No Comment — January 18, 2013, 12:43 pm

Carmen Ortiz Strikes Out

Congress prepares to slap down prosecutors linked to the suicide of Aaron Swartz

U.S. Attorney Carmen Ortiz is fighting to hold on to her job, and to avoid an embarrassing grilling in Congress and possible professional disciplinary proceedings. Her prospects look grim. Rep. Darrell Issa (R., Calif.), chair of the House Committee on Oversight is pledging a vigorous and critical inquiry into her management of the dubious criminal prosecution of Aaron Swartz, one of the greatest computer prodigies of his generation, who committed suicide a week ago, apparently convinced that out-of-control prosecutors had destroyed his life. While Issa’s prior attempts to take aim at the DOJ have fizzled, this one is garnering significant bipartisan support: Zoe Lofgren (D., Calif.) is introducing “Aaron’s Law,” expressly overturning the interpretations upon which Ortiz proceeded against Swartz, while Jared Polis (D., Colo.) blasted the prosecutor’s case as “ridiculous and trumped-up.” Senator Elizabeth Warren (D., Mass.), who would have a say in the appointment of Ortiz’s successor, was unstinting in her praise for Swartz as a person who “wouldn’t hurt a fly” and whose acts demonstrated a “powerful commitment” to the betterment of society. Nancy Gertner, a recently retired federal judge who is intimately familiar with both prosecutors, lambasted them in a broadcast interview, parsing and ridiculing the claims they had made against Swartz and suggesting that the case should have been dismissed. At funeral services in Highland Park, Illinois, on Tuesday, Swartz’s father charged that his son had been “killed by the government.” While some might ascribe this to the anguish of a bereaved father, scholars and investigators poring over the record of the Swartz prosecution are increasingly shocked at the scope and outrageousness of the prosecutorial misconduct that he faced. 

Prosecutors Ortiz and Stephen Heymann turned to a standard trick while pursuing the case, mounting a total of thirteen felony counts against Swartz and arguing that his college prank aimed at “liberating” a collection of academic articles with little commercial value was a serious crime. Although each of these counts bordered on the preposterous, Ortiz and Heymann clearly reckoned that at least one or two would stick during the jury-room bargaining process. More to the point, they assumed that the risk of their success even on bogus charges would be enough to pressure Swartz into accepting a guilty plea on all the counts in exchange for a reduced sentence — which is what they offered him. The process was fundamentally corrupt and shameful. But observers of the American criminal-justice system also know that it was a common one.

The details that have emerged since Swartz’s death have only strengthened calls for the removal and punishment of the prosecutors. Swartz’s lawyers revealed, for example, that when their client’s suicidal nature was noted during their failed efforts to get the charges reduced to a misdemeanor level, Heymann responded by saying “Fine, we’ll lock him up.” Prosecutors were also revealed to have offered a reduced sentence, but only if Swartz pleaded guilty to every charge. This is clear evidence of oppression geared to advance prosecutorial careers, not to serve the interests of justice. Britain’s Daily Mail showed that Swartz was not the only youthful alleged hacker whom Heymann had hounded to suicide — twenty-four-year-old Jonathan James took his own life in 2008, six months after his home was searched in a raid coordinated by Heymann. The DOJ undertook no internal probe of that case, instead giving Heymann an award for “distinguished service.” In the Swartz case, the prosecutors claimed they were acting on behalf of two injured parties — JSTOR and MIT. But JSTOR disagreed with this characterization, including the attorneys’ use of the word “theft,” and demanded that they drop the case. And unnamed sources at MIT this week pointed their fingers at the federal prosecutors, insisting that their unreasonableness and intransigence had kept the case moving despite dishonest charges. 

Ortiz’s first defender was her husband, who, without disclosing their relationship, issued a series of false statements on Twitter before being exposed and then deleting them. Now Ortiz has come forward to speak for herself. Her statement offers no apology to Swartz’s family; audaciously whitewashes the facts by stating that she never claimed Swartz sought to profit from the publication of the papers, when in fact she repeatedly implied exactly that; and shows no remorse or contrition. She states that she is unable to respond to charges that her conduct led to Swartz’s death, but tenaciously insists that what she did was “appropriate.”

The flaw in Ortiz’s posture has been laid bare by Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals. In United States v. Nosalhe dismissed the theory Ortiz used to go after Swartz, saying it would potentially criminalize “everyone who uses a computer in violation of computer use restrictions — which may well include everyone who uses a computer.” Kozinski was born and raised in Communist Romania, and knows a thing or two about totalitarian states — and he knows that prosecutorial overbreadth is their leitmotif. If conduct can be charged so broadly as to cover virtually everyone, then prosecutorial discretion effectively becomes a license to persecute anyone who stands in the state’s way. Radley Balko and Clive Crook have each focused on this concern about the Swartz case. I share the essence of their analyses.

