By Dan Kennedy • The press, politics, technology, culture and other passions

The Swartz suicide and the sick culture of the Justice Dept.

Harvey headshotRepublished by permission of Massachusetts Lawyers Weekly, where this article first appeared. Thanks to my friend Harvey for making this available to readers of Media Nation.

By Harvey A. Silverglate

Some lawyers are joking when they refer to the Moakley Courthouse as “the House of Pain.” I’m not.

The ill-considered prosecution leading to the suicide of computer prodigy Aaron Swartz is the most recent in a long line of abusive prosecutions coming out of the U.S. attorney’s office in Boston, representing a disastrous culture shift. It sadly reflects what’s happened to the federal criminal courts, not only in Massachusetts but across the country.

It’s difficult for lawyers to step back and view the larger picture of the unflattering system from which we derive our status and our living. But we have an ethical obligation to criticize the legal system when warranted.

Who else, after all, knows as much about where the proverbial bodies are buried and is in as good a position to tell truth to power as members of the independent bar?

Yet the palpable injustices flowing regularly out of the federal criminal courts have by and large escaped the critical scrutiny of the lawyers who are in the best position to say something. And judges tend not to recognize what to outsiders are serious flaws, because the system touts itself as the best and fairest in the world.

Since the mid-1980s, a proliferation of vague and overlapping federal criminal statutes has given federal prosecutors the ability to indict, and convict, virtually anyone unfortunate enough to come within their sights. And sentencing guidelines confer yet additional power on prosecutors, who have the discretion to pick and choose from statutes covering the same behavior.

This dangerous state of affairs has resulted in countless miscarriages of justice, many of which aren’t recognized as such until long after unfairly incarcerated defendants have served “boxcar-length” sentences.

Aaron Swartz was a victim of this system run amok. He was indicted under the Computer Fraud and Abuse Act, a notoriously broad statute enacted by Congress seemingly to criminalize any use of a computer to do something that could be deemed bad.

As Harvard Law School Internet scholar Lawrence Lessig has written for The Atlantic: “For 25 years, the CFAA has given federal prosecutors almost unbridled discretion to bully practically anyone using a computer network in ways the government doesn’t like.”

Swartz believed that information on the Internet should be free to the extent possible. He entered the site operated by JSTOR, a repository of millions of pages of academic articles available for sale, and downloaded a huge cache. He did not sell any, and while it remains unclear exactly how or even if he intended to make his “information should be free” point, no one who knew Swartz, not even the government, thought he was in it to make money.

Therefore, JSTOR insisted that criminal charges not be brought.

U.S. Attorney Carmen Ortiz obscured that point when announcing the indictment. “Stealing is stealing, whether you use a computer command or a crowbar, whether you take documents, data or dollars, and whether its to feed your children or for buying a new car” she said, failing to recognize the most basic fact: that Swartz neither deprived the owners of the articles of their property nor made a penny from his caper.

(Ironically, shortly before Swartz’s suicide, JSTOR recognized the intellectual and moral force of the prodigy’s point of view, and it announced that thenceforth it would provide a portion of its articles free of charge as a public service. The organization’s very existence, after all, depends heavily on public funding. Swartz had made his point, but he paid a heavy price, because Ortiz’s office could not discern the difference between Swartz’s victimless actions and the use of a crowbar to steal for profit.)

Swartz was unwilling to plead guilty. He did not view himself as a felon. Indeed, many experts on the CFAA have powerfully argued that he did not violate any reasonable interpretation of the statute, and defense counsel had a highly respected electronics expert prepared to testify why that was so.

But the government kept bludgeoning Swartz by threatening him with dire consequences in the absence of a plea. Hence, while the original indictment contained four counts with a maximum sentence of 35 years, a superseding indictment brought just four months before his suicide upped the ante to 13 counts.

Of course, the government, which told Swartz’s lawyers that prosecutors would recommend seven to eight years in the event of a conviction after trial, announced its willingness to recommend “only” six months if he would plead. With such a deal, the government would avoid the possibility of an embarrassing loss.

But trial was risky for Swartz, as well as expensive. (Swartz’s partner, Taren Stinebrickner-Kauffman, reported that he was very concerned that the trial would bankrupt his family.)

While it is impossible to know the reasons for Swartz’s suicide, one would have to be naive or dishonest to fail to recognize the role played by the pressures ratcheted up by Ortiz’s office.

