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U.S. Attorney Carmen Ortiz, who has been sharply criticized following Internet freedom activist Aaron Swartz's suicide, is pictured a news conference in Boston, Thursday, Jan. 17, 2013. Swartz's supporters believe her office was overly aggressive in charging Swartz with 13 felonies for tapping into MIT's network to download nearly 5 million academic articles. (Elise Amendola/AP)

Reject her legal rationale. Question her prosecutorial discretion. But let’s stop the slander that U.S. Attorney Carmen Ortiz has blood on her hands for the suicide of Aaron Swartz.

Isn’t the death of the troubled 26-year-old Internet visionary tragedy enough without the reflexive assignment of blame to the federal prosecutor doing her job? Whether she was doing it wisely or overzealously is a legitimate topic for public debate. Not so his father’s charge that she, on behalf of the government, “killed” a young man who wrote candidly about his long struggle with chronic pain and deep depression.

Isn’t the death of the troubled 26-year-old Internet visionary tragedy enough without the reflexive assignment of blame to the federal prosecutor doing her job?

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.

This Dec. 8, 2012 photo shows Aaron Swartz, in New York. Swartz, a co-founder of Reddit, hanged himself Friday, Jan. 11, 2013, in New York City. (ThoughtWorks, Pernille Ironside/AP)

This Dec. 8, 2012 photo shows Aaron Swartz, in New York. Swartz, a co-founder of Reddit, hanged himself Friday, Jan. 11, 2013, in New York City. (ThoughtWorks, Pernille Ironside/AP)

Are those maximum sentences too great? Yes. Is there a solution? Change the law. In the wake of Swartz’s suicide, proposals are now being introduced on Capitol Hill to reduce penalties for digital piracy. Neither the Ortiz prosecution nor the Swartz suicide created that opportunity; it has been available to critics of the law for 25 years. If calling a long-overdue amendment “Aaron’s Law” is supposed to be the “good” that comes out of this tragedy, where are the advocates for a comparable legislative effort to devote more public resources to the mental health issues that contributed to his death?

In grief-stricken blog postings memorializing Swartz, Harvard Law School Professor Lawrence Lessig begs the public not to pathologize his young friend’s suicide but to see it, instead, as the byproduct of prosecutorial bullying. “It angers me that he did what he did,” Lessig writes. “But if we’re going to learn from this, we can’t let slide what brought him here.”

But no one can read Swartz’ blog post from 2007 and not wonder whether Lessig has his emphasis in exactly the wrong place, and whether the strain of his impending trial only exacerbated the more pronounced, underlying causes of Swartz’ suicide.

“I have a lot of illnesses. I don’t talk about it much, for a variety of reasons. I feel ashamed to have an illness. (It sounds absurd, but there still is an enormous stigma around being sick.),” he wrote of the migraines and depression that plagued him.

Surely there have been times when you’ve been sad. Perhaps a loved one has abandoned you or a plan has gone horribly awry. Your face falls. Perhaps you cry. You feel worthless. You wonder whether it’s worth going on. Everything you think about seems bleak — the things you’ve done, the things you hope to do, the people around you. You want to lie in bed and keep the lights off. Depressed mood is like that, only it doesn’t come for any reason and it doesn’t go for any either. Go outside and get some fresh air or cuddle with a loved one and you don’t feel any better, only more upset at being unable to feel the joy that everyone else seems to feel. Everything gets colored by the sadness.

At best, you tell yourself that your thinking is irrational, that it is simply a mood disorder, that you should get on with your life. But sometimes that is worse. You feel as if streaks of pain are running through your head, you thrash your body, you search for some escape but find none. And this is one of the more moderate forms.

Swartz’ family and friends want us to discount his emotional turmoil to focus our anger at prosecutorial overreach (an online petition calling for Ortiz’ ouster already has more than 40,000 signatures). “Somehow, we need to get beyond the “I’m right so I’m right to nuke you” ethics that dominates our time,” Lessig writes. “That begins with one word: Shame.”

But Aaron Swartz knew too well about another sort of shame.

“Sadly, depression (like other mental illnesses, especially addiction) is not seen as “real” enough to deserve the investment and awareness of conditions like breast cancer (1 in 8) or AIDS (1 in 150),” Swartz wrote of the one in six Americans suffering as he was. “And there is, of course, the shame.”

Maybe he would want us to do something about that, too.

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  • Isabella

    Wrong again, Eileen. Carmen Ortiz does indeed have blood on her hands, and she has demonstrated not only her own fatal shortcomings, but also those of our Criminal Injustice System. She needs to go, and the system needs to be reformed.

  • Mary

    Ortiz bullied Swartz to death. In my family, we have been discussing this case. My brother said it best–“Ortiz’s explanation was baloney. Her claim that she offered Swartz a “deal” is very misleading and self-elevating. Her deal was that he plead guilty to 15 felony counts, and be a felon forever, with the loss of voting rights in some states in this country, and diminish his future employment prospects. Also, he would have to pay between 1.5 and 4 million dollars in fines, court costs, and restitution (money he didn’t have, but would burden him for the rest of his life and come out of any future income.) And then he would serve at least 6 months in a federal penitentiary for a crime that was the equivalent of checking out too many library books! And last but not least–he would be banned from using the internet or computers for an unspecified time period after prison and be forced to turn “State’s evidence” against anyone he knew in the world of computer geeks and hackers and freedom activists.” I don’t suffer from depression, and to be honest, the above would bring me to despair. So Eileen, let’s stop pretending this was just a depressive’s irrational response. Aaron Swartz was bullied to death.

    • http://www.facebook.com/people/Edward-Thibodeau/1075101816 Edward Thibodeau

      Well said, Mary. You saved me all that typing.

    • NamePick

      Mary, devastatingly explained! Ms McNamara minimizes the incredible power of the state to threaten the future of an individual.

      How much discretion did Ms Ortiz have given that JSTOR said they didn’t want a legal case?

      http://about.jstor.org/news/jstor-statement-misuse-incident-and-criminal-case

      “As noted previously, our interest was in securing the content. Once this was achieved, we had no interest in this becoming an ongoing legal matter.”

    • http://www.facebook.com/joel.lindemeier Joel Sebastian Lindemeier

      you sir have said it better then i could thank you. Ortiz will pay for this, if the rumor that she was using his case as a stepping stone to become governor. I WILL SAY THIS NOW ANONYMOUS WILL NEVER LET THAT HAPPEN HER POLITICAL CAREER IS OVER.

      WE ARE ANONYMOUS

      WE DO NOT FORGIVE

      WE DO NOT FORGET

      WE ARE LEGION

      YOU SHOULD HAVE EXPECTED US.

  • matt p.

    Finally. an editorial that makes sense. It is very sad Mr. Swartz killed himself. Someone who thinks taking their own life is an ultimate internal mental struggle. The cause of his suicide is because of Mr. Swartz internal demons, not Ms. Ortiz. If he is going to make a rational political or social statement then he knew what he was doing was illegal. Therefore the consequences of his actions would have to come bare. Go to jail, due your time and make your point. But if you think you can’t handle being arrested, don’t commit the crime.

    • getreal

      Whil

    • sherog

      ” If he is going to make a rational political or social statement then he knew what he was doing was illegal”

      lolwut? This makes 0 sense

      I didn’t know that you had to break the law to make a political or social statement

      Also I don’t think making a statement was the objective here. Open access to information which should be freely shared was the objective. Please think some more before you open your mouth

      • matt p.

        He broke the law while making a political/social statement. Do you think he did it for himself? Then you need to understand what he did a little better. It was a statement. And it was illegal and he knew. The information wasn’t his to share. And why don’t you keep your insults to places like foxnews.com.

        • Wallace

          The people he took it from dropped the charges, they were in fact okay with it, Most of the documents that he had were already in public domain.
          He died because a power hungry woman wanted to further her career rather than help people.

          • getreal

            The real issue is not whether Ms Ortiz has blood on her hands for Swartz’s suicide or whether Swartz should have expected his “open access” activities to warrant a major federal indictment. Those issues are merely red herring issues that draw attention away from the real issue, i.e. to wit: the real issue to investigate is whether Ms. Ortiz’s aggressive over-reaching in this prosecution amounts to an abuse of power and, if so, remove her for office, and whether new safeguards, guidelines, and trainings for U. S. Attorneys should be developed to ensure their decisions are guided by the values of fairness and justice.

