For once

Story: Hacking: The New National Pastime?Total Replies: 13
Author Content
djohnston

Feb 01, 2013
6:32 AM EDT
I could not find a single thing hairyfeet said that I disagree with.
caitlyn

Feb 01, 2013
10:57 AM EDT
Funny, I disagree with every word he said. There isn't a single thing there I agree with. Oh, and FWIW, I don't think Mr. Swartz was an innocent victim either.
CFWhitman

Feb 01, 2013
11:34 AM EDT
It appears to me that the "Civic Hacking" day is actually using the word "hacking" in it's more correct sense, but it's everyone taking it in the classically not so correct sense (what's more correctly referred to as "cracking") that is creating the confusion. Hacking in the lingo of the old Unix gurus was not a bad thing. It has come to mean something in the common vernacular that is not ethical, and this difference seems to be at the heart of the confusion.
caitlyn

Feb 01, 2013
12:21 PM EDT
I do agree with every word CFWhitman said.
dinotrac

Feb 01, 2013
12:25 PM EDT
@caitlyn -

So do I.

And I agree, Swartz was not an innocent victim. The issue with Swartz was not that he should not be dealt with, but the rapacious blood lust with which fedral prosecutors pursued him.
caitlyn

Feb 01, 2013
1:19 PM EDT
I'm going to repeat the comments I made before when the news of Mr. Swartz's suicide broke. Prosecutors are judged on their conviction rates. If they get a plea bargain where the defendant agrees to some lesser charge that's a win. As a result they go out of their way to scare the defendant into thinking that if they don't make a deal they will 1) be found guilty of some maximum charge and 2) get some horrendous sentence. They will do this even if they know a conviction is unlikely. It's what they are trained to do. I'm not at all sure "rapacious bloodlust" had anything at all to do with it.

What happened is tragic in the extreme. I'm just not sure I'm willing to lay it all on the prosecutors. I am sure I don't know all the facts in the case and that I'm not qualified to judge.
Steven_Rosenber

Feb 01, 2013
1:27 PM EDT
Not everybody has the stomach for throwing themselves in front of a train for a cause.
Fettoosh

Feb 01, 2013
1:50 PM EDT
Laws are drafted and approved by lawyers and politicians. Both have their own ulterior motives to make laws touch and punishment severe as much as possible. And that is why founding fathers made sure it is up to the jury and/or judges to issue the final verdict. Also, that is why there are negotiations between lawyers and DAs in the presence of a judge (most of the time).

Personally, I think if Mr. Swartz had not done what he did, he wouldn't have gotten the maximum sentence and probably might have gotten out with just a slap on the wrist.

Or am I dreaming!?

djohnston

Feb 01, 2013
1:54 PM EDT
Quoting:It appears to me that the "Civic Hacking" day is actually using the word "hacking" in it's more correct sense, but it's everyone taking it in the classically not so correct sense (what's more correctly referred to as "cracking") that is creating the confusion.


Well, no, I wasn't confusing the two. I took it to mean the UNIX/creative type of hacking, not the black hat type of cracking. Still, I agree with hairyfeet's assessment ... for once.
caitlyn

Feb 01, 2013
2:03 PM EDT
Quoting:Laws are drafted and approved by lawyers and politicians. Both have their own ulterior motives to make laws touch and punishment severe as much as possible. And that is why founding fathers made sure it is up to the jury and/or judges to issue the final verdict. Also, that is why there are negotiations between lawyers and DAs in the presence of a judge (most of the time).
Today Fettoosh and I are on the same page. I agree with this completely.
Quoting:Personally, I think if Mr. Swartz had not done what he did, he wouldn't have gotten the maximum sentence and probably might have gotten out with just a slap on the wrist.

Or am I dreaming!?
We have no way to know. On one hand the government does seem to want to make examples of people in some cases like this. On the other hand, with MIT and JSTOR not interested in pursuing the case what you suggest may well have happened. Sadly, we'll never know, just as we'll never know what contributions to FOSS Mr. Swartz would have made had he gotten past all this.
Steven_Rosenber

Feb 01, 2013
2:39 PM EDT
Hairyfeet is a uniter, not a divider.
flufferbeer

Feb 01, 2013
2:45 PM EDT
@ Fettoosh,

>> Personally, I think if Mr. Swartz had not done what he did, he wouldn't have gotten the maximum sentence and probably might have gotten out with just a slap on the wrist.