The question remains why the DOJ targeted Swartz to such an extent. The DOJ insists that the case grew entirely out of his prank at MIT, and the timeline supports this claim. However, those facts supply no meaningful rationale for their prosecutorial vendetta. On the other hand, Swartz aggressively opposed theories, pioneered by prosecutors like Heymann and Ortiz, that were designed to make the DOJ into a cyberspace police force with power to act against anyone who provoked their concern. He provided articulate, effective opposition, and regularly trumped DOJ initiatives in forums that offered fair debate. His vision of cyberspace placed a premium on the empowerment of individuals and their free access to information — offering an essential updating of the Enlightenment values of the American founders that was sharply at odds with the Justice Department’s schemes. The DOJ values secrecy over publicity, the property rights of corporations over the rights of authors and inventors, and puts a premium on the power of the state to silence voices on the Internet that it views as a threat. Their objective was clearly not to kill Swartz, but they did want to silence him by stigmatizing him and locking him away in prison.

Ortiz’s refusal, even at this late point, to come to terms with her gross misconduct is hardly surprising. She is after all a political figure with political aspirations, and the rules of American politics dictate that one should never admit a mistake, instead pushing blame onto others — here, an Internet prodigy who can no longer defend himself. But it does reinforce her image as a bully who has abused her power and is incapable of reexamining serious mistakes. Past experience suggests that the DOJ itself will behave the same way — closing ranks behind her, hiding the identities of those who collaborated in the tragedy, and concealing vital evidence. For all these reasons, an aggressive, thorough, and public congressional probe with bipartisan support is the necessary next step. Ortiz and her collaborators in this tragedy have serious questions to answer.

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  • StrangerInAStrangeLand1

    I hope everyone involved in prosecuting Aaron Swartz leaves or is forced out of public service immediately. With public “servants” like these, who needs them? Who do they serve? Not the public, not justice, not society. Just themselves and their overweening arrogance and heartlessness and stupidity.

    • eagspoo

      They are a product of the system. Remove them and new sociopaths will take their place.

      • Jim

        Nailing a dead wolf to a fence post is a good way to chase off the lives ones.

        • Daniel Yang

          It angered all the other wolves, according to Grey!

          • David Gerard

            The whole point of the White House petitions against Ortiz and Heymann is pour encourager les autres. And it appears to have worked.

            Congress have spent the last year saying every day, “Is this this new SOPA?” Now they’ve found out what is … and it’s because of the same guy who started the protests against SOPA. No wonder they’re panicking.

            Damn it sucks that Aaron isn’t here to see this, and laugh and laugh.

          • CatherineFitzpatrick

            No, ” pour encourager les autres” is what Lessig does, without taking the rap and without going to the mat for his protege Swartz.

      • ChristBurns2YearOlds

        Bank robbers are part of the system. Dont prosecute them because there will just be another one anyway.

  • Jim

    Ortiz and Heymann are the tip of the iceberg. We have an Inquisition in this country, not a legal system.

    • symbolset

      Thanks to Aaron we may now start working to bring an end to it. Little steps.

    • Dave Metzger

      Read Sheldon Wolin’s “Democracy Inc., Managed Democracy and the Specter of Inverted Totalitarianism”. The entire notion of a free U.S. is illusion. You’re right, there simply is no legal system.

    • Agozyen

      Nobody expects…..THE DEPARTMENT OF JUSTICE!

      For those that don’t get it :

  • public_servant_watch

    I know what world Carmen Ortiz lives in and its a very
    dirty little world that is pulling off the largest dishonest service fraud this
    nation has ever seen. 1 Court House Way is an ongoing crime scene and Ortiz
    chooses to not prosecute tax paid public servants who freely break criminal
    federal law and, also, allows them to flaunt that they need not fear consequence.
    The folly of our youth where no harm comes to any person is not a crime that
    deserves years in prison; the only threat this young man posed was his God
    given brilliant mind that could have altered, for the better, a corrupt
    government. However, the theft of life, liberty and property through malicious
    prosecutions and civil pretense litigation where the CLERKS and some of the
    judges in these courts collude with attorneys, including prosecutors, to
    deprive rights where the means to an end is racketeering to promote profit for
    the corrupt over truth and justice does warrant years in prison. The entire
    justice system has been delegitimized by these alleged criminals and the tax
    payer is forced to support these corrupt fools where they have turned the
    houses of justice into nothing more than their own private playground! Where
    are the mail fraud, wire fraud and violations of the U.S. Computer Fraud and
    Abuse Act charges against the tax paid public servants working in these federal
    courts where they habitually render fraudulent judgments and manipulate dockets
    with computers paid for by the tax payer to obstruct justice and then send
    their bogus documents across state lines via the US Mail? Where are the RICO
    charges? Not only does the US Attorney hold responsibility for Aaron

  • eagspoo

    The dynamics described where the prosecution trumps up excessive charges then offers to deal is how *every* criminal case in this country works. Prosecutors are only incentivized to get convictions or pleas and do not approach any case with any other metrics in mind. The “best” who get the promotions are inevitably essentially sociopaths.

