JSTOR an Entitlement For US DoJ's Ortiz & Holder

theodp writes "If Aaron Swartz downloaded JSTOR documents without paying for them, it would presumably be considered a crime by the USDOJ. But if U.S. Attorney Carmen Ortiz or U.S. Attorney General Eric Holder did the same? Rather than a crime, it would be considered their entitlement, a perk of an elite education that's paid for by their alma maters. Ironically and sadly, that's the kind of inequity Aaron railed against with the Guerilla Open Access Manifesto, a document the DOJ cited as evidence (pdf) that Swartz was a menace to society. On Thursday, Ortiz insisted Swartz — who she now characterizes as 'mentally ill' — received fair and reasonable treatment from the DOJ. But that wasn't good enough for Senator John Cornyn, who on Friday asked Eric Holder to explain the DOJ prosecution of Aaron Swartz." Federal prosecutors have come under heavy criticism for their handling of the Swartz case. Legal scholar Orin Kerr provides counterpoint with two detailed, well-reasoned posts about the case. Kerr says that, as the law stands, the charges against Swartz were "pretty much legit," and that the law itself should be the target of the internet community's angst, rather than the prosecutors. "...blame the system and aim to reform the system; don’t think that this was just two or three prosecutors that were doing something unusual. It wasn’t." James Boyle, co-founder of the Center for the Study of the Public Domain, disagrees with Kerr (partly), arguing that Swartz's renown is simply drawing people together to collectively shine a light on poor legislation and poor prosecutorial practices.

Comments

The law is a ass.

[Impy the Impiuos Imp]

While he may have had issues, it's dangerous to characterize different opinions as mentally ill.

Re:The law is a ass.

[Anonymous Coward]

While he may have had issues, it's dangerous to characterize different opinions as mentally ill.

Yeah but we live in McCarthy-era, can't you tell? Well, it's a novelty really. It used to be communists, then it was minorities, then pedophiles, then terrorists, then computer hackers. Now it's the "mentally ill".

See how that works? Label, then persecute. I can't wait to see how events unfold in New York based on their new unconstitutional and persecuting gun laws.

They're coming for your guns, what are you going to do when they label you "mentally ill"?

Re:The law is a ass.

[davydagger]

its been going on for years, and it needs to stop.

Everytime "treating mentally ill", gets brought up in the news, its always been a highlight after some tragedy, with the implications the treatment was non-consentual, with zero burdern of proof, and no restrictions on treatments, nor any sort of legal, or public oversight.

Its been well known for a long time that if you can label someone "mentally ill", without really specifying, or rapidly chaning diagnosis, you can get most of mainstream society to stop asking questions about their care or how they are treated.

Re:The law is a ass.

[Anonymous Coward]

it's dangerous to characterize different opinions as mentally ill.

This is very true, but anyone who takes their own life is going to be tainted by the possibility of being "mentally ill" because suicide isn't commonly accepted as the act of a "well" individual.

Re:The law is a ass.

[davydagger]

"They're coming for your guns, what are you going to do when they label you "mentally ill"?"

with no chance for a second opinion, no appeals, no lawyers, no burder of proof on anything.

Re:The law is a ass.

[jedidiah]

That's nothing more than cultural bias.

Plus there's always context. This wasn't just some teenager worried about not being asked to the prom. This was a kid that was facing having is entire life destroyed apart by the government.

That kind of situation is quite often NOT portrayed as a sign of mental illness when the result is suicide. (even in the West)

Re:The law is a ass.

[jc42]

... what are you going to do when they label you "mentally ill"?

And we might note how easy it can be to get such a label. One of last year's minor science/medical news stories that was picked up by some reporters, and also by a number of comedians, was a change made by the American Psychological Association (APA) to their definition of "depression". The fun part of this story was the previous definition, which included the case of a loved one dying, and a survivor's mourning continuing for more than a month. This was all it took to get a diagnosis of depression, and a "mentally ill" label. The time period has now been extended somewhat, but that won't affect the medical records from previous years.

So if someone close to you dies, you might want to be careful to hide signs of sadness when talking to medical people (or strangers ;-), lest you end up on the list of people determined to be mentally ill by a professional psychiatrist.

It really is that easy to get "mentally ill" on your medical record, to be used against you in cases like this.

Re:The law is a ass.

[Anonymous Coward]

"That's nothing more than cultural bias."

Irrelevant. That view is prevalent in Swartz's culture.

"This was a kid that was facing having is entire life destroyed apart by the government."

Six months in jail does not destroy a life, particularly where Swartz's livelihood would likely not have been impacted.

Re:The law is a ass.

[OzPeter]

"They're coming for your guns, what are you going to do when they label you "mentally ill"?"

Its things like this that makes me think that the NRA is a huge hypocrite when it comes to the second amendment. I was listening to the NRA's president on NPR last week and he was adamant that mentally disturbed people should be allowed to have guns, and that all law abiding citizens should be allowed to have them. Aside from the fact that mentally disturbed people can be law abiding I see nothing in

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Where it says ".. except if they are mentally ill, or felons". In my opinion the position of the NRA is akin to the old joke with the punchline

now we are just haggling over the price

and that they are already supporting abridgment of the second amendment - just only one that suits their selfish beliefs.

Re:The law is a ass.

[celle]

"and that they are already supporting abridgment of the second amendment - just only one that suits their selfish beliefs."

      As opposed to your selfish beliefs. The BULLSHIT goes both ways.

Re:The law is a ass.

[Anonymous Coward]

While I share your concerns about the labeling and stigma of mental illness, I do need to correct your accounts of the way that people are prohibited from owning guns. In order to get yourself on the infamous database, you typically need to be adjudicated by a judge to be 'mentally defective'. This is typically done after a 72 hour hold in a psychiatric hospital. At this point you would be given a chance by a judge to determine if you have a substantial mental illness such that you are a threat to yourself or others or cannot take care of yourself. The burden of proof is "clear and convincing evidence" per the Supreme Court, but generally determined by "preponderance of evidence" upon which a person in a mental hospital puts their words against those who have Ph.Ds and MDs. The judge would then order an involuntary commitment or set your free. If you were ever involuntarily committed, then you could later 'request' a judge to restore your civil rights (which would include things like voting or owning guns). But any type of commitment into a mental hospital would generally prohibit you from performing any job that required a security clearance and in many cases will show up in a background check (which will affect renting housing or other types of employment).

Re:The law is a ass.

[celle]

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

      It makes all gun control law illegal, period. I know, how about repealing the 2nd amendment. You know the only legal way instead of the illegal way of marginalizing it to irrelevance. Oh right because it wouldn't happen and a civil war would spring up the next day if it did. So disarm the population any way you can so they are not a threat to government abuses. Government cannot be trusted ever, even the framers of the constitution knew this.
        Here's a remedy from before the 1980's. How about treating people with physical and mental problems by treating the actual cause of the problem instead of the symptoms? Right, because that would cost time and money. Never mind it took time and the lack of money to make the problem this bad in the first place.
        Now how about getting On Topic.

Re:The law is a ass.

[flyingsquid]

Theodp is the one being an ass here. Ortiz said:

My understanding is that some issues about a year and a half ago came up regarding his mental illness and they were addressed at the arraignment.

Theodp wrote:

On Thursday, Ortiz insisted Swartz — who she now characterizes as 'mentally ill' — received fair and reasonable treatment from the DOJ.

While similar, the phrases "mental illness" and "mentally ill" have different implications. A 'mental illness' is something you have. It is something that you possess, it doesn't define or negate what you are. 'Mentally ill' is something you are, it defines who and what you are. Theodp is misquoting Ortiz, and putting words in her mouth. He is the one using the phrase 'mentally ill' to label Swartz, not Ortiz, making it sound like she's being callous and dismissing him when she's not. I'm not sure if he's just a really sloppy writer, or deliberately trolling Slashdot, but the post should be corrected, because this quote is inaccurate.

Whatever you may think of her other behavior as a prosecutor, in this case Ortiz is being professional. Swartz did suffer from mental illness. He himself vividly and honestly described his struggles with depression. Not a few bad days. Not struggles with grief, or stresses from major life setbacks. He wrote about severe depression of the sort where even when everything is going right, everything still feels wrong, and you just can't feel any joy. I think Swartz would have been the first to admit that this was mental illness.

Re:The law is a ass.

[celle]

"because suicide isn't commonly accepted as the act of a "well" individual."

    Except in times of war or fighting crime and then we give medals and accolades for it. Especially when he or she survives the attempt. We call them heros.

Re:The law is a ass.

[flyingsquid]

That's nothing more than cultural bias.

Plus there's always context. This wasn't just some teenager worried about not being asked to the prom. This was a kid that was facing having is entire life destroyed apart by the government.

That kind of situation is quite often NOT portrayed as a sign of mental illness when the result is suicide. (even in the West)

The plea deal offered by the government was six months in jail and a felony conviction. Yes, the punishment is out of all proportion to the crime. It's wrong. It's a bullshit deal. It's six months more than anyone on Wall Street served after they blew up the banking system and destroyed the world's economy. But most people, faced with the choice of being unjustly convicted and losing six months of your life, and losing the entire rest of your life, will take six months. It wasn't the end of everything. After six months for trying to liberate the entire contents of JSTOR, he would have come out of prison a martyr and a hero. Serving time for an idealistic, altruistic act like that would have given him a credibility that no other activist had. He would have had the rest of his life to use his notoriety to push for internet freedom.

But that's the kind of optimistic, lemons-into-lemonade kind of thinking you just can't manage when you're severely depressed.

Re:The law is a ass.

[celle]

"While he may have had issues, it's dangerous to characterize different opinions as mentally ill."

      In this case, lethal. He wasn't mentally ill. There's evidence he weighed his choices and the outcomes. The behaviors of a rational individual. A law used outside of the corner case it was written to solve is often wrong but applied regardless. This abuse is what is being used as a defense by the prosecutors. When a lawyer can't use public opinion to defend themselves they hide behind the law even when it doesn't apply. Always deflecting blame to those that wrote it or the public who elected them instead of their abuse of the system. Just because the system is open to abuse doesn't mean you should or you have to. And yes the prosecutors are to blame as its up to them how to apply the law to a situation.
No law can be written for every situation. So prosecutors have some leeway in it's application. This just wasn't the proper way and some one died. Funny how in lower professions, mistakes like this that kill usually end up with high fines, disbarment, and prison time. The really funny part of this whole thing is the very people these prosecutors have pissed off control practically their whole lives. They better thank their lucky stars we are not as cold as them or they would have been wiped out in every way except the one they forced Aaron to take by now.

Remember Aaron!
Make prosecutors accountable for their decisions!
Reform prosecutor conduct!

Re:The law is a ass.

