I know I'll be pilloried for saying this here, but I'm not sure it wasn't. If one doesn't come at it from the stance of an anti-government idealogue (and if one understands the difference between statutory maximums and threats) this case is more complex than it's given credit for.
It's quite possible Ortiz was overzealous. It's quite possible (in fact to some extent almost certain) that the system is broken and defines computer crimes poorly, and Ortiz was doing her job well in a very tough spot. It's possible we're better off with laws aimed to stop computer fraud, and that prosecuting those who commit it (even if they happen to be people we generally like) is a necessity in the 21st century.
At the end of the day we have to remember, we need laws to prevent computer fraud, hacking, etc. Those laws will, almost by necessity, be written and enforced by non-programmers.
Which is not to say Aaron deserved 17 felony charges. But it's overly simple to vilify Ortiz or the AG's office.
The problem is when laws are written ad hoc for politically inconvenient people, at that point the executive branch will throw their hands in the air and say "We're just enforcing the law!" and ignore the ethical and moral issues.
I think you can fairly argue that the prosecutors in this case, at the least, didn't do anything atypical. The fact that this sort of behavior is par for the course is a separate issue -- and one that deserves fixing, whether or not the fix involves the prophylactic purging from the system of some high profile participants.
However, the idea that the CFAA is the best we can do in the way of legislation is just laughable. I really can't stand this futile notion that because the law can't be totally perfect, we might as well just give up and allow it to be catastrophically bad. No to that. We can't make it perfect but we can make it a lot better than it is.
There are mountains of computer crimes going on that are well within the current definitions. It's inconceivable that pursuing Aaron in this manner was useful for anything but making an example for the old bosses of intellectual property.
It's never been not okay to kill people in other countries actively taking up arms against you, U.S. Citizen or not. People are just riding Holder's ass because it seems different to drone strike someone versus an American soldier shooting a German-American who switched sides. E.g. http://journalstar.com/lifestyles/columnist-recounts-tale-of...
This is the same guy who thinks its ok to send guns into mexico to make a case against the second amendment and raise support for the U.N small arms treaty.
I'm genuinely curious what the Obama Administration sees in Holder. He brings no gravitas nor respect to the position; rather his role seems to be to deflect blame from Obama for his unconstitutional and generally shit-headed decisions.
This is the same attorney general who refuses to disclose the legal reasoning behind the presumption that the president is entitled to kill American Citizens at home or abroad without due process of law.
Also the same attorney general who has so far only prosecuted bit players in the nationwide mortgage document fraud without even bringing charges against executives whose name is on memos ordering the fraudulent practice.
If you're wondering why justice in this country appears to be available only to those who can afford it... He is the prime mechanism of failure.
Would appreciate a link to information about executives whose name is on memos ordering the fraudulent practice.
I understand that there is evidence of fraudulent mortgages, and executives involved in risky financial behavior, but I am not aware of something tying the executives to the fraud.
The original legal memo justifying the case for killing Americans pursuant to the war on terror was written by John Yoo while working for the Bush Administration. John Yoo is also famous for writing the torture memo. He is currently, to the great shame of all alumni, employed as a professor at the UC Berkeley, in the law school.
If you can find the full video of this hearing on C-SPAN or something, both before and after you can hear him taking questions on the lack of HSBC/bank executive prosecutions, as well as the issue of drone killings of Americans on American soil while not engaged in activities that present immediate and clear danger. You won't be satisfied with the answers, but they are there. The man is a world-class expert at giving responses that don't answer the question.
A pretty clear case where the legal system and the people who run it are left behind the times (and try to keep the times back with them). Changing your MAC address, for instance, is no worse a threat to society than wearing a hoodie in public, and threats of 35 year sentences are usually reserved for cases such as murder or rape. But because hacking is such a novel kind of crime that, if it spreads, will necessitate vast changes in the expertise and structure of the law enforcement system, the powers that be feel a need to nip it in the bud with excessive, well publicized punishments and threats.
Don't be purposefully disingenuous. There is nothing wrong with wearing a hoodie in public, but if you wear a hoodie to hide your face from security cameras while you walk, without permission, onto a commercial building at night, then the fact of your wearing the hoodie can be used to show that you knew you were trespassing and trying to hide the fact. The same exact reasoning can be applied to changing your MAC address while trespassing onto a private network without permission. There is nothing wrong with doing it by itself, but if you do it to get onto someone's network when they don't want you on, that's something totally different.