            At a minimum, we should also look into whether the Swartz case is an isolated case or whether there is a pattern of troubling prosecutions coming from that office.

            Why do I say that the Swartz prosecution was troubling (I will repeat what I stated before…because this is important to understand):

            1. There are many bad guys breaking federal laws that Ms. Ortiz can prosecute. Ms. Ortiz’s central task is to direct the limited resources of the U.S. Attorney’s Office on prosecuting the most “worthy bad guys” in our society. No one…and I mean no one…not even Ms Ortiz…can say that the 26 year old Swartz falls into the category of a “worthy bad guy.” He did not steal money; he did not physically harm anyone, and he and the alleged victim and worked out a settlement between them.

            2. The core mission of the U.S. Department of Justice is to further a more fair and just society. Whether or not that mission is achieved depends upon how U.S. Attorneys chose to enforce federal laws. Many laws can be enforced to achieve unjust results not intended by the people that drafted the law. It’s the job of the U.S. Attorney to make sure that does not happen. The main question a valued-centered U.S. Attorney must ask before prosecuting a case: Will this prosecution further a more just and fair society? Does Swartz’s prosecution and incarceration further fairness and justice in our society? I think most reasonable people would agree that Ms. Ortiz’s decision to prosecute Swartz was not guided by those criminal
            justice values.

            3. If Swartz is not a “worthy bad guy” and his prosecution and
            incarceration does not further a more just and fair society, then why did Ms Ortiz decide to prosecute Swartz? She knew prosecuting a 25 year old “open access” internet activist would generate a lot of media attention. How does media attention benefit her? I can think of many possibilities including her political, professional and ultimately her financial interests.

            Let’s hope a Congressional Committee investigates the practices of the Boston U.S. Attorney Office — these issues implicate the core values of our free society.

          • public_servant_watch

            Carmen Ortiz has a whole slew of alleged criminals committing computer fraud on computers you the tax payer paid for by the corrupt court staff working in the federal courts who are running an evidence supported racketeering enterprise with outside attorneys and her own staff appear involved; they prolong litigation and they obstruct justice to pad their pockets. It happens in both civil and criminal litigation AND it is happening in federal courts all over the country; many state courts have followed suit. The legal community is what needs reigned including the DOJ. Why don’t you ask the Massachusetts DOJ why the Daniel Carpenter case has sat stagnant on the First Circuit’s docket for so long (perhaps because I put in print what they are pulling)—wow–criminal charges against a once very rich man that have stretched out over a decade and they continue to bleed him with a fraudulent decision written by a Magistrate allowing a new trial so they can keep bleeding him but the appeal by the USA sits stagnant on the USCA1 docket. The DOJ appealed the new trial order that was rendered after a guilty verdict and a court of appeals knowing this man is not yet in jail does NOTHING to expedite the decision on whether or not he is entitled to a new trial! Aaron’s download of the PACER documents had the FBI on his trail –they would have some how found a federal crime if he spit his gum on the side walk—he was a thorn in the side of the corrupt who are taking YOU the tax payer for a ride in the largest dishonest fraud scheme this country has ever seen. These corrupt public servants have been reported to the Massachusetts DOJ/FBI, the Washington DC FBI, the Washington State FBI, the ADA/DOJ, the OIG, the Massachusetts AG, the Massachusetts OIG, the Massachusetts Board of Bar Overseers, the Supreme Court of the United States (gee did you hear the SCOTUS made an unexpected and sudden announcement of Clerk Suter’ plans to retire) and many more in a position to act but who do nothing but render bogus documents on why they cannot act or simply ignore the allegations (HOUSE & SENATE). These people are corrupt power hungry alleged criminals taking the tax payer for a ride off the backs of ordinary citizens AND they have to be stopped. The Senate and House Judiciary Committees are more than aware of what goes on and have been for over a decade—they IGNORE CRIME in these courts committed by tax supported public servants and falsely claim separation of powers has them unable to act. Our only checks and balance is an unbalanced government ripping us off for life, liberty and property and not enough of the public willing to put them in check. Hopefully Aaron’s legacy will initiate change and bring to the forefront a public who is interested in justice for all where up until now the only people in the fight have been the folks more than aware and that awareness only because they have been affected directly or indirectly by the CORRUPT. http://www.scribd.com/tired_of_corruption

          • http://twitter.com/pws4 pws

            She’s not always so tough. When GlaxoSmithKlein was selling defective drugs with full knowledge, nobody had to go to jail:

            http://www.bloomberg.com/news/2010-10-26/glaxo-said-to-settle-u-s-drug-manufacturing-lawsuit-for-750-million.html

            But you know, unlike overusing school library privileges they were only impacting the public’s health and safety.

      • NPRJunkie

        I fully understood what matt p meant. Mr. Swartz committed a crime “breaking and entering” and once he entered he committed another crime “computer fraud and theft”. He knew what he was doing was illegal. He did it anyway because he “did what he thought was right”. Well, what he did was wrong and illegal and he was prosecuted for it. Unfortunately for him, he came up against a prosecutor who may or may not have wanted to make an example out of him. From what I have read of the case and Mr. Swartz adamance that he not be labeled a felon, he gave as good as he got. Mr. Swartz was no 15 year old boy who was fooling around and didn’t know the magnitude of what he was doing. He was a grown man and a genius by all accounts. Unfortunately, he was also plagued by mental illness.

        I have a question for his family, his attorneys and all who would castigate Ms. Ortiz for “killing him”, where were you before? His attorney is now claiming he told the prosecutors his client was suicidal. You knew or should have known how he suffered and by all indications you did nothing to stop him. He should have taken the plea deal, like so many other accused felons who know they are guilty and want to avoid the harshest penalties.

        It’s always a tragedy when someone kills themselves, it feels like a greater tragedy when someone so young and full of talent feels like there is no other alternative. You must hold Mr. Swartz accountable for all of his actions and choices. He doesn’t get a free pass just because he’s dead. It’s a tragedy but his family shouldn’t blame others for his choices and their lack of action.

        • Jeffrey Rossi

          *ALL* students and visitors to MIT have the *LEGAL RIGHT* to download any academic articles from JSTOR without direct authorization due to a special licensing agreement MIT has made with them. Aaron Swartz’s only “crime” was that he temporarily violated JSTOR’s terms of service by downloading a large number of articles at once causing a small strain on their network. JSTOR found this to be a MINOR NUISANCE and DROPPED ALL CHARGES against him. MIT also ultimately did not wish to pursue trespassing charges and *EXPECTED* the charges to be dropped. The ASTONISHING thing about this case is that Carmen Ortiz nevertheless viciously persecuted Swartz over these ridiculous charges until his $8 Million dollars in wealth had been drained to NOTHING and his family was forced to REMORTGAGE their house. His suicide was NOT simply DEPRESSION it was DELIBERATE and THOUGHTFUL as he killed himself on the anniversary of his arrest. It was Swartz’s efforts to stop former DNC Chairman Chris Dodd’s SOPA/PIPA orchestrations in congress which made censorship of the internet a taboo subject for congressional representatives. *THIS* was the REAL motivation behind these utterly ludicrous charges and the heinous persecution of Swartz. Ortiz *KNEW* that prosecuting Swartz for “temporarily violating terms of service by downloading academic articles too quickly” was outlandish and ludicrous. She was informed of the suicidal state Swartz was in but pressed her case anyways. Anyone who reads about this case clearly understands that Carmen Ortiz is a psychopathic opportunistic murderer. Swartz was no ordinary genius. Had Carmen Ortiz allowed this young man to live he probably would have been one of the brightest minds of his generation.

          • Geoff Dutton

            Right on Jeffrey. I’ll tell you what _real_ Internet piracy is: it’s our beloved N*S*A sopping up all the traffic on the Net and warehousing it to decrypt and analyze whatever they happen to be interested in – your messages, attachments, job applications, bank transactions, just because they can. I’m sure they have copied everything from JSTOR and every similar archive. And they are exempt from SOPA/PIPA and effectively immune from oversight and prosecution. Aaron Schwartz, crucified to keep Big Brother safe from democracy.