[HiThere]

I, personally, would say she is engaging in carefully constructed slander which is probably just this side of illegal. Not that she would be in any danger no matter what she said. He's dead, and precedent says that you can't slander the dead.

Re:The law is a ass.

[the eric conspiracy]

That's ridiculous. No right is absolute. Congress shall make no law.... except of course slander etc are illegal. The guarantee of free exercise of religion does not permit you to harvest whores off the street and stone them according to the requirements of various religions.

I am sure the founding fathers would recognize that public safety does in fact place restraints on gun ownership as well.

Re:The law is a ass.

[russotto]

I believe I've seen claims that Swartz was suffering from depression, which is probably what this refers to. Clinical depression isn't a "differing opinion" per se.

The mental health community fails to consider that there are situations where "depression" is a healthy reaction to a situation, not something to give you happy pills for. For instance, if a Federal Prosecutor is threatening you with 35+ years in prison and a felony record if you don't abandon your principles, or no less than 6 months (by some reports) and that same felony record if you DO abandon your principles, then you might be depressed yet mentally healthy.

Re:The law is a ass.

[fldsofglry]

...and as soon as anyone who keeps and bear arms is part of of a well regulated militia, then you can whine about how all gun control law is illegal. Not the my opinion carries a lot of weight, but I think these rights certainly need to be interpreted, especially as times changes. This right doesn't say anything about the ability to owning or using a musket ball, but we interpret it to mean that. I always like to remind myself that those who wrote approved these rights generally only applied to non-slave, male landowners. Yeah, ontopic is nice.

Re:The law is a ass.

[reboot246]

What you say is true . . . . now.

What about tomorrow, or next year?

Re:The law is a ass.

[slick7]

"They're coming for your guns,.

That's easy to correct, have Holder sell you guns all the while you claim to be a Mexican drug cartel dealer. It worked in Mexico and it worked in Oklahoma City.

Re:The law is a ass.

[Tagged_84]

The real issue is that people see "mentally ill" as negative and you're post clearly implies that too. I'm "mentally ill" having had bipolar since my early teens and being treated multiple times for suicidal attempts. I proudly talk about my depression if someone asks or the subject comes up, it's the only way to fight the stigma and get people talking more about it.

I guess in Australia it's not view as badly (wow, never thought I'd say that) as the states?

Re:The law is a ass.

[russotto]

Those are the limits on rights. "Public safety" is a bullshit term that doesn't actually mean anything.

It should mean something to you. French Revolution... Robespierre, Danton, Saint-Just, etc -- the Committee of Public Safety. Mostly known for beheading political opponents and anyone else whose head fit in a guillotine, during the Reign of Terror.

Re:The law is a ass.

[sjames]

Don't forget that that felony conviction would follow him around for the rest of his life, every time he tried to get a decent job, for example.

Re:The law is a ass.

[mikael]

Maybe he had the idea of the next wikipedia or mathipedia, perhaps jstoripedia or something similar. All the research papers would be hyperlinked and cross-reference in a graph form by keyword vs. year.

Re:The law is a ass.

[dniq]

It doesn't make gun control illegal - it says right in the amendment: "well regulated". Also, the way it's written, the purpose of it is clear: you can bear arms, if you're part of a well regulated militia. So you want to play with your toys - enlist in the Army.

Re:The law is a ass.

[davydagger]

thats great except there are plenty of horror stories of all of these wonderful safeguards posted by an anonymous poster, with no links to back them, just not appearing in real life.

Re:The law is a ass.

[davydagger]

because its been used in history as reasons to disenfranchise people.

To include the vast amount of "mentally ill" people who exist who are just merely "politically inconvienant serfs", or "politically incorrect", or part of some quota for big phrama.

Re:The law is a ass.

[davydagger]

there is no freedom of "religeon". the claus says "establishment of reliegeon", to infer a "church" or whatever other religeons have as an equiv. It works both ways, that no church can be sponsored or affilated with the state, nor the state prohibit certain churchs.

Its meant to keep politics out of church, and church out of politics, as in Europe of the time. The reason is that churches become little more than political shills, like this, and attract a negative element that wants to govern behind the scenes from the pulpit.

There is dirrect right to "free speech", its impied by a "congress shall make no law", implying that if congress can't make a law it shall not be
http://www.law.cornell.edu/constitution/first_amendment

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

The second amendment is far more clear.
http://www.law.cornell.edu/constitution/second_amendment
"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

Elsewhere mentioned is that all males 16-40 are considered unregulated militia. The militia did not keep arms in an armory, they kept them at home.

Re:The law is a ass.

[davydagger]

" I was listening to the NRA's president on NPR last week and he was adamant that mentally disturbed people should be allowed to have guns"

"mentally disturbed" is not a real condition, it seems more and more to be a catchphrase do describe people you don't like, outliers, and political and social enemies, not based in science, but old wives tales, superstition, and stereotypes. Its been used to dehumanize and disenfranchise the rights of citizens.

I don't want to

you know that kid of there, he looks weird, mabey he smells funny. Mabey he's drawing guns, or hacking computers, we have no idea what he's really doing except he doesn't like us, or recognize out social status. He's mentally disturbed.

By the DSM, we are all crazy.

Re:The law is a ass.

[godefroi]

I don't see how repealing the 2nd amendment would make it legal for the federal government to regulate guns. Where in the constitution, again, is the federal government given that power? Oh? It's not there? Huh. How interesting.

Re:The law is a ass.

[godefroi]

You wrote, "facing having is entire life destroyed apart by the government". I read, "facing the consequences of his willful actions".

I'm ok with it.

In addition....

[RatPh!nk]

First let me say that my area of research is medicine. There is a lot of tax payer funded research that is inaccessible to the public despite their hand in its creation. I think that this aspect needs to be discussed, as well.

Re:In addition....

[Sir Homer]

There is a lot of tax payer funded research that is inaccessible to the public despite their hand in its creation. I think that this aspect needs to be discussed, as well.

I don't even see anything to discuss. Seriously, how the hell is this acceptable?

And Swartz's super serious multi-felony crime was trying to fix this situation? Every time I look back at this case, it befuddles me. The only insane people here are the prosecution, and they need to be called out on it and punished along with everyone involved in this travesty of justice.

Re:In addition....

[davydagger]

There is plenty to discuss, Tax payers dollars are used to fund research, which the tax payers have no access. What is doing in the "public good", is kept from the public.

Then comes your "appeal to authority". Because something is currently illegal, its automaticly above debate in MORAL standing. The argument here, is SHOULD what swartz did have been a felony under law. Thats what is up for debate. I am reading a book called "they though they where free", its about german non-resistance to nazi rule. In Germany, conformity and social acceptance carried a higher responsiblity than avoiding terrible authoriarian politics.

We'vve spent the last 30 years trying to smash our own culture of independence and free thinking, critical for protecting ourselves against things like this by ensuring there is always someone to stick up to unjust authority.

Re:In addition....

[Greyfox]

This is what you get when corporations and special interests are the ones writing the laws. Congress knows by now that they just need to wave their hands and make a show of caring until the outrage blows over and then they can go back to business as usual. They only have to worry about getting elected every few years, and by then most people will have forgotten about this. Hell, if you asked any handful of random people about it now, I'm pretty sure most of them wouldn't know what you're talking about. Educational institutions have their own special brand of corruption. I'd be surprised if anyone was even formally reprimanded for this, much less lost their job over it.

Ultimately this is how the system works. The system was built by corporations and a few very loud somewhat small special interest groups. The system is not there to protect the little guy or let them go about their lives with a minimum of intrusion. It was built to suck the life out of the worker drones before tossing them aside. Anything that interferes with the profitability of this process will be dealt with harshly. And while we see this as a tragedy and an illustration of how broken the system is, I'm sure that some executive in a boardroom somewhere is rubbing his hands and thinking how unlikely it is that anyone will attempt this sort of sharing again in the future.

Re:In addition....

[rsmith-mac]

I don't even see anything to discuss. Seriously, how the hell is this acceptable?

Ultimately it comes down to money (and I don't mean that in a snide conspiracy way). It costs a fair bit of money to create and operate a system as expansive as JSTOR, not to mention the high cost of acquiring the journals themselves. Academia never completely got its act together, so the final solution was for a private entity to operate it, the non-profit Andrew W. Mellon Foundation. Since then they've been rolled into the equally non-profit ITHAKA, which operates JSTOR to this day.

It should come as no surprise of course that even as a non-profit, JSTOR has to charge for access to journals for two reasons. First, they need to provide access control as per any content licensing agreements with journal publishers - most of whom are non-profits themselves and need to pull in enough revenue to publish their journals - as otherwise everyone would read JSTOR for free and not purchase journal subscriptions (and since JSTOR would not be bringing in any revenue, they could not pay the journals either). Second of course is that operating the JSTOR system costs money, and if journals could be freely copied out, everyone would take the good stuff (and admittedly probably take good care of it) but then cancel their JSTOR subscriptions. This would leave behind a number of smaller journals that are suddenly not getting digitized and archived. The whole academic journal system is one big case study in the tragedy of the commons: everyone wants it for free, but no one wants to pay to operate the journals or the storage systems.

Consequently, whether journal access is free or not is really up to Congress, as only government can solve the tragedy of the commons. If Congress were to task the LoC with creating an equivalent system and funded that mandate (i.e. made everyone pay for it) then an open system could be built or JSTOR acquired. Congress already provides a bit of funding for JSTOR in a roundabout way, as ITHAKA has received some small grants from various government departments over the years, including the Library of Congress. So this pretty much comes down to Congress increasing their funding for these projects.

Until then however, JSTOR will remain behind a paywall. Someone has to pay the costs of the journals and the systems, and if it isn't the public then it will be a private system.

TL;DR: JSTOR would be free if Congress would pay for it rather than leaving this up to private industry

Re:In addition....

[sgt_doom]

Good points, and with regard to the laws and legaly system in America, a few years back a lawsuit brought against one of the two major legal databases owners/purveyors in the USA (alleging the fabrication and rewording of legal-setting case precedents to alter court law) was widely covered in the European press, yet received absolutely no publicity in Amerika. A most important and crucial factual point from the blog site:

http://dissentingdemocrat.wordpress.com/2013/01/16/aaron-swartz-r-i-p/

“Reed Elsevier” is one of two companies which collectively own the Law in the United States. The other company, Thompson-Reuters (formerly Thompson-West) along with Reed Elsevier collect statutes, regulations and case law from the various States input the compilations into computers, collate it and add notes and then turn around and sell the Law to lawyers and the very governments that produce it. So if you, or the lawyer you pay, want to know what the law is on any topic, you will have to pay one or the other, and sometimes both, of these companies for the privilege.

