What should the next Aaron Swartz do when the DOJ knocks?

http://boingboing.net/2015/03/12/aaron-swartz-and-impact-litiga.html

by edward • 11 years ago

90 48 11 years ago

ouchy4• 11 years ago

A few things.

1. Don't give up. I hate to say it, but they guy was in the middle of negotiations, and could have probably worked out something significantly better than the 6-month deal he was offered (which really could have been far worse, in practical terms, though it never should have come to that, of course). He obviously had severe mental health problems, and killing himself was disproportionate to what he was facing.

2. I've had two friends do time for Federal, non-violent crimes, and it wasn't horrible for either of them. It mostly just kind of sucked. Not even close to a worst-case scenario. Family embarrassment and having a felony on their record was the worst of it for each of them. Aaron could have turned all that to his favor.

3. It's an unpopular thing to say around here, but before becoming an activist for a cause, it'd be worth talking to a lawyer. No doubt the prosecutor was overzealous (what else is new?) but Swartz's operation was both ham-fisted and a bit unhinged. He obviously was trying to get away with something, he just got caught. He really should have thought that through before doing it, during, and after.

4. And if you're actually guilty of something–however absurd that law is, it's law–fight like mad (which includes appeals) and then take the best plea bargain your attorney can get you, and make the most of it. A six-month term would have been the best thing that could have happened to his cause–afterwards he would have had immense credibility as an activist with both character and credibility.

This should all enter into your cost/benefit thinking. It's just good planning.

Unfortunately, it became a "mere" tragedy that I fear will wind up doing far less to solve the problems he wanted to than if he'd stuck it out.

pzxc• 11 years ago

Don't give up. I hate to say it, but they guy was in the middle of negotiations, and could have probably worked out something significantly better than the 6-month deal he was offered (which really could have been far worse, in practical terms, though it never should have come to that, of course).

My understanding is that negotiations had stalled: the prosecutors absolutely refused to entertain any plea deal that did not result in Aaron getting a felony. That was all Aaron wanted: not to be a felon for the rest of his life.

ouchy4• 11 years ago

IANAL, but as I understand it he still had options, though (trial by jury, for example).

LLWM8• 11 years ago

That's what a lot of people want. We get it by not committing felonies.

shit_parade5• 11 years ago

Unfortunately, it became a "mere" tragedy that I fear will wind up doing far less to solve the problems he wanted to than if he'd stuck it out.

This reads as victim blaming to me, perhaps you didn't intend it such but the rest of your comment also sounds like whitewashing to me:

"friends do time...wasn't horrible" thanks for your anecdote, most people find being stripped of their freedom and locked in a box horrible.

"no doubt the prosecutor was overzealous...but..Swartz...ham-fisted and a bit unhinged", way to make light of Swartz's mental condition and suicide.

"actually guilty...however absurd..it's law", so the law is always right no mater how absurd? How grotesque.

"six-month term would have been the best thing that could have happened to his cause", how about you volunteer to be a felon then?

genericuser2• 11 years ago

"actually guilty...however absurd..it's law", so the law is always right no mater how absurd? How grotesque.

You don't get laws changed by disobeying them, and not being willing to risk the penalties. You have to work to get the law changed if you feel it is absurd.

rwallace• 11 years ago

It doesn't read that way to me. To be clear, as far as I'm concerned Aaron Swartz's death was judicial murder, but we have to be able to discuss strategy coldly and impartially without being accused of victim blaming, because cold and impartial discussion of strategy is something that can actually save lives. Please be less trigger-happy with accusations of victim blaming in future.

throwawaymaroon• 11 years ago

Normally I'm all for entertaining whatever criticism anyone has, but this displays exactly the worst aspects of armchair commentary.

I don't think you have any understanding of what the situation on the ground was like.

1. What, do you think putting "Don't give up" on a poster in Swartz's office would have helped?

2. In a chess game, you can sacrifice the queen without blinking, but in real life the decision might not be cold and you don't get to make it into a cold decision if you're in the situation.

3. Spoken like someone who will never, ever take a risk or a stand on principle. What you saw was the actions of someone thinking it through! This I think is where your arrogance is most evident, in that you're evaluating someone's strategy in a calm environment without any display of understanding of the pressure the situation creates.

4. You seriously think Aaron didn't fight? You just think he should have fought more? What a nice little opinion you have.

quipp• 11 years ago

Yeah, let's make sure all our children come out of the womb with cost/benefit thinking... Problem solved.

wmil• 11 years ago

I think the important lesson is that if the prosecutor is being overzealous and you're a sympathetic defendant then you shouldn't be afraid to ignore gag orders and take your case to the press.

Lawyers are usually against it. Thier natural impulse is to try to win in the legal system. Angering the judge is a huge risk.

But look at the Justina Pelletier case. She'd likely still be in a mental hospital instead of receiving treatment if her father hadn't broken a gag order and gone to the press.

Swartz had more than enough supporters to pay his legal bills and rein in the prosecutor. It's a shame that his team decided to follow the gag order.

tomjen3• 11 years ago

A now dead troll comment suggest that he should shoot first. While I don't agree with this at all, this is almost certainly going to happen and sooner rather than later. See right now in Ferguson, with the random cop killings.

