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A time for silence

500 points| danielpal | 13 years ago |lessig.tumblr.com | reply

98 comments

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[+] jacquesm|13 years ago|reply
Lawrence Lessig is an amazing person, and this piece underscores that. I really hope he will find that a time-out will help to heal these wounds and will begin to close the gap. Of all the words written about Aaron's plight these hit closest to home for me and I am halfway torn between following his example of tuning out and re-connecting with those around me (who I've been somewhat neglecting in the last week) and switching into 'action' mode from idle.

If there is one thing that all this has done it is that it has shocked me like not much has done in the last couple of years and I thought I was pretty tough. Lessig is a giant, imagine how much it would take to hurt a man of such stature that he needs to recover incommunicado and contrast that with the piece written by Mrs. Ortiz.

Worlds apart.

[+] FireBeyond|13 years ago|reply
"Lessig is a giant, imagine how much it would take to hurt a man of such stature that he needs to recover incommunicado and contrast that with the piece written by Mrs. Ortiz. Worlds apart."

Come on. One was a close, dear and personal friend of Aaron's for many years, the other was someone who saw him as the defendant in a prosecution.

It hardly dehumanizes Ortiz to react and respond differently to Aaron's suicide than Lessig, and is something of a pattern in your posts over this week dehumanizing and demonizing her.

I work in EMS. I see death regularly, including suicide. Though I see (however fleetingly) the pain of those surrounding the deceased, including their loved ones, I don't feel it. The person is, to me, a person and a patient, but I cannot be expected to have the same dark despair as I would, had I lost a long and close friend, and it makes me no less emotional or human to not have that response.

[+] djt|13 years ago|reply
Jacquesm, I've seen a lot of your posts in the last week and can see you're pretty cut up about this whole thing.

I think it might be a good time to follow Lessig's lead and give yourself a little time off to reconnect to your own family and life.

The fight for Internet freedom etc is not a sprint but a marathon.

[+] bguthrie|13 years ago|reply
His eulogy at Aaron's funeral was utterly heartbreaking. His post underscored it for me.
[+] javajosh|13 years ago|reply
Yes, Lessig is a real human being, and it's good that people like him have reach and audience. Not quite sure how that happened! :)

I like your posts, Jacques, so I vote that you switch into action mode.

[+] purephase|13 years ago|reply
Very well put, and surprisingly earnest. I respect Lessig immensely and this sentiment only reinforces it.

There is a very pervasive and troubling thread of professional "politicking" invading every single aspect of our lives both institutional and private. No one cops to anything, no one apologizes, and no one ever sees the errors in their ways. Admitting otherwise is weak and will undermine ones political future, career etc.

It's sad that honesty is no longer the best policy.

[+] BenoitEssiambre|13 years ago|reply
At this point, the DOJ should apologize, investigate internally and fire those who were involved in Aaron's case.

If they refuse and insist that this is business as usual for them then it should be legislated by the government that all previous cases involving heavy handed plea bargaining under the current DOJ staff should be re-opened and re-negotiated under saner conditions.

This is clearly not justice.

Aaron Swartz himself wrote about this kind of situation: http://www.aaronsw.com/weblog/semmelweis

[+] Bud|13 years ago|reply
I agree with Zoe Lofgren. Any DOJ apologies or measures would be insufficient. The 80s-era laws need to be changed to account for the modern world.
[+] AnthonyMouse|13 years ago|reply
>If they refuse and insist that this is business as usual for them then it should be legislated by the government that all previous cases involving heavy handed plea bargaining under the current DOJ staff should be re-opened and re-negotiated under saner conditions.

That is never going to happen because it would involve entirely too many cases. You would have a better chance of just having them all freed and put back on the streets, because at least that wouldn't be cost prohibitive, and you can imagine about how likely that is. This is notwithstanding that you are entirely right: this is clearly not justice.

I think we need to look forward rather than back. We need to fix the laws. Cut the criminal penalties drastically for all non-violent non-financial offenses and outright repeal laws against things that don't need to be illegal. Then we can legitimately argue for the release of anyone in prison for violating the laws taken off the books, and the reduction in sentence for anyone previously convicted of anything with a lowered penalty.

[+] kunai|13 years ago|reply
While Swartz' death is incredibly tragic and the prosecutors were no doubt overreaching, it isn't as simple as a quick "You're fired" to solve things.

First, prosecutorial overreach is common. Because it's so common, at the most, the DOJ will issue those involved a warning. Don't expect that to change unless people actively fight to prevent it.