As for "threats of 35 year sentences"--the statutory maximum is not a "threat." If I punch you in a bar fight, causing no injury, and you press charges, I'm theoretically facing the maximum sentence for assault in New York, which is 25 years. But at no point does anybody think anyone will actually get a 25 year sentence for a little bar fight. If I went apoplectic about the grave injustices of "facing" 25 years in prison for a bruised chin, people would point out the obvious: the statutory maximum is for people who try to kill people, not people who get in bar fights. Similar common sense should prevail in this discussion--the fact that it doesn't is because of nothing more than grandstanding.
The video of Eric Holder is simultaneously baffling and revealing. The USDOJ really thinks it did a good job. It's unbelievable. Holder's metric of success is apparently (in this case) nothing but how little time Aaron could have spent in jail. No other considerations seem to matter.
I'm not sure how people so ignorant and blind wind up in positions of authority, but it scares me. Even scarier is the fact that I find myself agreeing with the Republican Senator from Texas who is likely only pressing the point with Holder to embarrass the Obama administration.
This microcosm encapsulates so well government doing all of the wrong things for all of the wrong reasons. How did it come to this?
Perhaps some Mark Twain quotes from the late 1800s might change your mind about us having recently "come to this":
"All Congresses and Parliaments have a kindly feeling for idiots, and a compassion for them, on account of personal experience and heredity."
"It could probably be shown by facts and figures that there is no distinctly native American criminal class except Congress."
"[I] was reporter in a legislature two sessions and the same in Congress one session, and thus learned to know personally three sample bodies of the smallest minds and the selfishest souls and the cowardliest hearts that God makes."
They don't just apply to Congressmen. They're relevant to pretty much any level of our government. It seems to apply anywhere that people are given power before they deserve it.
He was caught red-handed, so to speak. Any rational jury would have convicted him on evidentiary grounds had he chosen to go trial. There doesn't seem to be any record of his defense counsel arguing before the court that he was unfit to stand trial.
> This microcosm encapsulates so well government doing all of the wrong things for all of the wrong reasons. How did it come to this?
It's always been like this, and the people pushing the political buttons and pulling the political levers are patting the AG's back now. Special interests have an iron grip on politics in Washington now and the only way to win is to spend the most money.
Don't think this is limited to the Federal government, the States have been infiltrated just as well. Money makes the world go around.
Question: if Swartz was likely to only serve a short time for his "crimes" what's the justification for the amount of resources used in his prosecution? Either he was truly or a bad guy who deserved the concentrated attention of the US Attorney or his crimes were minor and those attentions were the result either of incompetence or personal vendetta. Are there any other options?
> I'm not sure how people so ignorant and blind wind up in positions of authority, but it scares me.
When will you run for office so that we may vote for you?
I'm being snide but the fact is that it's not at all a mystery how these people end up there. The self-proclaimed "best and brightest" go off to less annoying/higher paying/etc. jobs. QED.
It's time to get beyond the shock and outrage at the stone-walling occurring, now, at every level of government, and take a good hard look at what's motivating Holder. We are asking him to empathize with us - the least we can do is empathize with him.
First things first: Swartz is small potatoes. Holder deals with a lot of things, not the least of which is fielding questions about the legality of drone strikes on US soil [1], or writing memos about Gitmo or torture [2]. The handling or mis-handling of a single case is nothing to Eric Holder, especially since his boss is not up for reelection.
Second thing: the default position for any government leader is to back up your people. It's easier that way. If everyone in government backs up their people, coupled with unapologetic denials of wrong-doing, you have a much more comfortable government for one and all - at least between elections. But hey, 4 years of total autonomy is far better than suffering constant public scrutiny and having to react to it. This is even more powerful if you have the judiciary on your side and, since you're all on the same team, that's more likely than not.
In summary, Eric Holder doesn't care about this case, and has assumed the default position of someone in his station: deny-everything. It would have been quite remarkable, in hindsight, for him to have done anything else.
Clearly this is not a good outcome: we want an Attorney General who shares our sensibilities, and in this case, we wanted someone in that role who perceives the fact that the federal prosecutor overstepped their bounds and drove a sensitive soul into oblivion for actions which caused no-one any harm. We want someone who understands that merely to be prosecuted is a severe punishment in time and treasure. We want someone who understands the difference between someone who breaks the law out of a heartfelt spirit of doing the right thing, and someone who breaks the law out of malicious, selfish intent.
Sadly, I can think of no other way to address this problem than to keep this in mind for the next election.
EDIT: P.S. I really like looking at inexplicable/horrible things like a software bug. Rather than indulge in pointless, impotent anger, treat the anger as a signal that your understanding of the system is flawed, and think through the forces at work. It's hard to get in the head of an insider, especially right after they pissed you off - but chances are they didn't want to piss you off. They didn't care about you at all.
