EFF: MIT was not "neutral" on Aaron Swartz; actively assisted in his prosecution

boing
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Uh.

I don’t think they had a piss-poor case against this guy at all. I think they had him solidly on the laws they alledge he broke. And pre-trial confinement during plea bargain negotiations?!? Do you realize how this could be abused by prosecutors to detain criminals everywhere? No judge in their right mind would allow a pre-trial psychiatric confinement on a defendant without serious evidence that he was directly and imminently at risk, it’s a due process violation. Even if the judge did that and Aaron was put in a prison hospital, he’d order his lawyers to appeal and quash the subpeona. And they’d win.

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Okay, so strike the part about “piss poor case”

I proposed a thought experiment (admittedly in the last sentence of my post, so it might not have been obvious).

I still think it would be valuable if prosecutors had to weigh the merits of their case against the life of the accused.

Yes, I absolutely realize that prosecutors could abuse the pre-trial protective confinement aspect. That was exactly the point of my imagined scenario. I have (a tiny bit) more faith in the Judiciary than other aspects of our government (judges who consented to being on the FISA court are an obvious exception).

My post was intended as irony. If I failed to communicate it fully, that is my fault. I think we are actually closer to agreement than otherwise.

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Right. Every perp immediately says “you can’t prosecute me or I’ll commit suicide.” Justice department becomes overwhelmed and decides they have to ignore that unless they have reason to believe the threat is real… and bingo, we’re back to exactly where we are now.

Either you believe there’s a risk to him or you don’t. If you do, you put him on suicide watch. If you don’t, then if he suicides that doesn’t invalidate the fact that you had to make a decision and can’t decide correctly 100% of the time.

Sorry, but I don’t see a way to make this work better. (Where “this” is specifically “preventing a suicide they had no reason to expect”. If his friends and relatives and lawyer didn’t anticipate it, I’m not convinced the prosecutor should have.)

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The Aaron Schwartz case was an exemplar of prosecutorial conduct. I apologize for challenging your notion of correctness.

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You know those world-class pranks the students pull at MIT? They oughta’ paint Aaron’s face on that big dome for the next prank,

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I know a lot of MIT students, and honestly it seems to be about 50/50 on opinions of this. The two opinions seem to be either Aaron Swartz was a guy who was pressured into suicide by a vengeful system… but the other thing that I see amongst MY friends who go there was a slight contempt for Aaron. He wasn’t one of them, wasn’t paying to attend, was breaking in and stealing services and access and setting up MITM machines, and basically turned up the outside heat on everything on campus.

One of them said to me, “The tactics we use in our pranks is questionable sometimes, and because of Aaron, someone who didn’t even legally belong on property, we have to worry if we’re going to be arrested and charged with a serious crime for doing one of our pranks.”

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Davide405: You’re overgeneralizing my statement. Can the system be improved? Sure. Could Aaron’s death have been predicted? Maybe by those who knew him well, but I don’t think anyone else could reasonably have expected it.

Should the prosecution have thrown the book at him? Probably not; they were grandstanding… but the system’s sorta set up to start with overcharge-and-compromise, so I’m not surprised that’s how it started. We’ll never know whether it would have gotten rolled back to something more reasonable.

I just don’t think assigning blame is useful at this point. Focusing on how we can keep from getting into this situation in the future seems more useful. Part of the answer is “know how the Powers That Be are likely to respond before you publicly flout them.” Part of the answer is “if someone you know is under heavy stress, try to support them”. Part of the answer is certainly that we need to restructure the justice system to discourage grandstanding for the media at the expense of doing what’s right for society. (Ditto for the political system, come to think of it.)

But part of the answer is that daredevils sometimes misjudge the risk they’re taking and get hurt.

If you engage in civil disobedience, you shouldn’t be surprised that being caught means you’re brought up on charges. If you don’t think you can convince a jury that you were right, and aren’t willing to risk being sentenced in order to bring the issue before the court of public opinion, maybe this isn’t the best way to make your point. I’m sorry he drowned, but I’m also sorry he wound up swimming alone in the first place.