People break in different ways. Some break inwards, others outward - and no this isn't a gun issue. Palestinians have figured out that you can kill people with a car - heck half an ounce of flour in an envelope will cause massive panic and workplace disruption.

peter303• 11 years ago

I agree with Lessig's view in that documentary that if he had waited through the court case, and especially asked for a jury trial, it would have been knocked down to a smaller charge, probable conviction and no jail time. Judges and juries are checks on overly aggressive prosecutors. As hinted in the documentary Aaron may have had other issues weighing on him than just this court case.

Not all hacking cases are equal and need to be judged on their own merits. Sometimes there could be much more serious economic harms or intentions than this case.

ouchy4• 11 years ago

I haven't seen the documentary, so I hadn't heard that. Thanks.

I think Lessig's exactly right.

shit_parade5• 11 years ago

Very few cases see a jury these days. The typical tactic for a prosecutor is to pile up charges until the defendant is facing many, many, many years of jail time then once the consequences of going to trial is made abundantly clear to the defendant, i.e. your entire life could be thrown down into a dark hole and never again will you see daylight again as a free person, the prosecutor will then dangle a plea bargain of only a 'few years' on 'lesser' charges.

It's not difficult to understand why there are now so few jury trials. Add in the fact that bail can be denied or expensive, that jury trials can drag on for years in appeals, that being seen as adversarial often puts you in a bad light if/when you are sentenced, or that judges can at times utterly disregard the jury, the entire 'legal' process as it is practiced today serves no one justly and is built solely to empower the government and the powerful at the expense of all others.

awch• 11 years ago

Agreed, but the author notes that "...after the plea-bargaining blew apart on January 11, 2013, Aaron's family was close to a million dollars in debt. He could not afford a trial."

The disparity was financial- the bottomless pockets of the federal government vs. the finite resources of an individual (and donations from supporters).

It's as if there's a need for a "CFAA legal defense" insurance policy that activists/security researchers could purchase to finance vigorous challenges to these statutes in the event of overzealous prosecution.

programmarchy• 11 years ago

Shield Mutual: http://shieldmutual.com

wolfgke2• 11 years ago

Why don't you lobby for introducing "court grants of legal aid" (in German: Prozesskostenhilfe).

MollyR• 11 years ago

In era of flux and untested laws, no one wants to be a scapegoat or a trial run.

I really feel for Aaron Swartz, and I think I might have easily done the same thing as him.

I dunno how or what, but we need dramatic changes in the law about the nature of the digital world.

ouchy4• 11 years ago

Activists need to realize they're intentionally walking the fine line between being a scapegoat and a martyr. The better they navigate that, the more effective they'll be.

shit_parade5• 11 years ago

https://www.youtube.com/watch?v=PhFvZRT7Ds0

parfe• 11 years ago

The feds wanted capitulation, a guilty plea.

No shit. Aaran Swartz wasn't a special case. He's just notable to the community because suddenly it was a perpetrator a lot of people could actually empathize with. The plea rate for federal prosecutions is 96% [1].

Swartz wasn't even looking at 35 years mandatory minimum [2]. That was just the total if you added up all the maximum penalties without factoring in the sentencing guidelines.

Sadly, his mental health issues complicated his situation, but really the advice is the same for the Next Swartz as the next Random Guy Caught With Too Much Crack [3]. Keep your mouth shut, take the best offer your can get, and plea out.

[1] http://www.ussc.gov/sites/default/files/pdf/research-and-pub...

[2] https://www.popehat.com/2013/03/24/three-things-you-may-not-...

[3] http://en.wikipedia.org/wiki/Fair_Sentencing_Act

NoMoreNicksLeft• 11 years ago

a perpetrator a lot of people could actually empathize with

A perpetrator of what? Downloading files he was allowed to download but at a faster rate than the rulemakers had anticipated?

What was the crime?

Creative prosecution by the feds is outrageous, and should be shut down... those engaging in it should be shamed and prevented from ever practicing law again.

shit_parade5• 11 years ago

the author writes, "These experiences prompted me to consider how Aaron Swartz might have pursued a more aggressive public campaign as part of his legal defense."

He goes on to mention Mr. Brown, but he also ignores that Brown was given a gag order preventing him engaging in the sort of 'aggressive public campaign' the author encourages the next Aaron Swartz to attempt.

Civil rights throughout history are won through extensive civil disobedience, somehow the left and much of the government, and every state apologist continue to advocate that people work within a system that is grotesquely unjust and to throw away the very tools that history has shown are most effective in addresses legitimate grievances.

On January 1, 2008 more than 1 in 100 adults in the United States were in prison or jail.[0] This doesn't occur in a system of just laws which respect the natural rights of individuals, it occurs in a totalitarian police state beholden to oligarchs and politicians.

[0] https://en.wikipedia.org/wiki/Incarceration_in_the_United_St...

fiatmoney• 11 years ago

The Solzhenitsyn quote is apt.

jheriko• 11 years ago

1. take responsibility for his actions 2. not top himself

ggchappell• 11 years ago

A question.

AS gets special attention in places like HN, because of his status as an information activist. But activism is not new; neither are excessive charges based on it. We discuss AS as if his case was an unusual one. But (and here is the question), was it, really?

Note: This is not an argument disguised as a question. I really don't know.

What should the next Aaron Swartz do when the DOJ knocks?

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