    It is fundamental to adversarial prosecutor vs defender system and cannot be fixed without a total rewrite of how the judicial system in the US functions which isn’t going to happen. I agree this is a tragedy but this is the reality in the US and firing Ortiz will have virtually zero impact. In this country, if you cross a line, the dogs go after you.

    • Snow Leopard

      Thank you for recognizing this is normal procedure and not a miscarriage of justice. You call it a tragedy; is it a tragedy that no one has a word to say that this is happening daily, and in much grosser examples, to brown people? If so, then I’ll agree to “tragedy” also. Otherwise, it’s “hypocrisy”.

    • Will

      It always comes down to incentives

    • CatherineFitzpatrick

      Mkay, so you want to get rid of adversarial defense then and the common-law system? Or what’s the plan? You seem to think you can change the prosecutorial system by turning it into a civil law system where you just get to be in charge and make it serve your ends. But what’s actually a good thing about it, is that it continues to have separation of powers and roles — prosecutor, lawyer, judge.

      • eagspoo

        Mkay, so are you acknowledging the problem or not? Sounds like you like the status quo. I never proposed a solution actually. I just said it is very broken and that it is a fundamental flaw of the current system. Do you want to have a creative conversation about how to fix it or do you want to tell people how we should keep unchanged it because it does have some merits?

        • flamepanther

          If we fixed the system, what would she blog about?

  • David Gerard

    The important point is that Carmen Ortiz and Stephen Heymann must have their aspirations utterly and conclusively obliterated, as a lesson to others. This was the purpose of the White House petitions against them, which still need your signature:

    If you are a US citizen and have not signed these, please go *now* and sign them. It will count.

    • Mike Taylor

      You don’t need to be a US citizen to sign these petitions. (I am British, and have signed these and others.)

    • CatherineFitzpatrick

      Thank God your friend Obama and the technocrats at just raised the ceiling to 100,000 instead of 25,000 for a response, so that “the Internet” mob can’t overthrow prosecutors they don’t like by “direct democracy”. At least it makes it a little harder, anyway.

  • David Gerard

    Blogged about this: Thank you very much for a wonderful article that brightened my day immeasurably.

  • Truth

    Carmen Ortiz is a blatent liar at a minimum and a corrupt public service official at the worst. It’s no wonder folks don’t trust our government anymore. I do not believe in all that Mr. Swartz did; but I do totally believe in his rights to do them. That MIT abandoned him is bad enough; that Ms. Ortiz wouldn’t even offer a modicum of humility in it all speaks volumes.

    • ezracolbert

      you believe in the right of AS to break into secure computers and steal stuff ?
      are you willing to volunteer your bank account ?
      MIT didn’t abandon him; he was not a member of the mit community (he was a harvard person) who grossly abused MITs hospitality (I mean why didn’t he do this at harvard – probably because MIT has an open policy of trying to foster information flow, a policy that as blew away)

      • Ben Thompson

        He did not break into anything, and he did not steal anything; he downloaded journal articles freely available to any visitor.

  • symbolset

    Great piece. To arms! It is time for change.

  • Amay

    Execute Carmen Ortiz

  • taxman10m

    Is it right to refer to what Swartz did as a college prank? Seems like an odd choice of words. He wasn’t an undergrad at MIT. He wasn’t an undergrad at all. What was the prank exactly and on whom was it played?

    • Pat_Shackleford

      I agree. In referring to the admittedly huge documents download Aaron did with benevolent purpose as a “prank”, diminishes if not belittles the effort and value of his goal of making them available to any and all for free.

      • ezracolbert

        so AS hacks into a bank, steals a million dollars (a fair min for the jstor) and you are ok with that cause he wants to feed the poor ?
        you do an act of civil dis obediance, you should be prepared to go to jail

        The Berrigans, or the 3 nuns are heros; AS was a spoiled rich kid who thought he could steal close to one million dollars of private property, adn get recognized as a hero. at best, confused

        • Pat_Shackleford

          You appear lacking of facts and background. Also, any sense of proportional justice. Please post a link to where anyone (with standing) has claimed the value of his downloads at “a million dollars”.

          • James Woods

            Or that he was a “spoiled rich kid”. Even if he was, he was a genius and a prodigy.

        • flamepanther

          Your comparison is beyond absurd. In the first place, if he had stolen money from a bank account, it would be gone from the bank account. The research Aaron downloaded was not removed from JSTOR’s archives. More importantly, he didn’t actually “hack into” JSTOR. JSTOR already allowed any and all of those documents to be downloaded *for free* from MIT’s campus. What he did was setup an unauthorized system on MIT’s network to download and store the information quickly and automatically, rather than initiate each (otherwise perfectly legal) download by hand. There is a reason JSTOR dropped its case and urged the DoJ to do the same.

          • Lorna Murdoch-Eaton

            Excellent rebuttal argument @flamepanther. It is absurd that the DoJ persecuted AS. It has been clearly shown the motive for doing so was personal ambition, not justice. I think @ezracolbert shows his (troll) colours and envy with this line: QUOTE: “AS was a spoiled rich kid”

          • CatherineFitzpatrick

            Here we go again with the script kiddies’ guide to the universe, with simplistic thinking that “the original remains with the owner, so no harm no foul”.