And interesting to note the Thompson-Reuters is now owner of the text analytics software firm, ClearForest (also used at NASDAQ, FBI, NSA, Credit Suisse, and financed by the same private equity firm which gave us Narus -- now a Boeing subsidiary, but still active in helping to arrest, torture and murder pro-democracy activists in China, Egypt, Syria, etc.).

Re:In addition....

[blueg3]

I don't even see anything to discuss. Seriously, how the hell is this acceptable?

It basically works like this. Back in the day, there were no real open-access journals. (This was when things were actually printed and distributed, and the whole process was much less efficient.) So pay journals built up all of the good reputation. People paid to do research are expected to share their findings with the research community. Sharing with the public is nice, but it's not a key component of the research process. So now all the paid journals have the best reputations, the most visibility, the highest readership. So publishing in those is "better" than publishing elsewhere. As such, your funding agencies think that you're doing your job "better" if you're publishing in these journals, which happen to be paid. (The fact that their paid has nothing to do with it -- it's solely that higher-reputation journals are better.)

This all changes if your funding agency requires that you publish your paper in an open-access journal, which the NIH has started doing. (It does some other interesting things, too. It increases the reputation of the open-access journals, which helps, in the long term, make open-access journals a good choice for people whose funding agencies don't require this. Also, if the funding agency is big enough, it starts making the high-profile paid journals back down on their stance on exclusivity, which enables researchers to publish in both an open-access location and a paid, refereed, high-profile journal.)

Re:In addition....

[MouseTheLuckyDog]

arXiv has been around for close to thirty years. It seems to survive without significant user fees.

Re:In addition....

[martin-boundary]

Ultimately it comes down to money (and I don't mean that in a snide conspiracy way). It costs a fair bit of money to create and operate a system as expansive as JSTOR, not to mention the high cost of acquiring the journals themselves.

That's a problem with copyright mostly. Much of the JSTOR content should be (it obviously isn't) public domain already. The high cost of journals is entirely due to for-profit companies such as Elsevier artificially raising prices. They can do that because they ask for (and receive) the copyright for the articles written by academics.

It should come as no surprise of course that even as a non-profit, JSTOR has to charge for access to journals for two reasons.

On the contrary, this is (should be viewed as) surprising. There is no technical reason why this should be so. In an ideal world, JSTOR would scan documents, and make them available. These documents could be copied around the world, and hosted on mirror sites. Everybody would win, and nobody would have exorbitant bandwith and storage costs. The real problem is copyright prevents this technical solution.

The whole academic journal system is one big case study in the tragedy of the commons: everyone wants it for free, but no one wants to pay to operate the journals or the storage systems.

Wrong. Plenty of universities operate local storage systems for preprints and local documents. It would be trivial to have another directory full of JSTOR content, but the outdated copyright laws stop this from happening.

Consequently, whether journal access is free or not is really up to Congress, as only government can solve the tragedy of the commons.

There I agree with you. Congress should abolish copyright for academic publications.

Until then however, JSTOR will remain behind a paywall. Someone has to pay the costs of the journals and the systems, and if it isn't the public then it will be a private system.

Alternatively, the community will somehow figure out a way to eliminate the publishers. Either legally, or anonymously. Let's not dismiss the power of what is euphemistically called "creating facts on the ground".

Re:In addition....

[davydagger]

" The used burglary charges instead of trespass so they could take a DNA sample from you to keep on file which they could not do for trespass. Supposedly my DNA samples were all destroyed and are no longer on file but I am often sceptical about this, they are probably just kept secret so only special branch have access to them (I am from the UK)."

thats my point, they are using tactics meant to stop criminals, to stop dissent.

the purpose of these laws is not to ensure law and order, or good governance, but to silence dissent, and track down dissenters.

So, people don't kill people

[fustakrakich]

The law kills people...

Precedent

[sesshomaru]

"On Thursday, Ortiz insisted Swartz â" who she now characterizes as 'mentally ill' â" "

Yeah, they used to say that about dissidents in the Soviet Union, too.

Re:Precedent

[Anonymous Coward]

Quite true, and quite extensive.

Political abuse of psychiatry in the Soviet Union

Re:Precedent

[sgt_doom]

Thank you...

Re:Precedent

[PolygamousRanchKid]

"On Thursday, Ortiz insisted Swartz -- who she now characterizes as 'mentally ill' --"

So how long has she been investigating him . . . ? And now his 'mentally ill' issue comes up . . . ?

Sorry, I don't buy that. That boy was investigated so thoroughly, she knew where every pimple on his ass was. She is trying to toss him into the 'mentally ill` tank with the current catch of shooters, hoping that 'mentally ill' now tags someone as a criminal, in the public eye.

She is just trying to save her political career. She had her eyes on Senator or Governor of Massachusetts.

Blame Both

[jythie]

While true that, in theory, prosecutors are just enforcing the law, they have significant discretion when it comes to things like even bringing any charges in the first place. As any victim of petty crime and they will usually have a tale of how the police or prosecutor just didn't bother doing anything even though the law said crime was committed.

Re:Blame Both

[jedidiah]

Yes. THAT.

If you had your life savings swindled from you, you would see just how quickly these prosecutors would be willing to ignore the perpetrators. The feds and their state equivalents will likely just blame you for being the victim and just ignore you and the crime you just reported.

"But they are just enforcing the law" rings hollow when you have been on the other side of the scales and have been ignored.

Justice is a sham and these people are just "career minded opportunists".

Re:Blame Both

[the eric conspiracy]

You mean like they ignore people who engage in Ponzi schemes?

NOT.

Re:Blame Both

[Sabriel]

From the NDAA's National Prosecution Standards, Third Edition, with Revised Commentary:

4-2.4 Factors to Consider
The prosecutor should only file those charges that are consistent with the interests of
justice. Factors that may be relevant to this decision include:
a. The nature of the offense, including whether the crime involves violence or
bodily injury;
b. The probability of conviction;
c. The characteristics of the accused that are relevant to his or her
blameworthiness or responsibility, including the accused’s criminal history;
d. Potential deterrent value of a prosecution to the offender and to society at large;
e. The value to society of incapacitating the accused in the event of a conviction;
f. The willingness of the offender to cooperate with law enforcement;
g. The defendant’s relative level of culpability in the criminal activity;
h. The status of the victim, including the victim’s age or special vulnerability;
i. Whether the accused held a position of trust at the time of the offense;
j. Excessive costs of prosecution in relation to the seriousness of the offense;
k. Recommendation of the involved law enforcement personnel;
l. The impact of the crime on the community;
m. Any other aggravating or mitigating circumstances.

The commentary that accompanies this, and the subsequent standards regarding diversion (official alternatives to criminal sentences, such as rehabilitation clinics, community services, etc) are worth reading if you're interested. http://ndaa.org/pdf/NDAA%20NPS%203rd%20Ed.%20w%20Revised%20Commentary.pdf

Re:Blame Both

[tragedy]

Generally speaking, it takes them a very, very, very long time to do anything about ponzi schemes. Bernie Madoff ran his ponzi scheme for at least 15 years (by his admission) and probably actually for something like 30 years before anything was done about it.

Re:Blame Both

[jythie]

Generally with Ponzi schemes they get ignored unless they piss off someone with influence. The run of the mill ones are not considered worth prosecuting, esp since they mostly impact random low income old people. Madoff was prosecuted because he scammed rich investors and investment funds.

Perk of an elite education

[rwade]

Rather than a crime, it would be considered their entitlement, a perk of an elite education that's paid for by their alma maters.

The list that is linked to does not include Stanford...but that is where Swartz started college. The suggestion that he did not have access to an elite education is rediculous under the circumstances. So not only is the premise of the idea that people as alums of certain schools would not be prosecuted for pulling every journal off JSTOR and putting it out on the web laughable but the particulars not really compelling. Stanford is a pretty good school.

Re:Perk of an elite education

[alostpacket]

Indeed, this is hate mongering. JSTOR dropped the charges and is putting out an olive branch (granted it's a tiny one). Now if this were about pushing publicly funded articles and papers to the Library of Congress or otherwise opening that up to the public, then that is a discussion worth having. Trying to paint the prosecutors as part of a privileged "elite" evil is unproductive. The issue is getting the public access to public information, not the perceived hypocrisy of who currently has access.

Re:Perk of an elite education

[Jah-Wren Ryel]

The suggestion that he did not have access to an elite education is rediculous under the circumstances.

Yes, it would be ridiculous, that's why no one is making it.

The point of bring up this policy is that Swartz was not working for the benefit of Stanford alumni. He was working to benefit EVERYONE, including people who can't even afford community college.

Re:Perk of an elite education

[tqk]

The issue is getting the public access to public information, not the perceived hypocrisy of who currently has access.

Is it? That was Swartz's issue, but I think this debacle has devolved into shining a light on the US' corrupt practice of plea bargaining, and that's a far bigger issue than access to public information. "We'll let you off on the 35 years of prison if you'll cop a guilty plea, pay a million dollar fine, and accept a criminal record. We don't much care whether you're actually guilty or not, because we don't have to care. So, which bung hole do you want to be pushed into, kid?"

... for which they paid heavily

[jfengel]

I don't understand the point of this article. Holder and Ortiz (or somebody, if they were on scholarship) paid for those college educations. If one of the perks of that payment is lifetime journal access, what on earth does it have to do with this case?

If this was an overzealous prosecution, then it should be investigated, and possibly procedures changed to prevent it in the future. And I certainly agree that journal access has become utterly disproportionate.

But most of what I read about this case is a rush to judgment that makes no more sense than the prosecution is being accused of. And articles like this bolster that impression, jumping to conclusions and engaging in character assassination because we liked one guy and therefore hate the other guys.

Things need to be fixed, but that's best achieved with clarity, not more obfuscation.

Re:... for which they paid heavily

[Trepidity]

The fact that the fruits of scientific research are available only to people who "paid heavily" is precisely the objection.

Re:... for which they paid heavily

[theNAM666]

Moreover, if either Holder or Ortiz had hacked systems and exceeded their authorized access as Swatz did, playing a cat&mouse game with sysadmins at their home institutions and JSTOR, they'd have likely faced the same consequences as Aaron. The article is FUD.

Re:... for which they paid heavily

[alostpacket]

Is it? Or is this article an attempt to paint and shame the prosecutors as privileged? I suspect it's the latter.

JSTOR is a not-for-profit and dropped the charges against him. They offer some articles to individuals for free, and now have opened more articles via the Alumni Access program. What they do isn't evil. Rather, they could do more, provide more access. So why are we sitting debating about what access the prosecutors had to JSTOR? It's irrelevant to the larger conversation.

The discussion we should be having:

1) Should all scientific studies be public domain?

2) If so, how should access be provided? Who pays to maintain upkeep?

