"Swartz didn't face prison until feds took over case..."

"The late Internet activist was facing a stern warning from local prosecutors. But then the U.S. Attorney's office, run by Carmen Ortiz, chose to make an example of Aaron Swartz, a new report says."

The report is likely to fuel an online campaign against Ortiz... An online petition asking President Obama to remove from office Ortiz — a politically ambitious prosecutor who was talked about as Massachusetts' next governor as recently as last month.

There's a hot campaign to destroy Ortiz. Note that there's also this other case where she's accused of "bullying" a motel owner, in what she calls "strictly a law-enforcement effort to crack down on what was seen as a pattern of using the motel to further the commission of drug crimes for nearly three decades." Ortiz is considering appealing in that case, and the Boston Herald has the headline: "Ortiz to motel owner: We’re not done yet." It's not like she said we're not done yet.  That's the newspaper's paraphrase of "We are weighing our options with respect to appeal."

Is the prosecutor getting bullied? If she were to commit suicide — Swartz-style — would everyone feel ashamed of what they did to her?

No one cries for a prosecutor.

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"With Aaron's death, we can wait no longer."

"This time there will be change or there will be chaos."

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"When I was at M.I.T., if someone went to hack the system, say by downloading databases to play with them, might be called a hero..."

"... get a degree, and start a company. But they called the cops on him. Cops."

From "How M.I.T. Ensnared a Hacker, Bucking a Freewheeling Culture."

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Swartz "was deeply committed to civil disobedience and to the moral imperative of breaking unjust laws."

"On the other hand, he seems to have had his soul crushed by the prospect that he would spend time in jail. This is an unusual combination. Usually the decision to engage in civil disobedience comes along with a willingness to take the punishment that the law imposes. But despite Swartz’s apparent interest in legal questions, he seems to have made his decision with a blind spot to the penalties that would actually follow. It’s a strange situation: Swartz was really interested in the law, and he knew he was violating the law. He knew a lot of lawyers who would have told him that this would likely happen if he went ahead with his plan. But there was some apparent blind spot that led him to act anyway."

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"Must you always be out in that ghastly clown suit, running around annoying people?"

Says Pretty Alice to the Harlequin in Harlan Ellison's "Repent Harlequin!' Said The Ticktockman," which I read on the urging of commenter Icepick because of the way it reflected on the recent news stories about Aaron Swartz, David Gregory, and the Boston ban on drinking games.

I downloaded this Orson Scott Card collection — "Masterpieces: The Best Science Fiction of the 20th Century" — which included "Repent Harlequin," because I wanted to understand this harlequin/ticktockman distinction, and lo and behold here's the harlequin — actually, what do you expect? he's a harlequin — wearing a clown suit, when just 5 days ago, the bloggism of the day was clown suits. We were pimping clown suits.



It's weird how these themes seem to coagulate on their own.



IN THE COMMENTS: Astro said points out that my Picasso clown isn't a harlequin. I need to be better about specifying the Commedia dell'arte characters. Here's a Picasso harlequin (on the right):

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Aggressive prosecution #2: Internet activist driven to suicide.

The Wall Street Journal delves into the prosecution of Aaron Swartz:

Mr. Swartz's lawyer, Elliot Peters, first discussed a possible plea bargain with Assistant U.S. Attorney Stephen Heymann last fall. In an interview Sunday, he said he was told at the time that Mr. Swartz would need to plead guilty to every count, and the government would insist on prison time....

With the government's position hardening, Mr. Swartz realized that he would have to face a costly, painful and public trial....

He knew what he was doing was criminal, and he was a very intelligent man who chose to do it anyway and conceived of what he was doing as actively virtuous. Wouldn't a public trial serve his purposes in critiquing the laws he opposed and arguing for the liberation of the data files he tried to set free? (I'm picturing Swartz as a bit like those animal rights activists who steal into a mink farm and open all the cages. They believe that they are serving a call of morality higher than the interests embodied in the law they willingly violate.) It's civil disobedience, which — in classic form — demands that you take the law's punishment. That's part of the acted-out argument that the law is immoral.

"It was too hard for him to ask for the help and make that part of his life go public," [his girlfriend, Taren Stinebrickner-Kauffman] said. "One of the things he felt most difficult to fathom was asking people for money."

His crime was about making more information freely public, and yet he cringed at publicity about his own plight, even where his plight was something he invited into his life and believed in as an especially good thing to do. Why the shame? Why not expose yourself as a martyr to laws you oppose?

Swartz's girlfriend and family released a statement saying: "Aaron's death is not simply a personal tragedy.... It is the product of a criminal justice system rife with intimidation and prosecutorial overreach." Understandably, they want to infuse their loss with meaning. But did the prosecutors go wrong?

The Massachusetts U.S. attorney's office declined to comment Sunday, saying it wanted to respect the family's privacy. But in a news release from July 2011, when the charges in the case were announced, U.S. Attorney Carmen Ortiz said, "Stealing is stealing, whether you use a computer command or a crowbar."...