Such pressures help explain why fewer than 5 percent of federal criminal cases in Massachusetts are taken to jury trials, a phenomenon that has concerned U.S. District Court Judge William Young, who observed in Bertoff v. United States of America that “[e]vidence of sentencing disparity visited on those who exercise their Sixth Amendment right to trial by jury is today stark, brutal, and incontrovertible….”

After days of silence in the face of mounting criticism and a petition to Washington that, as of this writing, gathered 46,844 signatures seeking her dismissal, Ortiz finally responded. I was a part of a group of compensation lawyers in Melbourne, Australia on a sunny beach when I heard her initial non-responsive statement: “We want to respect the privacy of the family and do not feel it is appropriate to comment on the case at this time.”

When that evasion provoked widespread anger and derision, Ortiz issued a statement on Jan. 16 admitting that “there was no evidence against Mr. Swartz indicating that he committed his acts for personal gain.” She recognized that his alleged conduct “did not warrant the severe punishments authorized by Congress.” Yet she defended her office’s having brought a blunderbuss indictment.

It seems never to have occurred to Ortiz, nor to the career prosecutors in her office in charge of the prosecution, Stephen Heymann and Scott Garland, that there is something wrong with overcharging, and then raising the ante, merely to wring a guilty plea to a dubious statute.

Nor does it occur generally to federal prosecutors that there’s something wrong with bringing prosecutions so complex that they are guaranteed to bankrupt all but the wealthiest.

These tactics have become so normal within the Department of Justice that few who operate within the bowels of this increasingly corrupt system can even see why it is corrupt. Even most journalists, who are supposedly there to tell truth to power, no longer see what’s wrong and even play cheerleader.

Perhaps most disturbing was the prosecutorial callousness reported by Boston Globe columnist and non-cheerleader Kevin Cullen. One of Swartz’s earlier lawyers told Cullen: “I told Heymann the kid was a suicide risk. His reaction was a standard reaction in that office, not unique to Steve. He said, ‘Fine, we’ll lock him up.’” The lawyer concluded: “I’m saying they were aware of the risk, and they were heedless.”

Ortiz has been mentioned as a candidate for governor or even the U.S. Senate. That political career is likely over before it begins. Many who have seen through her callous behavior are computer literate and know how to spread a message.

However, the culture of the U.S. attorney’s office will continue undisturbed — unless the bar refuses to tolerate that the federal courthouse has become a place of torment rather than a palace of justice.

An ironic postscript to the Swartz tragedy: MIT and the U.S. Secret Service conducted the video surveillance of the closet at MIT that discovered Swartz’s downloading. He was charged by the Middlesex County district attorney’s office with breaking and entering in the daytime. Lawyers familiar with the case have told me that it was anticipated that the state charge would be continued without a finding, with Swartz duly admonished and then returned to civil society to continue his pioneering electronic work in a less legally questionable manner. Tragedy intervened when Ortiz’s office took over the case to send “a message.”

In an earlier era, federal authorities reacted more as state authorities still do. Tim Wu writes in The New Yorker (“How the Legal System Failed Aaron Swartz — and Us,” Jan. 14) that one can compare Swartz “to two other eccentric geniuses, Steve Jobs and Steve Wozniak.”

In the 1970s, Wu writes, Jobs and Wozniak “hacked AT&T’s telephone system to make free long-distance calls, and actually sold the illegal devices (blue boxes) to make cash.”

When Jobs and Wozniak tired of making free phone calls, they built a computer, and the rest is history.

“The great ones almost always operate at the edge,” Wu concluded.

But with the DOJ unable to differentiate real criminals from overzealous bright kids, we are incarcerating, if not killing, our national future. The bar should be in the forefront of warning Congress, the news media and the public that the DOJ and the federal courts, in Boston and elsewhere, are out of control.

Harvey Silverglate is a Boston criminal defense lawyer and writer. He is the author, most recently, of “Three Felonies a Day: How the Feds Target the Innocent,” updated in paperback in 2011.

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  1. James Harvey

    What’s with the quotes around “a message”? Is this actually a quotation from somewhere? If so, where?

    The usage of quotes here certainly imply that Ortiz actually said she wanted to send “a message,” but I haven’t seen that reported anywhere else. If that is a quote, it’s quite damning. If not, it’s extremely misleading journalism.

