[conspire] Post Mortum legal explosion

Rick Moen rick at linuxmafia.com
Wed Jan 16 17:48:34 PST 2013

Quoting Ruben Safir (ruben at mrbrklyn.com):

> Look at this fall out
> http://www.volokh.com/2013/01/14/aaron-swartz-charges/
> The Criminal Charges Against Aaron Swartz (Part 1: The Law)
> Orin Kerr ??? January 14, 2013 2:50 am

Unlike most of us, Orin Kerr has the right legal qualifications to 
assess the question of prosecutorial overreach -- whether US District
Attorney Carmen Ortiz warped Federal statutes in deciding to seek a
felony conviction under wire fraud, computer fraud, unauthorised access,
and computer damage laws -- and also, a separate question, whether she
improperly exercised discretion through being overly aggressive or
lacking in a sense of proportion in charging Swartz the way she did.

On the first question, Kerr concludes reasonably and with clear
justification that at least three of the four groups of charges were a
fair application of those laws as written and commonly applied -- and
the fourth is arguable depending on what evidence emerged in the court
case (that now no longer exists).

It's reasonable to wish the scientific publications republished by JSTOR
were free culture under, say, a Creative Commons licence (and I wish
they would), but they are not.[1]  It's reasonable to wish that some
overly harsh provisions of the USA's wire fraud, computer fraud,
unauthorised access, and computer damage statutes had been removed by
amendment or voided by a judge -- but they were not.

So: Do the apparent facts support a likely guilty verdict on those
charge?  Hell yes.  Should the law and the ownership/licensing of
scientific research be reformed as a matter of public policy?  In my
opinion, hell yes.  But those are distinct questions.

As Kerr points out, the second question (sense of proportion and
excessive aggressiveness) is a matter of 'discretion and judgement',
that DOJ always has the option to charge vs. either 'fuggetaboutit'
(dismissal) or arranging a plea bargain.  Kerr promises a part II to
give his opinion.  (Prosecutors had offered Swartz guilty pleas with
about six months of prison time, or slightly less.  He had not been
willing to agree, rejecting the felony classification.)

Is a Federal prosecution on multiple felony charges awesomely
intimidating, incredibly expensive to defend, and likely to eat your
life for some years?  Sure.  Was Swartz a known suicide risk for at
least five years?  Yes.

Prof. Lessig points out that JSTOR had dropped its complaint, but MIT,
to its eternal ignominy, had not bothered to move fast enough to do so.
Strictly speaking, a criminal prosecution doesn't necessarily get
cancelled just because a victim suddenly says 'never mind' -- but DA
Carmen Ortiz more than likely would have dropped the case if MIT had
gotten off their fat asses and done the right thing.

Political angles include speculation that the US District Attorney's
office wanted to 'make an example of' Swartz partly out of frustration
in the entirely separate Manning and Assange matters.

Anyway, I look forward to Kerr's opinion on question #2, but meanwhile I
would be hesitant to blame Ortiz and the US District Attorney's
office for enforcing the laws, even laws that suck rocks and are overdue
for reform.  E.g., this:

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