3) Should all publicly funded science be made public? (probably and obvious yes here)

4) If so, how should access be provided? Who pays to maintain upkeep?

I'd like to think Scwartz's goal was bigger than these small-minded, egotistical prosecutors. Lets talk about how we can open up the data, not how to engage in a witch hunt. Prosecutorial overreach, to me, is a separate conversation.

Re:... for which they paid heavily

[the eric conspiracy]

The meme that the public does not have access to this stuff is just wrong.

There are large public libraries that offer public access to JSTOR. For example the Boston Public Library.

JSTORs fees are graduated based on the size of the library, so even a small library can afford access.

Many universities offer library cards to the public; for example my employer paid for my Princeton University Library card for about 10 years. Not cheap but in fact it gave me access to pretty much the sum total of all human knowledge. And maintaining a collection like that is clearly not free.

Re:... for which they paid heavily

[Trepidity]

I'd like to think Scwartz's goal was bigger than these small-minded, egotistical prosecutors. Lets talk about how we can open up the data, not how to engage in a witch hunt. Prosecutorial overreach, to me, is a separate conversation.

I agree we should talk about something bigger than specific people, but Swartz was extremely interested in injustice in addition to information freedom, so I don't see it as an either-or. We can talk about how to open data, and we can also talk about how to reform the American criminal-justice system. After all, the latter led more directly to his death.

Re:... for which they paid heavily

[the eric conspiracy]

How could JSTOR provide more access without raising fees? They are already non-profit.

Re:... for which they paid heavily

[the eric conspiracy]

A Princeton university access library card costs $275/year.

The Boston Public Library has JSTOR.

I don't think this is having to "pay heavily".

Re:... for which they paid heavily

[sgt_doom]

The institutions they attended all received public funding, assuming neither (and that's a big assumption) of them received public funding of their educations on top of that. Your claim is specious.

Re:... for which they paid heavily

[Anonymous Coward]

How about if Holder gave thousands of guns to drug cartels, was then found Contempt of Congress for the coverup of the program. A program that caused the death of hundreds of Mexicans and a US border patrol agent. Of course he would face consequences then.

Unless the prosecutor works for Holder and was told not to prosecute him.

I think the point is painfully clear that if Holder will not be held accountable for deaths of Mexicans and US Border patrol agents that he will not be prosecuted for ANYTHING. It is not FUD, it is fact.

Re:... for which they paid heavily

[symbolset]

It is the objection. The entire point of doing this research and writing these papers is to "expand the pool of human knowledge". That is the whole motive of "publish or perish": that knowledge be shared, tested, and built upon so that we might have progress in science. Not progress for the privileged few, but progress for all. Not progress slowed by general release of the knowledge after "forever less one day" but right away.

Re:... for which they paid heavily

[symbolset]

There is some evidence that they are technically incompetent. Their servers were crashed by one kid with a laptop downloading too many articles too fast.

Re:... for which they paid heavily

[theNAM666]

If what you're saying is that they would have been shielded by their positions at Justice, that's another argument. The post argues that as alums of JSTOR institutions, they would not have faced consequences. Guess what? Aaron was an alum of Stanford and a visiting scholar at Harvard, both JSTOR institutions-- a face conveniently erased in the linked documents. He went over to MIT because his "unlimited access" at Stanford and Harvard was restricted enough to prevent this kind of exploit at either institution.

The above is not to endorse what Justice did, in any way. It is to point out the gaping inconsistency with the facts, in this /. post.

Re:... for which they paid heavily

[anagama]

You are apparently unaware of FISA and the TOS agreement between Americans and their government, specifically, Amendment 4 of the Bill of Rights.

Here are some links to help get you up to speed:
FISA: http://nakedsecurity.sophos.com/2013/01/16/redacted-fisa/
AT&T and NSA's laptop in a closet on everyone: http://en.wikipedia.org/wiki/Room_641A
Retroactive immunity for Telecoms: http://www.techdirt.com/articles/20111230/00522317232/retroactive-immunity-govt-warrantless-wiretapping-deemed-constitutional-suit-against-govt-lives.shtml
4th Amendment: http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution

Re:... for which they paid heavily

[nbauman]

I visited the Boston Public Library once to catch up on my journals. Nice place.

In New York City, there is basically no public access to basic scientific and medical journals. A few years ago, I couldn't find a public library with the New England Journal of Medicine, so I subscribed myself. That's a pretty basic journal. Last time I looked, there was one public library with the NEJM in the entire borough of Manhattan. And they only subscribed to the paper edition, because the online edition (which has lots of essential information not found in the paper edition) is too expensive. They didn't have BMJ at all.

There is also no public access to most legal documents, which Aaron Swartz tried to address in another one of his exploits. These are documents that are created by government, that are in public domain.

One of the tangental problems is that this country has shrunk government services and we no longer have free libraries the way we used to. Or free education.

Re:... for which they paid heavily

[nbauman]

I needed a medical library in New York. The Columbia University library would have charged me $2,000 a year, as I recall. If I could get access to a library like Princeton for $275/year, I'd sure as hell get it.

Makes me wonder, though -- what am I paying taxes for? I thought that was supposed to go to the library.

Re:... for which they paid heavily

[khallow]

One of the tangental problems is that this country has shrunk government services and we no longer have free libraries the way we used to. Or free education.

There's never been "free" libraries or education. Someone pays for it. That money goes to other things now.

Re:... for which they paid heavily

[the eric conspiracy]

The NY Public Library offers JSTOR.

As for free medical libraries, The NY Academy of Mdicine Library in NYC is open to the public.

Re:... for which they paid heavily

[the eric conspiracy]

I really doubt downloading all of JSTOR is a legitimate use case.

Re:... for which they paid heavily

[Mitreya]

if either Holder or Ortiz had hacked systems and exceeded their authorized access as Swatz did, playing a cat&mouse game with sysadmins at their home institutions and JSTOR, they'd have likely faced the same consequences as Aaron.

Because prosecutors are well known to go hardest for other prosecutors (their colleagues!). Nothing builds a career like zealously hounding your colleagues at work.

That's the whole problem -- prosecutors are effectively encouraged to go after people with minimal amount of clout. The conviction rate counts the same, but it comes with lesser risk of jeopardizing their career.

Re:... for which they paid heavily

[theNAM666]

See my comment above in this thread. The pie-in-the-sky argument that they'd have been immune as part of Justice is ridiculous and misleading and part of the FUD: again, the article here tries to claim that Holder & Ortiz had access that AS didn't, when in fact, as a Stanford alum, he had exactly the same privileges and responsibilities that they did. This is deceptive; this is misprepresentation; this is the essence of FUD.

Re:... for which they paid heavily

[MouseTheLuckyDog]

JSTOR is a not-for-profit and dropped the charges against him. They offer some articles to individuals for free, and now have opened more articles via the Alumni Access program.

They offer free access now because of Shwarz's actions. They are non-profit yes, but so is NAMBLA. It doesn't make them saints. In fact a lot of their money is funneled back to the publishers. But the biggest question is: If they dropped the charges why was he being prosecuted? If that is not prosecutorial abuse of discretion I don't know what is.

Re:... for which they paid heavily

[nbauman]

"Free libraries" and "free education" are terms that are used in developed societies to refer to services that are provided by the government through taxes, with no charge to the user at point of delivery.

Re:... for which they paid heavily

[tragedy]

I'm curious. If the grants that pay for your salary and equipment are public money, as you seem to imply, what do you think entitles _you_ to that money? Is there meant to be a quid pro quo, and, if the money is public, who is meant to be the beneficiary?

Re:... for which they paid heavily

[khallow]

And as I pointed out, the term "free" is being misused here. It is especially relevant since you were complaining that free libraries and such were less "free" than they used to be.

Plus, you claimed that someone shrunk government services. That didn't happen in total, though obviously the libraries didn't fare so well. Instead, the funding has become distributed in a different way. Consider that in 1997, New York State and its local governments spent roughly $150 billion on state gross product (SDP) of $660 billion. That's roughly a quarter. By 2009, they had spent $280 billion on SDP of somewhere around $1,100 billion. Still roughly a quarter. More of it is probably spent on interest payments (in other words, government service from past years) and pension liabilities, but it's still being spent.

Perhaps, these budgets have dropped substantial since 2009, but at least for twelve years, they held pretty steady.

Re:... for which they paid heavily

[nbauman]

You are free to create your own language. I will continue to use the phrase "free library," which most Americans use and understand.

I don't have an item-by-item breakdown of the state budget. As I understand it, over the last 30 years, spending on education, libraries, housing, and the social safety net has gone down, while spending on police and prisons (a significant part of which is drug offenses) has gone up. Health care has also gone up.

Re:... for which they paid heavily

[tragedy]

Well, what can I say to such a rational and well-reasoned argument.

Let's nip this FUD in the bud

[theNAM666]

Volokh analysis of what Swatz actually did, with detailed history:

http://www.volokh.com/2013/01/14/aaron-swartz-charges/

I assure you, an MIT enrollee or grad would have gotten the same treatment.

Re:Let's nip this FUD in the bud

[symbolset]

Volkoh suffers from the same mental illness as Ortiz and Holder: they are all lawyers.

Re:Let's nip this FUD in the bud

[theNAM666]

My point is that the post claims that Swartz did not have the same access as Holder and Ortiz, when in fact, as a Stanford alum and a visiting scholar at Harvard, he had pretty much the same access. I did not endorse Justice's action. I am pointing out that the article is based on a factual misrepresentation, which is evidently intentional, given that Stanford has been removed from its list of JSTOR institutions.

FWIW, I tried the same thing Aaron did while at Berkeley, and had the sense to stop when I realized there were limits in place.

Re:Let's nip this FUD in the bud

[nbauman]

My big objection to the Volokh article is that he claims the laws were passed democratically.

Given the lobbying that goes on to give each special interest special favors in the copyright laws, democracy has very little to do with it.

Re:Let's nip this FUD in the bud

[theNAM666]

Fair enough point. Volokh doesn't address. Thanks for pointing it out.

Re:Let's nip this FUD in the bud

[Sabriel]

I'm curious. Does anyone know what considerations were given by the prosecutors towards diversion (e.g. drug offenders may be diverted to drug rehabilitation clinics, etc)?

HOW DO YOU CHANGE THE LAW?

[aissixtir]

It`s not the fault of those who enforce the law. The weight falls on our shoulder because we activily participate into the political arena 1 day every few years to vote for an incompetent guy and then we sit back in front of our laptop watching movies until the next elections. When was the last time you did anything to change something?!? WHEN ?

Re:HOW DO YOU CHANGE THE LAW?

[taxman_10m]

Didn't Abe Lincoln say something about the best way to change a bad law is to enforce it strictly?