  2. Waldo Johnson

    Excellent job here and through your other efforts in exposing this ongoing corruption by federal law enforcement.
    Since there is no real oversight of federal law enforcement, the only practical mechanism for addressing its chronic, unethical and criminal activity is to report it to the Mass BBO. In addition, the time is ripe to reintroduce John Murtha’s legislation from 1999. His bill had real teeth in reigning in DOJ corruption. Unfurtunately, the DOJ lobbied ferociously against the measure and succeeded in stripping it down until the only portion remaining gave state bar associations jurisdiction over unethical conduct of US Attorneys. Even this has been underutilized.

    Perhaps Heymann and Garland should be called upon to justify their conduct to the Mass BBO.
    Rep. Issa or Sen. Cornyn should sponsor the the revived Murtha bill.

    • State agencies like the Board of Bar Overseers have very limited authority over the antics of prosecutors. I doubt, actually, that the solution lies at the state level, even though much of the conduct of the feds would be unthinkable on the state side. Massive national exposure that pierces the image of invulnerability sported by the feds might help, and legislation would be very helpful. HARVEY SILVERGLATE

  3. Dan Kennedy

    @James: There’s no attribution. Harvey is clearly using those quotation marks on his own authority. The AP Stylebook says that writers may use quotation marks to convey irony, with the example cited being: “The ‘debate’ turned into a free-for-all.” Harvey’s usage isn’t quite irony but it’s definitely in the same vein.

  4. Ortiz and members of her office routinely say, when they announce an indictment, that they intend to send a “message” to those who would contemplate much less carry out federal crimes. The word “message” comes from the feds, not from me. Whether they used the word “message” specifically when they announced the Swartz indictment, I don’t know. But they use the word very often, more or less regularly. This is how they justify these ill-considered, out-of-proportion prosecutions — they “send a message” and therefore act to deter future crime. HARVEY SILVERGLATE

    • Waldo Johnson

      A variation on the theme:
      When Catherine Greig was sentenced for being in love with Whitey Bulger, the Probation Dept concluded she should serve about 26 months. The US Attorneys told the “victims” she would probably serve no more than 36 months, yet they were going to ask the judge for 10 yrs. Judge Woodlock allowed these so-called victims to speak at Greig’s sentencing where one called her a “dirty bitch” and another urged her to kill herself as her brother had. Woodlock invited these “victims” to speak for the purpose of “community healing”. In doing so he violated Grieg’s rights. More importantly, he obliterated her boyfriend’s right to the presumption of innocence. Grieg has been punished for crimes Bulger has not even been tried for yet! If by some stretch he is acquitted, she will be serving his sentence. Note that in Mass., as in many states and countries, she may have an affirmative defense to the crime of harboring due to her relationship with the fugitive she aided. So in a court a few blocks away, she couldn’t be punished, but in Woodlock’s courtroom she got twice the sentence Kevin Weeks got for for killing 5 people. Grieg’s sentence is comparable to the one John Martorano got for killing 21 men women and children, and he got to serve it at a special minimum security facility in FL. Ortiz recommended Greig get a classification increase to a secure facility in Minn.
      Back to the theme: Judge Woodlock said he was giving Greig this crushing sentence “as an EXEMPLAR”. This is ludicrous because he previously acknowledged her conduct is generally not punishable by many states. Woodlock knew you can’t deter a person from aiding their fugitive relation. In reality he buckled to the media pressure and threw out the “exemplar”/message to cover his ass with the tabloid writers who he knew would pretend not to understand if he did his job and gave Greig a fair sentence.

  5. peter sullivan

    Let’s not kid ourselves that Aaron didn’t have council that told him that if gone to trial he wouldn’t do day of time in jail, and would probably not even been convicted of a crime. He had problems unrelated to the charges against him and took his own life. The recommended sentence for unarmed robbery is 12 months….

  6. Bob Gardner

    So were the quotes around “message” irony? or just “irony”? Good artilce otherwise.

  7. Peter Skerritt

    Obviously Peter Sullivan, you don’t understand the cost of going to trial, even if you haven’t committed a crime. Being very close to a similar case (U.S. v Brad Councilman), I know first hand that it completely broke the defendant, even though he was found innocent of all charges. That’s the whole point of Silverglate’s findings, that the DOJ in cases like this threaten a person, even if they know they have little or no case, and they just hope that the victim will concede rather than going to trial. Then they “up” to threat if the person exercises their right to trial.

  8. peteburtis

    @peter sullivan Putting aside that I’ve read from several sources that the common wisdom was he would do jail time, it wasn’t really about winning or losing. Fighting the federal charges had already depleted *all* of his wealth, and there was no deal on the table that didn’t involve jail time. Even if the trail was a sure thing, he was still going to have to come up with at least $1.5 million to pay to mount a defense.