The government indicated it might only seek seven years at trial, and was willing to bargain that down to six to eight months in exchange for a guilty plea, a person familiar with the matter said. But Mr. Swartz didn't want to do jail time.

"I think Aaron was frightened and bewildered that they'd taken this incredibly hard line against him," said Mr. Peters, his lawyer. "He didn't want to go to jail. He didn't want to be a felon."

But he knowingly and willingly committed numerous felonies, did he not? I'm not hearing the lawyer say that Swartz didn't do what the prosecutors said he did. The argument was that the law ought to be different. If you break the laws as a way to make that argument, how is the prosecutor supposed to respond? Your argument is to the public and to the legislators.

To say he didn't want to be a felon is to express a wish about the past. And it's a wish that wasn't even true. Swartz wanted to be a felon who eludes prosecution. Who gets that wish in a system of law? The intelligent, educated, nice-looking, good guy with lovely friends and family? The person who credibly threatens self-murder? The activist capable of articulating why the crime he committed should not be a crime? 

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Aggressive prosecution #1: California businessman commercially growing medical marijuana.

Adam Nagourney, in the NYT, gives very sympathetic treatment to Matthew R. Davies — "a round-faced 34-year-old father of two young girls" with "graduate-level business skills" who "paid California sales tax and filed for state and local business permits" and got the advice of many lawyers as he set up an enterprise that plainly and overtly is a felony under federal law. Davies told the NYT:

“We thought, this is an industry in its infancy, it’s a heavy cash business, it’s basically being used by people who use it to cloak illegal activity. Nobody was doing it the right way. We thought we could make a model of how this should be done.”

Cloak illegal activity? It is illegal activity. Federal law is real. Haven't you heard?!

The right way? Cloaking is the right way when you're committing crimes. With your business education, somehow you were all: Hey, what a smart idea I have — being completely out in the open about breaking the law. Why hasn't anybody else thought of this?

And I love the way the NYT suddenly has a pro-business orientation. Davies deserves special grace under the law because he's using the structure of business and because he's excited about making big profits! Compare that to all the articles anguishing over Citizens United and how terrible it is to respect free speech rights when the speech comes from a place that is structured as a business.

“Mr. Davies was not a seriously ill user of marijuana nor was he a medical caregiver — he was the major player in a very significant commercial operation that sought to make large profits from the cultivation and sale of marijuana,” [said a letter from United States attorney for the Eastern District of California, Benjamin B. Wagner, a 2009 Obama appointee.] Mr. Wagner said that prosecuting such people “remains a core priority of the department.”...

“It’s mind-boggling that there were hundreds of attorneys advising their clients that it was O.K. to do this, only to be bushwhacked by a federal system that most people in California are not even paying attention to,” said William J. Portanova, a former federal drug prosecutor and a lawyer for one of Mr. Davies’s co-defendants. “It’s tragic.”

Yes, and it is mind-boggling that those who argue for the broad interpretation of federal power and who scoff at the idea of the 10th Amendment and reserving powers to the state somehow can't grasp the meaning of their general propositions when they encounter an issue where they prefer the state policy to the federal policy. The NYT and other drivers of elite opinion ought to have to face up to the reality of what their legal propositions entail.

And quite aside from the problem of the allocation of power at the federal and the state levels, how about some consistency about equal justice under the law? Let the law — as written — apply the same way to everyone, whether they have a round face and 2 young daughters or not, whether they've gone to grad school or not, whether they have big visions of massive profits or they are living hand to mouth. If the law is wrong, change the law — for everybody. Don't cry over the people you think are nice — like David Gregory and Aaron Swartz. Nonphotogenic and low-class people deserve equal treatment, and cutting breaks for the ones who pull your heart strings is not justice.

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"I worry that Swartz’s prosecution is a sign that America is gradually losing the sense of humor that has made it the home of the world’s innovators and misfits."

... America is gradually losing....

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"We need more harlequins, fewer ticktockmen."

Said Icepick in last night's thread about Boston banning drinking games in bars. He began:

I recently read "The Scouring of the Shire" chapter from Return of the King. It was disturbing how much the Shire under (ultimately) Saruman's direction sounded like modern America. The country is being run by over-officious jerks, and the American people are putting up with it. Land of the free no more....

And then:

We need more harlequins, fewer ticktockmen.

A link goes to the Harlan Ellison story "Repent Harlequin!' Said The Ticktockman." 

Icepick advises:

Professor, I believe you need some more tags. One for over-officiousness, and perhaps tags for harlequins (see Swartz, for example) and for ticktockmen (anything with Bloomberg).

Ellison begins his story with a quote from Thoreau's "Civil Disobedience":

The mass of men serve the state thus, not as men mainly, but as machines, with their bodies. They are the standing army, and the militia, jailors, constables, posse comitatus, etc. In most cases there is no free exercise whatever of the judgment or of the moral sense; but they put themselves on a level with wood and earth and stones; and wooden men can perhaps be manufactured that will serve the purposes as well. Such command no more respect than men of straw or a lump of dirt. They have the same sort of worth only as horses and dogs. Yet such as these even are commonly esteemed good citizens. Others as most legislators, politicians, lawyers, ministers, and office-holders serve the state chiefly with their heads; and, as they rarely make any moral distinctions, they are as likely to serve the Devil, without intending it, as God. A very few, as heroes, patriots, martyrs, reformers in the great sense, and men, serve the state with their consciences also, and so necessarily resist it for the most part; and they are commonly treated as enemies by it.