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I did overgeneralize your statement, and I threw in a heaping helping of sarcasm as well (to which you graciously declined to respond in kind).

I’ve read through your reply half a dozen times now, and given it a lot of thought besides. I particularly like your analysis of the causes of Aaron’s tragedy (those sentences that include the phrase “part of the answer is”). Your list might not be quite exhaustive, but it is an excellent starting point.[quote=“technogeekagain, post:29, topic:6036”]
I just don’t think assigning blame is useful at this point. Focusing on how we can keep from getting into this situation in the future seems more useful.
[/quote]
To agree with you here, I want to define “assigning blame” as “identifying miscreants deserving of punishment.” In order to learn how we can keep from getting into this situation in the future, we have no choice but to identify the mistakes made by all of the actors, whether or not we intend to punish any of them.

By the structure of your (well written) post, I infer that you consider the most significant cause of Aaron’s tragedy to be

You chose to set that reason out as a single sentence paragraph, saved it for last, and then went on to support it in your conclusion.

I agree that civil disobedience carries with it an implied acceptance of risk, but I do not agree that this was the most important causative factor in Aaron Schwarz’ case (if that was, in fact, your conclusion). For myself, no matter which way I look at this sad series of events, I keep coming back to prosecutorial misconduct.

We have a justice system whereby the vast majority of criminal prosecutions are resolved through a plea bargain. A prosecutor’s success is evaluated by their conviction rate, and every guilty plea counts as a conviction for them, no matter by what means it was obtained, fair or foul or some shade of gray.

Prosecutors have the full coercive power of the State (the abstract notion) at their disposal. When they choose to begin the bargaining process with inflated charges carrying penalties wildly disproportionate to the alleged crime, they are abusing the power differential between themselves and the defendant. I find this to be morally flawed, but sadly, acknowledge that it is standard operating procedure.

Aaron Schwarz is dead, by his own hand. Nothing we do can bring him back, and the only people who will suffer from his death are those who loved him. No institution involved in the tragedy will suffer more than a minor inconvenience. The federal prosecutor will never be exposed even to a reprimand for the choices made in Aaron’s case, despite those choices being contributory to his death.

I want a new metric for prosecutorial behavior. I’m going to call it the “dilution factor.”

Every conviction obtained by a prosecutor carries with it an implied cost of time served in prison. Probation, parole, and suspended sentences notwithstanding, the bottom line in a criminal conviction is to deprive the convicted person of their freedom for some period of time. For my “dilution factor” metric, I want to see how many years the conviction actually cost the defendant divided by how many years the prosecution threatened in order to cow them into copping a plea.

Prosecutors that obtain a high conviction rate are considered successful, prosecutors who have a low “dilution factor” should be suspected of prosecutorial misconduct. To use an air travel analogy: Why make a reservation on an intercontinental flight when all you really want is a seat on a commuter hop?

Prosecutors are supposed to serve the interests of the State. The State’s interests are not served by imposing harsh punishments for minor crimes, nor even by threatening the same. The only interest served thereby is the padding of the prosecutor’s resume, sometimes, as in Aaron’s case, at a terrible cost.

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I’m probably biased (being an MIT professor), but I think this idea that MIT should have known to tell the government that Aaron Swartz’s access was ‘authorized’ is ludicrous. Suppose I give you a key to my house to feed my hamster while I’m on vacation, and three months later you break a window, come in at night, and steal my laptop. Was your entry “authorized”? According to the CFAA, yes, because I gave you my key (the actual violation that you committed is “exceeding authorized access”, but the prosecution didn’t charge Aaron with this). According to my common sense, no.

Now, are MITs corporate lawyers, who are actually not actively working on Aaron’s case, supposed to realize that this technicality in the law exists and tell the MIT administration to tell the government that Aaron’s access was ‘authorized’? Especially when neither the defense nor the prosecution has focussed on this question (see footnote 62, page 79)? While Abelson’s report does bring up this possibility, I really think that this is expecting too much of MIT.

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