  9. Two questions.

    First – in the Federal system, isn’t it ‘loser pays’? If a person won they case as Mr. Skerrit says, wouldn’t their court costs and legal fees be covered?

    Second – regarding the emphasis on the sick culture of corruption, etc., what responsibility does Eric Holder bear for his 4 years of authority?

    • Charles Grifffith

      Holder, as with this tragic, appalling Hillary situation at Benghazi, of course bears full responsibility. But, he’ll be immune….he’s a protected minority. This is as politically incorrect a statement as one can make in today’s America but it sorely needs to be said and thought about.

      But Holder, as has Hillary, will obfuscate, evade, flick aside terribly inconvenient and politically inconvenient truths as in Hillary’s albatross, “What difference does it make?”, and go write his book….. in due course.

      Holder is a nouveau arriviste just like Hillary, an exemplar of “Yes I can!” Another example of the social revolution so slowly unfolding around our America. That’s not a compliment.

      Holder and Hillary will remain defensive flash points within the caucus of left-leaning lawyers we have now in such apparent abundance. It’s a tight clique…and claque.

    • In reply to question one: No, there is no “loser pays” in the federal system, particularly on criminal cases. As for the second question: In theory the attorney general, the person at the top of the Dept of Justice pecking order, bears responsibility. But in reality the AG doesn’t even know what goes on. The culture of the DOJ is set by the middle-level lifers more than by the AG. It would take an extraordinary Attorney General to assert his or her authority in this arena. Holder is not an extraordinary AG, not even close. In truth, we haven’t had a truly great attorney general since the presidency of Gerald Ford. HARVEY SILVERGLATE

  10. Phenix Banks

    I have a problem with the the oversimplified idea that Swartz was driven to suicide purely by his legal woes. Depression and suicide are complex matters and though it is easier to think of losing a friend or family member to suicide because of an outside force — the reality is that there is a lot of internal, often unchecked or out-of-control emotional work going on there as well.

    I think it does Swartz a disservice as a human being to hold him up as an internet martyr by glossing over what was likely a key life struggle for him far beyond the DOJ’s actions. It feels that, once again, the blogging press has cherry-picked the specific details of a story that aid in their quest to glorify the tech industry (we are never wrong!) and all it’s poster-children and left the rest of the complex truth behind.

    What could prevent more suicides in our industry in the future, is an industry that is built on honesty and reflection that there is gray between the black-and-white of people’s emotions, between the black-and-white of good-and-bad, between the roles of hero and villain. The hyper-proud, self-promotional, self-congratulatory A-Type prigs who currently act as the voice of the industry ensure that — if/when you become depressed, feel less-than-A-type, do something you regret, fail in your own eyes — there seems to be no place for you to express that truthfully. You must grin and fake cheery tech-is-always-great happiness through your pain and toe the industry line.

    Why fight for the magnificent openness of the web if there is only room for the super-duper-winneriest voices? Life is more interesting than that.

    • Life and experience are not quite that complex so that one really should doubt that the prosecution had nothing to do with the suicide. Remember that this was a vulnerable kid, and this was communicated by his lawyer to the prosecutors. Also, the kid had ulcerative colitis, and so prison posed a special threat and risk to him. “Prison medicine is to medicine as military music is to music,” to paragraph an old slogan. HARVEY SILVERGLATE

  11. Dan Johnsen

    Thanks. Real journalism!

  12. Tom Keating

    Overzealous bright kids just hacked the DOJ sentencing website. Another crime. What would Harvey do when they hack his site? I’ll bet he would go after them legally. this canonization of Swartz, and demonization of Ortiz is getting way out of balance. Peter Sullivan was correct in his comment that Swartz was counseled by his law team. Unfortunately for them, Swartz was in a depressive state,and he took his own life. Not Ortiz..

    • My comments have been on a case where there was no damage, no loss by the “victim” and no profit by the “perpetrator.” Vicious entry and damage to a website is a serious and intentional crime. What is missing from the federal criminal justice system, aside from accountability, is judgment and perspective. HARVEY SILVERGLATE

  13. Charles Griffith

    Ponder this:

    What if Aaron Swartz had been a black man?

