'Under American Law, Anyone Interesting Is A Felon' - Tim Wu On The Prosecution Of Aaron Swartz

from the destroyed-to-protect-imaginary-property dept

The reactions to Aaron Swartz's suicide continue to pour in and the recurring theme is one of disbelief at the government's hard nosed prosecutorial stance towards Swartz's actions. The Secret Service, for unknown reasons, took over the case and the prosecutor insisted on a guilty plea across the board as well as pretty much guaranteeing jail time for the hacker.

Tim Wu's excellent editorial details how the justice system made a mockery of that first word by relentlessly applying pressure to a young man whose "crime" was truly victimless.
The act was harmless—not in the sense of hypothetical damages or the circular logic of deterrence theory (that’s lawyerly logic), but in John Stuart Mill’s sense, meaning that there was no actual physical harm, nor actual economic harm. The leak was found and plugged; JSTOR suffered no actual economic loss. It did not press charges. Like a pie in the face, Swartz’s act was annoying to its victim, but of no lasting consequence.
This fact cannot be overstated. JSTOR itself declined to press charges against Swartz once its "property" was recovered. But this wasn't good enough for the federal prosecutor who took an outdated law and applied the interpretation that would do the most damage.
In our age, armed with laws passed in the nineteen-eighties and meant for serious criminals, the federal prosecutor Carmen Ortiz approved a felony indictment that originally demanded up to thirty-five years in prison. Worse still, her legal authority to take down Swartz was shaky. Just last year, the Ninth Circuit Court of Appeals threw out a similar prosecution. Chief Judge Alex Kozinski, a prominent conservative, refused to read the law in a way that would make a criminal of “everyone who uses a computer in violation of computer use restrictions—which may well include everyone who uses a computer.” Ortiz and her lawyers relied on that reading to target one of our best and brightest.
Wu says this targeting cut down a genius in his prime -- a curious and impulsive young man whose actions were actually less illegal than those of two computing pioneers, Steve Jobs and Steve Wozniak, who hacked AT&T's system for free long distance calls and sold "blue boxes" so others could do the same. They were never prosecuted for their actions and went on to found Apple -- something a prosecutor like Ortiz could have made impossible.

"We can rightly judge a society by how it treats its eccentrics and deviant geniuses—and by that measure, we have utterly failed," Wu says. And why? Because an adversarial, zealous prosecutor put in charge of the right case can wreak an incredible amount of havoc in pursuit of "justice."
Yes, most of the time prosecutors do chase actual wrongdoers, but today our criminal laws are so expansive that most people of any vigor and spirit can be found to violate them in some way. Basically, under American law, anyone interesting is a felon. The prosecutors, not the law, decide who deserves punishment.
Between the system of IP laws that awards fees for imaginary damages and a government that views any information leaks as criminal activity, Swartz never had a chance -- and sadly, unless there are major changes in the system, neither will his successors.
In an age when our frontiers are digital, the criminal system threatens something intangible but incredibly valuable. It threatens youthful vigor, difference in outlook, the freedom to break some rules and not be condemned or ruined for the rest of your life. Swartz was a passionate eccentric who could have been one of the great innovators and creators of our future. Now we will never know.
An effort to increase public knowledge, with no profit motive, as misguided and rash as it may have been, was rewarded with an intense crackdown, even after the "victim" had stated it was satisfied with the outcome. No matter your view on intellectual property, it should never have come to this. Swartz brazenly exploited loopholes to liberate documents he felt should have been public domain in the first place, much as he legally exploited free usage of the PACER system earlier.

It's very tempting to couch this discussion in language that pays its due to "rights holders." Swartz somehow needed to be punished for his deeds, even with some sort of slap on the wrist, because it was legally or morally wrong. MIT was abused. JSTOR was abused. The IP system -- the status quo -- was abused by Swartz's actions. That's the way we're programmed to feel. That no matter the overreaction, we need to give some quarter to the reacting parties. But when it comes to this situation, it feels completely wrong.

Wu's take shows just how dangerous this form of dues-paying is -- grant the system a little token respect before heading off into the "but" section of the argument and you've already justified a reaction. If the reaction seems too harsh, it's too late. You've already implicitly granted the system the right to punish perceived wrongs, something it often handles with ineptness or vindictiveness, and in worst case scenarios, large quantities of both.