            Nonsense. When you hack and copy without authorization, you steal the ability of the IP owner or manager to commodify his content; it’s destroyed. That is what is stolen. That is wrong. And unlawful.

            You also are happy to let pirates sell ads against the stolen content and take money out of the pockets of IP holders.

          • flamepanther

            That’s an interesting position to advocate under the circumstances, for a number of reasons. Let’s gloss over the issue that it places you (in very bad company) in the same position as the people who wish to tear down the “first sale” doctrine. We’ll ignore that your reasoning makes criminals of public libraries. Let’s even ignore how nonsensical it is to apply this to JSTOR, which (a) is not for-profit in the first place and (b) does not own most of the content behind its own pay wall either. And I don’t suppose it’s worth pointing out (yet again) that Aaron had permission to access all of that data–just not to access it as quickly as he did, and that JSTOR themselves insist no crime was committed against them. These are all common enough mistakes.

            No, the reason your admonition is uniquely stupid in this context is that what you use to justify Aaron’s prosecution–sharing the (not) “stolen” data–is not what he was being prosecuted for. You’ve argued against the public good based on questionable premises that aren’t even in play here, and for what? Nothing but a red herring.

          • CatherineFitzpatrick

            I don’t get bullied and scared by the threat of being “in bad company” because I know that I’m right about this as an individual, and others who are in good faith share these beliefs without being somehow connected to giant record companies.

            “First sale” doctrine is completely irrelevant here. Aaron Swartz didn’t re-sell his CD he had purchased — he stole 4 million files he got access to by deceiving the administrators with fake accounts and a circumvention script. Next.

            It doesn’t matter if he had permission to use it. Obviously that wasn’t enough for him! He wanted more! He wanted to smash the system like a little anarchist! Like you! And so he did!

            And that’s what MIT objected to, and rightly so. He was properly prosecuted for computer tampering, it’s not about “sharing” which is Larry Lessig idiocy.

            The public good doesn’t involve enabling a lot of anarchists to do what they feel like. If you think you can get your collective farm and stone soup to work, go try it elsewhere on your darknet and leave the mainstream Internet alone. You are absurd.

          • flamepanther

            Bullied? How do you reckon, exactly? I’m not the one trying to channel the ghost of Joe McCarthy, after all.

            First sale doctrine is not relevant to the conversation at large, but it is directly relevant to your particular non-sequitur tangent of it. First sale doctrine, coupled with public libraries, takes away the ability to monetize content. You said that’s the same as stealing, didn’t you?

            Yes, he was prosecuted for computer tampering–not for the “theft” that you keep raving about. That was my point entirely. Neither theft, nor sharing, nor anything of that sort are at issue here, and yet you keep ranting about them. Your hate-on for the copyleft movement has clearly motivated you to try to derail the conversation. That’s why I pointed out that your argument was a red herring. And it remains such. If you want to blather on about such stuff, try trolling Pirate Bay users. This is a wholly separate issue.

            Absurd is accusing everyone you meet of being a communist when they don’t agree with you.

          • Snertly

            Considering the IP holder, JSTOR says there was no taking, your argument is void.

          • CatherineFitzpatrick

            There was a taking, der. It was via MIT. They don’t care if it is a taking from another party that doesn’t have a beef; MIT pays for the subscription, just like Harvard, where Swartz was at least affiliated. He chose MIT because they have a looser set up he could hack easier *shrug*. The hilarious thing about all you stone soupers is that you’re making arguments that Aaron Swartz himself wouldn’t have made and didn’t make.

          • flamepanther

            He wasn’t prosecuted for taking anything at MIT. Rather, he was prosecuted for *adding* things to the network that weren’t supposed to be there. The case is about misusing a computer network, not about taking anything. And what most people are arguing isn’t that no crime was committed, but that prosecutorial action should be proportional to the nature of the misuse. Punishment for any other misuse of private or public property tends to be proportional, so why wasn’t this?

            You are making arguments that MIT wouldn’t have made and didn’t make. Does that mean the laugh’s on you?

          • Snertly

            How convenient that you have such insight into the inner thought processes of a dead man.

            MIT had a blanket license for people on their network to access and download articles from JSTOR. Your argument is on par with how many rolls can you take from a buffet before you’re imposing on the host, only in this analogy there’s no limit to the number of rolls because they’re created as they’re picked up from the table.

          • CatherineFitzpatrick

            Like so many other copyleftist script kiddies you are dense about what the value stolen is when something digital is stolen. It’s not the literal original, derp. It’s the ability to commodify, herp. And that inherency in a product is more than fine to keep bound as a product. It’s only Bolsheviks who want to take that inherency away and literally smash and crack it apart so that a select few oligarchs like Kim Dotcom can get wealthy from it, and the rest have a freebie collective farm.

            There’s nothing disproportional about the DOJ’s action to defend the integrity of private corporation’s and government’s web sites and servers and the ability to have CHOICE about commerce on the Internet not taken away by thugs.