    It’s no mere coincidence that this is yet another example of the politically correct “attitude” seeping down from the White House and now apparently growing prevalent in the Federal Judiciary of “Yes I can!” which has gradually taken root since Obama was elected as the first black man [while being half-white] to the Presidency and his Attorney General Holder as another black man was appointed by Obama. The mere mention of this inconvenient fact is taboo. But it’s a fact, none the less, that simply must be recognized openly and combated as efficiently as the opposite approach has been so successful, that of hurling the charges of “racism” and “bigotry” at the drop of a hat.

    Minorities and especially females who become instantly the double-minority of race plus gender, have become almost immune from any questioning because of the instantaneous application of “Racist” and “Bigot” or worse. Those two words have hence become overused to the extent that they’ve lost their meaning.

    I’ve been banned from even searching on the ABAJournal website, blocked apparently as soon as my ISP is indicated, for earlier posting that that Ortiz Prosecutor can now have life tenure just about anywhere she pleases. That safe assertion apparently crossed the “politically in-correct” line at the ABAJournal. That will of course be vigorously denied, but it has happened. That is a fact which also is also politically correct to ignore. Hence, any time that “racism” or “misogyny” can conceivable be thought to apply by any stretch to any situation of whatever nature, then it is applied as an epithet.

    The media are cowed. Politicians are horrified of the threat of being labeled “racist” for the mere suggestion that a black or a female of any minority is unqualified, for anything, at any time.

    Such is the social revolution which we’re experiencing. If Aaron Schwartz had been a black man, what then?

    • karena rahall

      @ Charles Griffith
      You clearly have not looked at those funneled through the pipeline of the criminal justice system, ever. If you think white people are the targets of our system I highly recommend a little trip to any courthouse in the country for one hour. You have demonstrated you are nothing but a racist fool.

      • Charles Grifffith

        Re your:….”If you think white people are the targets of our system I highly recommend a little trip to any courthouse in the country for one hour. You have demonstrated you are nothing but a racist fool.”

        What a silly observation, and a great big fat leap of ….thought?…on your part. You’re the one saying here that I said Whites are the target of the legal system, I never said that. You’re simply grasping at that straw for something to say here.

        Moreover, my mere mention of the mere suggestion of “supposing” Swartz was Black has instantly in your head labeled me a “racist fool”. If that is indicative of your “logic”. I’d want no legal advice from you….and, I’ll even stick my neck out to guess that you think I’m a misogynist fool also because your first name….”Karena”…. looks feminine.

        Good grief! …what’ve we come to? Are you a practicing lawyer?

  14. Walter Hilmers Jr

    RE: Charles Griffith,
    Your comment is beyond belief, and utterly without merit.

    • Charles Grifffith

      In your mind, obviously.
      You’ve very tersely confirmed the existence of that knee-jerk cap-stone popping up in place wherever unusual, unwelcome thoughts bubble up through an opening.

      • Walter Hilmers Jr

        Your inclination to insults leads me to believe that my original thoughts about you were correct. I’m sure you will post some clever retort, but this posting is about Aaron Swartz and I will stay on topic.

        The issues surrounding the prosecution, or maybe persecution, of Mr. Swartz raise a number of red flags about the zealotry of the DOJ in this matter. They deserve serious investigation and that is what this posting is about.

      • Kevin Hilde

        @Walter Hilmers, Jr

        No, the post was not about Aaron Swartz … the post was about prosecutorial misconduct. Charles Griffeth’s comment, whether or not it has merit, was about why nothing is likely to be done about that misconduct and is therefore on topic.

  15. @Charles Griffith – kind of not the point of this article, huh? And I can see why you might invoke the wrath of those institutions you mention. You’re off-topic and you ramble. Good luck with whatever point you’re trying to make though.

  16. Outstanding article Mr. Silverglate. Those of us in our 40s and grew up on computers understand better what this case is about. You do a great job of putting it in context, when you mention Jobs and Woz. I can’t speak for my friends, but it was common in circles I mingled for phreaking, war dialing, etc using computers. This predates the Act that they used against Swartz, but somehow the government/society/computing survived. Now, for acts that got you a stern phone call, you can go millions into debt and be a convicted felon, with no impact on business, society, or the government.

    Unfortunately, this will likely blow over and although Ortiz’s political aspirations are dampened, the next prosecutor will have the same impunity unless s/he also has their hands, “caught in the prosecutorial cookie-jar.”

