Innovators Break Stuff, Including The Rules: How Gates, Jobs & Zuckerberg Could Have Been Targeted Like Aaron Swartz

from the do-we-want-to-stamp-out-that-kind-of-innovation? dept

In a conversation with some folks in the tech industry recently, someone pointed out that nearly every super famous entrepreneur likely could have, at some point, been legitimately accused of violating the Computer Fraud and Abuse Act (CFAA), which is the law that prosecutors used against Aaron Swartz, and is in desperate need of an overhaul. Over at the EFF, Trevor Timm has a great post exploring how Steve Jobs, Bill Gates and Mark Zuckerberg all might have faced charges under the CFAA. You should read the whole thing, but here are a few snippets:

On Zuckerberg:
In 2006, while a sophomore at Harvard, Zuckerberg created a website called “Facemash” which compared photographs of Harvard’s entire population, asking users to compare two photos and vote on who looked better. Zuckerberg allegedly got access to these photos by “hacking” into each of Harvard’s nine House websites and then collecting them all on one site. It’s not clear what this “hacking” was, but since the charges against him included “breaching security,” it may have fun afoul of the law.
On Jobs:
Columbia Law Professor Tim Wu notes in the New Yorker that Apple co-founders Steve Jobs and Steve Wozniak, did acts that were “more economically damaging than, Swartz’s.” The two college roommates made what were called “blue boxes,” cheap devices that mimicked a certain frequency that allowed them to trick AT&T’s telephone system into making free long-distance calls. They also sold blue boxes before moving onto bigger and better ideas.
On Gates:
In his autobiography, Allen told the story of when the two future billionaires “got hold of” an administrator password at the company they worked at before starting Microsoft. The company had timeshared computers and Allen and Gates were getting charged for using them for their personal work.

The two men used the password to access the company's accounts and set about trying to find a free runtime account so that they could carry on programming without having to pay for the time. They also copied the account database for later perusal. However, management got wise to the plan.
"We hoped we'd get let off with a slap on the wrist, considering we hadn't done anything yet. But then the stern man said it could be 'criminal' to manipulate a commercial account. Bill and I were almost quivering."
Of course, defenders of the existing law will argue that these episodes are entirely unrelated to the later greatness that all three of these folks were eventually involved in. But that's not actually supported by the facts. Facesmash almost certainly directly led Zuckerberg to Facebook. And, in the case of Steve Jobs, he specifically told an interviewer:
“Experiences like that taught us the power of ideas…And if we hadn’t have made blue boxes, there would’ve been no Apple.”
Innovators innovate because they hack away at stuff. They push boundaries and they try new things to explore uncharted worlds. Do we really want to be punishing people like that with threats of 35 years in jail? (And, yes, the government absolutely did threaten him with 35 years.)


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    silverscarcat (profile), Mar 12th, 2013 @ 8:29am

    You know the trolls are going to be all over this one.

    I've got the fire ready.

     

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    Ninja (profile), Mar 12th, 2013 @ 10:01am

    When kids are being suspended for playing with pastry you know we've already crossed a very dangerous milestone. I wouldn't be surprised if centuries ahead this epoch gets to be known as some sort of The Second Dark (Middle) Ages. Because that's what those times were about, tight control and punishment of any sort of artistic/creative expression. Only the cleric elite was empowered to dictate what should be learned (if anything) or read. Sounds familiar?

     

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      Anonymous Coward, Mar 12th, 2013 @ 10:10am

      Re:

      I never looked at it that way. A second dark age in the middle of what looks like a technology revolution. But in reality only the rich are able to innovate as the poor are litigated out of existence or jailed.

       

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      Anonymous Coward, Mar 12th, 2013 @ 11:24am

      Re:

      With the potential for bacteria that are resistant to all antibiotics to become common place, combined with extremism of the religious right, increasing economic inequality, and a failing political system fraught with corruption (i.e. the revolving door of politics and lobbying) and we might indeed be in the grips of a dark ages light.

       

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      artp (profile), Mar 12th, 2013 @ 9:30pm

      Re: You're right

      The cleric elite should not have been empowered to dictate what people were allowed to learn. They should have been banned from teaching.

