I've been sad all morning. Reading this article just makes me angry.

Sadly, that's what they got.

Apparently, our government's mission is to destroy young people over petty grievances its employees have with American citizens. Christ, there are so many levels of wrong here its unbelievable. I just wish Aaron's case got more attention before he died. There was next to nothing about it, but jerks like Kim Dotcom seem to have articles and public sympathy locked, while real heros like Aaron were margalized because he was working on a level more much complex than "herp derp free moviez" and didn't have the crass marketing and bullshitting skills guys like Dotcom have.

We live in a very unfair world. Whatever American exceptionalism I believed in was steadying chipped away by the horrid Bush years and Obama's bizarre assault on medical marijuana, patent violators, and now 20 somethings downloading lots of PDFs.

I was just thinking how well a young Bill Gates or a young Bill Joy or whoever would fare in 2013 America? These guys have all admitted to doing stuff like stealing mainframe time, ripping off code, causal hacking, pushing around the old guard, violating all manner of rules, etc. Its just back then you didn't go to jail for it. I imagine most of them would have gotten crushed somehow, just like Aaron.

I know I am being dramatic, but this whole thing is very upsetting. The worst is, there is no reform over the horizon. Whatever reformist potential Lessig and the EFF and others had in the late 90s and early 2000s is long dead. If anything, things have somehow gotten worse for those who believe in open information and sensible prosecution of computer crimes since the Bush years. How did we get here? Why is Aaron dead? Why is my side always losing? This is too fucking much.

The government has been like this for a long time. But it sure feels like they have accelerated on behalf of their corporate paymasters.

http://blog.archive.org/2013/01/12/aaron-swartz-hero-of-the-...

>We live in a very unfair world.

I thought I already understood this. Today puts it in even sharper focus.

The millions of kids downloading music have done more wrong by the letter of the law than Aaron did.

" the strain it put on JSTOR’s servers was enough to have impaired other research institutions attempting to access the materials."

"Together, Grace and Gary Host downloaded JSTOR articles at such an astounding pace that several of JSTOR’s servers crashed."

http://tech.mit.edu/V131/N30/swartz.html

It would not have occurred to me that they haven't configured their servers to handle the load. Once again - Aaron did nothing that I, and tens of thousands of people like me, haven't done many times.

Can I break into your home and use your internet connection as I see fit without your complaint?

> Can I break into your home and use your internet connection as I see fit without your complaint?

They dropped the trespassing charges, the only charges that had merit.

If I were to drop the trespassing charges and choose to object on the grounds that I had to throw out my router because you used it, then I would indeed be manufacturing victomhood.

I'll repeat myself. They dropped the trespassing charges.

Based on this non sequitur, can we infer that you have tacitly accepted jlgreco's point?

BUT THEY DROPPED THOSE CHARGES.

the fact that someone did something dumb does not make it illegal.

If i buy so many lottery tickets that the state thinks it's fraudulent, and shuts down the lottery for a day, that doesn't make me guilty of anything.

(As I said, TOS violations are simply not crimes. No court has ever held otherwise)

Sadly, I wonder how frequent these witch hunts are in the USA. The Larsgard story is another, prime example of how misconstrued the narratives of prosecuting attorneys can get - without any risk to their own career.

(Edit:) This is just one out of a few, key reasons that I do not want to visit nor work in the USA. The risk that one may get to pay for some a..hole's political aspirations.

Meanwhile the guy continues to scam more and more people, pushing one woman to brink of shutting down her business. I know because I made a site(http://cliffkaplanfraud.com) and the stories that trickle in are gut wrenching and infuriating.

So yes, the DA's office seems to have a lot of power to pursue someone unlike what some people here suggest.

2) They may have prioritized murders and rapes over crimes, such as bad-check-passing, that can be remedied in a civil courtroom. That's generally what happens when state and local budgets get cut. For example, in 2009 and 2010, San Bernardino and Riverside counties simply did not enforce drug possession charges for meth or marijuana for quantities below the dealer amount because they didn't have the prosecutorial resources to handle those cases after prioritizing violent crimes.