The system has little use for rebels, innovators, and the internet-native element that threatens cherished IP institutions. It wasn't pleased with Swartz and the best way to discourage more Swartzes from leaping into action was to lock up the original, or bleed him dry with an extended legal battle. It ended up with nothing. Or rather, it ended up creating a martyr and rekindling a movement -- "nothing" would have been better. There will be more like him and, if the system remains unchanged, they will have their futures extinguished as soon as their actions put them in the firing line. The protected works are quantifiable. The extinguished possibilities verge on endless. 


Reader Comments (rss)

(Flattened / Threaded)

  •  
    icon
    Ninja (profile), Jan 15th, 2013 @ 11:07am

    America gave up freedom for a false feeling of security. In name of keeping society secure and unharmed they enacted so many damn laws that the result is there to see. Huge criminal records with hundreds of thousands of ordinary people that are really no criminals at all, at most clueless or a little mischievous. An insanely large jail population again not composed by the ones you'd hope to find there or for the crimes you would expect. And in the process of building that legal outline America closed their eyes to unintended collateral effects or smaller Constitution violations. And they kept living the American Dream and buying and feeling safe and happy.

    I wonder how it is to fear the same power that you relied for decades to keep you safe.

     

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      DannyB (profile), Jan 15th, 2013 @ 1:30pm

      Re:

      > America gave up freedom for a false feeling of security. In name of
      > keeping society secure and unharmed they enacted so many damn laws
      > that the result is there to see.


      Maybe the result is not there to see. Maybe the result is secret. And for secret reasons.

      There may even be secret laws by now. Keeping laws secret prevents bad people from copying them. Don't you feel better when there are secret laws?

      It may seem unfortunate, but is necessary to secretly prosecute secret laws in order to maintain the secrecy of such laws. But it's not too much to pay for security.

      Oh, and this will never be abused.

       

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      •  
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        Tex Arcana (profile), Jan 16th, 2013 @ 4:45pm

        Re: Re:

        Alright, that's it! You're on DOUBLE-SEKRIT probation now!

        Damnation, shades of nazi Germany and soviet Russia. How badly have we fucked ourselves??

         

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    •  
      identicon
      Anonymous Coward, Jan 15th, 2013 @ 4:56pm

      Re:

      this was a "hacking" case not a copyright case... just saying.

       

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    •  
      icon
      G Thompson (profile), Jan 15th, 2013 @ 7:49pm

      Re:

      Half the harm that is done in this world
      Is due to people who want to feel important.
      They don't mean to do harm -- but the harm does not interest them.
      Or they do not see it, or they justify it
      Because they are absorbed in the endless struggle
      To think well of themselves.

      - T. S. Elliot

      Just thought I'd put that here.. seemed relevant and poignant

       

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    Josh in CharlotteNC (profile), Jan 15th, 2013 @ 11:58am

    F.T.S.

    "There will be more like him and, if the system remains unchanged, they will have their futures extinguished as soon as their actions put them in the firing line."

    I go willingly and knowingly into that danger. Some of the things Aaron stood for are worth protecting, even at the cost of my life.

    Here's an XKCD that sums it up pretty well.
    http://xkcd.com/137/

     

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      shane (profile), Jan 15th, 2013 @ 12:41pm

      Re: F.T.S.

      Do love.

       

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      shane (profile), Jan 15th, 2013 @ 12:46pm

      Re: F.T.S.

      If I could toss one word of ... I dunno, inspiration your way, it would be the old Patton line.

      "No man ever won a war by dying for his country. Wars were won by making the other poor bastard die for his."

      Fight. But fight smart. The one aspect of this that bothers me is that many of our most energetic young minds and hearts burn out far, far too soon.

       

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      shane (profile), Jan 15th, 2013 @ 12:47pm

      Re: F.T.S.

      If I could toss one word of ... I dunno, inspiration your way, it would be the old Patton line.

      "No man ever won a war by dying for his country. Wars were won by making the other poor bastard die for his."

      Fight. But fight smart. The one aspect of this that bothers me is that many of our most energetic young minds and hearts burn out far, far too soon.

       

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        identicon
        Anonymous Coward, Jan 15th, 2013 @ 1:07pm

        Re: Re: F.T.S.

        The reason is that the 'most energetic young minds' are capable of grasping exactly what extent the 'old dumb minds' are willing to go to make sure things don't change.

        Better to burn out than fade away....

         

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          shane (profile), Jan 15th, 2013 @ 2:12pm

          Re: Re: Re: F.T.S.

          Pfft.