    • John Schubert has it just right. Others who have no understanding of the issues have criticized me for, in their view, advocating that “rich, smart kids” get off. They have swallowed — hook, line and sinker — the “we are sending a message” nonsense purveyed by the federal prosecutors. HARVEY SILVERGLATE

    • Charles Grifffith

      ……..thanks for that nice bit of perspective.

  17. Laura J. McGarry

    Nice to have my belief that surely honest attorneys must still exist and will ACT to STOP the corruption in the US justice system! Thank you Harvey A. Silverglate!!!

    The crux of the problem is the behavior of government toward its citizens and the fact that when the government is at risk of having intrinsic corruption exposed, no matter which branch, heavy hands will follow. We are out numbered by those who have abandoned the principles behind justice and are being served by the self-serving which means no honest service. When the hearings take place in DC the following needs to happen:

    The Office of General Counsel from the Administrative Offices of the US Courts needs to be confronted at these hearings because the stone covering the PACER incident needs to be turned; this was a huge embarrassment to the FBI where their harassment of Aaron over the PACER download ended with the fact that absolutely no law had been broken. The aforementioned makes the current situation look like a “We got him this time” scenario chased by some heavy handed retaliation.

    Was US Attorney Ortiz pressured by the US Courts to pursue Aaron is a question that MUST be asked! Further, US Attorney Ortiz needs to be asked why she felt she should be so heavy handed on Aaron when her office chose to ignore alleged computer fraud by court staff which was supported by material evidence submitted to her office such as court dockets and filings as well as affidavits? US Attorney Ortiz needs to be asked why the FBI and her office ignored alleged fraud by staff at the USDC of Massachusetts and First Circuit where computers provided to them by the tax payer were used with the purposeful intent to obstruct justice. US Attorney Ortiz needs to be asked why no action was taken when her office was informed that these acts were not only carried by clerk staff but, also, carried by a Magistrate Judge and an Assistant Circuit Executive with the Title LEGAL AFFAIRS who felt she could render fraudulent documents with an inactive law license and post those documents on a government web site. Criminal defendants are not the only ones being abused in the very corrupt US Courts and the abandonment of principle, oath and duty by the front line staff in these courts is happening throughout this country; citizens are being robbed of life, liberty and property at the hands of corruption. Further the federal court system has set the standard and many state courts throughout the country are following suit; they are also infested with corruption.

    NO ONE IS ABOVE THE LAW yet Aaron with his open records campaign, connections after working to defeat SOPA and general capabilities that could lead to full exposure of the corruption in the US Courts was the one being persecuted! Hopefully MIT will answer why they chose to bow to a corrupt federal government over standing by Aaron!!!

    • Charles Grifffith


      Double standards…hypocrisy…..revealed and questioned…….we need more of this.

  18. Hello Harvey,

    I appreciate your sentiments. But let me ask you a question.

    Is it your opinion that an individual should be permitted to hack into private computers and steal any documents, and face no prosecution, as long as he doesn’t personally profit from the theft?

    Or is it just not face serious jail time?


    • Walter Hilmers Jr

      The circumstances in this case raise the question as to whether this constitutes ‘hacking’. He had legal access to documents he download, as a senior research fellow at Harvard, which had provided him with JSTOR access. In addition he had the documents in his possession but had not released them. He wrote a Python script to automate his downloads and wonder how that in itself could be construed has hacking. There are a number of other technical issues as well, and all of them deserve considerable discussion.

    • It is my position, first, that a person who “hacks” in a manner and under circumstances where no damage is done, where it is probably not a violation of law, should not be prosecuted, since he has not committed a crime. See Kevin Cullen’s column in today’s Boston Globe about the case of U.S. v David LaMacchia, which was my case: Motion to dismiss granted because what this MIT student did was not a violation of the statute, even though “hacking” by some people’s definition. Where the “hacking” does violate a law, where there is no malicious motive and neither loss by the hacked or gain by the hacker, a prosecution is appropriate where the defendant is placed on probation and where the charge is dismissed at the end of the successful probation. In a sane and justice society, this is how prosecutorial judgments should be made. HARVEY SILVERGLATE

      • Mike Benedict

        Is there a fundamental difference, either in the eyes of the law or in your opinion or both, between a person physically entering another person’s house and leaving without taking anything, and a person digital entering another person’s web server and leaving without taking anything?