      Given that they were the only ones who were preserving and spreading knowledge back then in Europe, you might have had to wait for the Arabs to come up from southern Spain or northern Africa to fill the void, though.

      Trivia: Why was it called the "Dark Ages"? Because the King of Bohemia had veto power over the election of the Emperor of the Holy Roman Empire (northern Europe). Cultural imperialism at its best!

       

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      Anonymous Coward, Mar 13th, 2013 @ 3:06am

      Re:

      What triggered the enlightenment was the printing press, it made knowledge readily available, including such anti-establishment Ideas as those of Calvin and Luther. However much effort was made by the establishment to control the printing press, but in the end they failed.
      The Cycle is repeating at the next level up, with the battle to control or keep the Internet free, along with the battle over copyright. The publishers, labels and studios are the elite this time round, and like the old aristocracy they can see their power ending because the means of production is available to everyone. Similarly the Internet is allowing society to largely bypass the civil service as a means of organising the public, and communicating about public issues.

       

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    out_of_the_blue, Mar 12th, 2013 @ 10:09am

    Quite a stretch, Mike. -- But pleasant fantasy!

    "the later greatness"? -- What exactly do you believe that to be? Crap software pushed to monopoly by illegal tactics that's held back progress industry-wide; crap proprietary hardware (until just recently) AND crap proprietary software; and a massive spying operation that's increasingly draconian, increasingly unavoidable? But besides that, all three have definitely become platforms to implement the high-tech surveillance state. That's the kind of "innovation" and "disruption" that you think good?



    Take a loopy tour of Techdirt.com! You always end up at same place!
    http://techdirt.com/
    Where Mike's "no evidence of real harm" means he wants to let secretive mega-corporations continue to grow.

     

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      Anonymous Coward, Mar 12th, 2013 @ 10:18am

      Re: Quite a stretch, Mike. -- But pleasant fantasy!

      You are right sir. We need to go back to the good old horse and buggy. Every time something new has been invented it is only used for Evil. Since the invention of the phone our privacy has been invaded by the evil people that hack in and listen to our calls. Mr. Bell must have planned this just as Gates and Jobs planned for their technology. We must rise up and destroy all technology as it can only be used for evil. For the evil that innovation has brought forth far outweighs any good that it has done or ever could do.

       

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        dennis deems (profile), Mar 12th, 2013 @ 10:51am

        Re: Re: Quite a stretch, Mike. -- But pleasant fantasy!

        Oh I get it. If I'm not willing to be a cheerleader for technothugs like Gates & Jobs then I must be a quaintly befuddled idiot who quakes with fear before any new technology. Hehe good one.

         

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          Anonymous Coward, Mar 12th, 2013 @ 11:15am

          Re: Re: Re: Quite a stretch, Mike. -- But pleasant fantasy!

          Not really, but your use of the word 'technothugs' could just as easily be applied to the RIAA, BPI and IFPI.

           

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            dennis deems (profile), Mar 12th, 2013 @ 12:29pm

            Re: Re: Re: Re: Quite a stretch, Mike. -- But pleasant fantasy!

            ...the word 'technothugs' could just as easily be applied to the RIAA, BPI and IFPI.
            Of course it could, but that's not what this article is about.

             

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          nasch (profile), Mar 12th, 2013 @ 3:56pm

          Re: Re: Re: Quite a stretch, Mike. -- But pleasant fantasy!

          Wait, is ootb actually dennis deems?

           

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      John Fenderson (profile), Mar 12th, 2013 @ 10:37am

      Re: Quite a stretch, Mike. -- But pleasant fantasy!

      I'm not a fan of any of those guys, either. I think their effect has, on the whole, been for for the worse than the better.

      Nonetheless, they were effective, and therefore successful in their goals. They are all major names in the industry. That can fairly be described as "greatness".

      Disruption is what allows for significant change. Without significant change, there can be no great advances. However, change (and disruption) is not a predictable things and does not always result in a positive outcome.