          The founding fathers of this nation pulled off a staggering upset to create it. Yeah sure, they created a slave state that would later become a world spanning global empire for greed, but at the time it was progress....

          Don't be a fatalist. Things get better, then they get worse, then they get better. Fight for the better.

           

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      Hi Im Kimchi Men, Jan 15th, 2013 @ 12:53pm

      Re: F.T.S.

      that was one of the best comicstrips i've read in a looong time, i'm keeping that sucker

       

      reply to this | link to this | view in chronology ]

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    shane (profile), Jan 15th, 2013 @ 12:39pm

    "Misguided"?

    I'm getting rather tired of the apologists for the government, and even many if not most of the apologists for Aaron himself, just sort of ceding this point that he did anything wrong at all. All he did was automate a repetitive task - something JSTOR should do for the user anyway but had yet to implement.

    He was not misguided. He was simply smart. Knowing how easy it would be to do things the right way, he went ahead and did it the right way.

    I'm really sick and tired of hearing how doing things right is wrong.

     

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      G2G cat on fire, Jan 15th, 2013 @ 12:51pm

      Re: "Misguided"?

      I'm really sick and tired of hearing how doing things right is wrong.


      or crazy, or stupid, or "worthy of ridicule", or whatever other idiotic excuses people can find to not do something the right way AKA the SMART way

      you will do it the same way everyone else is told to do it, not ask questions about it, and you are gonna like it!

       

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      bob, Jan 15th, 2013 @ 1:08pm

      Re: "Misguided"?

      it's dangerous to be right when the government is wrong.
      there's a book about that now. ;-)

       

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        Anonymous Coward, Jan 16th, 2013 @ 2:38pm

        Re: Re: "Misguided"?

        Wow, bob. I'm shocked. Did you say the government is wrong and that Aaron was right? That actually sounded like you almost supported a perspective the community has here. Maybe there IS hope for you. :)

         

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      DCX2, Jan 15th, 2013 @ 1:16pm

      Re: "Misguided"?

      Mr. Swartz had to invoke IP and MAC spoofing in order to circumvent the protections that were put in place by MIT and JSTOR as a result of his initial queries.

      I'm not saying he hacked JSTOR or MIT - he didn't, and the MAC spoofing could have been accomplished by trying multiple network cards - but he should have stopped when he had to resort to spoofing his MAC address.

      I'm of the opinion that he deserved a true slap on the wrist - 30 days in a jail (not prison), misdemeanor conviction on his record, a small fine measured in hundreds of dollars. But given that the injured party - JSTOR - wanted the case dropped, it should have been dropped, no charges, no conviction, no fine. JSTOR was satisfied with the outcome so the prosecutor should have left it alone.

       

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        Colin, Jan 15th, 2013 @ 1:46pm

        Re: Re: "Misguided"?

        Mr. Swartz had to invoke IP and MAC spoofing in order to circumvent the protections that were put in place by MIT and JSTOR as a result of his initial queries.

        "Aaron did nothing to cover his tracks or hide his activity, as evidenced by his very verbose .bash_history, his uncleared browser history and lack of any encryption of the laptop he used to download these files. Changing one’s MAC address (which the government inaccurately identified as equivalent to a car’s VIN number) or putting a mailinator email address into a captured portal are not crimes. If they were, you could arrest half of the people who have ever used airport wifi."

        http://unhandled.com/2013/01/12/the-truth-about-aaron-swartzs-crime/

        Why should he have stopped at that point if it's not illegal?

         

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        shane (profile), Jan 15th, 2013 @ 2:15pm

        Re: Re: "Misguided"?

        I'm of the opinion you're still straining to find any excuse for the law to be involved in what is merely a violation of terms of service - terms of service that the organizations involved saw fit not to even punish him by denying his service for violating.

        Stop making excuses, will you please? The man's dead now. Can you not at least be honest now that the Feds have a good bloodguilt going on, or do we need a few more people to die on the altar of draconian IP enforcement before it dawns on you that maybe some digital copies of free documents are not something worth ruining a life over?

         

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        shane (profile), Jan 15th, 2013 @ 2:17pm

        Re: Re: "Misguided"?

        Incidentally, even your nod towards pragmatism is misguided, as sometimes the government NEEDS to be able to prosecute even when the victim doesn't want to come forward.

        The issue is that what he did was not illegal AT ALL, therefore he should not be prosecuted.

        Period.