        • http://twitter.com/kowboykoder Cowboy Coder

          What was he doing that was illegal? He was authorized to have access to JSTOR. Her legal argument is that he violated a terms of service (which is questionable) and therefore his access became “unauthorized” and thus subject to federal law as a felony. However, judges had already thrown out this line of reasoning as being absurd in the Lori Drew case. Ortiz had no case. You claim Swartz is a guilty criminal. What is your evidence and background in law?

          You also libel Swartz as being mentally ill. Please show documented evidence from a qualified medical professional diagnosing Swartz with mental illness. State what specific condition he was diagnosed with and the date of the diagnosis and the name of the doctor.

    • getreal

      Before MS Ortiz decided to go forward with Swatz’s prosecution, she read a detailed prosecutor’s memorandum. It contains all the facts—including the defendant’s age, education, and detailed background information, as well as the defendant’s alleged crime, and the defendant’s alleged financial gain from the crime.

      In this case, MS Ortiz knew that Swartz was an educated 25 year old “open
      access” internet activist who was not motivated by financial gain and who
      saw no financial gain from his alleged crime. Also add to these facts
      that the alleged victim did not want Swartz criminally prosecuted. Indeed,
      the alleged victim and Swartz work out an agreement between them. In short,Ortiz knew all this and more before she decided to prosecute Swartz.

      Also understand the context surrounding Ms. Ortiz’s decision-making.

      There are many bad guys breaking federal laws that Ms. Ortiz can
      prosecute. MS Ortiz’s central task is to direct the limited resources of the U.S. Attorney’s Office on prosecuting the most worthy bad guys
      in our society. No one…and I mean no one…not even MS Ortiz…can say
      that the 26 year old Swartz falls into the category of a “worthy bad
      guy.” He did not steal money; he did not physically harm anyone, and he and the alleged victim and worked out a civil settlement.

      The core mission of the U.S. Department of Justice is to further a more fair and just society. Whether or not that mission is achieved depends upon how U.S. Attorneys chose to enforce federal laws. Many laws can be enforced to achieve unjust results not intended by the people that drafted the law. It’s the job of the U.S. Attorney to make sure that does not happen. The main question a valued-centered U.S. Attorney must ask before prosecuting a case: Will this prosecution further a more just and fair society? Does Swartz’s prosecution and incarceration further fairness and justice in our society? I think most reasonable people would agree that
      Ms. Ortiz’s decision to prosecute Swartz was not guided by those criminal
      justice values.

      If Swartz is not a “worthy bad guy” and his prosecution and
      incarceration does not further a more just and fair society, then why did MS
      Ortiz decide to prosecute Swartz? She knew prosecuting a 25 year old “open access” internet activist would generate a lot of media attention. How does media attention benefit her? I can think of many possibilities including her political, professional and financial interests.

      I suggest that the real issue is not whether MS Ortiz has blood on her hands for Swartz’s suicide, the real issue to investigate is whether Ms. Ortiz’s aggressive over-reaching in this prosecution amounts to an abuse of power and, if so, remove her for office, and whether new safeguards, guidelines, and trainings for U. S.Attorneys should be developed to ensure their decisions are guided by the values of fairness and justice.

    • http://twitter.com/kowboykoder Cowboy Coder

      What crime? Courts have ruled that the argument that violating a web site term of service, a civil violation, does not make one guilty of federal felonies. Yet that was the basis of her claim that he engaged in unauthorized access, despite the fact he was authorized to have access to JSTOR.

    • bouncing411

      Matt, I’ve worked in computer software and security for 10+ years, and never in my career has it occurred to me that violating a website’s “terms of service” would be a federal crime, much less one that carries 30+ years and millions of dollars in fines.

      The statutes Ms. Ortiz used were designed to prosecute people who break into banks (CFAA) and forge wire transfers (wire fraud). Using the most broad interpretations possible — ones that had already been struck down in other cases (specifically United States v. Lori Drew) — Ms Ortiz went after Swartz using the full force of her office.

      Swartz was facing, in all, 14 felonies for having the nerve to disregard a website’s terms of service.

      Perhaps you should do some basic research before you post such a grossly misinformed, and downright dangerous, opinion. What you said is simply not defensible.

  • Unmensch

    Looks like Carmen Ortiz has occupational blindness. Many previously successful, conscientious professionals develop that kind of tunnel vision that stops them from sanity-checking their own work. But in a profession like hers, the results can be devastating.

    It’s not unusual for young gun-type prosecutors to overreach and get shuffled off to other departments where they can’t do as much damage. While Ortiz doesn’t fall into this exact category, the consequences should be the same.

  • CircusMcGurkus

    Here’s the thing – legislatures have gotten ruthless in defining crimes and punishments. Prosecutors have discretion to enforce or not enforce such draconian laws. But rarely do they exercise discretion – they use tremendous muscle to obtain both criminal penalties and related civil forfeitures. The public – who is supposed to curtail tyranny – is banging its collective fist over owning military style weapons to prevent a government takeover when the government has taken over in the area of criminal law without so much as an eyelash bat. The only people aware of the magnitude are those involved in the justice system.

    Did Ortiz kill Swartz? That’s complicated. Her strong-arm policies, despite her knowledge about his history of depression, probably contributed to his death by adding so much stress to his life that it became unmanageable. Her hands are certainly not clean: if she is honest she will admit that she makes deals with people far less culpable than her own complicity here in order to catch bigger fish in cases she investigates. The conversation should not only be about the tragedy of Aaron Swartz, and the “get tough on crime” policies, but about who we are and what we think we are accomplishing by having potential penalties such as decades in prison for releasing knowledge to the masses, essentially a copyright infringement.

    Why should appointed prosecutors even have this kind of discretion and what kinds of watchdog is the American public to notice only when a young man dies? Aaron Swartz’ death is a unique tragedy, but the tactics used are routine (which is exactly why Ortiz does NOT feel responsible….if only she had empathy to see through the eyes of the accused who often make similar claims in their own fields…)

    Meanwhile, the people who brought the world economy to the edge of collapse, who have received billions in taxpayer aid, who have continued to ruin lives with impunity are “too hard” to prosecute. There is a disconnect here. Spend less time on the low hanging fruits of John Edwards and Roger Clemens and Aaron Swartz and pool resources to catch the real criminals who wreak havoc daily. I think the federal prosecutors will be amazed at how much money and time and personnel are available once these ridiculous – and tragic – cases cease to be a focus.

    • mumtothree

      CMG is right. And let’s not forget that it’s only one legislature we should be talking about here – namely, Congress. These are “federal” crimes, prosecuted by the feds, backed by resources and priorities. When libertarians talk about less government, this one is something we should think about. Aaron Swartz is not the first victim of their techniques. But evidently a lot of our elected representatives in Congress voted for CFAA, probably because they thought it would prevent people from setting up websites, e.g., a fake bank, to take someone’s money.

    • http://profiles.google.com/barry.kort Barry Kort

      Back in January, on Timothy B. Lee’s article on Forbes about the corrupt practice of plea bargains, one poster asked, “What part of the US Attorney’s prosecution of Aaron Swartz was incorrect?”

      Here is what I wrote in response:

      That’s an excellent question, and it deserves a thoughtful answer.

      The logic of our system of law operates upon an axiom that dates back some 3760 years, when Hammurabi of Mesopotamia wrote down one of the first collections of codified laws. The underlying axiom is that codified laws and associated punishments are the most appropriate and efficacious method of regulating the behavior of members of a human society. We can call this concept the Hammurabic Method of Social Regulation, more popularly known as Law and Order.

      In mathematical logic, all the results of an otherwise logical inference or procedure depend on the validity of the underlying axioms which are adopted on faith and without proof.

      There have been a number of rigorous, carefully crafted, and insightful studies of the axiomatic beliefs that undergird our system of law. Some of these are mathematical studies which gave rise to the modern branch of mathematics known as Chaos Theory. Some of these are sociological studies which dig into the roots of violence in our culture.