3) HIRE A LAWYER. Winning a case against him in civil court for passing a bad check is pretty much guaranteed to spawn a criminal case because you'll have handed the prosecutors their case; they won't have to redirect many resources away from serious crimes.

"The USA [US Attorney] is invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such authority."

http://www.justice.gov/usao/eousa/foia_reading_room/usam/tit...

  The United States Attorney, within his/her district, has 
  plenary authority with regard to federal criminal matters. 
  This authority is exercised under the supervision and 
  direction of the Attorney General and his/her delegates.

  The statutory duty to prosecute for all offenses against 
  the United States (28 U.S.C. § 547) carries with it the 
  authority necessary to perform this duty. The USA is 
  invested by statute and delegation from the Attorney 
  General with the broadest discretion in the exercise of 
  such authority.

  The authority, discretionary power, and responsibilities of 
  the United States Attorney with relation to criminal 
  matters encompass without limitation by enumeration the 
  following:

  Investigating suspected or alleged offenses against the 
  United States, see USAM 9-2.010;

  Causing investigations to be conducted by the appropriate 
  federal law enforcement agencies, see USAM 9-2.010;

  Declining prosecution, see USAM 9-2.020;

  Authorizing prosecution, see USAM 9-2.030;

  Determining the manner of prosecuting and deciding trial 
  related questions;

  Recommending whether to appeal or not to appeal from an 
  adverse ruling or decision, see USAM 9-2.170;

  Dismissing prosecutions, see USAM 9-2.050; and

  Handling civil matters related thereto which are under the 
  supervision of the Criminal Division.

This is why the law is complicated: you cannot read a law in a vacuum; you must read it in conjunction with all other laws bearing upon the same issue.

Now you are arguing that the specific statute at issue did not allow Ortiz and Heymann to decline prosecution. That is a completely different contention, thought it is also false, as it is hard to think of something more subject to prosecutorial discretion than the 1984 CFAA:

http://www.jdsupra.com/legalnews/ninth-circuit-scales-back-c...

  The Nosal opinion expresses grave concern that the broad 
  reading advocated by the government could criminalize much 
  innocuous activity. In particular, the Court notes that 
  the phrase "exceeds authorized access" appears in another 
  section of the CFAA, § 1030(a)(2)(C), which has no 
  requirement of fraudulent purpose, and requires only that 
  the person who "exceeds authorized access" has "obtain[ed] 
  . . . information from any protected computer" (i.e. any 
  computer that can connect to the Internet). The 
  government's view, the Court feared, could "make every 
  violation of a private computer use policy a federal 
  crime."

In short, you are just factually wrong here that the federal prosecutors have no discretion in general (your first claim), or that they had no discretion with respects to the statutes at issue here (your second claim).

1. Guaranteed? Man already has multiple suits and judgements against him in civil court in past few years in addition to having servdd time years ago for a similar crime. He even has a warrant out in another state AFAIK. No criminal charges in NY(where I am based) or California(where he and many of his victims are).

2. It's very hard collecting money from him even after you win the judgement, from my conversations with those who have. In the end, I risk taking an even bigger hit especially if he countersues(even the odd lawyer willing to work on contingency warns me that he will almost certainly countersue for which I will need to pay out of pocket)

My best option in light of these realizations was to build this site which seems to have at least made a dent in his ability to scam. For example, the guy has been playing with the spelling of his name, at least partially I'm guessing so my site does not pull up when his next victim googles.

Unfortunately, there have been a great many scams like this in the past 4 years and this guy may have just slipped through the cracks as a result of staff cutbacks.

The authorities will likely be grateful to you for any assistance you can provide them, i.e., by helping them locate other victims.

Because I've been trying at the county and city level and after sending many victims to ring up the investigators, little has come out of it.

I always thought at the state level my chances are even bleaker of getting their attention.