      It's not a question of disruption being good or bad. It's a matter of it being inevitable. Since it's inevitable, it's wise to learn how to use it for good.

       

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      dennis deems (profile), Mar 12th, 2013 @ 10:47am

      Re: Quite a stretch, Mike. -- But pleasant fantasy!

      I agree with your comment, too bad you have to add your customary BS at the end. Dick.

       

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      Coogan (profile), Mar 12th, 2013 @ 12:21pm

      Re: Quite a stretch, Mike. -- But pleasant fantasy!

      As the hippies would say, "Go to bed, old man!"

      Your arguments could be extended to any invention over the past 400 years to paint them as somehow "evil" inventions.

      Airplanes allow drug smugglers to bring in their toxic cargo, and terrorists to take hostages and crash into buildings. Thanks a lot, Orville and Wibur!

      Cars kill thousands on the road every year. Thanks a lot, Daimler Motor Car Company!

      Railroads allowed a-holes like Cornelius Vanderbuilt and Jay Gould to become obscenely wealthy. Thanks a lot, James Watt!

      Three easy examples. Three developments that revolutionized not just the country, but the entire world, and provided incalculable benefit to humankind. Did they produce some bad apples? Yeah - our inventions are merely tools conjured from our imagination and utilized by our flawed souls. They have every bit the capability of evil and good as their human operator. No more, no less. There is no such thing as "bad" innovation. Those who look at change as a threat to their livelihood are both shortsighted and underestimate their own abilities to adapt and change.

      That's the kind of "innovation" that I think is good? Frak yeah. Innovation grows us as a species. It actively repels stagnation. It drives cultural and physiological changes and in more cases than not, increases prosperity across the entire planet. Innovation begets change, which begets more innovation. Stagnation begets complacency, which will beget extinction.

      To quote Robert Heinlein:

      Throughout history, poverty is the normal condition of man. Advances which permit this norm to be exceeded here and there, now and then are the work of an extremely small minority, frequently despised, often condemned, and almost always opposed by all right-thinking people. Whenever this tiny minority is kept from creating, or (as sometimes happens) is driven out of a society, the people then slip back into abject poverty.
      This is known as "bad luck."

       

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        RyanNerd (profile), Mar 17th, 2013 @ 9:58am

        Re: Re: Quite a stretch, Mike. -- But pleasant fantasy!

        I think you either intentionally or unintentionally missed the mark on the point of Mike's arguments.

         

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      Rikuo (profile), Mar 12th, 2013 @ 2:59pm

      Re: Quite a stretch, Mike. -- But pleasant fantasy!

      I'd like to quote something from near the beginning of the very first Harry Potter book.
      Harry is in the wand shop, getting a wand. He eventually gets one, and is told that it is a twin to the wand that gave him his famous lightning bolt scar. To quote the wand salesman Ollivander to the best of my recollection
      "He Who Must Not Be Named did great things with that wand. Terrible yes...but great".

      Great doesn't automatically mean sunshine and puppy dogs. Everyone knows of the many bad business practices of Gates et al. Again, I urge you to calm the fuck down, get out, seek medical help and also this time, learn some fucking English.
      Gates et al did good things. They did bad things too. Does Mike need to mention both every single time they're mentioned? Nope.

       

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    Ima Fish (profile), Mar 12th, 2013 @ 10:10am

    And before John Carmack and John Romero formed Id Software, they would use their employer's computers at night and weekends to write their games on, without permission.

    That's breaking and entering, trespassing, embezzlement, and because it was without permission, numerous violations of CFAA (which obviously didn't exist at the time.)

     

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    trish, Mar 12th, 2013 @ 10:17am

    yes!

    threaten them with 35 years in jail so they'll shut up! I'm already rich so I don't need to enable any sort of new innovation, that'll only mess with my current investmnt portfolio anyway.