Second, plea bargaining is morally wrong, either way you look at it. So is piling on charges to get the defendant to ACCEPT the plea bargain. Many countries have actually outlawed plea bargaining because of the fact. People need to take a stand to outlaw plea bargaining.

And lastly, a very disturbing trend -- have you noticed, has anyone noticed, that all the laws that continue to pass limit the rights of THE PEOPLE while continuing to extend the rights of the government? Now, I don't know how much I slept in 7th grade history, but I'm pretty sure that most amendments to the Constitution, and the laws and guidelines outlined by the Constitution itself were meant to limit the rights of THE GOVERNMENT rather than the people. You can see examples of this government overreach everywhere.

Drones.

The PATRIOT Act.

The NDAA.

Gun control (do you really think the government will stop at assault weapons?).

Congress supporting RIAA and MPAA.

DRM.

Extension of copyrights.

I could go on and on with examples, but I'll stop here. Wasting time on bipartisan politics will not help. The people have been so hypnotized by bipartisan politics that they think the situation is only black or white.

It isn't. There's an infinite number of shades of gray.

The root cause is not liberalism or conservatism. It's the nature of government itself.

An idealistic world would mean that everyone contributed to society equally. Everyone would be paid equally. Everyone would have an equal amount of everything, although . All knowledge would be shared with everyone, and no secrets would be kept between others. There would be no government and the people would rule themselves by direct democracy. Call it communism/anarchism if you wish, but it's idealism. Right now, our government is as far away from that vision as could be.

Maybe it's time we pushed for more freedom and less restriction. Perhaps then prosecution wouldn't be so quick to swing their heavy hand.

[+] rhizome|13 years ago|reply
I think that's thinking small. Congress should start over by repealing CFAA and by instituting character standards for federal prosecutors to deal with the problem of careerism in the nation's departments of justice.
[+] tedunangst|13 years ago|reply
If it's a foregone conclusion that the people involved need to be fired, why bother with the investigation?
[+] philwelch|13 years ago|reply
You can't just roll back every federal case in the past several years.
[+] wissler|13 years ago|reply
"At this point, the DOJ should apologize, investigate internally and fire those who were involved in Aaron's case."

This is a bit naive. Certainly it would help the DOJ's image if they did this, and certainly firing those involved would be just, but that act alone misses the point: why are prosecutors who behave like this thriving? This isn't an isolated case at all. There's a more sinister factor at work, and doing only as you suggest would cover it up.

[+] RyanMcGreal|13 years ago|reply
"Ortiz’s statement is a template for all that is awful in what we as a political culture have become."
[+] res0nat0r|13 years ago|reply
Everyone is blaming the evil government over this issue. Shouldn't we be blaming Aaron himself; maybe just a little?

Shouldn't someone if they are going to commit an act of civil disobedience be aware just a little bit of the possible consequences?

[+] chasing|13 years ago|reply
I would add that, whatever else it may have done wrong, the government didn't kill Aaron Swartz. Full stop. So I'm all about advocating for change. But I think saying he was killed only serves to demonize and dehumanize the opposition. Exactly what we need much less of in this country...
[+] bjustin|13 years ago|reply
No. The response was so disproportionate to his actions that no reasonable person would have expected it.
[+] Millennium|13 years ago|reply
"Yes, Ms. Ortiz, you obviously can “only imagine.” Because if you felt it, as obviously as Reif did, it would move you first to listen, and then to think. You’re so keen to prove that you understand this case better than your press releases about Aaron’s “crime” (those issued when Aaron still drew breath) made it seem (“the prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain”). But if your prosecutors recognized this, then this is the question to answer:

Why was he being charged with 13 felonies?"

Swartz was being charged for what he did, not for why he did it. Crimes do not, as a rule, become "better" or "worse" based on why someone does them. I'll buy that this was a misguided attempt at civil disobedience, but the point of civil disobedience is to pay the price: that's where the protest truly begins, not when you do the deed.

[+] bjustin|13 years ago|reply
> Crimes do not, as a rule, become "better" or "worse" based on why someone does them.

Yes they do. Intent is usually taken into account during sentencing, for example.

[+] cagey|13 years ago|reply
> Crimes do not, as a rule, become "better" or "worse" based on why someone does them.