Meanwhile, what is the expected RoI on hiring a lawyer to recoup a $10,000 debt? Especially if the guy is a deadbeat? Probably somewhere around negative $50k, I'd wager.

This whole time, I've had a piece of me that wished I'd done it (a very small piece, since 1/2 of my kids were born in that timeframe). Today is the first day when I can honestly say I'm glad I'm in no way associated with MIT.

In a just, rational world, Aaron would have been lauded as a hero, but our world isn't that world. Our world is one where influence carries more weight than the power of ideas and even though ideas may win in the long term, the effect of power wielded by certain individuals is more immediate and almost always more corrosive.

The prosecutor was just doing her job. A simple case like Aaron's probably took up less than 1% of her week. It may have been a big case to Aaron, but compared to their normal cases, it was a relative vacation for the prosecutors working on it.

The problem was not that Aaron "upset someone deeply entranched." The problem is that Aaron's activities fall into the definition of a particular form of electronic crime which may be overbroad. Federal prosecutors don't get to decide if laws are overbroad or unconstitutional and choose not to enforce the law (because this discretion was historically used to excuse many white defendants accused of lynching black men in the South). They enforce all of the laws on the books unless someone with legal discretion (i.e. ,the head of the DOJ or the president) issues an order telling them not to enforce a particular (set of) law(s).

a) the prosecutor's office has limited, finite resources to pursue cases

b) The prosecutor has discretion over the choice of cases

c) The office is judged by its record when it comes to the number of convictions and the quality of the cases pursued

d) It is reasonable to assume that the prosecutor acts as an agent, pursuing their own agenda versus the spirit of their duties. (the principal agent problem)

e) The legalities in Aaron's case are complicated and understood by a few.

f) It is also reasonable to assume that the case is inherently more risky than an open and shut guilty conviction, due to various factors such as, 1) the desire of MIT, JSTOR not to prosecute themselves, 2) expert witnesses such as the author of the article willing to provide testimony against the case, 3) the lack of a direct victim, and 4) questions over the inherent legality of the action itself.

g) In the above context it is reasonable to assert that the prosecutor without their well established tricks may have indeed lost this one if Aaron had the resources to have his day in court.

h) Aaron has a demonstrated previous track record of acting against the interests of the US govt. and the individuals it consists of.

i) Those individuals within the government have a social network

j) The said individuals are capable of and are willing to influence one another through this network

k) The prosecutor is a part of such a network by her very position within the government.

It is therefore reasonable to assume from the above assertions that it is likely the prosecutor was influenced to pursue the case with more rigour than necessary.

Then JSTOR tells you to knock it off, but you proceed anyway.

And all this happens without Ortiz having any idea? Come on.

No one is saying Obama would know about this, but a bureaucrat on Ortiz's level does because its her job.

She's at least as guilty as the actual prosecutors on the case.

If that is the case, then she is BAD at her job. You can't have it both ways. Either way, let everyone know that she is either bad at her job or overzealous.

From my point of view, she is no different from Jack Dorsey, or Steve Jobs, or all those other techheads who are revered for their overzealous and overbearing behavior. The difference is that most people on HN don't, can't, or refuse to understand what her job is and the legal and ethical obligations that come with it.

To put things in perspective: you probably feel the same way about this prosecutor as I feel about the guys running AirBnB.

Somehow one is supposed to be outraged about someone renting out their spare bedroom to make ends meet, but not disturbed by an unelected official railroading and bankrupting Swartz? Indeed, to even defend this lack of accountability while attacking or derailing any measures to hold them accountable? This worldview is absolutely topsy-turvy and incomprehensible; insofar as it has any consistency, it seems to be pure apologia for untrammeled state power, obedience to authority, and rule by lawyers.

While we're on the topic of things HN participants have trouble understanding, you may have a perspective on the legal system to add to the discussion, but you've apparently got something of a blind spot toward what the case you're building looks like outside that perspective.

At least, insofar as you're arguing that the legal system respects and the political system advances the careers of prosecutors who are overzealous (which, by definition, is disproportionate zeal).