      Have you ever asked yourself, “Why do we believe in the Rule of Law?”

      From the point of view of a mathematician, scientist, or systems analyst, it’s a fascinating question to study.

      I happen to be one of the few souls who have taken the time and effort to review the research into this curious question, using the most powerful tools for thought that are necessary for any critical thinking exercise requiring a rigorous combination of mathematical, scientific, and analytical thinking.

      I’ll skip here to the bottom line: I disbelieve in the Hammurabic Method of Social Regulation. I have come to disbelieve in it because I discovered it is derived from an axiomatic foundation that has been patently falsified by careful scientific and mathematical analysis dating back for well over a century of modern analytical thinking, and before that to much earlier insights prior to the advent of modern scientific and mathematical method.

      Aaron Swartz fell into a HOLE in our culture. It’s a gigantic HOLE that has bedeviled humankind since the dawn of civilization.

      See “The HOLE Story” which briefly outlines the parameters of the technical analysis and highlights the primary clues which led me to my startling conclusion.

      http://moultonlava.blogspot.com/search?q=HOLE+Story

  • ArentHere

    The prosecution of Swartz and potential for an overly harsh sentence certainly factored into his suicide, and that’s very tragic. This whole situation emphasizes the very general fact that much needs to change with the justice system in this country. But it’s also tragic that those closest to Swartz – his family and friends – have abdicated any responsibility for trying to prevent his suicide. Carmen Ortiz didn’t kill Aaron Swartz. Aaron Swartz killed Aaron Swartz. RIP.

  • http://www.facebook.com/cliff.hayden.1 Cliff Hayden

    The truth lies somewhere between Lessig’s angry assertion and Ortiz’s denial of responsibility for this tragedy. There is certainly enough ground for soul-searching and review of practice to make sure that the punishment fits the crime. So let’s do that – honestly and transparently – and make the necessary changes to law and prosecutorial practice that will ensure that such failures don’t happen again.

  • Tutie

    When all is said and done, we should look in the mirror and ask ourselves what were the motives and drives operating here? On one hand there was a very young man wanting to change our world into a better world. He may have been naive, but he wanted to do good.
    On the other hand, there were prosecutors who were fighting for the “law” . Sometime, somewhere, they just lost their internal sense of justice, their internal compass of what is good and what is bad and with that they lost their humanity.
    It’s deeply saddening .

    Carmen Ortiz is incapable of seeing the grave state of the operation she leads, a prosecution with no reason nor humanity.
    For us, a society that’s based on morals and justice, that’s a tragedy as well.

    • http://profiles.google.com/barry.kort Barry Kort

      We need a national dialogue on the practice of piling on charges to coerce defendants into accepting unjust plea bargains.

      The prosecution was apparently in the business of annihilation. Swartz faced spiritual annihilation and financial annihilation, with no viable means of escape. To my mind, our justice system is out of control. The prosecution took leave of their senses. Unfortunately, this kind of tragedy is all too commonplace, and most of the time goes unreported.

      The suicide of Aaron Swartz in the face of the appalling over-reach of unchecked discretionary prosecutorial power highlights a much larger problem that pervades our legal system.

      The entire US legal system (including criminal, civil, and family court divisions) is routinely used in an outrageously abusive manner.

      Those who are traumatized, stigmatized, or victimized by such shenanigans within the legal system may suffer what has come to be called Legal Abuse Syndrome.

      In the field of Medicine, every proposed treatment or cure has to be carefully studied and reviewed to ensure that it has demonstrated therapeutic value, and does not inadvertently spread, exacerbate, or even cause the malady it sets out to treat. In the medical literature, a treatment is called “iatrogenic” if it is counter-productive to the primary objective of curing disease.

      The field of Law does not employ such safeguards, and as a result a substantial fraction of our public policies and practices, operating under the color of law, turn out to be iatrogenic — ineffective at best and counter-productive at worst.

      Alan Simpson, the retired Senator from Wyoming, spent some three decades in Congress, during which time he helped craft and enact a great deal of legislation. But after he retired, he remarked that during his tenure in Washington politics, he discovered a law, the way a scientist would discover a natural law. Simpson said he discovered the Law of Unintended Consequences, meaning that the actual outcome of legislation, passed in good faith with an expectation of curing one of society’s ills, frequently turned out to have unanticipated, unexpected, and undesirable consequences. In science, if one is relying on a theoretical model, and the actual outcome of an experiment does not jibe with that predicted by the model, one is obliged to discard the model as unreliable.

      Our governmental systems are rife with unreliable models which give rise to unwise practices, many of which are ineffective at best and counter-productive at worst. We have built governmental systems that lack viable safeguards against iatrogenic treatments of many of our most problematic social ills.

      Here is an example of the kind of scholarly article one might find on JSTOR (which recently relaxed its policies to make many more of them freely available without a costly institutional subscription).

      Punishment and Violence: Is the Criminal Law Based on One Huge Mistake? by James Gilligan, Harvard University; published in the Journal of Social Research, Fall 2000.

      http://www.jstor.org/discover/10.2307/40971409?uid=3739696&uid=2&uid=4&uid=3739256&sid=21101594367703

  • jefe68

    Carmen Ortiz is trying to save her political aspirations She has been touted for a run for governor and now she’s most likely going to have some problems with that due to this case as this outcome was noto what she expected. Well Carmen Otiz now thinks that she can separate herself from the overreaching and gross misconduct of her actions. The people of Massachusetts will hopefully not forget this when she does make a run for the states governorship in two years.

  • Bob

    I honestly don’t think Ortiz killed Aaron Swartz but his death has shined a spotlight on a pattern of abuse by Ms. Ortiz. This is not her only instance of bullying. She is a hack trying to put feathers in her cap so she can run for governor of Massachusetts. The justice system in this country is rotten. It spans both political parties as far as I can tell. Their power needs to be reigned in to stop a pattern of bullying by prosecutors such as Ortiz.

  • Jeff

    Ortiz is a bully and must go. She is certainly not worthy to carry the excessive powers that prosecutors today unfortunately carry. The longer term solution is to bring down those powers to reasonable levels again as they once were.

  • Judy Meredith

    Thank you for a very balanced analysis Eileen. All of us who have family and friends who suffer from depression feel deeply for Aaron’s parents and friends who struggled for years to relieve the pain which eventually overwhelmed him.

    • jem jem

      Regardless of the fairness of the Prosecution, this was someone his family and friends should have not let stay alone in his apartment. Ever.

  • http://www.facebook.com/people/David-Spencer/1165371338 David Spencer

    Nonsense. Swartz had an illness. Ortiz’ office was apprised of that illness, and squeezed the poor boy anyway. The author’s real intention here is to infer that Aaron Swartz’s problem was all him because it was “in his head.” p.S., Aaron was the second Hacker in 5 years to be hounded to death by this Attorney’s office. I wouldn’t so much as sign into my own email account in Boston with Ortiz’ crew looking over my shoulder.

  • Ann Marie Joyce

    Your point is well taken that this is not a quid pro quo situation, but no one knows how much the anxiety of facing 13 felony counts exacerbated Swartz”s state of mind. What should really be on the table however, is Ortiz’s methodology for this case and others. She certainly seems driven by her need to be the star prosecutor vs. the merit of the cases she’s brought to trial and, by any measure, this one was beyond overreach. It’s hard to find any facts in this case to merit the punishment and interesting, as Kevin Cullen pointed out in his column today, that someone like state rep Stephen Smith was allowed to plead a misdemeanor for rigging ballots in three elections but no misdemeanor option for Swartz for frankly questionable “crimes.”

  • JGNS

    If Ortiz had a shred of integrity or conscience, she would have apologized and resigned. No shame, no responsibility?

  • Jeffrey Rossi

    Carmen Ortiz will have to resign, or the democratic party will force her to in the near future in order to contain future damage to the party from this case. The story is coming out that Chris Dodd’s SOPA/PIPA orchestrations which were primarily stopped by the organizing activities of Swartz was the only conceivable reason these absurd charges were sustained against him even against the wishes of JSTOR or any kind of common sense.

  • symbolset

    I believe she killed him. Her and her lackeys. And we paid her to do it. She has now said her and her office actions were “reasonable” and “appropriate”. The message is clear: if we let her, she’ll do it again.