Then, when your cogent analysis is through and you understand the system and how it can be fixed, you turn your anger back on a little and RIP THAT SHIT APART AND FIX IT.
"Sadly, I can think of no other way to address this problem than to keep this in mind for the next election."
Even more sadly is I can think of no rational practical way to address this problem, period.
What does keeping it in mind for the next election do? When the election rolls around you basically have the choice between an asshole owned by the corporate lobbyists and another asshole owned by the same corporate lobbyists but who doesn't mind if gay people get married and women have abortions. Neither is going to fix this shit.
The only way this changes is if the election system changes to instant-runoff or another system that breaks down the two-party system, but guess how popular that idea is with the people whom the current system put into power?
How about just someone who understands that a felony is a lifetime sentence? That is what blows me away. He defends their offer of "3, 4, 5" months like its totally reasonable to permanently disenfranchise a citizen whose misconduct was so negligibly harmful.
We want someone who understands that merely to be prosecuted is a severe punishment in time and treasure. We want someone who understands the difference between someone who breaks the law out of a heartfelt spirit of doing the right thing, and someone who breaks the law out of malicious, selfish intent.
Those determinations are for the judicial branch to make, not the executive. Under article II of the Constitution, the executive 'shall take Care that the Laws be faithfully executed.' Under article III, the judicial power rests with the Supreme Court (and such lower courts as it has created). Prosecutors do not have the power to set aside the law, and even where plea bargains are made, they must be approved by a judge first.
I think there are severe flaws with the adversarial legal model that obtains in the US, but the Constitution is extremely clear and explicit about this.
This and Holder's statements on drone attacks in the US are just two more examples of our government creating problems rather than solving them.
It seems the underlying trend, regardless or political party or position, is the continual accumulation of power. Instead of primarily attempting to solve problems each new law, regulation or spending program grants some politician or government employee some additional power.
The only solution I can see is to somehow put limits on their power. This would have two benefits: (1) it would be less likely the power would be abused (say a politically ambitious government employee putting you in jail); and (2) it would reduce the incentive for powerful interests and their lobbyists to influence government policy.
The tradeoff would be a reduced ability to actually solve problems. If you think, like me, that on balance their power is being primarily abused rather than used to actually solve problems then some of their power should be taken away.
Unfortunately I don't see how this could possibly be accomplished. Other than the limits in the Constitution and the Bill of Rights as interpreted by the Supreme Court nothing stands in the way of politicians and government simply granting themselves more and more power. Hard to imagine this trend reversing.
The issue isn't so much Holder himself. His position is actually correct if you look at DOJ protocol. THAT, of course, is the problem. Inhuman, drone-like prosecutors use an unfair system in many cases for no purpose other than to pad their resumes in search of better paying positions at private firms. This is the standard operating procedure of the DOJ and is perfectly acceptable to the people that run it.
Over the years, lawmakers have been ratcheting up the maximum sentences on crimes and watering down the requirements for conviction. These factors have combined to create one of the most effective extortion schemes ever devised. I don't know what success rate the mob has when it extorts businesses, but I'll bet it's lower than the 90%+ plea rate that the DOJ has. They are modern-day thugs with pens instead of guns. You can't get 90% of any group to do anything - except apparently to admit to crimes that they may or may not have committed and literally send themselves to prison in order to avoid the risk of a conviction at trial and potentially draconian penalties.
of course he also believes in using drones to hunt and kill US Citizens, whether they are within our without our borders. A bad person can do terrible damage, if left to run free (speaking about the AG here).
[+] [-] mattmaroon|13 years ago|reply
It's quite possible Ortiz was overzealous. It's quite possible (in fact to some extent almost certain) that the system is broken and defines computer crimes poorly, and Ortiz was doing her job well in a very tough spot. It's possible we're better off with laws aimed to stop computer fraud, and that prosecuting those who commit it (even if they happen to be people we generally like) is a necessity in the 21st century.
At the end of the day we have to remember, we need laws to prevent computer fraud, hacking, etc. Those laws will, almost by necessity, be written and enforced by non-programmers.
Which is not to say Aaron deserved 17 felony charges. But it's overly simple to vilify Ortiz or the AG's office.
[+] [-] ihsw|13 years ago|reply
[+] [-] AnthonyMouse|13 years ago|reply
However, the idea that the CFAA is the best we can do in the way of legislation is just laughable. I really can't stand this futile notion that because the law can't be totally perfect, we might as well just give up and allow it to be catastrophically bad. No to that. We can't make it perfect but we can make it a lot better than it is.