> Jack Dorsey, or Steve Jobs, or all those other techheads who are revered for their overzealous and overbearing behavior.

This is like arguing that because some drug addicts are great artists, people should respect drug addicts.

I think it's pretty rare that you find people revered for overbearing and overzealous behavior itself -- when you find that behavior alone, in fact, you find people generally recognized as "assholes."

It's the other stuff that people like Jobs and Dorsey bring to the table that earns them respect and gets people lining up to work with them.

So if you want to make a comparison here that's going to hold up to any real scrutiny, you'd better be able to hold up to the world what Ortiz and her fellow overzealous prosecutors are contributing to the world besides their inordinate zeal -- what their singular gifts and rare qualities are.

Particularly in the moment when the most high profile product of that zeal is that seems to have contributed to someone's death.

You spent most of your comment defending that zeal instead, though. I don't know what that says about the strength of the case you hinted could be made about the details of a prosecutor's job and the legal and ethical obligations that come with it.

No offense to Aaron (who is by all accounts even smarter than I) but many, many people get charged with Federal crimes (even those with 30 year sentences) and don't go and kill themselves. Especially when they're as innocent as everyone describe him to be.

In some of those cases the defendant gets to use it as an opportunity to thumb their nose at the prosecution the entire way along (a kind of "reverse bully-pulpit"). It really sounded to me that Aaron had built a good case for himself once they dropped the trespassing charge, especially in light of everything that's come out since his suicide. So I don't understand it...

You feel like the guys running AirBnB are destroying people's lives?

This makes it even sadder then.

  Federal prosecutors don't get to decide if laws are   
  overbroad or unconstitutional and choose not to enforce the 
  law...They enforce all of the laws on the books unless 
  someone with legal discretion (i.e. ,the head of the DOJ or 
  the president) issues an order telling them not to enforce 
  a particular (set of) law(s).

"The USA [US Attorney] is invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such authority."

http://www.justice.gov/usao/eousa/foia_reading_room/usam/tit...

  The United States Attorney, within his/her district, has 
  plenary authority with regard to federal criminal matters. 
  This authority is exercised under the supervision and 
  direction of the Attorney General and his/her delegates.

  The statutory duty to prosecute for all offenses against 
  the United States (28 U.S.C. § 547) carries with it the 
  authority necessary to perform this duty. The USA is 
  invested by statute and delegation from the Attorney 
  General with the broadest discretion in the exercise of 
  such authority.

  The authority, discretionary power, and responsibilities of 
  the United States Attorney with relation to criminal 
  matters encompass without limitation by enumeration the 
  following:

  Investigating suspected or alleged offenses against the 
  United States, see USAM 9-2.010;

  Causing investigations to be conducted by the appropriate 
  federal law enforcement agencies, see USAM 9-2.010;

  Declining prosecution, see USAM 9-2.020;

  Authorizing prosecution, see USAM 9-2.030;

  Determining the manner of prosecuting and deciding trial 
  related questions;

  Recommending whether to appeal or not to appeal from an 
  adverse ruling or decision, see USAM 9-2.170;

  Dismissing prosecutions, see USAM 9-2.050; and

  Handling civil matters related thereto which are under the 
  supervision of the Criminal Division.

Prosecutors regularly ask for outrageous sentences which from my observation are rarely granted.

Here is the case of Mark Drier. Government asked for 150 years, he got 20 years:

http://blogs.wsj.com/law/2009/07/13/breaking-marc-dreier-sen...

Michael Miliken theoretically could have faced 520 years:

http://www.nytimes.com/1989/03/30/business/junk-bond-leader-...

This is what happened (he got 10 and that was reduced):

http://www.nytimes.com/1992/08/06/business/milken-s-sentence...

Look, you can judge him how you please, but don't tell me about about how horribly Turing was oppressed if you won't accept guys like Swartz got the same treatment.

