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Re:Steve Heymann Should Be Fired by tptacek on Friday February 08, 2013 @05:43PM (#5190572)
The DOJ lied in the press release. They have a habit of doing that. There was no possibility that Swartz would face 35 years in prison. You can be upset about that, and that's reasonable, but you cannot synthesize from that upset the idea that Swartz actually could have spent 35 years in prison.

The consensus among former prosecutors and defense attorneys writing about this case is that if Swartz had been convicted on all counts, he might have faced as many as 2 years, but that he also might have avoided a custodial sentence even if he was convicted.

Re:Steve Heymann Should Be Fired by btilly on Friday February 08, 2013 @08:33PM (#5191134)
The DOJ did not lie. They just made a correct yet misleading statement.

Incidentally according to Aaron's lawyer, the prosecutors were going to be trying to convince a judge of a lot more than 2 years. Whether they would have succeeded in that is an unknown question.

Re:Steve Heymann Should Be Fired by tptacek on Friday February 08, 2013 @08:57PM (#5191188)
Yes, the nightmare scenario they scared Swartz with was 6-7 years. Which clearly does qualify as a nightmare. Aaron's last lawyer did not believe that was a realistic threat.

Either way: my understanding is that 35 years is an overt misstatement of how sentencing for repeated counts under CFAA works. I stand by the word "lie", both in its technical and moral senses.

Re:Steve Heymann Should Be Fired by btilly on Friday February 08, 2013 @09:23PM (#5191289)
I still disagree on the technical sense. 35 years is within the ability of the judge to assign. Of course the judge wouldn't, and if the judge did it would be reduced on appeal. But they claimed that that was the statutory maximum, and if you read the statute you can readily confirm that.
Re:Steve Heymann Should Be Fired by tptacek on Friday February 08, 2013 @10:11PM (#5191455)
I believe but cannot (due to crappy airplane wireless and the fact that I'm using my phone to read) confirm that there are elements missing from Swartz's offense that would have prevented a maximal sentence.

Either way, I assume we agree that the DOJ published the press release knowing full well Swartz would not actually be subject to 35 years.

Re:Steve Heymann Should Be Fired by tptacek on Saturday February 09, 2013 @02:07PM (#5193572)
Here is a great article illustrating my point (but with whale sushi, not the CFAA):

http://www.popehat.com/2013/02/05/crime-whale-sushi-sentence...

Re:Steve Heymann Should Be Fired by btilly on Saturday February 09, 2013 @04:22PM (#5194061)
That is a good article.

Ironically I've eaten at that restaurant. It was quite good before it was shut down. (No, I never had the whale sushi.)

Re:Steve Heymann Should Be Fired by tptacek on Saturday February 09, 2013 @07:14PM (#5194712)
It bugged me that I didn't have a better answer, so I tracked down the applicable 2012 sentencing guidelines:

https://www.justia.com/criminal/docs/sentencing-guidelines/s...

... and in the interpretation most generous to the DoJ I came up with a sentencing grade of 27, which works out to 7 years for a first-time offender.

I think if you read through the guidelines (they're interesting!) you'll see right away that there was no way he could have gotten 35 years. I stand by "the DOJ lied about the sentence in the press release".

Re:Steve Heymann Should Be Fired by wglb on Friday February 08, 2013 @09:59PM (#5191412)
While they lied in the sense that you are using here, there was clearly a game of intimidation going on: they upped the number of charges from four to 13 late in the game. And as a negotiating technique, the pressure was increased.

I am reminded of a quote attributed to Emanuel Lasker ‘A threat is more powerful than its execution’.

Re:Steve Heymann Should Be Fired by tptacek on Friday February 08, 2013 @10:14PM (#5191463)
I'm not sure what that point has to do with mine or 'tzs'. In any case, we agree.
Re:Steve Heymann Should Be Fired by analog on Friday February 08, 2013 @07:29PM (#5190976)
Did anybody write this before Aaron's suicide?

And based upon what evidence?

Re:Steve Heymann Should Be Fired by tptacek on Friday February 08, 2013 @07:37PM (#5190992)
Go look it up yourself.
Re:Steve Heymann Should Be Fired by analog on Friday February 08, 2013 @08:55PM (#5191181)
It's your claim. You provide the evidence.
Re:Steve Heymann Should Be Fired by tptacek on Friday February 08, 2013 @08:58PM (#5191194)
If you'd like to go from "wrong" to "militantly wrong", that is your right.
Re:Steve Heymann Should Be Fired by analog on Friday February 08, 2013 @09:29PM (#5191303)
Your claim is that he would have faced a maximum of 2 years, which differs substantially from what Swartz's own defence have claimed.

Now, if these sources of yours had provided their opinions before Aaron's suicide then I'd be more inclined to believe them. That they presumably only developed these opinions after the suicide seems a little convenient to me.

Re:Steve Heymann Should Be Fired by tptacek on Friday February 08, 2013 @10:07PM (#5191443)
That is neither what I claimed nor an accurate statement about what Swartz's attorney said.
Re:Steve Heymann Should Be Fired by analog on Friday February 08, 2013 @10:11PM (#5191454)
"he might have faced as many as 2 years, but that he also might have avoided a custodial sentence even if he was convicted."

This is in direct contradiction to what Aaron's lawyers have stated. Jail time was required, and if he did not plead guilty then the DOJ would push for a 7 year sentence.

Re:Steve Heymann Should Be Fired by tptacek on Friday February 08, 2013 @10:13PM (#5191458)
Here you conflate the position of the prosecutors as related by Swartz's counsel with the actual opinion held by that counsel about the outcome of a conviction. The two are obviously not equivalent.
Re:Steve Heymann Should Be Fired by analog on Saturday February 09, 2013 @05:58AM (#5192300)
If the DOJ are pushing for 7 years, then "as many as 2 years" seems in direct contradiction to me.
Re:Steve Heymann Should Be Fired by tptacek on Saturday February 09, 2013 @12:19PM (#5193115)
Swartz's lawyer did not believe 7 years was realistic.