[conspire] Post Mortum legal explosion

[Paul Zander]

What I meant to add was that here is another example of the prosecutors and the news media making the strongest possible charges.  

It's just the way they do things.  

--- On Wed, 1/23/13, Paul Zander <paulz at ieee.org> wrote:

> From: Paul Zander <paulz at ieee.org>
> Subject: Re: [conspire] Post Mortum legal explosion
> To: "Rick Moen" <rick at linuxmafia.com>, "Deirdre Saoirse Moen" <deirdre at deirdre.net>
> Cc: "conspire at linuxmafia.com" <conspire at linuxmafia.com>
> Date: Wednesday, January 23, 2013, 6:01 PM
> 
> 3 charged in malware scheme targeting bank accounts
> http://news.cnet.com/8301-1009_3-57565535-83/3-charged-in-malware-scheme-targeting-bank-accounts/
> 
> The trio faces up to 60 to 95 years in prison if convicted
> of the charges. 
> 
> 
> 
> --- On Wed, 1/16/13, Deirdre Saoirse Moen <deirdre at deirdre.net>
> wrote:
> 
> From: Deirdre Saoirse Moen <deirdre at deirdre.net>
> Subject: Re: [conspire] Post Mortum legal explosion
> To: "Rick Moen" <rick at linuxmafia.com>
> Cc: "conspire at linuxmafia.com"
> <conspire at linuxmafia.com>
> Date: Wednesday, January 16, 2013, 6:01 PM
> 
> IMHO, the more likely legal cause of action might be a
> wrongful death suit against MIT for releasing records
> without a court order, leading to all the subsequent
> fallout.
> 
> Deirdre
> 
> On Jan 17, 2013, at 8:48 AM, Rick Moen <rick at linuxmafia.com>
> 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 --
> 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:
> > https://petitions.whitehouse.gov/petition/remove-united-states-district-attorney-carmen-ortiz-office-overreach-case-aaron-swartz/RQNrG1Ck
> > 
> > 
> > _______________________________________________
> > conspire mailing list
> > conspire at linuxmafia.com
> > http://linuxmafia.com/mailman/listinfo/conspire
> 
> _______________________________________________
> conspire mailing list
> conspire at linuxmafia.com
> http://linuxmafia.com/mailman/listinfo/conspire
> 
>