Can you imagine working on a startup, clearing a couple mil, spending your life fighting for your ideals to only have EVERYTHING taken away by some overzealous prosecutor? Can you imagine watching your 2 million dollar nest egg go to lawyers who tell you that you probably will need to serve time? Can you imagine waking up and knowing that in 6 months you'll be telling everyone you know that you will be going away for 10 years? That all you've done will be taken from you? Or how utterly demoralizing it must be to realize that Ortiz cannot be stopped because of how powerful the federal government is? The level of defeat here and the stakes involved? That your reputation and the reputation of everyone and everything you touched will be destroyed the day you take the plea bargain? Knowing the coming storm will hit you soon and there's nothing you can do to stop it?

If there's any justfiable reason for suicide in this crazy world its being railroaded by a government with infinite resources and knowing that by the time you get out of prison you'll be 10 years older, never allowed to touch a computer, be seen as a horrible felon on par with Charles Manson, and come out deeply in debt and completely dead inside.

Now, I don't think the laws Swartz broke are fair. But you seem to be implying he should of hot special treatment because he was special. That is not how the law should work.

There are few scenarios where I imagine killing myself and being given a long jail sentence is one of them. While this sounds dramatic, I have given this a lot of thought and accept it as something I would do.

>That is not how the law should work.

Lots of judges consider the crime and background of the convicted. There's a reason why a lot of white collar crime guys get minimum security or home incarceration.

Cripes, this reads like something Larry and Sergey would have done in the early days of Backrub (later Google), not something that you get prosecuted for and face the possibility of 35 years in jail for.

From US v. Nosal, 676 F. 3d 854 (9th Cir.):

"The government assures us that, whatever the scope of the CFAA, it won't prosecute minor violations. But we shouldn't have to live at the mercy of our local prosecutor. Cf. United States v. Stevens, ___ U.S. ___, 130 S.Ct. 1577, 1591, 176 L.Ed.2d 435 (2010) ("We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly."). And it's not clear we can trust the government when a tempting target comes along. Take the case of the mom who posed as a 17-year-old boy and cyber-bullied her daughter's classmate. The Justice Department prosecuted her under 18 U.S.C. § 1030(a)(2)(C) for violating MySpace's terms of service, which prohibited lying about identifying information, including age. See United States v. Drew, 259 F.R.D. 449 (C.D.Cal.2009). Lying on social media websites is common: People shave years off their age, add inches to their height and drop pounds from their weight. The difference between puffery and prosecution may depend on whether you happen to be someone an AUSA has reason to go after.

In United States v. Kozminski, 487 U.S. 931, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988), the Supreme Court refused to adopt the government's broad interpretation of a statute because it would "criminalize a broad range of day-to-day activity." Id. at 949, 108 S.Ct. 2751. Applying the rule of lenity, the Court warned that the broader statutory interpretation would "delegate to prosecutors and juries the inherently legislative task of determining what type of ... activities are so morally reprehensible that they should be punished as crimes" and would "subject individuals to the risk of arbitrary or discriminatory prosecution and conviction." Id. By giving that much power to prosecutors, we're inviting discriminatory and arbitrary enforcement."

*disclaimer: I am not a lawyer

UPDATE: Here's JSTOR's confirmation of the above: http://about.jstor.org/statement-swartz

Thank you for your message. Some of the media details about this incident have been a bit misleading. I can confirm that no content is missing from JSTOR as a result of the recent misuse case. Copies of the files were downloaded from the site, no content is unavailable as a result.

    > How do you return something that was downloaded?

It won't win any literary awards, but it indicates he could get himself caught in a dark place given circumstances. It's actually one of the more blatant "hey everyone I'm suicidal" messages I've heard of outside of actual self-harm from failed suicide attempts.

As always, friends can't be babysitting each other 24/7. He felt he should check out early, ok, well not easy to prevent people doing that if they're set in their ways.

Was he allowed to download the documents? It doesn't matter what controls were in place. The question is basic, did he get something he was not authorized to take?

I just can't believe that it ended in Aaron taking his own life. I'm sure anyone paying attention to this will be very angry and sad.