[+] [-] WalterSear|13 years ago|reply
[+] [-] sneak|13 years ago|reply
Despicable.
[+] [-] rayiner|13 years ago|reply
[+] [-] n3rdy|13 years ago|reply
[+] [-] rosser|13 years ago|reply
[+] [-] saosebastiao|13 years ago|reply
[+] [-] redthrowaway|13 years ago|reply
[+] [-] sigzero|13 years ago|reply
[+] [-] wmil|13 years ago|reply
[+] [-] olefoo|13 years ago|reply
Also the same attorney general who has so far only prosecuted bit players in the nationwide mortgage document fraud without even bringing charges against executives whose name is on memos ordering the fraudulent practice.
If you're wondering why justice in this country appears to be available only to those who can afford it... He is the prime mechanism of failure.
[+] [-] aamar|13 years ago|reply
I understand that there is evidence of fraudulent mortgages, and executives involved in risky financial behavior, but I am not aware of something tying the executives to the fraud.
[+] [-] gamblor956|13 years ago|reply
[+] [-] Torgo|13 years ago|reply
[+] [-] zeteo|13 years ago|reply
[+] [-] rayiner|13 years ago|reply
As for "threats of 35 year sentences"--the statutory maximum is not a "threat." If I punch you in a bar fight, causing no injury, and you press charges, I'm theoretically facing the maximum sentence for assault in New York, which is 25 years. But at no point does anybody think anyone will actually get a 25 year sentence for a little bar fight. If I went apoplectic about the grave injustices of "facing" 25 years in prison for a bruised chin, people would point out the obvious: the statutory maximum is for people who try to kill people, not people who get in bar fights. Similar common sense should prevail in this discussion--the fact that it doesn't is because of nothing more than grandstanding.
[+] [-] thinkcomp|13 years ago|reply
I'm not sure how people so ignorant and blind wind up in positions of authority, but it scares me. Even scarier is the fact that I find myself agreeing with the Republican Senator from Texas who is likely only pressing the point with Holder to embarrass the Obama administration.
This microcosm encapsulates so well government doing all of the wrong things for all of the wrong reasons. How did it come to this?
[+] [-] firefoxman1|13 years ago|reply
Perhaps some Mark Twain quotes from the late 1800s might change your mind about us having recently "come to this":
"All Congresses and Parliaments have a kindly feeling for idiots, and a compassion for them, on account of personal experience and heredity."
"It could probably be shown by facts and figures that there is no distinctly native American criminal class except Congress."
"[I] was reporter in a legislature two sessions and the same in Congress one session, and thus learned to know personally three sample bodies of the smallest minds and the selfishest souls and the cowardliest hearts that God makes."
They don't just apply to Congressmen. They're relevant to pretty much any level of our government. It seems to apply anywhere that people are given power before they deserve it.
[+] [-] anigbrowl|13 years ago|reply
He was caught red-handed, so to speak. Any rational jury would have convicted him on evidentiary grounds had he chosen to go trial. There doesn't seem to be any record of his defense counsel arguing before the court that he was unfit to stand trial.
[+] [-] ihsw|13 years ago|reply
It's always been like this, and the people pushing the political buttons and pulling the political levers are patting the AG's back now. Special interests have an iron grip on politics in Washington now and the only way to win is to spend the most money.
Don't think this is limited to the Federal government, the States have been infiltrated just as well. Money makes the world go around.
[+] [-] n3rdy|13 years ago|reply
He's doing it to build up his bid for the 2016 presidential election, and maybe a little to please his daddy.
I'm positive it has nothing to do with embarrassing the Obama administration.
[+] [-] InclinedPlane|13 years ago|reply
[+] [-] mpyne|13 years ago|reply
When will you run for office so that we may vote for you?
I'm being snide but the fact is that it's not at all a mystery how these people end up there. The self-proclaimed "best and brightest" go off to less annoying/higher paying/etc. jobs. QED.
[+] [-] unknown|13 years ago|reply
[deleted]
[+] [-] javajosh|13 years ago|reply
First things first: Swartz is small potatoes. Holder deals with a lot of things, not the least of which is fielding questions about the legality of drone strikes on US soil [1], or writing memos about Gitmo or torture [2]. The handling or mis-handling of a single case is nothing to Eric Holder, especially since his boss is not up for reelection.