Ellison introduces that quote with: "There are always those who ask, what is it all about? For those who need to ask, for those who need points sharply made, who need to know 'where it's at,' this...."

That story was published in 1965, when the phrase "where it's at" was quite the thing. 

ADDED: I just bought "Masterpieces: The Best Science Fiction of the 20th Century," which contains "Repent Harlequin!"

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"Prosecutor as bully."

Lawrence Lessig on the suicide of Aaron Swartz (which we've already been talking about here). Lessig was Swartz's friend and — for a time — his lawyer:

From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.

Aaron had literally done nothing in his life “to make money.” He was fortunate Reddit turned out as it did, but from his work building the RSS standard, to his work architecting Creative Commons, to his work liberating public records, to his work building a free public library, to his work supporting Change Congress/FixCongressFirst/Rootstrikers, and then Demand Progress, Aaron was always and only working for (at least his conception of) the public good....

Swartz faced a million-dollar trial, and he was out of money, "yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge."

Fifty years in jail, charges our government. Somehow, we need to get beyond the “I’m right so I’m right to nuke you” ethics that dominates our time. That begins with one word: Shame.

AND: From the NYT obit:

In 2008, he took on Pacer — or Public Access to Court Electronic Records, the repository for federal judicial documents. The database charges 10 cents a page for documents; activists like Carl Malamud, the founder of public.resource.org, have long argued that such documents should be free since they are produced at public expense....

Mr. Swartz recalled, “I had this vision of the feds crashing down the door, taking everything away.”...

He was scared, apparently, but he also joked and flaunted about his misdeeds:

 “Attention attractive people: Are you looking for someone respectable enough that they’ve been personally vetted by The New York Times, but has enough of a bad-boy streak that the vetting was because they ‘liberated’ millions of dollars of government documents? If so, look no further than page A14 of today’s New York Times.”...

The government chose not to prosecute that time. But Swartz moved on to the JSTOR matter, and United States attorney Carmen M. Ortiz said: “Stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars.”

The obit links to Swartz's own blog post describing his depression (and other ills). That post is from 2007, before either the Pacer or the JSTOR incidents.

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"Reddit, Creative Commons and Demand Progress co-founder Aaron Swartz committed suicide in New York City on Friday, Jan. 11."

"He was 26 years old."

Aaron Swartz was facing a potential sentence of dozens of years in prison for allegedly trying to make MIT academic journal articles public.... In September 2012, Aaron Swartz was charged with thirteen counts of felony hacking. In July 2011 Swartz was arrested for allegedly scraping 4 million MIT papers from the JSTOR online journal archive....

Swartz's subsequent struggle for money to offset legal fees to fight the Department of Justice and stay afloat was no secret....

Demand Progress — itself an organization focused on online campaigns dedicated to fighting for civil liberties, civil rights, and progressive government reform - compared The Justice Department's indictment of Swartz to "trying to put someone in jail for allegedly checking too many books out of the library."

Swartz's suicide came two days after JSTOR announced it is releasing "more than 4.5 million articles" to the public.

ADDED: Here's a podcast from a year ago in which Swartz discusses his activism stopping SOPA (the The Stop Online Piracy Act). The part with Swartz begins at 17:20.

AND: Here's Swartz's Wikipedia page. Picture:



ALSO: Cory Doctorow:

I met Aaron when he was 14 or 15.... Aaron accomplished some incredible things in his life... His stunts were breathtaking. At one point, he singlehandedly liberated 20 percent of US law. PACER, the system that gives Americans access to their own (public domain) case-law, charged a fee for each such access....

Somewhere in there, Aaron's recklessness put him right in harm's way. Aaron snuck into MIT and planted a laptop in a utility closet, used it to download a lot of journal articles (many in the public domain), and then snuck in and retrieved it. This sort of thing is pretty par for the course around MIT, and though Aaron wasn't an MIT student, he was a fixture in the Cambridge hacker scene, and associated with Harvard, and generally part of that gang, and Aaron hadn't done anything with the articles (yet), so it seemed likely that it would just fizzle out.

Instead, they threw the book at him. Even though MIT and JSTOR (the journal publisher) backed down, the prosecution kept on. I heard lots of theories: the feds who'd tried unsuccessfully to nail him for the PACER/RECAP stunt had a serious hate-on for him; the feds were chasing down all the Cambridge hackers who had any connection to Bradley Manning in the hopes of turning one of them, and other, less credible theories. A couple of lawyers close to the case told me that they thought Aaron would go to jail.

This morning, a lot of people are speculating that Aaron killed himself because he was worried about doing time.... But Aaron was also a person who'd had problems with depression for many years. He'd written about the subject publicly, and talked about it with his friends.

AND: I started a new post for the Lessig commentary.

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