  • borgscape

    The entire case showed the world the oft-below the radar prosecutorial brutality of Obama appointees in the DOJ, under Eric Holder. Many of the top positions (such as the Solicitor General) under Holder went to lawyers who either worked directly for or represented the MPAA and/or the RIAA. Clearly, this was a political prosecution, whether to fuel the ambitions of Heymann and Ortiz, and/or, because it was considered desirable, even if they desire was only indirectly gestured toward. I was appalled that Ortiz found their actions to be “appropriate,” “reasonably” and “fair.” Those comments displayed a sociopathic hubris.

  • Rita McNamaraMoose

    Thank you, Eileen for a well reasoned response to the impulse some have expressed towards Ms Ortiz. He may well have had the correct and moral position on the laws he protested with the actions that prompted his prosecution. To blame the prosecutor is to ignore the problem of depression. As the discussion of gun violence occuring in our country at the time has pointed out, suicide and depression are important issues that should not be ignred.

    • jefe68

      I disagree. Ms. Ortiz knew what she was doing and this was all about her making browny points on an easy case. She wants to run for governor and her record in the AG’s office is does not bode well for her in light of this case and others that apear to be more about her power trip than justice.

  • http://twitter.com/kowboykoder Cowboy Coder

    Absurd argument. When you bully someone until they kill themselves, yes, you are responsible.

    Let’s stop pretending like Swartz was just sitting around minding his own business and decided to kill himself for no reason other than a mysterious chemical imbalance that can’t even be measured or tested for. That is complete nonsense.

    There is a long history of people being tormented until they kill themselves. If they weren’t being tormented they wouldn’t have killed themselves.

  • http://twitter.com/bizshrink Anne Perschel

    I don’t have the right or secret understanding to claim knowledge of why anyone commits suicide, and I dare say, neither does any one else. Instead, we have to accept the difficult truth that we don’t understand all the complexities that lead someone to choose suicide. The most enlightened and, for me peace-giving, explanation of suicide I’ve read is in James Hillman’s book Suicide and the Soul. Hillman writes that suicide is a mistake in meaning. How so? The urge to death, is a call for transformation. Something must die, so something can live, but the death and rebirth that’s calling, is of a psychological and spiritual nature. The mistake is in hearing the call as being for physical death. Again, I have no idea whether this is true, or not, but I do find it brings some comfort and ends the struggle to know why. That Aaron Swartz may rest in peace, and that we may allow him to do so.

  • Saybrugian

    Yes, Aaron may have had a pre-existing condition but case law I believe would still recognize the proximal cause of his death just as a fatal heart attack triggered by an assault would make the attacker guilty, although without pre-exsisting cardiac changes, the assault itself would have been insufficient as a cause.

  • SueD

    Ms. McNamara, I have long been an admirer of yours, and still am, but I am trying to understand what you are trying to achieve with this essay. Did Ortiz literally “kill” Aaron Swartz? Of course not, but that is really not the point. She
    has been criticized for using the power of her office to bully him with grossly inappropriate charges for an audacious symbolic gesture that the “victims” themselves agreed did them no significant harm. I feel that retired federal judge Nancy Gertner, in her recent WBUR interview (http://www.wbur.org/2013/01/16/gertner-criticizes-ortiz-swartz),
    gave valuable insight into Ortiz’ role in this tragedy, and added that this was not the first example she’d seen of Ortiz’ “bad judgment”. Ortiz’ own earlier statement about the case, before Swartz’ death, that “stealing is stealing” speaks volumes. (Judge Gertner’s response, “Stealing an apple if you’re hungry is different than Bernie Madoff. It is obviously different.”). Ortiz lacked perspective on this case, and her office’s harsh, felonious charges no doubt contributed mightily to Aaron Swartz’s feeling that the only way out was to kill himself (as one commenter noted “I don’t suffer from depression but [this]..would bring me to despair”). Other comments posted here, objecting to your apparently absolving Ortiz of guilt in Swartz’s death, say many of the things I would have wanted to say, so I won’t try to repeat their points. It seems like the comments agreeing with you show little or no appreciation for, or don’t address at all, the lack of gravity of Swartz’s “crimes”. Many of the articles made available through JSTOR describe scholarly research funded by taxpayer dollars. I believe that these articles should be openly available and, indeed, this is the direction in which the scientific research community is heading, with open access journals and NIH now requiring its grant recipients to publish in journals that will provide open access after one year. (This was not a requirement when many of the articles archived by JSTOR were written.) And, so, I join others who feel that Swartz’ actions had laudable intent and, though they appear to have involved some minor offenses, could not have warranted anything close to the kinds of charges he faced. I believe that Swartz’s father’s statements that prosecutorial “hounding” “killed” his son have some merit, and do not deserve to be dismissed as “reflexive”. I hope that this tragedy, through the public outcry for accountability that you may feel is excessive, leads to real reform, including the consideration of judgment, wisdom and a sense of perspective in the selection and review of future U.S. Attorneys. And, that it will make prosecutors everywhere more carefully consider their decisions on which cases to prosecute, and how to do so.

    • StenoJournalism

      “but I am trying to understand what you are trying to achieve with this essay”

      Like other stenographers of her ilk, her only interest is “access” and the maintenance and preservation of it.

    • http://twitter.com/catfitz CatherineFitzpatrick

      Carmen Ortiz’s statement that “stealing is stealing” is absolutely right. It needs to be said again and again to the unruly mob trying to overthrow the government and take over the Internet to run it only their way. It doesn’t matter if “the original isn’t stolen”; when the copies are “liberated,” it takes away the inherent value of commodification in digital content and takes away CHOICE online to have walled gardens and pay walls which are good and valid to ensure people’s livelihoods and cover real costs.

      Aaron didn’t eat the apple because he was hungry; he stole 4 million apples to take away JSTOR’s and MIT’s ability to grow more apples on their trees. This is always the way with communism — stealing the generative power itself.

      • SueD

        “Stealing is stealing” is not true in this case. We’re not talking about writers’ or artists’ copyrighted work here. The content Aaron Swartz “stole” described research for which the producers (scientists, scholars) do not receive any “livelihood” from subscription charges. Generally, the scientists sign away their copyright to the journal after the paper is accepted for publication (though the scientists themselves are allowed to give free digital copies of their work to others). In many cases, these are older papers because the newer scientific papers from the same journals are already available free to the public because of the more recent (since ~2008) terms of NIH-funded research, requiring that funded scientists make their work available in journals that will give open access after one year. (This policy led many journals to change their policies on open access.) Reportedly, JSTOR has moved even more toward open access to their content as one response to Swartz’s death. The results of publicly funded research is becoming more freely available to the public, as it should, because of activists like Aaron Swartz. The scholars will have their “livelihood” regardless and the publishers will need to think of other business models than charging $40 to individuals to download even outdated scientific articles (and, indeed, publishers are thinking of other ways). There is no way that charging $40 for a single digital article relates to “real costs”. This is not communism, it is how change happens.

      • Snertly

        …”he stole 4 million apples to take away JSTOR’s and MIT’s ability to grow more apples on their trees.”

        This assessment is utterly erroneous. If nothing else, JSTOR’s statement that the charges should have been dropped completely undermines any notion that you might have regarding any harm or taking on the part if Mr Swartz in this action.

  • public_servant_watch

    Wow! Is this a love letter on behalf of the corrupt government fan club?
    The corrupt legal community and corrupt federal court system make Bernie Maddoff look like a piker. Pretense litigation in civil suits and malicious prosecutions to pad attorney’s pockets and the pockets of corrupt public servants is routine!!!! Sorry folks but what Aaron did was nothing beyond contract violation and trespassing. It was a perfect storm for the FBI who wanted to move in because of Aaron’s previous activity downloading and making court documents from the PACER public through RECAP where no charges under any law were available to the FBI to go after Aaron; knowing Aaron’s talents, they needed to rein him in because the exposure of the fraud that occurs in the courts was on the horizon. The harassment by the FBI with the PACER download stagnated RECAP. The USDC of Massachusetts even had a warning on their ECF system sign in page discouraging any use of RECAP.