          • flamepanther

            So JSTOR doesn’t have a CHOICE in saying the charges should’ve been dropped? And MIT saying they should have been dropped or reduced? Hmm.

            Whatever comparisons you want to draw between digital piracy and theft are irrelevant here. It’s irrelevant in general because this prosecution was not about piracy in the first place. It’s irrelevant here specifically because even if this was a piracy issue, and even if we accept the idea that piracy is like theft, it is still not like robbing a bank account.

        • Lorna Murdoch-Eaton

          It seems you are something of a troll if I understand the definition of that term. AS was probably genius enough to use his talent to amass personal wealth if he had been inclined in that direction, but he did not. Just because he “could” have done so does not warrant the persecution to death that he suffered.

  • gregorylent

    america needs a system-wide reboot

    largest jailed population in the world

    excess government secrecy

    corporation lobbying/bribes

    a brain-dead population glued to the tv


    • Lorna Murdoch-Eaton

      a brain-dead population glued to the tv and their guns

    • CatherineFitzpatrick

      Oh, gosh, and you’re *just the fellow* to administer that undemocratic shock, eh? Or your pals at Anonymous who disable and destroy websites?!

  • CharlieSouthbay

    I find it inapropriate to call what Aaron Swartz did with the publications from JSTOR a prank – it undermines the deep and well thought out meaning behind it.

    • ezracolbert

      i steal something in the neighborhood of 1,000,000.00$ worth of private property – no , that is not a prank.
      If i’m doning it for a higher motive, i should be prepared to take the heat.
      if as was 1/20 as smart as they say, he should have known that the cops take a dim view of large scale theft; as wants to be a revolutionary, he has to take the heat

      • Lorna Murdoch-Eaton

        not theft. accusations do not make it a fact. it seems some people still under the impression that US gvt acts for the betterment of citizens, it does not. Only betterment of selves.

      • Ben Thompson

        He didn’t steal anything, and the figure you cite is made up.

        • CatherineFitzpatrick

          Taking away the ability of an organization to monetarize/sell/cover costs on content storage and distribution *is stealing*.

          • Snertly

            Your hypothetical assertion has nothing to do with Swartz’s case. His accessing the JSTOR documents was not illegal, though he method of automating the downloading process did catch people by surprise.

          • CatherineFitzpatrick

            Um, it didn’t “catch them by surprise” at MIT. It constituted a violation of their users’ rules and *the law* and so they cooperated with the prosecution. End of story. All your wishful thinking about “surprise” and “inconvenience” and “authorization” is all so much bunkum as MIT continued the prosecution. If you all can flash-mob them into backing down from that by the emotional blackmail of a suicide, um, great, but then, we know the truth: MIT did not agree with you and pursued the prosecution. And that was in fact the right thing to do.

          • Snertly

            MIT is famous for their very open network. The views you suggest say either you didn’t read the article or you just didn’t care to believe it.

      • taj

        Considering the article cites JSTOR themselves as disagreeing with the term “theft”, perhaps you need to recalibrate your rhetoric.

  • Scott Dunn

    President Obama has appointed many lawyers from the content industry to work at the DOJ. He derived substantial support from the content industry and has paid them back handsomely with lush appointments. See here:

    I believe that these appointments have contributed to the zealotry over copyright enforcement in the DOJ, thus the results we see before us now. For a long time, the DOJ has been the pawn of the content industry. Perhaps it’s time to investigate this relationship to determine whether or not it serves the public interest.

    • CatherineFitzpatrick

      So….that’s why your friend Obama then vetoed SOPA even before it came to a vote in Congress then. Because, um, those deep pockets could sway him, eh?

      You fail to realize Hollywood lost the fight for SOPA. But your hacker friends and Google were misguided in flash-mobbing the democratic process however as prosecutors will go on making examples of people precisely because there is no law; there is no law like SOPA that could define piracy versus legitimate expression and build up cases. And that’s deliberately; “the Internet” mob doesn’t want the rule of law.

  • Common

    Maybe congress should have stepped in before he died.

    • public_servant_watch

      YOU ARE ABSOLUTELY CORRECT!!!!!!!! Congress has been ignoring the fact the the federal court system in this country has evolved into little mob families supported by the DOJ and the FBI for well over a decade AND they choose to do nothing falsely stating separation of powers. The only checks and balance system we have is the unbalanced in government who need constantly monitored and put in check by “WE THE PEOPLE”.

  • Jim Terwiliger

    Just goes to show the state of the justice system in the US when people like Stephen Heymann and Carmen Ortiz can become US attorneys

  • ChristBurns2YearOlds

    One day we will have justice, one day Americans will get tough on criminals who abuse positions of power and authority during a time of war.
    US Attorney Carmen Ortiz should be waterboarded immediately to find out where any other ticking time bombs are so that they do not go off an impact Americas credibility during a time of war.

  • Bob Parkman

    It certainly seems like the prosecutor stepped so far out of bounds as to be culpable for his death. She should be prosecuted to the full extent of the law.