But sometimes crimes are defined by what the perp was thinking or expressing: "Hate Crimes"

[+] josephlord|13 years ago|reply
There are plenty of interpretations of his actions that would not amount to 13 separate felonies while still enabling some charges to stand.
[+] javajosh|13 years ago|reply
This attitude of not taking responsibility for anything, of simply denying reality, not to mention humanity, has a very specific beginning: George W. Bush's defeat of Al Gore. He demonstrated to everyone in government and in the private sector that you can reach out for power, nakedly, without respect to any kind of decency, and take it. And, gasp, the American people would not clamor for justice. They would not demand something (or someone) better. It was a watershed moment for government, when everyone realized: we can do whatever the fuck we want, and no-one can stop us.

And this thesis, hesitant at first, has been demonstrated again and again. By Bush himself - NSA wiretapping, gitmo, the TSA and the most epic 'fuck you' ever spoken to the American people: the attack and occupation of Iraq under false pretenses. Cheney's massive expansion of power of the office of the Vice Presidency was a more subtle but still important expression of this disregard for American oversight. Carmen Ortiz is an Obama appointee, but she is very much a product of the Bush era.

Bush was a wake-up call for all government employees: you have unchecked power. If you want to use it, expand it, abuse it then do it. No-one is going to stop you. Our justice system is so expensive that it's out of reach of most, and really, in the end, you're playing on the same team so go ahead and do what you want. 'Justice' has your back.

But the key to making this power grab work is to follow the Bush playbook: never, ever admit to any wrong doing. Do not, under any circumstances, even acknowledge the concerns of others - except possibly in tones of smirking dismissal and contempt. If you don't follow that playbook, then you give your opponents an opening, and weaken your position. Pretty soon you'll be explaining yourself, and when you're explaining, you're losing. You're losing power.

Stonewall, deny, and fight with every last tool given to you. Do not cooperate or discuss. Force your opponents to find leverage against you: don't just give it to them.

Ortiz is a smart woman, and learned her lessons well.

[+] waterlesscloud|13 years ago|reply
Some honest advice- Read up on American political history. You need some perspective that goes back at least a few decades, and ideally throughout at least the entire 20th century. None of what you imagine started with Bush started anywhere near that time. Not one bit of it.

Your stance about government has merit, but it is severely weakened by a lack of understanding of American political history.

[+] AnthonyMouse|13 years ago|reply
I don't know how convinced I am that Bush was responsible for all of this (he was clearly a major contributor, but there is plenty of blame to go around). But I think the general point hits the nail on the head. I was just reading something that Aaron wrote (that BenoitEssiambre linked to earlier) here: http://www.aaronsw.com/weblog/semmelweis

When Oprah started defending fabulist James Frey, she was savaged by the press. So she invited her critics on the show and apologized, saying “You were right, I was wrong.” It didn’t destroy her reputation; it rescued it. When the space shuttle Columbia exploded, launch manager Wayne Hale took full responsibility: “The bottom line is that I failed to understand what I was being told…I am guilty of allowing Columbia to crash.” He was promoted. When JFK admitted the responsibility for the Bay of Pigs fiasco was “mine, and mine alone,” his poll numbers soared.

People, for good reason, like it when other people own their mistakes. But we've built bureaucracies that don't. They have far too rigid accountability rules. Everything you do gets put in your file, and the file is what it takes you get you fired when someone wants to get rid of you for internal political reasons, so everyone has to be sure they never admit they've done anything wrong. "For crying out loud, man, don't improve our ability to detect mistakes, those mistakes go in or records!"

The criminal justice system works the same way. If you admit what you did, you get punished. If you deny it successfully you go free. But we can't have criminals going free, so we make it impractical for "normal criminals" to deny anything successfully. Then your choice becomes to confess and face punishment or assert your innocence and face an even larger punishment -- a choice that doesn't depend on whether you were actually guilty or innocent, or whether you should have been guilty or innocent under a more just set of laws.

So we get where we are: If you get accused of something the penalties are absurd, so if you're a big Wall St. guy with a billion dollars, you spend a fortune on the Big Lie and get out of any real punishment whatsoever, and if you're not a millionaire then you plead guilty regardless of your guilt so that you "only" go to prison for six months instead of six years.

And then we wonder where prosecutors and politicians possibly got the idea that the Big Lie is the way to go.

[+] steveplace|13 years ago|reply
Sounds like you became politically aware right around the time Bush got elected.

A quick run through American history would show that the executive branch has pulled off some crazy stuff in the past. Executive order 9066 comes to mind. This did not start with Bush, it continued through his administration and, yes, to the current administration.