     

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    DCX2, Mar 12th, 2013 @ 10:28am

    Slightly off-topic: plea bargains

    I think one of the insidious things about the Aaron Swartz persecution was the idea that the plea bargain was "fair". I think there should be a rule, that a plea bargain can be no less than half of what the prosecutor would seek at trial. The idea that someone can do a horrible crime and get away with, what, 7% of the original sentence by copping a plea? That's a perversion of justice. Not only does this perversion completely remove the adversarial process from justice, but it also allows a prosecutor to stack the deck against an innocent defendant who then cops a plea because the risk/reward isn't worth going to trial.

     

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      DCX2, Mar 12th, 2013 @ 10:32am

      Re: Slightly off-topic: plea bargains

      I should note that I don't think Mr. Swartz did a "horrible crime". I'm just saying, for a hypothetical, say, murderer, the idea that a plea bargain can get their 15 year sentence reduced to 1 year is a perversion of justice.

      In regards to Mr. Swartz, the idea works in reverse. You load up a relatively minor crime with punishments like it was a major crime, and then offer the defendant some ridiculously reduced sentence to cop a plea. Even innocent defendants might choose to not roll the dice.

       

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    dennis deems (profile), Mar 12th, 2013 @ 10:39am

    What am I missing? This just sounds like larceny.

    It amazes me that anyone might believe that Jobs/Woz/Allen/Gates/Zuck were right to do what this article says they did, and that such activity -- far from being punished -- should be commended. "There would've been no Apple" -- and we'd be worse off today how, exactly?

     

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      Anonymous Coward, Mar 12th, 2013 @ 10:49am

      Re: What am I missing? This just sounds like larceny.

      A stannant 90s, and comglomerate music industry with relatively little independent music?

       

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      Anonymous Coward, Mar 12th, 2013 @ 11:26am

      Re: What am I missing? This just sounds like larceny.

      I don't think anyone thinks those things were right. The point is that in today's environment, those indiscretions would be felonies and might cause someone to spend a significant portion of their lives in jail (thereby preventing future contributions to society).

      The point I'm getting out of this is that the punishment for some of these things should be in range of warning/probation/community service; and not in the range of "the productive portion of your life is effectively over".

       

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      Anonymous Coward, Mar 12th, 2013 @ 11:22pm

      Re: What am I missing? This just sounds like larceny.

      Especially the selling of equipment to defraud the phone companies. That's not OK, and probably deserved jail time.

       

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      PaulT (profile), Mar 13th, 2013 @ 3:36am

      Re: What am I missing? This just sounds like larceny.

      "this article says they did, and that such activity -- far from being punished -- should be commended"

      Nope, you've completely misunderstood the point. It's not saying that they did everything right. In some ways it was blatant stealing (the blue box was clearly stealing a service from the phone company, for example). It could be argued that they're good because they allowed these young men to experiment with things they later perfected, but it's irrelevant to the central point whether you call the actions "bad" or not.

      The point is that had they been treated like Swartz was treated, their contributions to society would have been lost. That new innovators can be stopped (or made into criminals) before they even start as a result of the same things that people who revolutionised the world a generation or less before them did. That innovators will be shut down because they threaten the established status quo.

      "There would've been no Apple" -- and we'd be worse off today how, exactly?"

      No Apple II or Macintosh, which means a lot of inspiration for other technological innovations as well as no revolutions in other industries (e.g. desktop publishing and spreadsheets first found popular homes on Apple equipment). No iMac, nor OSX, meaning that Microsoft have a complete stranglehold on the desktop market (assuming that Gates wasn't also locked up, potentially meaning no PC revolution at all). No iPod or iTunes, meaning that digital music may not have taken off in the way it did, and all the benefits that brings, as well as the smartphone and tablet markets that were struggling or dying (or at best restricted to corporate markets). Pixar may not have become what it became without Steve Jobs' involvement during a difficult time of their history. The list goes on...

      It's true that some of these innovations may have come about without Apple, and certainly they were better at innovating rather than inventing - so, other people may have innovated in similar ways. But, the world would be a very different place if Jobs & Wozniak had found themselves dead or in jail as a result of their early phreaking attempts.