    Soon all would know of the bogus decisions that come from these courts because FREE court records meant no longer would just the bogus opinions shine alone; the Administrative Offices of the US Courts needed Aaron barred from computers and a federal conviction would have done just that and the only way they were going to get a conviction was with a guilty plea. SUICIDE? Aaron’s leaving no note is bizarre and an aberration in too many aspects. His 2007 note discussing depression indicated he was physically ill and depressed because of how he was feeling; his current depression was because he was being tormented by a corrupt government that was taking all he had and he intended to fight. His court record had a document where his current NY address was not redacted!!!!

    The corrupt Federal and State Governments are another story; there is a significant lower tier of corruption. They believe they are above the law and they are sick with a disease called perceived power which they will do anything to protect. Those with the power to correct others in government turn their heads and actual fraud with the computers YOU THE TAX PAYER PAID FOR is carried by corrupt court staff on a routine basis and clearly indicates that a higher tier of corruption supports the lower tier. The federal courts violate rights as though they never existed and excel in rendering bogus documents. Nothing from our courts or any government agency can be trusted. Never in the history of this country is actual OPEN GOVERNMENT and the FOIA been more critical. Aaron Swartz was a thorn in the side of a corrupt government and a VERY CORRUPT FEDERAL COURT SYSTEM!!

  • NJJ

    If you have never experienced being targeted by a prosecutor and if you have never had your life and reputation and future run over with that steamroller, then maybe you should not make comments about how “innocent” Ortiz is. That Aaron Swartz suffered from depression is important but even people who are not clinically depressed also kill themselves! Why? Often because there is no way seemingly out of a lose-lose situation. It takes more than many people have (most people?) to weather this sort of storm.

    Walk a mile in his shoes–and then hers–to get a clue about who had power to wield and why and to WHAT END.

    Her pointed aggression under the guise of “just doing her job” is ridiculous, as are those who come to her defense with such detached sympathy.

    Ah, humanity.

  • Joan

    I fully concur with Eileen McNamara’s assessment of this situation. Now, if only someone would explain it to David Boeri!

  • Rose

    No one can know exactly what drove another human being to suicide, but it is likely that the implications of pleading guilty to 13 felonies and being sentenced to time in prison were the cause of Aaron’s death. I know this from personal experience. My 18 year old son committed a drug-related crime and, as a result of prosecutorial overreach, had to plead guilty to a felony to avoid prison time. The crime had no victims, yet the ordeal of the prosecution devastated my family. There were times I’d walk by myself while crying and cross streets, intentionally not looking, hoping I’d get hit by a car. It is clear that Eileen McNamara has no idea how devasting facing felony charges and prison time for a relatively minor, victimless crime can be to someone and their family.

  • William Green

    Ortiz seems to not understand the concept of prosecutorial discretion, which is a key to justice in our system, and also to using the limited number of jail cells to best protect society. Both in this case and in the Tarek Mehanna case, Ortiz pushed to get the biggest “win” for the prosecutor, not the result that was the most just and appropriate for protecting society.

  • Geoff Dutton

    Eileen, what does devoting “more public resources to the mental health issues that contributed to his death” mean and how do you think it would help? Even though Schwartz himself argued for that, would it have helped him? After all, he was aware of his depression, was presumably being treated for it privately and did not need public assistance for that.

    Depression is a social malady as much as a mix of bad brain chemicals. If it was just our chemicals, pharmaceuticals would be sufficient to at least mask it. However, no amount of public investment will get at the roots of depression and turn us into a society that puts health, well-being and realizing human potential ahead of profits and consumerism. We need a more humane way of organizing ourselves, not just R&D into the symptoms of our disease and assorted nostrums.

    • public_servant_watch

      Knowing I had a just, fair and non corrupt government would release a heavy burden of depression – in fact I never suffered a deep unrelenting depression until I had to deal with government and discovered that I had no rights beyond what was written on a piece a paper. Learning that everything I was taught and believed regarding this country was a fraud was really depressing!!! No pill or therapy helps that kind of depression – restoring my country to its core values is in fact the only remedy. Not looking good for any of us!!!

  • Isobel Clinton

    McNamara on Swartz’s crime: “[he] downloaded millions of academic articles from JSTOR, liberating
    information from the subscription service that usually charges $19 per
    article.” As Professor McNamara surely knows, these articles are 100% free to anyone at a university or college or research center. So that $19 fee per article is for the Bad People too poor to be in college (or work for one)–it divides the Have-Knowledge from the Have-Nots. Aaron Swartz’s feeling about that was ethically wholesome, as the many of my own colleagues whom I’ve heard from agree. As a writer of many of those articles, I’m sad that they can’t get out more. And I, who did all the work except for uploading it, get $0.0 for it from JSTOR.

  • http://profiles.google.com/shava23 Shava Nerad

    Ellen, I’ve appreciated a lot of your writing over the years, but I think you need to go back and research more of Aaron’s background perhaps before you write more about him.

    You’re interested in transparency. Why aren’t you supporting it in this case. I want to know.

    Why do you support transparency in the case of drone strikes but not in this case, for example? Is it because it’s far enough away that it’s those other people?

    Not questioning the woman the Globe selected for Bostonian of the Year? Wouldn’t want to question the Globe’s judgement so soon after than move would we? Pity that.

    Aaron was a very savvy young man about media and politics, although he was young and made some tactical and strategic mistakes. But he was incredibly bright — profoundly gifted is the technical term. And he didn’t make a lot of decisions in his life lightly.

    Neither did Ortiz’ staff.

    I personally believe that the sentencing of decades and the seven figure fines was a signal meant to reflect on Aaron’s activism over PACER and SOPA/PIPA — actions you should research if you have not. Neither had charges that stuck or charges at all. There’s actually a phrase for this in law enforcement, it’s so common. “We were waiting for him to jaywalk.”

    I kind of wish we were past all that. It’s not the way the system is supposed to work. But justice is not what the justice system is about, all the time, in every case. You know that and I know that.

    My dad taught me, if you see the government expending resources far above what the charges warrant, look for the real motivation. Your journalistic “nose” should have told you the same thing. These charges aren’t about JSTOR — JSTOR forgave Aaron. So what do you think Aaron was on trial for?

    He got turned down for a plea bargain two days before his death according to his girlfriend, regardless of the weasel words from the prosecutor’s office in the WSJ, or Gawker’s Adrian Chen’s disinfo on On_the_Media yesterday (really +On the Media — Gawker?).

    I come from three generations of activism in the labor and social justice movements in this country. My grandfather saw the screws put to folks like Eugene Debs when they wanted to take him out of his role as spokesperson for the Railway Strike — but they found that the movement kept on. My dad saw MLK writing from Birmingham Jail.

    But today, the system has become more savvy, and they use trials not only to try but to destroy the image of the activist in a “truthiness” sort of way. If Aaron had gone to trial even the people around him would not have been able to save him and all his causes from being dragged through mire even more than they are now — being called a thief and a liar and a weakling and depressive (in a pejorative way that shouldn’t be used against one) and so on in a way that diminishes and destroys his work and character and the work of people around him.

    The Bush White House proved that no one in the press cares about the facts any more — they are willing to triangulate with whatever is fed to them. And that makes a court system that works on well-funded cases to destroy activist’s attempts to reform government an actual liability to reform, rather than a well-tuned instrument of civil disobedience as they are supposed to be, in cases like this. I believe this was a major miscalculation on Aaron’s part.

    He thought this was minor civil disobedience, but he didn’t think of the weight of his other actions as washing over on this minor act — JSTOR forgave him, right? But the government did not. So what was supposed to be a minor statement on academic publishing became a fox trap.

    That is the real subtext of this dirty business.

    The end the government seeks in Aaron’s case is not justice for JSTOR or academic publishing in general or even publishing in general.

    It’s the immune system of the status quo making sure that the mobilizer of PACER and SOPA/PIPA can’t irritate them ever again. If that was by 35 years of incarceration it would have suited them fine.

    But Aaron took better control, frankly, by taking his life — he brought attention to the abuses, he saved his cause from the shredding it would have taken in the court, and none of us would have been talking about it without that move. It’s _sick_ but his suicide might have been not depressive but totally geekily rational in part. Strategic.