Not interested in excuses

[rastoboy29]

Prosecutors have been running rampant all over the country for years now for their personal aggrandizement.  This time they just chose a very public and sympathetic target.

Hang 'em all.

35-50 years

[Anonymous Coward]

From the second Kerr link:

Why are you hearing that Swartz faced 35 or 50 years if it was not true? First, government press releases like to trumpet the maximum theoretical numbers. Authors of the press releases will just count up the crimes and the add up the theoretical maximum punishments while largely or completely ignoring the reality of the likely much lower sentence. The practice is generally justified by its possible general deterrent value: perhaps word of the high punishment faced in theory will get to others who might commit the crime and will scare them away. And unfortunately, uninformed reporters who are new to the crime beat sometimes pick up that number and report it as truth. A lot of people repeat it, as they figure it must be right if it was in the news. And some people who know better but want you to have a particular view of the case repeat it, too. But don’t be fooled. Actual sentences are usually way way off of the cumulative maximum punishments.

So if it serves as a deterrent we should be fooled, but if it applies to ourselves we shouldn't be? Personally I would be scared shitless if I saw the DOJ itself make statements like that about me. Just be truthful. The US already is highly punitive [pdf, see page 11-12] compared to other western countries (27 times as high as where I live). If that by itself doesn't work as a deterrent then exaggerations probably won't do much either, apart from increasing the likelihood of people killing themselves.

If bullying is part of the system, then yes, the system should be targeted. But not just by outsiders, the prosecuters themselves should have opposed the system instead of participating in the bullying. And as they did participate they should be targeted as part of the system.

Re:35-50 years

[blueg3]

I believe part of the subtext of the article is that that whole approach is stupid. (Of course, I'm biased. I think publishing a number like that that has no basis in reality is stupid.)

To be fair, a person who is being intimidated by a prosecutor should have a lawyer handy, and the lawyer should explain all this. The press is free to report pretty much any crazy numbers they want, and the articles they write will largely be read by people without any legal knowledge and no lawyers hand. Stupid? Sure. But at least there's some basis for the double standard.

Carmen Ortiz, Psychologist?

[Alien Being]

I guess she should know a thing or two about mental illness since she is, herself, a sociopath.

A bit disingenuous

[russotto]

It's a bit disingenuous to drive someone to suicide and then claim that the fact that they did so means they were mentally ill. It's kind of like throwing someone in the East River wearing concrete shoes and blaming them for being unable to swim.

Re:A bit disingenuous

[sgt_doom]

Well said, very well articulated, good citizen.

http://whowhatwhy.com/2013/01/17/carmen-ortizs-sordid-rap-sheet/

Re:A bit disingenuous

[bytesex]

Nuance exists for a reason, you know. People do *not* normally commit suicide, even if they're in a confrontation with the DoJ. People however, *do* normally drown when their feet are cast in concrete.

Re:A bit disingenuous

[guspasho]

I've been reading through here and waiting for someone to make this point. So Ortiz thought Swartz was mentally ill. Doesn't that make Ortiz even more culpable for his death through her actions?

Re:A bit disingenuous

[emorning]

People however, *do* normally drown when their feet are cast in concrete.

No they dont.
You have to also toss them into water that's deep enough to drown them.

Ortiz was aware that Swartz suffered from depression and pursued outrageously exaggerated charges against him anyway.
She essentially knew he was wearing concrete shoes and tossed him overboard anyway...

Oritz "terribly upset" (about her career)

[boorack]

Carmen Oritz routinely destroys other people lives in order to advance her career without any signs of conscience. For me this is psychopatic behavior. And if her career is the only thing she actually cares of, I'd even call her narcissistic psychopath. Unfortunately, the economic and political system in US promotes psychopaths at the cost of basically everyone else.

I wouldn't pay much attention to what she has to say, she just covers her ass. Psychopaths typically don't show any remorse for their actions - when caught on misbehaviors and lies, they tend to cover it with even bigger bunch of lies.

Re:Oritz "terribly upset" (about her career)

[Anonymous Coward]

Carmen Oritz routinely destroys other people lives in order to advance her career without any signs of conscience.

Also known as "prosecuting people". And to think, all those poor people did was break the law.

Re:Oritz "terribly upset" (about her career)

[jedidiah]

Yes. Because we all know that everyone is presumed guilty and everyone that is ever noticed by the state deserves to be destroyed.

There is some irony that this is playing out in Boston.

Re:Oritz "terribly upset" (about her career)

[skywire]

The formal features you cite are not of themselves sufficient. Only if they are comprised of and used by individuals with a sense of proportion and fairness will there be justice. That's what this story is about.

Re:Oritz "terribly upset" (about her career)

[Anonymous Coward]

your comment seems purposely obtuse. but maybe you're
just saying that a prosecutor's job is to throw the book at
everybody paying little to no heed to the evidence.

the reason this seems obtuse to me is it seems clear to
me that that would not be in accordance to civil & democratic
society.

Re:Oritz "terribly upset" (about her career)

[sgt_doom]

Thank you, good citizen!

http://whowhatwhy.com/2013/01/17/carmen-ortizs-sordid-rap-sheet/

Re:Oritz "terribly upset" (about her career)

[Anonymous Coward]

How fucking insightful for you to describe the status quo of legal recourse available to the accused. Particularly in a discussion about the status quo of "due process" being inexcusably distinct from anything that resembles justice.

Maybe you should familiarize yourself with the "reality", where stereotyping disadvantaged minorities is obscured and dressed up as a scientific process using "criminal justice education" to rationalize cognitive biases & prejudice. The "reality" where law enforcement officers regularly collude with each other in manufacturing evidence, covering for each other's unprofessional behavior, and suppressing exculpatory facts.

The "reality" where the role of prosecutor is represented almost exclusively by lawyers with political ambitions, more concerned with making a name for themselves as being "tough on crime" than on ensuring that the outcome of the process is just. The "reality" where prosecutor's office's have a back log of drug offenders that undermine their ability to give any single case their full attention, and as a result they simply sandbag every defendant during the grand jury arraignment with as big of a laundry list of charges as they think they can get away with, without being accused of prosecutorial misconduct. The "reality" where any rational defendant has by this point been completely disillusioned with any impression they had about receiving a fair trial, and is now faced with the prospect of taking a plea bargain for 1/10 of what they are threatened with, or facing down against a gang of lying sociopaths in uniform on the witness stand corroborating each other's stories.
http://youtu.be/O5eOknaXgYU
http://www.stopresisting.net/

The "reality" where "evidence" is rarely ever critically evaluated by anyone other than the prosecutor & public defender when negotiating a plea bargain deal. The same "evidence" which is usually more representative of law enforcement confirmation bias than of innocence or guilt. The same "evidence" which is usually based on un-sound assumptions and dubious conclusions. The same "evidence" which is frequently composed of "expert witnesses" of dubious credibility, and eye witnesses, the memory of whom is known to be unreliable and easily discredited?

http://www.ncids.com/forensic/fingerprints/fingerprints.shtml
http://www.winnipegfreepress.com/opinion/westview/Hair-and-fibre-evidence-further-discredited-in-the-US--162726896.html
http://www.chicagotribune.com/news/watchdog/chi-010114roscetti,0,5511992.story
http://en.wikipedia.org/wiki/Comparative_bullet-lead_analysis
http://www.propublica.org/article/no-forensic-background-no-problem
http://en.wikipedia.org/wiki/Salem_witch_trials

The "reality" where where a "judge" is only involved in a small minority of cases except to rubber stamp a plea bargain and preemptively close the door on appeals by getting the accused to repeat the magic words & nod their heads? The "reality" where a "jury" is almost never involved at all, and is only allowed to be seated after being purged of critical thinkers. The "reality" where a jury trial is a popularity contest which allows for wealthy criminals to walk, and poor looking defendants to be used as punching bags for the jurors only frustration with Law Enforcement disfunction?

The "reality" where the "defense" available to the rich can intimidate a prosecutor's office in to a slap on the wrist, while the public defenders available to the poor provide the same quality of legal services as HMO's provide medical service?

"Accused" might as well be a synonym for "poor and fallen out of favor with the local political machine". The "law" has become nothing more than a crack in the foundation of "unalienable rights" which has been progressively wedged and split open by the war on drugs and war on terror, leaving nothing behind except a base and contemptible political power structure.

That's the "reality" but don't let that get in the way of your pithy sarcasm.

Re:Oritz "terribly upset" (about her career)

[celle]

"For me this is psychopatic behavior."

      Doesn't that classify her as mentally ill. Time to lock her up, preferably with the people she put in.

Re:Oritz "terribly upset" (about her career)

[anagama]

That's a great article. I was particularly surprised to learn about the civil forfeiture procedure:

In 2009, the 69-year-old owner, Russ Caswell, received a letter from the DOJ indicating the government was pursuing a civil forfeiture case against him with the intention of seizing his family's motel - it was built in 1955 by Russ's father - and the surrounding property. Ms. Ortiz's office asserted that the motel had been the site of multiple crimes by its occupants over the years: 15 low-level drug offenses between 1994 and 2008 (out of an estimated 125,000 room rentals). Of those who stayed in the motel from 2001 to 2008, 0.05% were arrested for drug crimes on the property.
***
Mr. Caswell's family-owned and -operated property was worth approximately $1.5 million with no mortgage - making it a perfect target. Without a bank involved, the likelihood of the Caswells' mounting a drawn-out legal defense was miniscule. Through a spokeswoman, Ms. Ortiz's office released a statement at the time of trial on why they were choosing to pursue Mr. Caswell:

"The government believed that this was an important caseâ¦because of the deterrent message it sends to others who may turn a blind eye to crime occurring at their place of business."

Mr. Salzman doesn't buy the message of deterrence. He asserts that just up the street, a Motel 6, Walmart and Home Depot all operate with similarâ"in many cases higherâ"rates of drug crimes on their properties, referencing numbers obtained from the Tewksbury Police Department.
***
But those corporations have extensive financial and legal resources, and would put up much more of a fight than a small business owned and operated by a single family. Before a public interest law firm took on his case, Mr. Caswell had already spent over $100,000 and was near bankruptcy.

http://whowhatwhy.com/2013/01/17/carmen-ortizs-sordid-rap-sheet/

Re:Oritz "terribly upset" (about her career)

[the eric conspiracy]

The alternative view is Russ Caswell is running a public nuisance with included hosting a meth lab and crack addicts.

It isn't too surprising that the community that hosts it is trying to get rid of it.

Selectmen David Gay and Scott Wilson were willing to issue statements regarding the case.