         

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        John Fenderson (profile), Jan 15th, 2013 @ 4:20pm

        Re: Re: "Misguided"?

        he should have stopped when he had to resort to spoofing his MAC address


        Why?

        I'm of the opinion that he deserved a true slap on the wrist - 30 days in a jail


        30 days in jail is far more than a slap on the wrist. But aside from that, why should there be any criminal penalty whatsoever?

        He didn't break the law (except for perhaps trespassing -- and not even criminal trespassing at that). He broke the Terms of Service. ToS is not law.

        The appropriate punishment, if one was really needed here, would have been the usual fine for the trespassing.

         

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        Gwiz (profile), Jan 15th, 2013 @ 5:10pm

        Re: Re: "Misguided"?

        Mr. Swartz had to invoke IP and MAC spoofing in order to circumvent the protections that were put in place by MIT and JSTOR as a result of his initial queries.


        I spoof a new MAC address every time my laptop boots - just on general privacy principles.

        And from my understanding MIT offered "routable public IP address via unauthenticated DHCP" without any sort of registration or even a click-through TOS.

        I wouldn't call that "circumventing" anything - he was simply using MIT's network the way they set it up.

         

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    identicon
    BRB spider on keyboaiuyqw32r789qw3erhiaqwjwefhaw78, Jan 15th, 2013 @ 12:48pm

    Aaron = Internet Jesus. Make it happen.

    He died on ... whatever he died on ... for pursuit of the freedom/accessibility of knowledge, innovation and a brighter future

     

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    weneedhelp (profile), Jan 15th, 2013 @ 1:03pm

    Another FTFY moment.

    'Under American Law, Anyone Interesting Is A Felon'

    'Under American Law, Everyone Is A Felon'

     

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    identicon
    Joe, Jan 15th, 2013 @ 1:08pm

    A White House petition has been set up and has quickly crossed the threshold for response. Of course, has any petition actually resulted in some action other than a short response?

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

     

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    identicon
    Anonymous Coward, Jan 15th, 2013 @ 1:21pm

    Carmen Ortiz just wanted to make a name for herself, She did it. Now everyone knows her name.

     

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    Richard (profile), Jan 15th, 2013 @ 1:26pm

    Echoes


    "We can rightly judge a society by how it treats its eccentrics and deviant geniuses—and by that measure, we have utterly failed," Wu says. And why? Because an adversarial, zealous prosecutor put in charge of the right case can wreak an incredible amount of havoc in pursuit of "justice."


    Echoes of Alan Turing

     

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    Travis, Jan 15th, 2013 @ 1:28pm

    Geniuses take heed

    IF nothing else, the future generations of genius minds are going to realize that the "justice" system is their greatest opposition and will likely act pre-emptively to ensure their safety. Martyr is a good word for Swartz. They may have created a problem that didn't exist without their antagonism.

     

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      shane (profile), Jan 15th, 2013 @ 2:23pm

      Re: Geniuses take heed

      I find myself desperately hoping this is true. It is distressing to sit and watch the apathy while grotesque evil is perpetrated.

      No, not just apathy. There are a lot of people still making excuses for the government.

      Mind numbing.

       

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    identicon
    Anonymous Coward, Jan 15th, 2013 @ 1:35pm

    To quote a founding father.

    "Those who would give up their freedoms for more security deserve neither"

    Said by Benjamin Franklin.

     

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    MrWilson, Jan 15th, 2013 @ 1:41pm

    Turing's experience was majorly fucked up.

    "Yeah, sure, you helped win the war and arguably saved millions of lives, but...you like guys and that's wrong so we're gonna fuck with you until you commit suicide. So long and thanks for all the crypto and computers!"

     

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    identicon
    Bengie, Jan 15th, 2013 @ 2:31pm

    Sue her

    Can we sue her for damage to our economy from a lost "genius"?

    He caused no economic harm, physical harm, lasting damage, did not break any rules, and was technically using the system as intended.

    Since the lawyer decided to pursue him legally with no grounds. She was harassing him which caused him enough mental distress to suicide. She should be held liable for his death.

     

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    identicon
    Anonymous Coward, Jan 15th, 2013 @ 2:56pm

    a young man whose "crime" was truly victimless.

    All this kind of nonsense is missing the point.
    He was being prosecuted for not being a proper citizen and worse, he challenged the government in a battle the government lost (SOPA). 50 years minumum. He got death.
    OBEY, suckers!

