Re:The Truth About Aaron Swartz's "Crime"
by temphn on Sunday January 13, 2013 @02:45PM
(#5051627)
You said in many different posts that federal prosecutors in general lack discretion, that their hands are tied. This was a false claim. And you may be the only person in the world who holds this view; I don't think anyone else (Democrat, Republican, prosecutor, or defender) would make this claim.
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:
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."
Obviously most such cases are not being prosecuted by US Attorneys (discretion!). Yet this is exactly the interpretation that is being relied upon in the Swartz case, that violation of JSTOR's policy was a federal crime. Moreover, general opinion is that CFAA is due for Supreme Court review due to the circuit splits in interpretation. Any federal prosecutor who doesn't want to be overturned by the Supreme Court had plenty of excuses for dropping this prosecution, over and above the obviously unjust nature of the case. Ortiz and Heymann decided nevertheless to take that risk to append a "cybercriminal" conviction to their CVs.
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).
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...
Obviously most such cases are not being prosecuted by US Attorneys (discretion!). Yet this is exactly the interpretation that is being relied upon in the Swartz case, that violation of JSTOR's policy was a federal crime. Moreover, general opinion is that CFAA is due for Supreme Court review due to the circuit splits in interpretation. Any federal prosecutor who doesn't want to be overturned by the Supreme Court had plenty of excuses for dropping this prosecution, over and above the obviously unjust nature of the case. Ortiz and Heymann decided nevertheless to take that risk to append a "cybercriminal" conviction to their CVs.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).