[+] SoftwareMaven|13 years ago|reply
Can this comment please not be the top comment (I'd prefer it gone altogether). It is politically charged and ignores two centuries of politics that have led us to this point. Further, it detracts from Lessig's poignant article and will not further constructive conversation.
[+] scarmig|13 years ago|reply
Ah, those pre-Bush wonder years, when we all could look up to honest politicians.
[+] newbie12|13 years ago|reply
Bush initially opposed the TSA, a bipartisan majority of Congress foisted that on him.
[+] jacoblyles|13 years ago|reply
I've always wondered what Democrats think should have happened in the 2000 election. As far as I can tell, it was a very close one. The idea that Bush "stole" the election lacks credibility with me.

1,000 more votes on either side, and the controversy would have disappeared.

[+] youngerdryas|13 years ago|reply
You sound like an idealistic young man who is just discovering the bizarre sausage-making quality of reality. The comforting idea that things were better in the past is a fallacy and if you believe in evolution and market forces, then as painful as it may seem, we are already on the optimal path. Everyone views this tragedy through their own lens and tries attach whatever is atop their grievance list and that is only natural. I tried to explain this story to a student from the Ukraine and she could not fathom it. I think sometimes we forget how good we really have it.
[+] Daniel_Newby|13 years ago|reply
You sorely lack historical perspective. An example of naked use of power and bad leadership would be Robespierre's leadership of the French Revolution, also known as The Terror. That's the historical standard for what happens when government comes off the rails.

The African woman whise four children were tied to her limbs before she was thrown in a river? That's an example of justice being out of reach.

The government of George W. Bush was, in comparison, a gift from the gods that many people would consider unimaginable luxury. (Including the natives in Afghanistan and Mesopotamia, whose previous claim to military fame was vying for the title of 'graveyard of empires'.)

Ortiz is a generic prosecutor who is wholly unremarkable. You could blow her up by bombing the building where she works and they would fly out interchangeable replacements in standard federal suits to finish grinding out her cases exactly like she would.

[+] pasbesoin|13 years ago|reply
He is taking a break, for his personal need. I don't think he is advocating that we all do.

Time for us to carry the ball.

Personally, I have no hope in Congress. But I still do, perhaps, have some hope in the people. Who have the power to change Congress, and to reform the judicial system.

For decades, people clamored for "tough on crime". Many of those voices may not change; however, many other voices may arise to insist that we... well, in the nature of things here, "look at the data" and "make some sense".

P.S. I meant to add, that we currently -- as we did last year with SOPA/PIPA, have momentum and national attention. We should not miss the opportunity to take it and use it to (metaphorically) burn away at least some of the corruption before our eyes.

And this should give at least some pause, hopefully, to those seeking to foist ever more corruption upon us. They are relentless; such respite would serve us well while continuing to construct an effective response.

[+] jamesaguilar|13 years ago|reply
Honest question: how many felonies the MLK commit? If he committed a lot of felonies but was charged with none, that would be quite surprising.
[+] phren0logy|13 years ago|reply
There are few people I respect more than Larry Lessig, and stuff like this this is why.

Thank you for doing what you do.

[+] endlessvoid94|13 years ago|reply
I know that in our most emotional moments, we tend to act rashly and sometimes say things we eventually regret.

I'm not saying Lessig will regret writing this, but I wonder.

[+] jacquesm|13 years ago|reply
It's inconceivable that he will end up regretting any of this. It shows him at his most vulnerable and most powerful at the same time. He can be justly proud of writing this, I wished I could put how all this makes me feel into words like that.
[+] garretruh|13 years ago|reply
What (in your opinion) might he eventually regret? Honestly curious.
[+] Daniel_Newby|13 years ago|reply
I do not understand the hoopla around this case.

Aaron Swartz picked a huge fight with the feds over, well, pretty much nothing. He then proceeded to run a spectacular PR campaign where he rubbed their noses in the Computer Fraud and Abuse Act and the copyright laws.

They did what the feds always do: calmly, carefully beat you to death with a billion dollar prosecuting machine. What happened to him was a foregone conclusion. He basically threw himself off a cliff a year ago.

I am flabbergasted that folks like Lessig, people who appear knowledgable and together, were egging him on. Swartz may have been an overenthusiastic young man, but his elders and advisers knew about Steve Jackson Games. They knew about Mitnick and the hundreds of other crackers, hackers, and phreaks that have been crushed by the Feds. They as good as wrote his eulogy a year ago, and now they cry crocodile tears.

Count me in the ranks of the unimpressed.

[+] wissler|13 years ago|reply
What a profound moral sense and courage. We need more people in the world like Lessig.