  • ezracolbert

    This Swartz thing is really wierd
    Yes, he was a genius with a passion for information and helping people
    Yes, he had a serious mental illness, and his suicide, esp at a young age, is horrible.

    Nontheless, a 6 month jail term is not only (according to his defenders) appropriate, but even light. (1)

    What are the undisputed facts ?
    He treaspassed on MIT property

    He logged on with false credentials, and attempted to download the jstor data base
    He failed, adn then went to extra ordinary lengths, using his hacking skills to obtain the database.
    I’m not sure of the technical language, but the jstor data base was private property; difficult to value, but $1,000,000.00 (one million dollars) seems a fair minimum (2)

    For stealing a million dollars, 6 months, to be served in one othose country club min sec fed prisions, where people like Chuck Colson come out thinner and fitter, doesn’t sound harsh (kidnapped by ilsamist terrorists, and forced to sit hours on end blindfolded with a bomb around your neck is harsh)

    against this, we have emotion: the horrible tragedy of the suicide, the puppy dog good looks in the photos, etc

    where were you people the day before swartz killed himself, when the US atty’s around the country were doing similar things to hundreds of other young men who didn’t have the wealthy connections of swartz

    where were you people

    and as for the argument that pleading guilty to a felony was a harship cause aaron would have lost the right to vote, please, such an accomplished young man doesn’t do 100x more with his computer skills then with his one personal vote ??
    is that really your argument ???

    there is a “i’m shocked, shocked to find gambling” attitude here
    you wanna be a revolutionary, and commit crimes in the name of a higher good, you hae to be prepared
    For someone with Aaron skills to pretend that the Fed Gov’t doesn’t take hacking seriously is just not believalbe; it is faux naivete at best.

    I might add, that in boston, the open nature of universitys like MIT contributes to the economic and cultural life of the community
    If the universitys in the boston area – or across the us – become more restrictive to members of the community, to prevent future vandalism ala swartz, this will have huge negative impact.
    if swartz was 1/20th as smart as they say, he should have htought of this.
    Vandalism always results in more guards, more fences, more security and less freedom

    On WRKO AM1030, boston talk radio, last week AS defender noted atty H Silvergate gave a comparisoin, what he said was a fair and just outcome in a similar case. 1 years probation and restitution for two young men who hacked intot he phone company and took 1,000s of dollars of free calls.
    If 1year probation is just for a few thousand dollars, how can anyone complain about 6 months for a million ????

    the rights to 4 million + articles, including seminal works by many great scientitsts – a million bucks seems awfully cheap

    • Ben Thompson

      If you will correct your errors of spelling, capitalization, punctuation and grammar, I will attempt to address your errors of logic and fact.

    • Snertly

      Is that you Mr Dolan? (@tomjdolan was the Twitter defender/husband of Ms Ortiz referenced in the article above.)

      Thanks for taking the time to footnote a conversation from AM talk radio, but I still find it hard to believe that “Nontheless, a 6 month jail term is not only (according to his defenders) appropriate, but even light. (1)”

      As both Mr Dolan, Ms Ortiz,and you have failed to mention but was pointed out in the article above, the six month sentence was conditional on pleading guilty to thirteen felony counts. Specifics vary from state to state, but as a convicted felon, Mr Swartz’s rights as a citizen of the US would be severely curtailed, and could remain suspended for seven to fourteen years, or more, after the fact.

      Regarding your footnote #2, the holder of articles download was JSTOR, who as noted above, “disagreed with this characterization, including the attorneys

      • CatherineFitzpatrick

        No, you literalist binary thinkers don’t understand how justice works. The six month plea is the prosecutor’s offer, not the sentence. The judge would have to hear the merits of the 13 charges. He would have to issue the sentence. The lawyer would be free to ask merely for probation.

        • Snertly

          I think facts work best when approached literally. Perhaps you have a more fanciful method.

          Check out what a plea bargain is. It’s an agreement wherein prosecutor says we’ll recommend X if you plead guilty to Y. The judge has latitude of course, but such agreements are typically honored because they tend to save time and money for the court.

          However, if you plea guilty as part of a bargain, you are convicted as guilty regardless of the length of sentence. Being a convicted felon carries a stigmata that last long after the convict is released. Fold in the fact that JSTOR says there was no crime, and ask why anyone would agree to such a thing without already having had their spirit broken by the process of prosecution.

          That’s the method of many prosecutors. Stir up such a shit storm that the accused will do anything to be done with it. Classic bullying, actually.

          • CatherineFitzpatrick

            I’m more familiar with plea bargaining that you’ll ever be. Swartz got a very lenient offer. But he didn’t want to do the time for the crime and probably believed that the Internet fairy realm that Lessig and Doctorow tried to get him to believe in was real. It wasn’t.

            There would have been absolutely no “stigmata” for this already-existing Internet hero who led the anti-SOPA crusade to get a six-month sentence. Every media and blog resource in the metaverse would be deployed to create a circus around this. Obama might well have pardoned him. The noise made by Issa, Lofgren, etc. would be enormous.