    Thinking this is a glitch in the system, a raging mad prosecuter, whatever, will only hide the reality: 1984 was a political program, welcome to the brave new world. Now what are you all gonna do about it? Gripe about the details of intellectual property laws?

     

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      shane (profile), Jan 15th, 2013 @ 4:32pm

      Solution

      No, we're going to strap bombs to our backsides and go blow things up. Because that works SO WELL in the Middle East.

      Yes, we are going to discuss things rationally, attempt to identify allies, try to gin up passion and support, and lobby for peaceful change. We're going to study the economy, see if there are other parts of it that tie into this, see what we can do to change those as well.

      We're going to organize, think, act with conscious integrity and fight the good fight.

      Yes, that is exactly what we are going to do. Because that is what works. It is what THEY did to get us here, in fact. All except the parts about integrity and fighting the good fight, that is.

       

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    identicon
    Anonymous Coward, Jan 15th, 2013 @ 3:34pm

    Product Details
    Three Felonies A Day: How the Feds Target the Innocent by Harvey A. Silverglate (Jun 7, 2011) http://www.amazon.com/dp/1594035229

    Go Directly to Jail: The Criminalization of Almost Everything by Gene Healy (Oct 25, 2004) http://www.amazon.com/dp/1930865635

     

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    identicon
    johnny canada, Jan 15th, 2013 @ 3:36pm

    Catholic Church and Dark Ages

    Does anyone see the similarities of the U.S. and what the Roman Catholic Church did to put Europe into the 'Dark Ages'

     

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    bshock, Jan 15th, 2013 @ 3:48pm

    to hell with "rights holders"

    I don't find it at all 'tempting to couch this discussion in language that pays its due to "rights holders."'

    Anyone who believes he or she can own an idea, a piece of information, a story, a song, or any other non-physical item is dangerously delusional. I don't give a flying fuck if this delusion is enshrined in law created by the wealthy, for the wealthy.

     

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      shane (profile), Jan 15th, 2013 @ 4:36pm

      Re: to hell with "rights holders"

      Amen,

      sans the colorful language. =)I mean it looks good when you write it though...

       

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        MrWilson, Jan 15th, 2013 @ 9:44pm

        Re: Re: to hell with "rights holders"

        I think "flying fuck" is actually a reference to the flying spaghetti monster, and as such, it's not blasphemy to use the term, but rather a holy citation.

        Amen indeed.

         

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        identicon
        Anonymous Coward, Jan 16th, 2013 @ 9:53am

        Re: Re: to hell with "rights holders"

        There are no "bad words" - only bad deeds committed by mentally inferior people desperately trying to cope with their inferiority in destructive ways.

         

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      identicon
      Anonymous Coward, Jan 15th, 2013 @ 6:19pm

      Re: to hell with "rights holders"

      Anyone who believes he or she can own an idea, a piece of information, a story, a song, or any other non-physical item is dangerously delusional. I don't give a flying fuck if this delusion is enshrined in law created by the wealthy, for the wealthy.

      "Beware of he who would deny you access to information for in his heart he dreams himself your master."
      -- Commissioner Pravin Lal, U.N. Declaration of Rights

       

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    vilain (profile), Jan 15th, 2013 @ 10:33pm

    Sign the Whitehouse Petition to remove this prosecutor

    BoingBoing has a link to a petition submitted to Whitehouse.gov to remove this prosecutor from her job. I think the more people that sign it, the more the Whitehouse will have to look at the problem.

    If the petition process was enough to get Obama to say "We're not going to build a Death Star. Get over it." Maybe getting them to review this person's position in the Justice Department (a misnomer if ever I've heard one).

    http://boingboing.net/2013/01/14/whitehouse-gov-petition-to-rem.html

     

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    identicon
    quawonk, Jan 16th, 2013 @ 4:53am

    Bullied to death by the oligarchy.

     

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    Bryan (profile), Jan 16th, 2013 @ 10:19am

    The Rebel vs. The System

    Long term, the rebel is going to win every time. . .

     

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    identicon
    Anonymous Coward, Jan 17th, 2013 @ 6:10am

    Maybe the solution is obvious

    Carmen Ortiz, like everyone else, is guilty of breaking some law; jaywalking, parking too close to a fire hydrant, etc. Find another prosecutor who thinks she drove Aaron Schwarz to his death, and have him/her prosecute Ortiz for breaking those laws. Each charge may yield only a small inconvenience, but if you repeat the process day after day ... sometimes, poetic justice is the best kind.

     

    reply to this | link to this | view in chronology ]


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