    And as a person who thinks as Aaron did about media and strategy and politics and actions, this has haunted me like a ghost all this week.

    And if anything, that makes it the more tragic, and more important that we make sure it is not forgotten.

    Statements like yours minimize the issues and play right into the government’s hand. You think you know better than Aaron’s family, Larry Lessig, people closest to him, people like me.

    Because you read a few things and not others. Well, I have a pair of mocassins for you to walk in and a cup of coffee any time you want to sit down and really talk about the issues and learn a few things from an insider. You come talk about it with a real live person who’s worked on the net for over three decades and watched this environment grow up from back when there were less than ten thousand women online total in the entire world.

    From when aaronsw was 14 and a username behind consistent brilliance, and then twenty-ish and a cheerful young blogger at Berkman meetups, and twenty-two and on a panel with me on privacy at the MIT Museum, and twenty-five and the amazing whirlwind behind SOPA/PIPA organizing — and a year later dead. In half his lifetime of a decade and a half he did more than most people do in half a lifetime spanning four or more decades.

    What did we lose through the bullying — as Lessig put it — of Ortiz’ office? Telling this kid he was going to be the next Bradley Manning, maybe? Do we have pit bulls at Courthouse Way interested in making “examples” of people in my tribe? I want to know.

  • M. Mulvey

    Carmen Ortiz has nothing to be ashamed of. Lets face the facts, someone who hacks into your computer and steels information is a thief. Someone who installs a virus on anyone’s computer is a common criminal. it is unfortunate that the Swartz family did not seek help for their son’s mental issues. No one just decides to commit suicide. Some long standing issues here. Obviously Aaron Swartz was a very intelligent person with great family resources. That gives him no authority to break the law.

    • Geoff Dutton

      @ M. Mulvey, if you read through the comments above of many people who understand what was going on and what the stakes are for Internet freedom, You wouldn’t be mumbling about Aaron being a common criminal. Nor did he install a virus on any computer. In case you haven’t heard, he had legal access to the data he downloaded. And how do you know Aaron or his family did not seek professional help for his troubles. How do you even know what his troubles were? On the contrary, Carmen Ortiz has a LOT to answer for.

      • M. Mulvey

        So, the government charges people with not breaking the law? Right! And the government picked Mr. Swartz’s name out of a phone book for the Monday prosecution? Right! I am glad that I now know what is going on.

      • http://twitter.com/catfitz CatherineFitzpatrick

        The stakes are indeed big — for real Internet freedom from people like you who are taking it away from us all.

    • bouncing411

      Mulvey, Mr. Swartz never “hacked into” anything. He had been granted full access to JSTOR by MIT, and his crime was that he downloaded too many articles. JSTOR, the copyright licensee, declined to prosecute and actually decided to follow Aaron’s lead and made much of their database public. JSTOR, the alleged victim, also asked the government to drop its case.

      You’re entitled to your opinion. If you think violating a website’s terms of service should be punishable by 30 years in prison, that’s certainly an interesting opinion. But you aren’t entitled to your own facts; and as a network software engineer myself, it is my opinion that nothing Mr. Swartz did could be remotely construed as hacking.

      He downloaded content he had lawful access too, just too much of it, in violation of JSTOR’s “terms of service” and “end-user license agreement.” In no sane person’s mind is that considered “breaking into” anything.

      • http://twitter.com/catfitz CatherineFitzpatrick

        This is typical of the hordes of Anonymous comments on every discussion about this case. Somebody who hides his face with a bicycle helmet and breaks into a computer system with a fake account and a circumvention script called “keepgrabbing.py” is not “using the system as intended” or “authorized”. Knock it off with this word salad.

  • Mark

    So somebody who was severely depressed at some points at his young age, gets Ortiz off the hook? Gets the fact straight please. He was not diagnosed with depression so you cannot generalize out of a blog post of somebody in puberty, and he got severely depressed immediately after Ortiz’ office’s actions.

  • m mulvey

    Carmen Ortiz is a good USAAG.
    So, the government charges people with not breaking the law? Right! And the government picked Mr. Swartz’s name out of a phone book for a pick one prosecution? Right! You have to make work you know. I am glad that I now know what is going on. I thought there was a conspiracy on behalf of the government! I am going to take my name out of the phone book so I do not get picked next. Put your cards on the table those that think there is overreaching by the USG and if the government is doing something illegal, bring it forward. Someone came to the USAAG with an issue. Do you really think the USAAG is accessing MIT or Harvard computer systems as a rule trolling for work? Laws may be changed in the future related to internet issues, but someone hacking/stealing/virusing data systems/personal – business computers should be harshly prosecuted. Mr. Swartz seems to fall into the hacking-stealing category. Now innocent upon death (RIP).

  • bouncing411

    I do agree that ultimately, the only person responsible for a suicide is the one who commits it. But at the same time, recognize that prosecutors have regularly charged anyone who they see as contributing to a suicide with crimes, ranging from the case of Megan Meier to Phoebe Prince to Tyler Clementi. In all of those cases, the victims could have simply ignored their bullies; no one can ignore a federal prosecutor.

    If the only party responsible for a suicide is the person who commits it, that’s news to the National Prosecutors Associations.

    And regardless of direct responsibility for the death, there is still the issue that Ms. Ortiz is simply a bad, unethical, and tyrannical prosecutor. She’s done enough wrong in her career that we needn’t attribute a suicide to her; her record of evil speaks for itself, and this case may go down in history as the epitome of her gross misconduct.

    Also, “piracy” has no legal definition, but it’s generally understood to be copyright infringement. Mr. Swartz was not being charged with copyright infringement. JSTOR, the licensee of the copyrighted works, could have, but declined to and also asked Ms Ortiz’s office to withdrawal its case. Ortiz refused.

  • nicci meadow

    How much different is this from the case of William Albertson….. will Swartz’s family sue, settle and then it all becomes obscure and nothing will change….
    November 20, 1989

    Vol. 32

    No. 21

    Outlasting the F.B.I., a Determined Widow Restores Her Husband’s Reputation as a Loyal Communist

    By James S. Kunen, Maria Speidel

    Facebook

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    E-mailIt wasn’t much of a contest, the FBI versus a single American citizen. When J. Edgar Hoover’s men decided in 1964 to ruin Bill Albertson’s life—despite the fact that he had committed no crime—they succeeded brilliantly. Though Albertson had been a loyal Communist for 35 years, he suddenly found himself branded an informer and expelled from the party. He died seven years later, lonely and reviled, a broken man. And the FBI got away with it—until now. Last month Albertson’s widow, Lillie, won a 13-year legal battle against the bureau, gaining a $170,000 settlement and something much more important. “Now I can say, ‘Look, he’s been vindicated,’ ” she says.

    Lillie, 63, now living alone and working as an accountant at a Boston-area university, vividly recalls the day 25 years ago when her family’s life changed forever. It was around the Fourth of July when three grim-faced party members came to the Albertsons’ Brooklyn, N.Y., apartment with a letter that had been planted in a car in which Bill had ridden. Apparently in Albertson’s handwriting, the letter to “Joe” identified various Communist Party leaders in New York State. It concluded, “Maybe you could arrange for a raise in expenses,” and was signed “Bill.”

    “I was flabbergasted,” says Lillie. She was positive the letter was forged because every word was legible; her husband wrote in an unreadable scrawl. Albertson, who had once served 60 days in jail for contempt of court for refusing to name fellow party members, protested his innocence. Arguing that a real informer would never have signed his own name, he insisted he must have been framed by the FBI. But the party expelled him, along with his mother and Lillie.

    “My husband was literally destroyed, says Lillie. Leftist politics had been Albertson’s life, following his Russian immigrant mother’s example, he became active in the Communist Party at age 19 in 1929. He had worked tirelessly as a labor organizer and had risen to the party’s national committee. But now the Worker labeled him “a stool pigeon” and denounced his “duplicity and treachery.”