            That’s the method of the copyleftists: stir up such a shit storm that the quiet voice of justice can’t be heard.

          • Snertly

            Upon exactly what evidence you do base your first sentence?

            The “lenient” offer you cite involved pleading guilty to 13 felonies. If you don’t think that is a stigmata in and of itself, then your ignorance is on full display.

  • fazsha

    I will bet any amount of money Obama will whitewash this incident and let Ortiz stay on. You liberals deserve everything you get. This Orwellian Hispanic grasping career-opportunist cares not one whit for anyone but herself.

    • Eric Grove

      Wow. A racist republican. Now I’ve seen EVERYTHING!

      • Dale Holmgren

        Since when is calling an Hispanic Hispanic being racist? I’m Swedish. If you called me a Swede , Trust me, I won’t be offended.

  • James Strauss

    FHA. Fire Her Ass. Just look at her. Her continence reveals all….

  • Jeff Perkowitz

    I hope Ortiz loses her post and tanks her career, stupid biatch.

  • IskenderElRusi
  • IskenderElRusi

    Carmen Ortiz

  • MedStop LLC

    The US Department of Justice is soley responsible for the death of this young man’s life. If anyone cannot see that this came down from Eric Holders office to scare the hell out of any dissenters in the United States. As United States citizens we are all being subjected to hate each other and be jealous, so that our politicians can divide and conquer.

  • Kay Sieverding

    According to an email I received from DOJ’s Office of Professional Responsibility senior investigator William J. Birney dated 11/26/12,

  • Paul Kishimoto

    Mr. Horton’s extensive coverage of the U.S. DoJ’s defense of torture and politically motivated persecutions has collectively got far less comment traffic than this one article.

    • CatherineFitzpatrick


      • flamepanther

        Maybe it would be a good idea to use this to bring attention to the larger issue then, instead of calling names and throwing stones at the people who are newly riled up and ready to push for reform?

  • CatherineFitzpatrick

    I totally understand your long-standing need to slap down US prosecutors for all kinds of legitimate reasons you have acquired over the years. But you shouldn’t convert piracy and hacking into a human rights cause; it isn’t one.

    Carmen Ortiz did her job and applied the law correctly, as Orrin Kerr has aptly explained here:

    And while not being a lawyer, and merely a human rights activist knowledgeable about hackers, I’ve refuted everything that the chief witness for the defense says here:
    As I’ve written about copiously at my blog Wired State, Swartz committed a braven “propaganda of the deed” to demonstrate a point for a cause he had worked in for years. It was a form of civil disobedience; really, it was ‘direct action’. He knew the consequences but thought his friends like Larry Lessig would get him out of this jam; they didn’t go to bat for him after preaching copyleftism and essentially inciting him to this act.

    You, like others pursuing a crusade against prosecutors for other reasons, fail to mention the six-month plea bargain he was offered. You also fail to note that these two congresswomen, Lofgren (who opposed SOPA) and Warren (who is a champion for the “progressive” cause) are highly ideological and using this case for their pre-existing cause of copyleftism and the “California business model”.

    I know how it happens among liberal lawyers who persuade themselves they are fighting the good fight against “the Man”; they pile on; they tell each other taller and taller tales; they accentuate the victimology. But I hope you will come to see you are undermining human rights when you set the stage for thuggish hackers to succeed like Bolsheviks, and take away free choice on the Internet.

    This “standard trick” you claim is used by prosecutors to “scarify” is one that Kim Dotcom and his lawyers scoffed at and fought — and so far have kept at bay. Yet suddenly, we’re supposed to believe that such prosecutors are ineffectual in Dotcom’s case but deadly in Swartz’s case merely because he committed suicide? That’s hardly persuasive and the attitude toward prosecution in both cases is stark and tends to undermine the wild caricature of US prosecutors as evil bullies who torture innocent geniuses bent only on “innovation”.

    Swartz was offered a plea bargain; don’t start with the Fisking about the results a felony on his record would have with the kind of friends he had; and Ortiz noted that his lawyer could have sought probation. Indeed. The challenge for all you human rights lawyers suddenly converting to the copyleftist cause is to look at *precedents*. Where on earth in America have you see a case of a hacker go to jail for 50 years, 35 year, or even 7 years? It doesn’t happen, Scott; they get off; they get nothing; they get one or two years. They turn state’s evidence, like Sabu; in the UK they use the Asperberger’s defense and avoid extradition to the US. There are no hackers sitting in jail for 50 years, don’t be preposterous.

    I fail to see what Ortiz’s husband’s “false statements” were on Twittter, or why you think he “failed to disclose” something that “the Internet” found in seconds. He challenged Mitch Kapor — the greatest founder and funder of all the copyleftist organizations, including Swartz’s — with his failure to acknowledge the 6-month plea offer — and thereby contriving a scary exaggeration of the case along with the rabid tech media. That was absolutely the right thing to do — and true — the sort of truth repeatedly drowned out by the mob on this case.

    You claim that Ortiz “whitewashes the facts” by stating that she never claimed Swartz sought profit. But she didn’t. Where do you find that she did? The damages claimed by MIT is a separate issue.