       

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    Coogan (profile), Mar 12th, 2013 @ 11:14am

    wrong profession

    If he'd been the mayor of a major US city, he could've been convicted for running a bribery and extortion ring out of the mayor's office and only gotten 20 years.

    http://www.usatoday.com/story/news/nation/2013/03/11/verdict-detroit-ex-mayor/1978229/

     

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    Anonymous Coward, Mar 12th, 2013 @ 11:18am

    typo

    "it may have fun afoul of the law."

    that does sound fun.

     

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    Anonymous Coward, Mar 12th, 2013 @ 11:19am

    the main difference and the one that couldn't be left alone by the DoJ was that Swartz was trying to amalgamate FREE STUFF to which all were entitled to view for free. we all know the rules. if you are trying to do something at no cost to anyone that is gonna be of benefit to everyone, it has to be stopped, just in case someone else thinks up a way of making money off of it! the other thing, of course, is to highlight what lengths the DoJ and Holder in particular will go to try to defend the lies and crap they put out. they are guilty and should be charged and tried for their crimes. everyone else would be and they are supposed to be senior upholders of the law! what a joke!!

     

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      DannyB (profile), Mar 12th, 2013 @ 12:53pm

      Re:

      To make free stuff available to anyone for free is to devalue it. That is why free stuff that we all have a right to access must be locked up behind pay walls. That is why the public domain must be eliminated. That is why creative commons is evil.

      Thank goodness the DOJ was helping to protect us from this menace. Despite that JSTOR wasn't pressing it and the state AG considered it unimportant.

      If this isn't stopped, the next thing you know people will be thinking they have a right to free air to breathe without paying! Making the air free devalues it. It must be licensed.

       

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    balaknair, Mar 12th, 2013 @ 11:26am

    the difference

    as I see it, is that all the above cases, they did it for what might be said to be personal gain. Aaron on the other hand was acting for what he believed to be public interest or the greater good. Gates, Jobs, Woz, Zuckerberg were all relatively unknown geeky kids fooling around, no threat to those in power, like kids at raves or street racing in stolen cars, except with computers.
    But Aaron was already an acknowledged genius, idealistic, an influential internet personality, already in the administration's sights for his activism and the PACER and SOPA/PIPA debacles. That was his undoing. IMO, his crime was not the unauthorized downloads our the trespasses on MIT property, just the fact that his activism and idealism branded him in the eyes of the prosecution as anti-establishment.

     

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    Mason Wheeler (profile), Mar 12th, 2013 @ 11:56am

    What innovators?

    Gates: Innovated a grand total of one original idea in his entire career. Anyone remember Microsoft Bob? (If not, remember Clippy the "helpful" paper clip? Imagine an entire shell full of characters like him. That's Bob.) Everything else, from DOS and Windows to Office and Internet Explorer to their programming tools, was either purchased from a real innovator or blatantly (and badly) ripped off from another product.

    Jobs: Began by copying Xerox's innovation, but actually did build some new and useful concept on the foundation they laid. (Which Microsoft immediately went and produced a bad ripoff of. See above.) Never managed to get anywhere with his products because he and his company insisted on too-tight control of everything and making life too difficult for developers. And as soon as he actually got a little bit of power in the marketplace, he went waaaay off the deep end and instituted policies far more evil than anything we ever saw coming out of Microsoft. I suppose that could count as an innovation...

    Zuckerberg: Began by breaking into systems, but that's OK, because he later ended up stealing from his employers who hired him to create a site, taking their design--which was essentially just a MySpace ripoff--for his own. He then proclaimed privacy irrelevant by royal fiat, participated in a massive act of securities fraud when he took his company public (for which no one was ever prosecuted that I know of) and screwed investors out of billions while padding his own pockets considerably.

    Like they say, hindsight's 20/20. I'm having a hard time seeing why these people shouldn't have been prosecuted for their early crimes and prevented from going on and causing further harm. Can someone come up with some examples of guys who actually contributed in a positive way?

     

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      Anonymous Coward, Mar 12th, 2013 @ 12:29pm

      Re: What innovators?

      Okay Winklevii.

       

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      Josh in CharlotteNC (profile), Mar 12th, 2013 @ 12:36pm

      Re: What innovators?