    “He really wanted to end his life,” Lillie says. “I would not leave him alone for the first three or four days after this happened.” His best friends, all fellow Communists, shunned them. The couple had to take their 7-year-old son, Michael, out of a socialist summer camp after an anonymous caller vowed to “cut him up in little pieces.” Other callers threatened to burn their apartment; it did burn, and arson was suspected. Bill, whose party work had paid a meager $65 a week, was never able to find steady employment again. Whispers followed him everywhere, and he was fired from a series of menial jobs, sometimes for being a Communist, sometimes for being an informer. After plunging him into desperate economic straits, says Lillie, the FBI offered Bill money to actually become an informer. He refused. Clearing his name became “his only reason for living,” Lillie has said. “The most painful thing I ever had to experience in my whole life was watching a destroyed man try to save himself.”

    He never succeeded. Albertson accidentally fell from a porch in 1972, broke his neck and died at age 61. Three more years passed before an apparent clerical error by an FBI employee let the truth slip out. While investigating the bureau’s secret counterintelligence program (COINTELPRO), NBC News law correspondent Carl Stern had sued the FBI to obtain 50,000 pages of documents. The files revealed that many people had been framed as informers. Names had been carefully blacked out, but one was overlooked: Albertson. Stern passed the information on to the American Civil Liberties Union, which sued the government on Lillie’s behalf. In other FBI files was proof that the bureau had tapped the Albertsons’ personal phone calls and read their mail, all without a warrant. And Hoover had wired his agents that he was “extremely pleased” with the “sophisticated and imaginative action” against Albertson.

    For the FBI it was one small engagement in a campaign whose full scope has yet to be revealed. (One former FBI agent said in 1962 that of 8,500 members of the Communist Party, nearly 1,500 were FBI informants.) The bureau, which has conceded that the COINTELPRO program smeared civil rights leaders, including Dr. Martin Luther King Jr., nevertheless fought to have Lillie Albertson’s lawsuit dismissed in order to protect “national security” secrets. Rebuffed by the courts, the FBI finally settled.

    “Most people wouldn’t expect the government to destroy somebody’s life because of their politics,” says Lillie’s lawyer, Kate Martin. “The lesson of the Albertson case is that this did happen in the United States and that we have to be very careful that it doesn’t happen again.”

    “My God, it’s just so unfair that the truth didn’t come out when he was alive,” says Lillie. After looking through 35,000 pages of his FBI files, she now has an idea which party members may have been the real informers. But she refuses to name names. Says Lillie: “I wouldn’t put anybody through what was done to us.”

    —James S. Kunen, Maria Speidel in Boston

  • J__o__h__n

    Carmen Ortiz’s continued denial that her office did anything wrong should be the end of her political career. Her lack of compassion and simplistic understanding of justice would have made her a terrible governor or senator. McNamara is defending a win at all costs bully.

  • http://twitter.com/datsneefa Jim Terwiliger

    Pretty much the attitude you would expect from someone named McNamara

  • Countryboy

    Let this be a lesson to all dissidents ! Never think you’re alone . Don’t allow yourself to be groomed as if your cause is lost before in fact it is . Humanity is a strange wee beastie . We are all , at once individuals AND a collective consciousnesses , and in there , in us all in there , is a vast and deep well of Good . Kind . Love . Peace . Humour . Creativity . Genius . Aaron Swartz’s death could be seen as a sign post to a new way of doing things for us as a Global , United Species .

    Always question Authority ! Especially Authority within democracies . Where fascism is free to hide in plain sight .

  • agarron

    ENDGAME.ORG lists the companies the crimes and the fines.

  • notLoveToTheCivil

    To Ms MacNamera, spin tiny dancer. Don’t question anything. Ms Ortiz is responsible for protecting the cloud, right? That’s what the “message” she wants to send. Don’t ask me what the cloud is. I couldn’t tune a fish.

  • http://twitter.com/catfitz CatherineFitzpatrick

    Good post. It’s great that at last a distinguished professor of journalism at a reputable institution is doing this. No one else has. There has been a hideous mob of copyleftist professors and hackers and Anonymous jackbooted thugs harassing this prosecutor, outing her privacy, bullying and tormenting her and her husband, baying like jackals for her head and flashmobbing whitehouse.gov It lets us know the kind of world we would face if all these people overrode the justice system and put themselves in charge: a horrible one.

    You say that the way to get “justice” is not to use martyrs and emotional blackmail and aggressive bullying to change the law. And I couldn’t agree more. But I don’t see in fact that the CFAA really needs to be changed, and with so much more serious and aggressive and ominous hacking going on in our country and the world, of everything from the Pentagon to Gawker.com, costing millions in damage, we need deterrents. The reality, too, is that in actual precedents — and we are in a system of precedents and the case history has to be read! — no one ever gets anything remotely like 35 years. Not even 7 years. The track record of sentencing is actually only probation, community service, and at most 1 or 2 years. Six months is not only lenient; there is every likelihood Swartz would have gotten probotion and the media circus ensured by Lessig and friends would have overwhelmed the court. That is not good for justice.

    What we need to look at much more closely is the professorial overreach, inciting young people to hacking in the quest to create some utopian technocommunist paradise online that in fact takes away choice for institutions to have pay walls and walled gardens to preserve value and cover their costs.

    http://3dblogger.typepad.com/wired_state/2013/01/professorial-overreach.html

  • Mirage

    Ortiz abused her power plain and simple.

  • George

    For another take on why Ortiz most certainly does have blood on hands:

    http://open.salon.com/blog/barry60x/2013/01/25/aaron_swartz_and_the_sociopathy_of_federal_prosecutors

  • http://profiles.google.com/barry.kort Barry Kort

    “I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life.” –U.S. Attorney Carmen Ortiz

    If the prosecutor is able to recognize the scale of the anger and outrage directed at her office, then surely she must appreciate that the human emotion of anger arises from deep-seated feelings of injustice. What more compelling evidence is there that the outrageous conduct of her office was patently unjust in the most fundamental meaning of the concept of justice?

  • David F

    What has happened to the concept of personal responsibility? There was more than adequate evidence that Aaron Swartz broke the law. He was offered a generous plea bargain which he refused. Instead he took his own life, in an act of
    cowardice. Aaron Swartz made the decision to break the law to make his point,
    as the article stated there is a cost for civil disobedience, however noble you
    think your reasons are.

    Aaron Swartz is solely responsible for his actions in breaking the law and in
    taking his own life. Taking your anger, which should be directed at Aaron, out
    on Ms. Ortiz is unjustified. Making him out to be a martyr is inexcusable.

    U.S. Attorney Carmen Ortiz was doing her job. I’ve yet to hear anything that compels me to think she was being overly aggressive in doing it. In fact the plea
    bargain seemed fairly lenient considering the possible sentence.

    • L Miles

      Oh lord, is this Carmen Ortiz’s husband posting again? You are dead wrong. In fact the prosecutor would not accept a plea deal that would allow Swartz to avoid jail time. They were threatening him with 35 years in prison, a million dollar fine, and this young man — this brilliant, genius of a young man who had so much to offer — his funds had already been drained trying to defend himself against these charges. Carmen Ortiz and Stephen Heymann make me sick to my stomach. Those bullies both have blood on their hands and deep down in their black, shriveled up hearts, they know it.

  • dove

    “Stealing is stealing whether you use a computer command or a crowbar”

    murdering is murdering, whether you use the “law” or a gun

  • AJ

    This article sucks. The author shows a complete lack of understanding about mental illness, and really shouldn’t be publishing stuff regarding mental illness it given her ignorance.

    Bullying is bullying is bullying.

    Period.

    To alleviate your ignorance, you can start with looking up the eggshell skull rule.

    Also, these people may not be “experts,” but non-experts frequently make much more sense than experts, and they at least make much more sense than you:
    http://forums.govteen.com/debates-discussions/333463-homicide-charges-when-bullying-leads-suicide.html

  • http://twitter.com/TheIBarb TheIBarb

    Just curious, does the government pay this site in increments of 30 pieces of silver or have they finally modernized their system of payments?

  • anonymous

    Carmen Ortiz is a criminal!

  • AnarhiA

    Wish she will ldie asap

  • AnarhiA

    USA should borrow some money from other couturiers to develop, support and protect human rights!!! Hope death will take this old empty woman

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