    Judge Kozinski can say what he likes in Nosal, but he can’t wish away the facts in Swartz:

    o that he used an alias
    o that he created a fake account
    o that he wrote a circumvention script called “” to do just that, stealing 4 million files
    o that he accessed servers to which he was authorized through Harvard as a student, by hacking MIT
    o that he hid his face with a bicycle helmet
    o that he logged in from a wiring closet when bounced out to circumvent the standard checks at MIT
    o that he ran from police

    Swartz and his defense have never disputed these acts; instead they’ve attempted to accentuate other aspects, like the alleged mere “inconvenience” this caused MIT; or that he returned the files; or that JSTOR dropped their charges.

    But that doesn’t take away from the cause Swartz was bent on pursuing aggressively and zealously with this dramatic act: he wanted to “liberate” university files, like the Pacer court files, in the “information wants to be free” revolution. How can you whitewash the sorts of *Bolshevik* activities that anarchist hackers do like this, Scott, when you’re willing to raise Kozinsky’s being born in Communist Romania?! If he was born in Communist Romania, then he should realize that *when people thugglishly deprive everyone of choice on the Internet, and harm commerce and the ability of organizations to offer paid content and walled gardens, they are no better than the communists*. And you should understand that as well, if you weren’t so busy climbing on this bandwagon for other reasons.

    Whatever is wrong with the DOJ, prosecutors, the criminal justice system, torture, renditions, and on and on, is not something solved through *this case*. And trying to convert a hacker case into a human rights cases harms the cause of human rights in the long run.

    Only those on the hard left pushing the hard “progressive” agenda could conceive of a prosecutor who is a Democrat, appointed by a Democratic president and sworn in by a democratic governor with Holder as the Democratic attorney general, as being “bullies” merely because they lawfully and properly pursued an obvious, large-scale hacking case with MIT’s cooperation in the interests of the law and deterring future hacking.

    By baying for the heads of these prosecutors along with the copyleftist anarchists and their storm-troopers in Anonymous who out the private of law-enforcers they don’t like and harass them, you’re actually helping to undermine the rule of law and erode human rights on the Internet for all of us. You have no idea!

    Lawrence Lessig is the one who has serious questions to answer about this case; so does Hal Abelson. The prosecutors are just doing their jobs.

    • Snertly

      You sure do put a lot of effort into being wrong. Having read the screed above and your typepad blog, it is obvious that you lack an understanding of the issues and methods involved.

      Ms Ortiz acted like a government backed bully, plain and simple. Vicious in her prosecution, completely out of proportion to the issue at hand. I feel confident that the coming review of her career will show that she had applied this method numerous times with similarly brutal results.

      When the difference between a federal prosecutor and a mafia thug is that the prosecutor has better credentials, something has gone wrong in the system.

      • CatherineFitzpatrick

        You sure put a lot of effort to be anonymous/Anonymous. Does your mom know you’re up this late?

        You think if you can just keep reciting enough like 010101010101 or some 4chan meme that Ortiz is a bully, why, we are to believe it. I’ve spelled out the many ways in which she just applied the law, and you have no answer.

        I don’t doubt that with the Anonymous jackboots and the Internet mob, yeah, “revolutionary justice” against this poor woman might be done. That will be an awful development. The only difference between Anonymous and a mafia thug is that the mafia thug uses his own real name.

        • Snertly

          If this were Ortiz’s only example of acting like a piranha prosecutor, then perhaps you might have somewhere you hang your argument. But it’s not, and Ms Ortiz does not have the distinction of being the only federal prosecutor to function in this mode. Bullying sums up the style quite accurately. A factual review of the elements of the case seem to indicate that you’re the one thumping the drum of fantasy.

  • concerned taxpayer

    The 90% plea bargain rate in our federal
    criminal justice system means our federal criminal justice system is not a
    system of justice, but an inmate factory. In most cases, decades long prison
    sentences are all out of proportion to the underlying crime and their sole
    purpose is to force people accused of a crime to sign a plea agreement – even
    if they do not think they did anything wrong. Risking decades in prison is just
    not worth it. Plus, who has hundreds of thousands of dollars to fight the
    federal government with its practically limitless resources? This
    is a dishonest and dishonorable way of obtaining convictions and it costs the
    American taxpayers billions of dollars annually.

    A few more statistics for consideration:

    25% – The recidivism rate for inmates who complete the Residential Drug Abuse
    Program in federal prisons, versus the 70% recidivism rate for those who don

  • deliaruhe

    The DOJ appears as deeply corrupt as the rest of the American government. It prefers easy targets, like whistleblowers and kids with an internet connection, to real criminals, like torturers and banksters.

    Where’s the public outrage?

  • Kay Sieverding

    “Past experience suggests that the DOJ itself will behave the same way

  • kia

    If conduct can be charged so broadly as to cover virtually everyone, then prosecutorial discretion effectively becomes a license to persecute anyone who stands in the state

  • Matthews Bark Attorney

    nice article………..



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