âoeFor the twenty-one years that I have lived in Tewksbury, the Motel Caswell has had a negative reputation due to serious crime issues on its property,â said Gay. âoeI am not at all surprised by the federal governmentâ(TM)s actions.â

Re:Oritz "terribly upset" (about her career)

[anagama]

That doesn't explain why WalMart, Home Depot, and Motel6 -- all of which have MORE crime than Caswell's property -- get no scrutiny. It comes down to the fact that the Feds will share the money they steal with the local government and that the aforementioned mega-corps have the resources to fight off the Feds.

So, a local government with some prejudice toward Caswell and the poor people he rents to, can basically hire the Feds to steal his property while ignoring bigger issues that go on with other "respectable" businesses.

That makes me even more cynical, not less. Welcome to fascism from the local government to the top. Favored corps get special treatment and everyone else gets fucked.

Re:Oritz "terribly upset" (about her career)

[sjames]

You may not know this but the process of being prosecuted is nothing like pleasant or harmless to the person prosecuted even if they are ultimately found not guilty.

For that reason, we like for prosecutors to be pretty damned sure before an indictment is sought. It is also preferred that the charges be proportional and appropriate to what the defendant is actually thought to have done.

When prosecutors stray from that by inflating charges or by trying to get a weak case past the court, they cause a great deal of unjustifiable harm to a lot of innocent people (or cause great and disproportionate harm to people who only committed a minor offense). At worst, they actually do get one past the court and an innocent person goes to prison.

Neither of those is consistent with justice.

Meanwhile, you may also be unaware that the courts are supposed to be the last resort for justice used only when all else fails. That is true of both criminal and civil court.

Re:Oritz "terribly upset" (about her career)

[curious.corn]

Where are mod points when you need them?! +1

Re:Oritz "terribly upset" (about her career)

[felix rayman]

I don't see how any of your argument applies to the Swartz case. Swartz makes the worst poster boy for criminal justice reform ever.

He was not a disadvantaged minority. He was not poor, was not a "poor looking defendant". He was a rich white college educated adult. He was a faculty member at Harvard University. It was not a case of manufactured or suppressed evidence. There was solid evidence that he committed the crimes of which he was accused. He was not forced to use a public defender.

And most importantly, this was not a good example of the abuse of plea bargaining. The cases where the plea bargain system are most troublesome are the cases where the defendant has to make the choice between a guilty plea and a trial - while sitting in a jail cell unable to make bail. The choice Swartz faced was a fair one. The choice someone makes when faced with a guilty plea to a felony and a 6 month sentence, or who knows how long in jail during the trial and sentencing is much less fair.

As Orin Kerr wrote:

These sorts of tactics have been going on for years, without many people paying attention. If we don’t want a world in which prosecutors have these powers, we shouldn’t just object when the defendant in the crosshairs is a genius who went to Stanford, hangs out with Larry Lessig, and is represented by the extremely expensive lawyers at Keker & Van Nest. We should object just as much — or even more — when the defendant is poor, unknown, and unconnected to the powerful. To do otherwise sends an extremely troubling message to prosecutors that they need to be extra sensitive when considering charges against defendants with connections. We have too much of a two-tiered justice system already, I think.

So much of the response to the case - not yours specifically - seems to be simply tribal. It doesn't seem that people in general care that prosecutors use these powers every day against poor or disadvantaged people. It seems to bother people here that the prosecutors dare use these tactics against one of us.

Re:Oritz "terribly upset" (about her career)

[the eric conspiracy]

Hmmm I thought that the Supreme Court ruled that you couldn't take property for redevelopment using eminent domain.

Ah yes ....

http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London

A lot of states have changed their redevelopment laws because of this.

Seems to me your cynicism is a tad overdone.

heard this one before...

[Libertarian001]

"...blame the system and aim to reform the system; don’t think that this was just two or three prosecutors that were doing something unusual. It wasn’t."

Soooooo, if I understand correctly, she was just following orders...

Re:heard this one before...

[blueg3]

No, you're deliberately misinterpreting it in order to make a pass at scoring some Godwin points.

The point is that the prosecutor's behavior is not "as ordered", but rather is simply the norm for how prosecution is done. If you find that unacceptable, the appropriate path is to try to fix the use of these tactics in general, rather than singling this out as a specific case with a particular problem.

Re:heard this one before...

[Libertarian001]

No, I couldn't care less about Godwin. Not all of us give a shit about mod points. In this particular instance, nothing about it was normal. They went out of their way to go after the guy, even after being asked to drop it. There are actual crimes that they could be prosecuting, but this is the crap they go for instead.

Re:heard this one before...

[flonker]

"Just following orders" is wrong not because someone higher up gave the order. It's wrong because despite the government condoning the action, the person doing it should know better. Therefore "everyone does it" is pretty much the same thing as "just following orders".

Re:heard this one before...

[blueg3]

No, I couldn't care less about Godwin. Not all of us give a shit about mod points.

Not mod points, Godwin points. You're baiting a comparison to Nazis.

In this particular instance, nothing about it was normal. They went out of their way to go after the guy, even after being asked to drop it.

Asked to drop it by whom? JSTOR? This isn't a civil case, it's criminal. JSTOR is only one of the injured parties, and the state doesn't need any injured party's permission to bring charges.

They didn't go out of their way to go after him, they just went after him. It's their job, it's how prosecution is done, and it's normal. You can think it's unfair, but you shouldn't think that it's unusual just because it got media attention. It's not.

There are actual crimes that they could be prosecuting, but this is the crap they go for instead.

This was an actual crime. It's their job to prosecute crimes. Swartz even knew full well that it was criminal. You may not think it should be a crime -- and maybe it shouldn't -- but Swartz is not a special case here, either. The same actions would be considered a crime regardless of who committed them.

Re:heard this one before...

[nbauman]

No, she was just following her career and financial incentives.

Re:heard this one before...

[serviscope_minor]

If you find that unacceptable, the appropriate path is to try to fix the use of these tactics in general, rather than singling this out as a specific case with a particular problem.

Why not single out the evil doers like Oritz? Why should they get a free pass just because some other people are evil as well. If scum like these prosecutors had to actually face consequences for their actions, you can be sure that the "system" would change pretty quickly.

Of course, so many from Wall St have gone to jail

[rbmyers]

What baloney. Prosecutors make decisions about whom to go after and for what all the time. The law is the law is just total BS.

I will repeat, so I can be labeled as flamebait again, that the real culprit here is Mr. Unequal Justice himself, the POTUS and his slimy DoJ, of which the Boston prosecutors are just cogs in a smoke manufacturing machine.

JSTOR

[the eric conspiracy]

I am an alumnus of one to the members of the JSTOR alumni program (Yale).

This article is VERY misleading.

JSTOR is a non-profit company founded by an ex-president of Princeton University aimed at reducing costs associated with maintaining large archives of journals at universities.

The alumni access to JSTOR described was part of a PILOT PROGRAM. This has been extended to all institutions that participate in JSTOR.

In addition JSTOR had nothing to do with the criminal charges brought against Aaron Shwartz. JSTOR asked that no charges be brought.

This was solely the result of actions taken by MIT and the DOJ.

JSTOR in fact is very inclusive. They have programs that provide access to secondary schools, public libraries and so forth.

http://about.jstor.org/fees/13006#tab-fees

Also JSTOR hosts significant public domain content that is available free to anyone.

Re:JSTOR

[sgt_doom]

I think you misunderstand! This article isn't an attack on JSTOR, but a valid sally against both Holder and Ortiz.

Re:JSTOR

[girlinatrainingbra]

Thank you anonymous for this information. Greg Maxwell's little essay on the linked page gives much more detail, along with a useful and coherently paced explanation behind maxwell's decision to publicly release his own "spidered" JSTOR collector of the philosophical transactions of the royal society. Thanks, again!

The whole outrage over this makes me angry

[Sierran]

...it's not like there haven't been young people committing suicide after being railroaded on charges for things they absolutely didn't do, in this country, for years.

But they're minorities and poor and must have been guilty, right?

Let a tech-elite white kid run afoul of the legal mechanisms, though...

Re:The whole outrage over this makes me angry

[Elbereth]

Yeah, it reminds me of Missing white woman syndrome, a strange media bias that over-represents attractive, young, upper-middle class woman, in cases of abduction. Swartz obviously wasn't a missing white woman, but a similar medias bias comes into play. People cast him as an innocent martyr, squashed under the boot of an authoritarian system, ignoring all of the victims that weren't upper-middle class, professional males.

You can look at it as media bias, racism, classism, tribalism, or a combination of all of the above. I guess I consider it "all of the above".

Re:The whole outrage over this makes me angry

[Elbereth]

And you are surprised that this story is popular?

Exactly the opposite. I would be incredibly surprised if it weren't popular. That's exactly my point. It plays into the socioeconomic demographics of Slashdot so well, there's no way that Slashdot would ever let this story go, without it taking up a month's worth of analysis by outraged bloggers. Why do they obsess over this guy, and not over all the others that come before him? That's what my post is about: do they identify with him or is there a deeper reason?

Still, a truly cynical person would point out that nothing ever changes unless the middle class can be mobilized, making cases like this very important. Social justice for the poor is impossible, unless the middle class is also being persecuted.

Prosecutorial Discretion

[tukang]

What a bunch of crap. The system allowed for Mrs. Ortiz to not Charge Aaron at all if she so chose. Certainly, she didn't have to charge him with a dozen of felonies. http://takingnote.blogs.nytimes.com/2013/01/18/aaron-swartz-and-prosecutorial-discretion/

Following Orders

[RichMan]

"It's not my fault, I was just following orders."

I thought as a society we had long ago decided that was not an excuse. I thought all lawyers on whatever side were agents of the judicial system and were looking for justice.

It seems our society has forgotten something. If you are doing wrong you are responsible, no matter the chain of command, it is an individuals responsibility to not do wrong and to reject a bad system. This should go doubly so for any agents of the justice system.

Shame on the system. Shame on the individual.

Re:Following Orders

[mbone]

"It's not my fault, I was just following orders."

I thought as a society we had long ago decided that was not an excuse.

Haven't you heard ? In this century, the US only prosecutes those who are following orders. Those giving the orders are apparently totally immune. This started with Abu Graib and continues, literally, to this Friday.

Re:Following Orders

[cpghost]

I thought as a society we had long ago decided that was not an excuse. I thought all lawyers on whatever side were agents of the judicial system and were looking for justice.

You are confusing justice with the judicial system. The former is an ideal, the latter the naive attempt at delivering it. Give it some time, and every judicial system (both the judiciary and legislative branch) will inevitably turn justice upside down and morph into an instrument of power and oppression. We're human, that's the way it is. Sadly.

Re:Following Orders

[guspasho]

We had long ago decided on lots of things, but government and society changes their minds. The principles upheld in the Nuremberg Trials are one of those things that time and again it's been demonstrated that we as a society have changed our minds about. We have become the enemy.

next steps? Sue Ortiz, JSTOR, and MIT.

