[conspire] Post Mortum legal explosion

Ruben Safir ruben at mrbrklyn.com
Thu Jan 17 14:30:52 PST 2013

On 01/16/2013 08:48 PM, Rick Moen wrote:
> 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 --

He is not the only legal opinion and there are many who disagree.

>   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

Where was there a applicable case like this?  This case is unique, FWIW

> -- 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.

Prosecution of the law and public opinion are not ever separate issues.

> 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:
> https://petitions.whitehouse.gov/petition/remove-united-states-district-attorney-carmen-ortiz-office-overreach-case-aaron-swartz/RQNrG1Ck
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