Second thing: the default position for any government leader is to back up your people. It's easier that way. If everyone in government backs up their people, coupled with unapologetic denials of wrong-doing, you have a much more comfortable government for one and all - at least between elections. But hey, 4 years of total autonomy is far better than suffering constant public scrutiny and having to react to it. This is even more powerful if you have the judiciary on your side and, since you're all on the same team, that's more likely than not.
In summary, Eric Holder doesn't care about this case, and has assumed the default position of someone in his station: deny-everything. It would have been quite remarkable, in hindsight, for him to have done anything else.
Clearly this is not a good outcome: we want an Attorney General who shares our sensibilities, and in this case, we wanted someone in that role who perceives the fact that the federal prosecutor overstepped their bounds and drove a sensitive soul into oblivion for actions which caused no-one any harm. We want someone who understands that merely to be prosecuted is a severe punishment in time and treasure. We want someone who understands the difference between someone who breaks the law out of a heartfelt spirit of doing the right thing, and someone who breaks the law out of malicious, selfish intent.
Sadly, I can think of no other way to address this problem than to keep this in mind for the next election.
[1] http://www.npr.org/blogs/thetwo-way/2013/03/05/173572444/pre...
[2] http://www.guardian.co.uk/world/2013/mar/06/pentagon-iraqi-t...
EDIT: P.S. I really like looking at inexplicable/horrible things like a software bug. Rather than indulge in pointless, impotent anger, treat the anger as a signal that your understanding of the system is flawed, and think through the forces at work. It's hard to get in the head of an insider, especially right after they pissed you off - but chances are they didn't want to piss you off. They didn't care about you at all.
Then, when your cogent analysis is through and you understand the system and how it can be fixed, you turn your anger back on a little and RIP THAT SHIT APART AND FIX IT.
[+] [-] georgemcbay|13 years ago|reply
Even more sadly is I can think of no rational practical way to address this problem, period.
What does keeping it in mind for the next election do? When the election rolls around you basically have the choice between an asshole owned by the corporate lobbyists and another asshole owned by the same corporate lobbyists but who doesn't mind if gay people get married and women have abortions. Neither is going to fix this shit.
The only way this changes is if the election system changes to instant-runoff or another system that breaks down the two-party system, but guess how popular that idea is with the people whom the current system put into power?
[+] [-] jeremyjh|13 years ago|reply
[+] [-] anigbrowl|13 years ago|reply
Those determinations are for the judicial branch to make, not the executive. Under article II of the Constitution, the executive 'shall take Care that the Laws be faithfully executed.' Under article III, the judicial power rests with the Supreme Court (and such lower courts as it has created). Prosecutors do not have the power to set aside the law, and even where plea bargains are made, they must be approved by a judge first.
I think there are severe flaws with the adversarial legal model that obtains in the US, but the Constitution is extremely clear and explicit about this.
[+] [-] spikels|13 years ago|reply
It seems the underlying trend, regardless or political party or position, is the continual accumulation of power. Instead of primarily attempting to solve problems each new law, regulation or spending program grants some politician or government employee some additional power.
The only solution I can see is to somehow put limits on their power. This would have two benefits: (1) it would be less likely the power would be abused (say a politically ambitious government employee putting you in jail); and (2) it would reduce the incentive for powerful interests and their lobbyists to influence government policy.
The tradeoff would be a reduced ability to actually solve problems. If you think, like me, that on balance their power is being primarily abused rather than used to actually solve problems then some of their power should be taken away.
Unfortunately I don't see how this could possibly be accomplished. Other than the limits in the Constitution and the Bill of Rights as interpreted by the Supreme Court nothing stands in the way of politicians and government simply granting themselves more and more power. Hard to imagine this trend reversing.
[+] [-] downandout|13 years ago|reply
Over the years, lawmakers have been ratcheting up the maximum sentences on crimes and watering down the requirements for conviction. These factors have combined to create one of the most effective extortion schemes ever devised. I don't know what success rate the mob has when it extorts businesses, but I'll bet it's lower than the 90%+ plea rate that the DOJ has. They are modern-day thugs with pens instead of guns. You can't get 90% of any group to do anything - except apparently to admit to crimes that they may or may not have committed and literally send themselves to prison in order to avoid the risk of a conviction at trial and potentially draconian penalties.
[+] [-] AutoCorrect|13 years ago|reply
[+] [-] likpok|13 years ago|reply
With that in mind, how is using a drone any different?
[+] [-] darkarmani|13 years ago|reply
[+] [-] rdavl|13 years ago|reply
[+] [-] unknown|13 years ago|reply
[deleted]
[+] [-] badgar|13 years ago|reply
[+] [-] rosser|13 years ago|reply
[+] [-] RyanMcGreal|13 years ago|reply