is how it’s done.” It is that it is wrong to — as some are — focus specifically on him. “Instead, complain that this is business as usual in federal criminal cases around the country — mostly with defendants who no one has ever heard of and who get locked up for years without anyone else much caring.” The OP does this, so fine.

    He also points out there are worse cases than this. But, this is a cause celebre? Why? Well, in part since he is such was a nice smart boy & he committed suicide, which some very well partially blame on the government who “contributed” to it by deciding that six months or “a few months” is appropriate for something that looks like an act of civil disobedience that even sympathizers like Prof. Lessig think was wrong instead of probation or something.

    It’s like some white boy upset about being harassed by the cops gets all the attention. It comes off a bit off.

    • Mark Field says:

      Also, his summary of his argument doesn’t just say “this is how it’s done.” It is that it is wrong to — as some are — focus specifically on him. “Instead, complain that this is business as usual in federal criminal cases around the country — mostly with defendants who no one has ever heard of and who get locked up for years without anyone else much caring.”

      But Joe, when I made that very argument, he somehow managed to misread my comment and snarked at me. Then, when he praised Sen. Cornyn’s letter, and I pointed out that the letter focused on this specific incident and asked him why he praised it given his previous comments, he said nothing.

      • sparks says:

        Inconsistency is one reason I wonder why Kerr’s articles are considered “good” by those who reference them here.

      • Joe says:

        I didn’t see that comment and am not shocked at such behavior, particularly respecting his former boss of sorts (he was an adviser to that senator). Prof. Kerr shows some sanity but at other times is a bit of a prick.

  10. Hugo Torbet says:

    I have yet to hear a politician argue that the criminal justice system is unfair to the arrested or that punishments are too harsh. Instead, what we get is mandatory minimums and the sentencing guidelines (brought to you by Joe Biden), and politicians who extol anal gang rape as a legitimate component of criminal redress.

    This circumstance is emblematic of a decades-long effort to destabilize the balance of power set out in the Constitution. When the executive is permitted to run amok, injustice is more likely to follow.

  11. Tybalt says:

    One important though small clarification:

    Of all the illegal behavior that undermines public policy the state might go after, I’d have to say that “undermining firewalls that obstruct access to obscure academic articles the authors weren’t compensated for” would have to rank pretty close to the bottom.

    No firewalls were breached. MIT allowed open access to the network to all individuals on campus and JSTOR allowed open and unlimited access to everyone on the MIT network. And all this was intentional on the part of JSTOR and MIT.

    Aaron Swartz didn’t even break a Terms of Use. (There wasn’t one.)

    He didn’t even hack a CAPTCHA.

    He didn’t do anything.

    When MIT shut off his wireless access, he plugged in to the wired network. As anyone is also free to do, anywhere, at MIT.

    Naturally, this all goes unreported everywhere. It’s frustrating.

    Reference here, from the forensic analyst who was preparing the trial defense.

  12. MosesZD says:

    I should point out that, from my reading of other lawyers, etc., involved in/pontificating on the case that in both the 4th & 9th Circuits, this was not a crime. That you actually have to do more than violate the terms of service to be an unauthorized user.

    And that since MIT grants full and open access to all comers and pays the $50,000 a year JSTOR subscription fee and makes JSTOR available as part of this service, it wasn’t ‘hacking’ or ‘unauthorized use.’

    It was, at worst, inconsiderate in that he automated the search-and-download functions and tied up band-width.

    Sure, if you want to take the DOJs very narrow and improper take of the facts, you might be able to stretch this into a crime. But having been a Rule 702 expert witness in multiple cases involving the DoJ and IRS, I have found it to be problematic to trust the DOJs or the IRS’ outlook on such matters. Add in I grew in a family where one of my parents spent a decade working for the US Attorney in San Francisco and another in Federal Law Enforcement. Plus putting in two years as a Federal Agent where I naively thought I could stay away from that…

    No, sorry. No can do. I understand the technical aspects of what happened. He used a script to download files from an open-by-design network and all of which fell under the TOS of JSTOR via MIT’s subscription except the script-method of downloading. It was a batch file. Whoopee.

  13. Anonymous says:

    … the charges were plausible under the letter of the law.

    I do not find his argument that the value of the information taken exceeded $5,000. Here’s his argument (sorry about the length, but I want to be fair):

    (c) Unauthorized Access. The next charge was unauthorized access to a computer to obtain information valued more than $5,000, in violation of 18 U.S.C. 1030(a)(2)(C) and 18 U.S.C. 1030(c)(2)(B)(iii). I think this charge was a fair one. There are two notable legal issues here. First, was the information valued at more than $5,000? The answer is clearly yes under the leading case of United States v. Batti, 631 F.3d 371 (6th Cir. 2011). Batti dealt with the $5,000 requirement in the context of a video that was difficult to value. The Sixth Circuit concluded that the $5,000 refers to the value of the information obtained, not any loss or harm to the alleged victim in the case. Further, the court authorized the following methodology when “information obtained by a violation of § 1030(c)(2)(B)(iii) does not have a readily ascertainable market value.” In such cases, the court held, “it is reasonable to use the cost of production as a means to determine the value of the information obtained.” Creating thousands of journals over many years obviously costs more than $5,000, so that element is easily satisfied.

    Value is obviously a slippery problem, and it’s interesting that he goes with a Marxist analysis of the cost of production, but it makes no sense to me.

    The victim doesn’t have to pay money to replace the data – they still have it.

    No one else would use the data to harm the victim, or to benefit themselves, so they haven’t gained anything.