[bzipitidoo]

What should happen next?

• Fire Carmen Ortiz, Steve Heymann, and perhaps Scott Garland.
• Disbar and bring charges against Ortiz and Heymann for Attorney Misconduct. Also hit them with Involuntary Manslaughter.
• Sue JSTOR for violations of FOIA requests. Sue them for theft, and perhaps racketeering. Also sue them under the anti trust laws for price fixing.
• Sue MIT as well, for contributory negligence.
• Change the terminology. There should be no language anywhere in the laws that equate copying with theft. This crime of "data theft" should be called "data copying".
• Change the deals, and the laws. No private publisher should have any legal grounds for locking away research paid for by the public.

If any of this seems over the top, consider how over the top the accusations and threats against Swartz were.

I'm wondering about Senator Cornyn. Could he actually be in support greater intellectual freedom? It seems 99% of politicians and judges are crusty old fools who blindly swallow publisher propaganda, and their knee jerk reaction to any alleged copyright violation is to believe the accusers and join the pack screaming that it's "theft" and howling for the blood of the accused. A demonstration of this is Ortiz's profound words of wisdom: "Stealing is stealing". But perhaps Cornyn, who sponsored PIPA, is having a change of heart?

Can't have it both ways.

[Dereck1701]

" Kerr says that, as the law stands, the charges against Swartz were "pretty much legit," and that the law itself should be the target of the internet community's angst,"

No, BOTH should be the target of the "internet community's angst" and societies in general. One can't happen without the other, prosecutors continually demand more harsh and less restrictive laws "to catch the bad people". And when it is proven beyond all doubt that they targeted the wrong people with their near unlimited "proprietorial discretion" they demand complete indemnification from criminal/civil responsibility because prosecution of the "bad guys" would be imperiled if they had to worry about their freedom & livelihood. They can't have it both ways, at least not in a free & just society. They can either have extensive powers with severe penalties if they mess up, or they can have very limited powers with limited liability. To do otherwise breeds nothing but corruption & imprisonment of the innocent.

Re:Of course, so many from Wall St have gone to ja

[ub3r n3u7r4l1st]

And the international bankers that are bankrolling this POTUS.

Google could get this law changed

[whoever57]

If Google put into their website terms that anyone in law enforcement or a member of congress was not allowed to use Google's services, how long would it be before breaking a site's terms was no longer a criminal act?

Actually, even if Google does not do this, how about a grassroots campaign to do it?

Re:next steps? Sue Ortiz, JSTOR, and MIT.

[Maudib]

Here is the petition to fire Ortiz:

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

JSTOR Alumni Access Fee

[theodp]

How to Subscribe: "The Alumni Access participation fee for subscribing institutions is 10% of the institution's total AAF. Subscribing institutions must support the bifurcation of alumni from their main JSTOR account via IP based access methods."

Re:Of course, so many from Wall St have gone to ja

[rbmyers]

Well, at least someone gets it.

Re:Of course, so many from Wall St have gone to ja

[the eric conspiracy]

International bankers donated far more to the last Republican presidential candidate than they did the current POTUS.

I'm surprised Cornyl doesn't autoignite

[paiute]

Cornyn should shut his fat hypocritic yap. It's his kind that wants to make IP abuse a criminal matter where it should be civil. He's in the crowd who would make violation of TOSs a federal crime. Now he is crying crocodile tears that the Justice Department applied laws he rabidly supported?

JSTOR is a goldmine

[Anonymous Coward]

JSTOR makes a fortune for those associated with the organisation. Do not let the 'non-profit' tag fool you for one moment. This simply means the corrupt scum that oversee the operation gain all their profit in the form of massive salaries, consultancy fees, and expenses pay-outs. Of course the MIT higher-ups, with their hand in the till, exploded when they learnt Aaron was acting to end their gravy train.

JSTOR needs to be seen in the light of any similar 'mob' operation. JSTOR gathers up intellectual work that is not theirs in the first place, and is largely by authors that see no payment, and want their work freely available. Then JSTOR demands 'protection' money to gain access to this resource. When anyone crosses JSTOR, they take him 'out back' and ensure not only does that person never bother them again, but the lesson is learnt by anyone else who might challenge their 'operation'.

We see the same behaviour with organisations that claim to represent 'artists' in most non-English speaking nations, and Canada. We see the same behaviour with the giant State-approved charities (the ones that tend to have a royal patron at their head). the non-profit label is the ultimate dream for the corrupt criminals. It means no oversight. It means the assumption of do-goodery. It means continuing giant pay-outs to those that are associated with the organisation, regardless of the financial climate.

JSTOR butchered a young man purely to protect the money flow that enriches the bank accounts of JSTOR's controllers. What is a life worth? People are frequently murdered for thousands of dollars. When hundreds of millions are involved, you think anyone is going to think twice before squashing a 'problem' person like a bug. Grow up!

Re:JSTOR is a goldmine

[Anonymous Coward]

Define fortune. I think I heard they charge MIT a total of $50k per year for access. That's peanuts.

But let's say it isn't, how much in your ideal world should the people behind JSTOR be compensated for their work?

Outstanding blog posting, Soulskill

[sgt_doom]

..and theodp remarks are brilliant and spot on!

Naturally, one would expect AG Holder, who made his big bucks at Covington & Burling, defending Chiquita (formerly United Fruit) and Coca Cola and the oil companies, for their hiring of assassins to murder labor organizers, protesters and pro-democracy activists in South America and West Africa. And please don't neglect the record of Ortiz:

http://whowhatwhy.com/2013/01/17/carmen-ortizs-sordid-rap-sheet/
And please let us never forget the ultimate entitlement:

The "right" of the banksters to "create money" and make the rest of us pay them for it! (Unconstitutional, as the US Constitution only gives the right to coin the currency to the gov't, not to any private concern --- Presidents Lincoln and Kennedy exercised that constitutional right, and history shows us their horrendous outcomes.)

Re:next steps? Sue Ortiz, JSTOR, and MIT.

[sgt_doom]

God bless you, bzipitidoo, God bless you....

http://www.democracynow.org/live/democracy_now_livestream_of_aaron_swartz

The Aaron Swartz Memorial livestream

[sgt_doom]

http://www.democracynow.org/live/democracy_now_livestream_of_aaron_swartz

Re:next steps? Sue Ortiz, JSTOR, and MIT.

[symbolset]

Here is the equivalent petition for Steve Heymann:

https://petitions.whitehouse.gov/petition/fire-assistant-us-attorney-steve-heymann/RJKSY2nb

Heymann's still needs more signatures to get over the minimum required for a mandatory response.

Re:next steps? Sue Ortiz, JSTOR, and MIT.

[blueg3]

Sue them for theft, and perhaps racketeering. Also sue them under the anti trust laws for price fixing.

I get the suspicion you have no idea what JSTOR is or what it does.

Re:next steps? Sue Ortiz, JSTOR, and MIT.

[Anonymous Coward]

"Sue JSTOR for violations of FOIA requests. Sue them for theft, and perhaps racketeering. Also sue them under the anti trust laws for price fixing."

They are non-profit and anyone else who so desired could gather up the paper versions of copyright-expired journals, digitize the journals themselves, and put them up on a web site for free. They could also negotiate their own legal agreements with publishers to digitize and make publicly available the papers that are still in copyright. What's that? Digitizing papers and indexing them is time consuming and expensive to do right, lawyers charge money for negotiations, and running a web site also costs money? Well, I guess you could set up a non-profit organization and accept donations to fund the whole thing ...

Oh, wait.

Suicide works! (sometimes)

[Alex Belits]

I believe, I have to bring to everyone's attention one uncomfortable fact -- a suicide of a person was sufficient to bring important issues to the attention of public and institutions when everything else utterly and completely failed.

Now, everyone who ever repeated anti-suicide formulas about suiide being inherently cowardly, selfish, pointless, etc. act, is welcome to kiss his dead ass. While it's true that most suicides result in nothing remarkable, so do most lives.

On a lighter note, Aaron Swartz is now both a hero and an hero.

Re:Suicide works! (sometimes)

[celle]

"On a lighter note, Aaron Swartz is now both a hero and an hero [encyclopediadramatica.se]."

        He's also a martyr.

  Remember Aaron!!
  Remember Aaron!!

Re:Of course, so many from Wall St have gone to ja

[rbmyers]

That was because of taxes and because they were insane enough to think that Americans would be dumb enough to fall for Mitt Romney.

Make no mistake. Obama 2008 was a wholly-owned subsidiary of Wall Street. He expected raising money from them to be just as easy the second time around, because he had done everything they asked. They wanted more.

I've spent so much time publicly cataloging the long list of lies, grotesque appointments, and errors of omission and commission that I'm not going to repeat them for a quoter of irrelevant statistics such as you are.

The Dow was down 313 points the day after Obama was elected. They had bet on the wrong horse the second time around. Why haven't we seen a temperamental fit of reprisal from Obama? Why should he bother? He won't be running again. People who embarrass him, though, like Aaron Swartz, Bradley Manning, and Julian Assange,...now there's something worth getting worked up over.

The REALLY grotesque irony is that Romneybot would have been a disaster for Wall Street. As it is, we never saw meaningful Wall Street reform and we never will, for reasons that have been crisply explained by others.

"Blame The Sysetm"? NO. Blame the Jurors First.

[VortexCortex]

The one check that the founders of the US government gave the people is the power for a jury to refuse a law be upheld. That is the only protection we have against the rule of unjust law. In today's legal climate however, juries are instructed to behave precisely the way a Judge says, and jury findings can be ignored if it's found by the judge to oppose a matter of law.

Every trial should necessarily put the law on trial as well. We have plenty of law making bodies, but THERE IS NO LAW UNMAKING BODY. Not anymore. That power has been stripped from the people, and we can no longer perform our duty to keep the Judicial branch in line. Might as well not even have the requirement for a "jury of peers" anymore -- They're not educated as to their duty and are now used as mere formalities, coached by lawyers and judges alike to narrow their minds and even presume the law to be correct when deliberating! This is hardly different than a Judgement as a Matter of Law by a Judge!

Beside the Supreme Court, only Jurors can legally stand against the unjust rule of law and say, "This law is unjust, the consequence for breaching it are null and void."

Re:interesting

[celle]

"Nice to read Kerr's nuanced read of the situation, good antidote to the shrill, half-witted shrieking of the chronically ignorant slashdotters."

      Doesn't matter what is right under the law, what matters is what is right period. Bad law is meant to be broken and bad prosecutors enforcing said laws broken harder. Prosecutors are in a position to decide right from wrong, but do they if they remember how? Laws are guidelines, at least if you believe the Supreme Court that has been bouncing all over the place in this issue for the last hundred years, lately its been guidelines. If that's true the prosecutors are the primarily responsible party when pressing charges and making mistakes. Because it's standard procedure is a poor excuse for a bad decision because you didn't bother to think about the life you were ruining.

ambition

[celle]

"don’t think that this was just two or three prosecutors that were doing something unusual."