        • There is indeed a fundamental difference between entering someone’s “mailbox” and entering someone’s dwelling/house. The common law has long recognized this difference. The law is much harsher on a break-and-entry in a dwelling, because of the danger that someone might be home and someone can get killed. I would say that common sense, as well as common law, dictates this conclusion. But, mind you, I am not saying that it is OK to enter into someone’s “mailbox” without permission, even if nothing is destroyed and nothing is deleted (but simply copied), but whether it is a crime or not depends upon the nuances of the controlling statute(s). Even if it turns out not to be a crime, in my view it is wrong. But that is my personal view. HARVEY SILVERGLATE

      • I appreciate your response.

        There is a parallel from several years back, during the investigation of certain officials of EOTC, with regard to allegations of false statement made in bond prospectuses to fund Big Dig construction. There was a determination made not to prosecute, essentially because the goal was to protect taxpayers by keeping the bond rating higher, and nobody was hurt, as the bond purchasers were fully paid.

        Then there was the prosecution of an insurance lobbyist under the honest services mail fraud statute for violating the misdemeanor lobbying statutes on gifts.

        • The Supreme Court has finally narrowed the “honest services fraud” statute some, although not nearly enough. A lot of people who were innocent of fraud were convicted under that nightmarish piece of legislation. The federal criminal code is very badly written, and the tactics of prosecutors exacerbate the poor quality of the statutes. This is a point I try to make in my book THREE FELONIES A DAY: HOW THE FEDS TARGET THE INNOCENT.

      • Mike Benedict


        How does one satisfy the litmus of whether damage was done? For example,
        say the Chinese hack the CIA, but do nothing obvious except look around (in other words, they don’t vandalize the site). The risk, of course, is that they gained knowledge that *could* be damaging to US interests. But how do you later prove they acted on what they learned, and thus satisfied the damage component?

    • Likewise, Harvey – it is at the center of my crime novel, Diary of a Small Fish.

  19. Jeffrey Goldings

    What oversight role does Congress, which provides the taxpayer financing for these U.S. Attorney offices, have in ensuring the United States Attorneys’ offices are behaving in a professional, ethical manner? Why haven’t one our local Massachusetts U.S. Representatives or Senators sought to initiate a Congressional hearing by the House or Senate Judiciary Committee on the Swartz matter. Presumably, such a hearing would require U.S. Attorney Carmen Ortiz to answer, under oath, the many reasonable questions that the friends and colleagues of Adam Swartz have about her handling of the Swartz case.

    Finally, if Ms. Ortz won’t answer any Congressional questions about the matter and refuses to agree to reform the seemingly cavalier and reckless manner in which her office operates, could Congress use its “power of the purse” to limit the ability of U.S. prosecutors such as Ms. Ortiz to spend taxpayer monies on similar dubious prosecutions? Could Ms. Ortiz be impeached if she refused to answer the queries of Congressional investigators? It seems to me that Swartz family and Adam’s colleagues might be able to identify one Massachusetts or New York. Congressman or Senator willing to take up this worthy cause.

    It’s unfortunate Bill Delahunt retired because he was one of the very few courageous Congressmen willing to address issues of prosecutorial overreach and misconduct by the U.S. Justice Department when he served in the U.S. House of Representatives. Maybe, he could recommend to the Swartz a former colleague who might be willing to mobilize support for a Congressional investigation into the matter. In any event, Adam’s death is an authentic tragedy that should give Ms. Ortiz and her professional colleagues pause before the consider launching and proceeding with the prosecution of their next dubious criminal target.

    • Charlie Griffith

      Well said, Mr Goldings, and of course food for thought for those thoughtful enough among some of these smug posters here.

      It will take courage, indeed for an elected or appointed lawyer/official to stand up against the current and very formidable politically correct mindset among elected officials and politically sensitive prosecutorial staff at almost any level.
      This layman reading these various comments here has come away with a new cautious wariness of some of the practitioners of the Law as they read it. Some of the the luster has faded.

      The emerging new demographics of the voters is apparently a vital consideration of all in appointed public prosecutorial service positions.

      Don’t smirk, dear readers…as I said, some of the luster of the practice of the Law has grown dim.

  20. Luke Payton

    I am finding it hard to understand how some people here cannot grasp/see that this man, who caused harm to no one, was being treated as if he was a mass murderer?

    When the victim of a crime recommends that no prosecution be under-taken, that it wasn’t really a big deal than what else is really left as a reason to prosecute? It seems at least in this case it was to “send a message” and that message was ‘If you’re smart you better not make us mad or we will destroy you’. I personally do think there is more to this story. Perhaps his involvements in other events put him on one of those government lists of ‘problem people’. We know from history that it has happened over and over again from the commie black lists in the movie industry to COINTELPRO and beyond. That is a mater of public record and I really don’t think things have changed.