    If the Feds could prove (beyond a reasonable doubt) that Swartz was going to make it available, and that JSTOR was going to lose (or Swartz was going to gain) at least $5k, then I could see it. But that’s not the same thing as saying that since the origunal data cost $5k to produce, then this photocopy that cost ten cents to produce, and wasn’t going to be used, and didn’t harm anyone, was worth $5k.

    Yes, I know a court decided wrongly in another case. I don’t care

    • Timb says:

      It’s also interesting he OES out of Circuit for persuasive precedent. The Federal Court in Massachusetts is more bound by that 6th Circuit ruling than a federal Cout in Juarez is.

      • rea says:

        Precedent from other circuits is technically not binding, but is usually followed. We were just compaining about the DC App Ct’s failure to follow 11th Circuit precedent, after all.

    • justaguy says:

      It seems odd not to take the price that JSTOR placed on the items in their contract with MIT as the value of the articles. That is, they allowed MIT to give anyone who accessed their network unlimited downloads for free. How could you value something which people were allowed to take for free at over $5,000?

      • ezra abrams says:

        business in the real world
        MIT paid 50,000 dollars a year for a license
        We can assume that other universities are similar
        We can assume that people paid over 1,000,000$ US/yr

        It doesn’t matter how stupid or silly it seems; by definition, in a free market economy, if someone is willing to pay 1,000,000$ US/yr for something, it has value

        For many companies, a rough rule of thumb is that the company is worth 6X annual revenue, although the std dev on this is large

        in any event, the JSTOR data base, in teh real world, where people actually pay real money, was worth well north of 1,000,000 dollars

        It is fair to assume that Swartz’s actions would have harmed the value

        The only remaining debate is, under our current system of law, what is fair punishment; if the economic harm suffered by jstor is on the order of 1,000,000 dollars, then 6 months seems awfully light……

        • Malaclypse says:

          It doesn’t matter how stupid or silly it seems; by definition, in a free market economy, if someone is willing to pay 1,000,000$ US/yr for something, it has value

          Not true. I guarantee McDonald’s spends far in excess of $1M/year on ketchup packets. And yet the individual market value of each one is zero.

          For many companies, a rough rule of thumb is that the company is worth 6X annual revenue, although the std dev on this is large.

          Dear Cthulhu, not in my experience. The rule of thumb I’ve always seen is 7X EBITDA. And that’s if you are shortcutting from present value of discounted future cash flows. But you would never use top-line revenue, as that is by itself pretty useless as a predictor of future cash.

  14. Crackity Jones says:

    Pretty subtle, narrow arguments for someone who clerked for Kennedy.

  15. ezra abrams says:

    what is so awful about 6months at one of those min sec Fed Prisons, where white collar crimminals come out tanned, fit and thin ?
    I mean, ya do you 6months, your friend throw a party, the girls (hey -boys to , modern times) fawn all over you, you feel like a hero for demonstrating your committment…

    At least, thats what would have happened in civil rights and nam (cf Thoreau)

    As for the value of jstor: It is easily over one million dollars
    If MIT paid 50K, there are atleast 20 other big universitys.

    Now, if any one anytime had free access, who is gonna pay the million bucks a year in license fees ?

    Not to mention all the people like me who actually shell out 14 dollars for a *single article*

    Seems to be a lot of lawyering, and not much understanding of how businesses work in the real world
    yearly income >>1 million dollars is a lot of money, and regardless of anything else, if people are paying for it, by definition in a free market, it has value.
    To assert that making it possible to download article free anytime anywhere doesn’t affect that value is just tsfwwb (to stupid for words webblogging)

    • djillionsmix says:

      “To assert that making it possible to download article free anytime anywhere doesn’t affect that value is just tsfwwb (to stupid for words webblogging)”

      unlike your assertion that federal prison is no big, which is the height of seriousness.

  16. quercus says:

    I stopped taking Kerr’s article seriously when he said (quoting roughly from memory) “[Swartz's] undemocratic goals”.

    Aside from directly facilitating voting, what could possibly be more democratic than making information available to all? I mean, making it free of charge is probably uncapitalist in some way, but antidemocratic?

    I suppose for Libertarians, Glorious Capitalism encompasses all that is Good, and so democracy is really just a subset of Capitalism, and so anything that prevents a company from charging others is anti-democratic, but that’s not the way the rest of us use the word.

    Probably the real explanation, though, is that for anyone trying to suck up to the Powers that Be, occasionally hippies must be punched, using whatever smears are lazily at hand. Heck, at least Kerr didn’t call Swartz a terrorist, or call him ‘shiftless’, right?

    * No doubt Kerr would defend himself by saying that he was really referring to Swartz’s actions, not goals, and that the actions were never authorized into law by a legislative body. Therefore they’re against the democratic will of the jurisdiction. In which case, ‘undemocratic’ just means ‘at least technically illegal’, which is a funny use of the word, but justified because defining ‘undemocratic’ so it applies to, say most of the Civil Rights movement is a positive thing when punching hippies.

    • David Nieporent says:

      No, you’re missing Orin’s point. He’s not using undemocratic as a mere synonym for illegal. The point of most civil disobedience is to convince people that the democratically-enacted law is wrong, so that they’ll democratically repeal it. But Swartz was simply trying to make the democratically-enacted law obsolete; once he released all the documents into the wild of the internet, nobody would have any say in the matter. Even if the majority democratically decided that the documents should be protected, well, Swartz would have decided for them that the documents wouldn’t be.

  17. Harold says:

    Thoreau spent exactly one night in jail. Thoreau was not convicted of a felony, did not lose his right to vote, and was not debarred from future employment in many professions, which would have happened to Swartz had he been inappropriately pressured into pleading guilty to a felony of which he was certainly not guilty since he, like other users of the library, had permission to download those articles. Nor was there any stated limit on how many articles could be downloaded.

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