      I have no love for any of the 3, nor the companies they founded, but you can't argue they weren't innovators.

      Gates: the real innovation - and it was primarily a business one, I won't argue - was seperating the hardware and operating system from control by the same company. He licensed the OS to IBM and retained his control to improve and sell it to other companies. And ultimately, that is what made DOS and later Windows successful, in that it allowed a huge amount of competition in the hardware space and made the PC revolution possible.

      Jobs: yes, he took everything that Xerox had (and wasn't using) and turned it into something that people wanted (and yes, Gates then copied it all, too). But without him, we may never have had personal computers.

      And since you wrote that comment on some version of a personal computer (or smartphone descended from them), and the comment travelling over a network-of-networks used to allow all those PCs to communicate, then I can say that they contributed in a positive way. Unless you want to return to a time before these things, you need to accept that.

       

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        PRMan, Mar 12th, 2013 @ 1:29pm

        Re: Re: What innovators?

        Well, without him, regular people still wouldn't be using computers.

         

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          dennis deems (profile), Mar 13th, 2013 @ 3:00pm

          Re: Re: Re: What innovators?

          If it hadn't been Gates it would have been someone else; if it hadn't been Jobs it would have been someone else. Innovation isn't some rare mystical trait that only comes about once every thousand years thanks to a high concentration of midi-chlorians.

           

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    Anonymous Coward, Mar 12th, 2013 @ 12:55pm

    http://nostarch.com/xboxfree

    In memory of Aaron Swartz, Bunnie released his book free, telling his adventures hacking the Xbox and the legal hops caused by copyright and patents.

     

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    Anonymous Coward, Mar 12th, 2013 @ 2:23pm

    (And, yes, the government absolutely did threaten him with 35 years.)

    Again again the willfully blind ignores the fact that the Sentencing Commission Guidelines are all but conclusive on the Court and continues to insist that there was actually a chance in hell of Swartz of getting 35 years. Good job Magoo.

     

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      John Fenderson (profile), Mar 12th, 2013 @ 4:48pm

      Re:

      But it's true that the government threatened him with 35 years (more, actually) nonetheless.

      Whether or not he should have been intimidated by those threats is a completely separate issue. I think most people would have been very intimidated. That's why they make those threats.

       

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        nasch (profile), Mar 12th, 2013 @ 5:44pm

        Re: Re:

        I think most people would have been very intimidated. That's why they make those threats.

        It's not as though they say "we're going to push for 50 years, but the federal sentencing guidelines say you can only get 20". And anyway, stop pretending (AC, not John) that there's no problem because he could "only" have gotten how many years? 10? 15? For entering a server closet he shouldn't have.

         

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      G Thompson (profile), Mar 12th, 2013 @ 5:54pm

      Re:

      Are you that naive to not understand the difference between the DoJ threatening "see with these charges you COULD get up to 35 years" and what in actuality would occur if he was actually found guilty and sentenced via the guidelines?

      The psychological fear that the DoJ use of 'up to' whether correct in practice or not is the epitome of the stick in the carrot and stick analogy. This is the main way they get plea bargains accepted.

      IF they instead had to inform the defendant of the actual process and the likelihood based on standing, history of defendant, previous rulings, social norms, etc then that 'stick' would be absolutely useless like it is (and should be) in every other civilised country of the world EXCEPT the USA

      Whereas everywhere else in the world it's quite

       

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        G Thompson (profile), Mar 12th, 2013 @ 5:56pm

        Re: Re:

        Whereas everywhere else in the world it's quite... unusual for plea bargaining to be the norm instead of the exception

        *stupid enter key*

         

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      Mike Masnick (profile), Mar 12th, 2013 @ 5:58pm

      Re:

      Again again the willfully blind ignores the fact that the Sentencing Commission Guidelines are all but conclusive on the Court and continues to insist that there was actually a chance in hell of Swartz of getting 35 years.

      Then the US Attorneys Office never should have threatened him with 35 years. But they did.

       

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    special-interesting (profile), Mar 13th, 2013 @ 2:26am

    I am eclipse by the revelations of current comments.

     

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