    This man stole nothing, he had legal access to this system and while he did perhaps violate the terms of service of the system he honestly did very little wrong. As far as accessing the data closet I don’t think he did that even thinking it was wrong. In fact it was far better to directly connect to the network than tie up other resources whether it be wireless bandwidth or the computer time of a firewall, router(s) or other type of gateway (it’s debatable). Now he did continue accessing the system after his IP/MAC information was banned and he should have thought about why that had happened. He should have spoke with someone about it but as a technical person I understand that in his mind it was just easier to reconnect. After all we are not talking about a person who wanted to make a profit let alone hurt anyone so why think he had a negative intent? Was he really a bad man or did he just not think what he was doing was wrong? A lot of smart people have trouble understanding these sort of things. They are not in it for the money they are in it for the wisdom or to advance their fields of interest which, in the end, helps all of us!

    I’m not saying nothing should have happened to him but in my mind anything beyond probation should never have happened. I understand why a prosecutor might want to ‘turn the screws’ so to speak but you just don’t act that way on every case and when you do you have to keep in mind that you are acting in a VERY gray area. What if you get it wrong? What if the person didn’t do it? That should always be considered whenever you feel like turning up the heat.

    One last thing, I don’t think people know or even what to know that every one of us does something illegal at one point or another just by using a computer or cell phone. Something REALLY illegal, as in 10 years in jail ILLEGAL. Does everyone here really read those contracts on their cell plan, or the copy of Windows 7 or “Adobe $variable$” let alone the TOS of every website they visit? Heck it’s worse than that honestly. An example, right now in VA if you live with your girlfriend out of wedlock you are breaking the law! Now it’s just a misdemeanor but still do you really want a record for just living with someone?…

    This man could be anyone of us and I truly mean ANYONE, not just some weird nerd in a basement somewhere. I don’t think that most really understanding this or even want to know this but it is the truth.

    Sorry for the grammar and spelling. I have problems understanding them but I sure as heck understand more than most when it comes to physics and computers so it all balances out.

    Thanks for reading…

  21. “Where the “hacking” does violate a law, where there is no malicious motive and neither loss by the hacked or gain by the hacker, a prosecution is appropriate where the defendant is placed on probation and where the charge is dismissed at the end of the successful probation. In a sane and justice society, this is how prosecutorial judgments should be made. HARVEY SILVERGLATE.”

    The issue is not sanity or insanity, the issue is the use of the Justice System for political purposes and the profit of the few. The system at this juncture becomes a weapon in the hands of the powerful, to destroy the many. No matter how hard anyone tries, or does not mention the other agencies involved in this predatory prosecution (U.S. Secret Service, complaint educational institution, etc.) it was a nationally directed effort to take down Aaron Swartz. This is why it is so ironic to appeal to the body politic in the given situation, it is like asking the proverbial fox to watch the hen house. To deny the complicity of the whole because of the few is futile, and rest assured they will contain the damage which this should give to the entire judicial system.

    When ideas which are contrary to the ruling interest gain ascendance, and champions rise up to the cause they will be targeted. I know this is a distasteful post, it is like pronouncing a condition of cancer to someone who is feeling ill – who wants to hear that? However, if it is true then it should be exposed, and it does no service to anyone to allow the victim to continue oblivious to the condition. I would want someone like Edward H. Levi to rise up as much as Mr. Silverglate, but these are different times – no one is going to defend students occupying buildings on campuses, or limit the activity of the FBI from the inside. Let me end with a quote, which I think fits the situation:

    Bertrand Russell, The Scientific Outlook in 1931 wrote this:

    “On those rare occasions, when a boy or girl who has passed the age at which it is usual to determine social status shows such marked ability as to seem the intellectual equal of the rulers, a difficult situation will arise, requiring serious consideration. If the youth is content to abandon his previous associates and to throw in his lot whole-heartedly with the rulers, he may, after suitable tests, be promoted, but if he shows any regrettable solidarity with his previous associates, the rulers will reluctantly conclude that there is nothing to be done with him except to send him to the lethal chamber before his ill-disciplined intelligence has had time to spread revolt. This will be a painful duty to the rulers, but I think they will not shrink from performing it.”

    The only deterrent? The people must dismantle this system. If those who watch me want to strike out, they know where to find me. Thank you for your significant contribution Mr. Silverglate.

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