Finally, I see a reputable Pulitzer-prize winning journalist from a prestigious college in Massachusetts -- Brandeis -- has in fact spoken up against mob injustice and said that Carmen Ortiz Didn't Kill Aaron Swartz.
Ortiz has said from the start that while upset about the suicide of Swartz, she maintained that she had fairly applied the law.
In a January 18 column that is getting more attention and retweeting, Eileen McNamara takes a stand on behalf of people just doing their job and tries to speak reason to the Internet mob. To be sure, she comes out in favour of changing the computer fraud laws, but she points out that ways to amend laws have always been around for 25 years, and didn't require somebody to commit suicide and have his tragic death be exploited in this fashion.
It is understandable for those who loved and admired the prodigy at the forefront of programming innovations from RSS to Reddit to want a simple answer for their loss. But self-inflicted death is rarely simple. Pretending it is helps nothing, including the cause for which some have glibly labeled Swartz a “martyr.”
Swartz was no more martyr than he was dangerous felon. He was a mentally fragile political activist who engaged in an illegal act of civil disobedience to dramatize his belief that information should be free. But, as Henry David Thoreau taught us long ago, civil disobedience has a cost. Paying it is the price of the bold gesture. Presumably, Swartz knew that when he donned a bike helmet to hide his face, broke into a computer closet at MIT and downloaded millions of academic articles from JSTOR, liberating information from the subscription service that usually charges $19 per article.
He made his point. He got arrested. He was awaiting trial at the time of his death, having rejected a plea offer from Ortiz that would have had him serve only six months under the Computer Fraud and Abuse Act (CFAA) for crimes that can carry a maximum penalty of more than 30 years in prison.
Are those maximum sentences too great? Yes. Is there a solution? Change the law.
I disagree that any law needs to be changed: the laws need to remain exactly where they are, on the books, and avidly investigated and prosecuted giving the rising tide of destructive hacker anarchy. The task when you are faced with wild destructive revolutionaries is not to legalize them and endorse legal nihilism, but continue to prosecute them fairly. The sentences of 1-2 years, or even probation, that nearly all of these people get in America are absolutely the right way to go. The 35 years should remain in place for cases involving, say, destruction of a water or atomic plant or massive million-dollar credit card theft. And when the theft of files involve script kiddies or "resolutionaries" like Swartz in his earlier days before he became more aggressive, who go to conferences and dabble in civil disobedience as a lark, it should be a lesser punishment -- but still punishment of a crime that is defined just fine as it is. I'm utterly unpersuaded by anything I see on "reform" of these laws and I refuse to concede any need for reform as I see that is a tactic that most liberals are using merely to try to soften the rage-hate that they get from extremists when they try to criticize anything about this case.
Now, instead of attempting to change the law legally through existing channels, naturally we have the utter spectacle of the Internet jack-botted thugs at Anonymous hacking the US Sentencing Commission's website and screaming about how they will have "collateral damage" while they harm the Supreme Court justices with some "nuclear files" -- it's not clear how. The script kiddies have been upstaged this week by the real nuclear threats of Lil' Kim in North Korea, something they must be fuming about. I will get back to analyzing this if it seems like there is anything to it; right now it seems like the sort of bluff Assange did with the files he told all his little Anon pals to download and prepare for a Doomsday on his command -- which never came...
"The Internet" is still wildly savaging Ortiz and now has some new red meat: a judge has overruled her prosecution of a drug forfeiture case. The Christian Science Monitor is one of the many liberal publications covering this. They are trying to pull out of Ortiz' cases fodder to prove their theory of "prosecutorial overreach" in general, and in Swartz's case in particular.
Sigh. These people don't get life in the round, organic life, life of checks and balances. Truly they don't. 010101010101 is all there is...binary thinking...
Imagine if the government didn't have the right to seize property involved in serious crime. There's another case in Massachusetts now in which the judge has ruled that a company's assets have to be seized because they spread a meningitis virus in which people died -- and while being probed for this made internal payments to their officers. What, are we call going to get all Libertarian and anti-state on that one?! The motel maybe didn't rise to this threshold -- but hey, the justice system worked, in fact -- if we are to believe the motel owner.
You can't possibly judge a prosecutor on the basis of cases that they failed to prosecute as they wished -- if you did that, not a single prosecutor could function normally and you'd give criminals a veto on every case. Naturally, prosecutors try to prosecute. Sometimes they fail; often they don't get the sentence they want. They try to get acknowledgement of guilt because their aim is deterrence and upholding the rule of law, and that's fine. Sometimes they prosecute a case successfully and get a conviction but then later, it is overturned on appeal. Or a judge even finds something wrongful with it. So what? This is the normal give and take of a free and independent judicial system that isn't like Russia -- where a courageous whistleblower like Magnitsky who died in custody is now being tried posthumously (!), the first such case in Russian history, notorious for its legal nihilism.
The drug-infested hotel has gotten "The Internet" all into a lather -- it seems like the proponents of drug legalization and antagonists of the state get the perform storm with this case because it seems like a poor innocent guy just trying to make a living in a bad neighbourhood is unfairly having his property seized by evil Ortiz. Um, maybe. Everybody knows the drug motels in their neighbourhood, and everybody gets how hard it can be to prosecute them. And we only are getting one side of the story from "the Internet," and it just isn't a smoking gun against Ortiz, because once again, she was doing her job.
No doubt with the relentless agitprop furor that Anonymous can bring to this sort of task (as they are doing outrageously with Steubenville), we will see if not this case become persuasive, then some other thing will be found. Notice they've stopped harassing Ortiz' husband who formerly worked for IBM and now has some other Internet business -- gosh, that's just too much like the kind of place that the Anonymous thugs work at by day, you know?
The legal nihilism of Anonymous is understandable -- they're Bolsheviks. But Declan McCullagh feigns to be part of the world of normalcy and business and IP and the rule of law working for CNET. He really isn't.
Absolutely nothing Declan comes up with will be credible, given his palling around with the coypleftists and failure to properly report the six-month plea bargain.
Declan claims that "a new report" somehow proves that Ortiz "chose to make a case" of Swartz. But all Declan is doing is propagandizing on behalf of the defense with their version of the story -- which is not journalism, it's copying and pasting press releases.
If you dig down in the story past the headlines and first graphs that are all most people will read, you find that the "report" isn't written by some outside or even inside credible authority, but just an attorney from the same firm as Swartz's previous defense:
The Massachusetts Lawyers Weekly report was written by Harvey Silverglate, a prominent Cambridge criminal defense lawyer whose clients have included Michael Milken and Leona Helmsley. Silverglate, the author of Three Felonies A Day: How the Feds Target the Innocent, is of counsel to the firm that initially represented Swartz in his attempts to defend himself against 13 felony charges brought by Ortiz's office. Those charges carried a maximum penalty of 50 years in prison.
Once again, Declan can't even read the prosecutor's press release and the last version of the superseding indictment to admit that there were technically 35, not 50 years -- and of course he can't concede either -- he never does! -- that there was a six-month plea bargain. This is disgraceful.
If this were a real newspaper and not a copyleftist citadel, the headline would say "Attorney from Swartz's Former Defense Firm fBelieves Prosecutor Made Example of Him" not the misleading headline it got: "Swartz didn't face prison until feds took over case, report says" - with a misleading summary evading the truth of where the report came from -- one side:
The late Internet activist was facing a stern warning from local prosecutors. But then the U.S. Attorney's office, run by Carmen Ortiz, chose to make an example of Aaron Swartz, a new report says.
"Sick culture" of the Justice Department, Dan Kennedy? Oh, you have to study Anonymous closer, you have no idea what sick culture really is...
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