I disagree. I think Aaron Swartz CERTAINLY would have gotten as maximum a penalty as the prosecutors were threatening him with. While maybe Aaron really was or was NOT an innocent victim, the prosecutors CERTAINLY threw the book at him!! Apparently, 50K+ plus people have felt the same in signing the Remove United States District Attorney Carmen Ortiz from office for overreach in the case of Aaron Swartz (https://petitions.whitehouse.gov/petition/remove-united-states-district-attorney-carmen-ortiz-office-overreach-case-aaron-swartz/RQNrG1Ck ). Oh and BTW (mindful of this site's TOS), this very petition to put pressure right back where it belongs on the PROSECUTORS of Aaron Swartz's case is among the top-five most popular and UNexpired petitions at Whitehouse.gov.

2c
Fettoosh

Feb 01, 2013
3:16 PM EDT
Quoting:Apparently, 50K+ plus people have felt the same in signing the Remove United States District Attorney Carmen Ortiz from office for overreach in the case of Aaron Swartz


Like Caitlyn said, we'll never know will we?

The more than 50K is the reason why I was optimistic about the final outcome. like Caitlyn Also said, it is not of the best interest of MIT nor JSTOR to carry the lawsuit through, a case that goes against FOSS principals and MIT is full of strong FOSS believer and advocates.

Remember when Adobe dropped charges against Russian cryptographer programmer Dmitry Sklyarov, and that was a commercial company.

BernardSwiss

Feb 01, 2013
4:30 PM EDT
Regarding reasonable punishment vs what Aaron Swartz was facing

Here's the perspective of a Federal Judge:
Quoting: Retired Federal Judge Joins Criticism Over Handling Of Swartz Case

For 17 years, Nancy Gertner sat as a federal judge here in Boston. She says she was troubled by much of what she learned and saw from the bench before leaving in 2011. And she says Ortiz should not have prosecuted Swartz.

“Just because you can charge someone with a crime, just because a technical crime has been committed, doesn’t mean you should,” Gertner said.

“At the time of the indictment, [Ortiz] said, ‘Stealing is stealing.’ I saw that all the time when I was on the bench,” she said. “This is a classic line. Stealing an apple if you’re hungry is different than Bernie Madoff. It is obviously different.”


And it's clear that Swartz's case was blown beyond all semblance of reason or proportion:
Quoting: Swartz didn't face prison until feds took over case, report says

State prosecutors who investigated the late Aaron Swartz had planned to let him off with a stern warning, but federal prosecutor Carmen Ortiz took over and chose to make an example of the Internet activist, according to a report in Massachusetts Lawyers Weekly.

Middlesex County's district attorney had planned no jail time, "with Swartz duly admonished and then returned to civil society to continue his pioneering electronic work in a less legally questionable manner," the report (alternate link) said. "Tragedy intervened when Ortiz's office took over the case to send 'a message.'"
Quoting: "Continuance without a finding" was the anticipated disposition of the case were the charge to remain in state court, with the Middlesex County District Attorney to prosecute it. Under such a disposition, the charge is held in abeyance ("continued") without any verdict ("without a finding"). The defendant is on probation for a period of a few months up to maybe a couple of years at the most; if the defendant does not get into further legal trouble, the charge is dismissed, and the defendant has no criminal record. This is what the lawyers expected to happen when Swartz was arrested for "trespassing at MIT." But then the feds took over the case, and the rest is tragic history.
Quoting: If Swartz had stolen a $100 hard drive with the JSTOR articles, it would have been a misdemeanor offense that would have yielded probation or community service.

But the sweeping nature of federal computer crime laws allowed Ortiz and Assistant U.S. Attorney Stephen Heymann, who wanted a high-profile computer crime conviction, to pursue felony charges.


Also, there's plenty of references to Ortiz coming under fire for many other egregious abuses of proprietorial power. "Making an example" of Swartz was clearly just grist for other peoples' legal careers and/or political ambitions. This prosecutor is under such scrutiny in large part because the Swartz case is just part of an ongoing pattern of bad behaviour.

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