      I'm reminded of "If everyone jumped off a bridge...". The prosecutors decision making power based on the facts of the case got short circuited in the name of career building. Somehow I don't think anything good could've come of this anyway. That's besides the opposite ramifications of trying to shut someone up pointing out failures in proper government behavior in a tortuous way.(where's that quick and speedy trial)

PS I'm still reminded of "If everyone jumps off a bridge...".

Rather: Menace to Status Quo

[Mathinker]

Aaron Swartz wasn't a Unibomber. Having a "manifesto" does not necessarily mean you are a menace to society (or even to government), it only means you are a menace to the status quo. Government, unfortunately, cannot tell the difference; more and more, it seems that government views its mission as preserving the status quo rather than improving (or empowering people to improve) it.

Re:That's funny...

[Anonymous Coward]

Yeah i don't see anything that says a member of the justice system can browbeat a kid over some FILES into killing himself either. But that happened too.

And one of them is a lot worse than the other.

Re:next steps? Sue Ortiz, JSTOR, and MIT.

[MightyMartian]

Is that you, Tom Dolan?

As long as you like leopards

[MouseTheLuckyDog]

Federal/state laws are public domain and freely available online. (If you want to complain about copyrighted 3rd party codes being incorporated, complain about that). If you or your lawyer pay Reed Elevier money it's not because that's the only way to access that information.

No. The Federal/state statutes are easily accesible in book or electronic form. But the statues are only half the law. The rest of the law is embodied in precidents which determine how the statutes are applied. If you are aware of the precidents you can go and get actual trial documentation from the courthouse, assuming that it was not destroyed. But to dig through the rulings in different jurisdictions over a long period of time, without electronic access is at best problematic. Or as Douglas Adams put it:

"But Mr Dent, the plans have been available in the local planning office for the last nine months."

"Oh yes, well as soon as I heard I went straight round to see them, yesterday afternoon. You hadn't exactly gone out of your way to call attention to them, had you? I mean, like actually telling anybody or anything."

"But the plans were on display ..."

"On display? I eventually had to go down to the cellar to find them."

"That's the display department."

"With a flashlight."

"Ah, well the lights had probably gone."

"So had the stairs."

"But look, you found the notice didn't you?"

"Yes," said Arthur, "yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying 'Beware of the Leopard'."

Re:As long as you like leopards

[taxman_10m]

But to dig through the rulings in different jurisdictions over a long period of time, without electronic access is at best problematic.

So how does Westlaw do it?

Take responsibility or don't take action

[cats]

Yes, because intent is fundamental to how actions are perceived. Intent that is associated with an action is codified in our legal system as well. But thanks for stating the obvious!

The man obviously had mental problems and while taking his own life is tragic, he brought all of the actions that were carried out against him upon himself. He chose to break into private property, he chose to illegally access JSTOR and download the documents and then he chose to publish them.

If he disagreed with the law surrounding the openness of access to information, he should have worked within the perfectly valid and accessible confines of the law to get the law changed. Instead he chose to do something rash and poorly executed and was caught and put on trial for it as a result. He then, rather than own up to his actions and face the consequences, chose to take the coward's way out when confronted with actual hardship that would have resulted from his actions.

He is actually a very good example of what younger generations, with their sense of entitlement and lack of ability or desire to take responsibility for their actions is leading towards.

"The big, bad, government bullied him into killing himself!" cried his parents and friends, all the while failing to assign responsibility for all the actions he willingly took to land him in the situation he found himself in.

No doubt this will be modded down to oblivion because it is not a popular position to take anymore. To stand up for personal accountability and responsibility even in the face of bad laws. Yes the laws should be changed, but if you willingly violate them to prove a point, you should be aware of the consequences and be ready to own up and face them head on. Instead of what could have been a watershed moment regarding getting the law changed, we now have a dead guy and everyone involved in his life trying to absolve him of any responsibility whatsoever for his actions.

If you want to absolve him of guilt then you should be agreeing that he was mentally unwell and therefore not responsible for his actions instead of trying to lay blame at the feet of those charged with upholding the law. Don't even bother with the tired old argument about "unjust laws" and no duty to obey them. There is nothing about this law that is violating your fundamental civil rights as a human being. You're more than welcome to go get a JSTOR account and pay for access to their information. That line of reasoning cheapens the cases where we do have an actual duty to disobey unjust laws. This law is very clearly not one of those cases.

Bad Law Does Not Justify Intimidation

[Capt.Albatross]

"[Orin] Kerr says that, as the law stands, the charges against Swartz were "pretty much legit," and that the law itself should be the target of the internet community's angst, rather than the prosecutors."

There is no reason why both issues can not be considered together. There is more to moral behavior than following the letter of the law.

Re:next steps? Sue Ortiz, JSTOR, and MIT.

[Theaetetus]

What should happen next?

• Fire Carmen Ortiz, Steve Heymann, and perhaps Scott Garland.
• Disbar and bring charges against Ortiz and Heymann for Attorney Misconduct. Also hit them with Involuntary Manslaughter.
• Sue JSTOR for violations of FOIA requests. Sue them for theft, and perhaps racketeering. Also sue them under the anti trust laws for price fixing.
• Sue MIT as well, for contributory negligence.
• Change the terminology. There should be no language anywhere in the laws that equate copying with theft. This crime of "data theft" should be called "data copying".
• Change the deals, and the laws. No private publisher should have any legal grounds for locking away research paid for by the public.

If any of this seems over the top, consider how over the top the accusations and threats against Swartz were.

No, it seems over the top because it's clear you have no idea what those actions, charges, and torts you're talking about are. What grounds would you have to disbar Ortiz and Heymann over? Your reference to "attorney misconduct" requires a lot more than just "I don't like them" - look specifically in the Federal Rules of Criminal Procedure, and the ABA Model Rules of Ethics and find something they actually violated. And involuntary manslaughter? Let's be honest - you don't even know what that means. It simply doesn't apply here.

Elite education?

[whydavid]

"If Aaron Swartz downloaded JSTOR documents without paying for them, it would presumably be considered a crime by the USDOJ. But if U.S. Attorney Carmen Ortiz or U.S. Attorney General Eric Holder did the same? Rather than a crime, it would be considered their entitlement, a perk of an elite education that's paid for by their alma maters." http://about.jstor.org/alumni#Institutions-in-program Many universities on that "elite" list of institutions are public universities with very liberal admission policies, and alumni are "entitled" to use JSTOR after working for several years on a degree and presumably providing tens of thousands of dollars in tuition to the university who is paying the benefit. I know we have a lot of "Occupy" fans around here, but do we have to inject the us-vs-them narrative at every opportunity? Give it a rest. Of course, the author may just be taking their cue from the manifesto itself, where Mr. Swartz insisted that scientists and students have been "given a privilege" in being able to access research articles. Because, you know, the $23000 I made last year as a research assistant and PhD student was such a privilege for someone with an engineering degree and a family to feed. I'm also privileged to carry about $50000 in student loan debt between undergraduate and graduate studies...how wonderful. And when I graduate and hopefully find a good job, the narrative of how privileged and entitled I am will continue. Sadly, despite poor execution, Aaron had a great cause. Open access is the _only_ way to publish, and publishers like Elsevier that make it wholly impossible to do a decent research project without a large budget or affiliated institution are the devil. However, what "children of the global south (quoted from his manifesto)" really need is material like the Khan academy videos followed by Coursera/Udacity/etc... They aren't going to find their way to a better life in the stuffy annals of academic journals which most college graduates cannot comprehend (I'm working on a dissertation and still can't comprehend many of the articles in my field). If you want to make a difference, start asking researchers at your local university if they have considered publishing in open access journals. If not, ask them why. Ask them if they would consider paying the open access fee to a more prestigious journal so that their research can be read freely. At least ask them to do this for work with broad impact and importance, even if the fee isn't deemed worth it for every paper they generate. Finally, start hitting up the sources of funding and try to get them to include open-access requirements for research they pay for. There is a push to do just this with all federally-funded research, and I think that would be a great start. If you are feeling extra frisky, you might even consider making a donation to an open-access journal, but I think the "children of the global south" would probably appreciate a donation of food, water, or mosquito nets even more. It seems to me Aaron jumped to illegal activity when there were plenty of legal options left to pursue. That's unfortunate. This wasn't worth a human life, and the parties who blew this out of proportion should be ashamed of themselves. On the other hand, plenty of people have the 'hammer dropped' on them every day and don't commit suicide. So those in Aaron's inner circle also failed him. In the end, we all lose.

Re:interesting

[reboot246]

Prosecutors can also choose to not prosecute, or prosecute on a lesser charge. It's called prosecutorial discretion. The ones in question showed no discretion; they had an agenda.

The law is no excuse

[fox171171]

Saying it's not the prosecutors who were at fault, it was bad laws, is complete BS. Being lawyers, they should know it was bad law, and know that bludgeoning someone with bad laws is wrong. Instead of saying, this guy broke the law, but the law is bad, something should be done about it. They said let's bully him with bad laws, and see how many broken laws we can pile on top of the guy. If the prosecutors don't know right from wrong, they don't belong there.

Re:screw off crackers

[DCFusor]

That's right. Though currently in contempt of congress for FOIA violations on giving guns to mexican drug cartels, executive privilege and all that...and this guy is our attorney general? He's a KNOWN CRIMINAL! There isn't even any argument about that. But stupid - at least John Corzine stole 1.2 billion to walk away free with. Man, it must be good to be O's pal.

Re:interesting

[Dereck1701]

A jury the prosecutor arguably has an upper hand in choosing, and a judge that, in most jurisdictions, is predisposed to side with the prosecution to keep the police unions & politicians happy. Grand Juries are a pretty good example of how lopsided the justice system has become, at least in federal cases around 98% of grand juries side with the prosecution. While the grand jury system is intended to only prove "reasonable cause", even most prosecutors laud them as being a "rubber stamp". One NY judge suggested that "any prosecutor worth her salt can indict a ham sandwich".

Intimidation, but why?

[RepliCounts]

The federal government needed a human sacrifice, to restrict use of the Internet as a tool for human freedom (except in countries the U.S. doesn't like).

Aaron got picked because he was smart and motivated enough to get out of line, to stand out.

Who will be next?

A tribute to Aaron Swartz

[hotdogee]

I made this drawing as a tribute to Aaron Swartz: http://goo.gl/E3v6F
Blog Post(Taiwan): http://caq-qoq.blogspot.tw/2013/01/aaron-swartz.html