Seeking Justice In A World That Has Lost Its Way

HSBCI spent much of Saturday trying to reconcile two very different approaches to justice meted out by the Obama Administration.

The first is old (mid-December) news: British bank HSBC launders money for at least a decade and is fined four weeks earnings. I learned about it Friday from The Daily Show.

Too big to indict:

… for years, HSBC had also moved tainted money from Mexican drug cartels and Saudi banks with ties to terrorist groups.

Those findings echo those of a Congressional report, issued in July, which said that between 2001 and 2010, HSBC exposed the American “financial system to money laundering and terrorist financing risks.” Prosecutors and Congressional investigators were also alarmed by indications that senior HSBC officials might have been complicit in the illegal activity and that the bank did not tighten its lax controls against money laundering even after repeated urgings from federal officials.

Blatant laundering. $15bn in unexplained “bulk cash”. No indictments. After all, that would have been humiliating.

[Assistant AG Lanny] Breuer admitted that drug dealers would sometimes come to HSBC’s Mexican branches and “deposit hundreds of thousands of dollars in cash, in a single day, into a single account, using boxes designed to fit the precise dimensions of the teller windows.”

This bears repeating: in order to more efficiently move as much illegal money as possible into the “legitimate” banking institution HSBC, drug dealers specifically designed boxes to fit through the bank’s teller windows.

[...]

That they are not being prosecuted is cowardice and pure corruption, nothing else. And by approving this settlement, Breuer removed the government’s moral authority to prosecute anyone for any other drug offense.

How can anyone other than a banking executive look at this action on the part of the U.S. government and say, “There is justice here; this is fair and reasonable.”

They can’t. Because it’s not.

Aaron SwartzThat leads me to Aaron Swartz, a talented and extraordinary young man, a technologist and activist. At age 14, he helped develop RSS, the technology that underpins the web’s information subscription system.

In 2011, the DOJ charged Aaron with being a devious hacker out to defraud JSTOR (publisher of academic journals). His trial was slated for April.

At age 26, he killed himself this weekend.

We should all weep.

Here’s author and activist Cory Doctorow:

Aaron accomplished some incredible things in his life. He was one of the early builders of Reddit…got bought by Wired/Conde Nast, engineered his own dismissal and got cashed out, and then became a full-time, uncompromising, reckless and delightful shit-disturber.

In its obituary, the NY Times notes his sense of public good, reporting that in 2008 he joined forces with Carl Malamud, the founder of public.resource.org, to make public records freely accessible.

Aaron legally obtained about 20 million pages of documents from PACER (Public Access to Court Electronic Records), the repository for federal judicial documents.

The government shut down the free library program, and Mr. Malamud feared that legal trouble might follow even though he felt they had violated no laws. As he recalled in a newspaper account, “I immediately saw the potential for overreaction by the courts.” He recalled telling Mr. Swartz: “You need to talk to a lawyer. I need to talk to a lawyer.”

Mr. Swartz recalled in a 2009 interview, “I had this vision of the feds crashing down the door, taking everything away.” He said he locked the deadbolt on his door, lay down on the bed for a while and then called his mother.

The federal government investigated but did not prosecute.

Aaron posted the resultant FBI file online.

Also in 2008, Aaron issued a Guerrilla Open Access Manifesto, calling for scholarly work to be released online in the “grand tradition of civil disobedience.”

Open access advocates argue that scholarly and scientific literature — much of it created on the public’s dime — should be “available online, free of charge and free of most copyright restrictions.”

Research demonstrates that openly accessible publications are cited by others more often than research blocked by digital lock-and-key. This spread of knowledge is good for society as a whole.

JSTOR did not press charges; Aaron returned the files.

Yet the DOJ, in the person of Carmen M. Ortiz, U.S. Attorney for the District of Massachusetts, indicted Aaron, charging him with stealing 4 million documents from MIT and JSTOR.

If convicted, Aaron faced up to 35 years in prison and $1 million in fines.

For a victimless crime where more than half of the information was in the public domain and where the “stolen property” had been returned.

For a “crime” that an expert witness explains clearly and in direct opposition to much of the DOJ case.

I know a criminal hack when I see it, and Aaron’s downloading of journal articles from an unlocked closet is not an offense worth 35 years in jail.

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MIT also chooses not to prompt users of their wireless network with terms of use or a definition of abusive practices.

At the time of Aaron’s actions, the JSTOR website allowed an unlimited number of downloads by anybody on MIT’s 18.x Class-A network.

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Aaron Swartz was not the super hacker breathlessly described in the Government’s indictment and forensic reports, and his actions did not pose a real danger to JSTOR, MIT or the public. He was an intelligent young man who found a loophole that would allow him to download a lot of documents quickly. This loophole was created intentionally by MIT and JSTOR, and was codified contractually in the piles of paperwork turned over during discovery.

If I had taken the stand as planned and had been asked by the prosecutor whether Aaron’s actions were “wrong”, I would probably have replied that what Aaron did would better be described as “inconsiderate”. In the same way it is inconsiderate to write a check at the supermarket while a dozen people queue up behind you or to check out every book at the library needed for a History 101 paper. It is inconsiderate to download lots of files on shared wifi or to spider Wikipedia too quickly, but none of these actions should lead to a young person being hounded for years and haunted by the possibility of a 35 year sentence.

You have to ask yourself: who in the Department of Justice did Aaron embarrass so badly back in 2008? Or which academic journal publisher has an “in” with the U.S. government?

Ironically, JSTOR announced last week that it is offering limited, free access via a “Register and Read” program.

Let me close with this observation from lawyer Lawrence Lessig:

Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its. MIT, to its great shame, was not as clear, and so the prosecutor had the excuse he needed to continue his war against the “criminal” who we who loved him knew as Aaron.

[...]

He was brilliant, and funny. A kid genius. A soul, a conscience, the source of a question I have asked myself a million times: What would Aaron think? That person is gone today, driven to the edge by what a decent society would only call bullying. I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.

How can anyone other than a publishing executive look at this action on the part of the U.S. government and say “that’s fair and reasonable.”

They can’t. Because it’s not.

***

The mission of the Department of Justice is, in part, “to seek just punishment for those guilty of unlawful behavior, and to ensure fair and impartial administration of justice for all Americans.”

They failed on both counts here.

Our public legal system — the one that is supposed to be looking out for us, the citizens of the United States — kowtowed to a British corporation while grinding its heel into a 26-year-old idealist.

We should be ashamed.

We live in a democracy. Tell your friends but just as importantly, tell your Congressmen and our President.

The DOJ was wrong, not once, but twice.

Only we can make sure it doesn’t happen again.

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9 Comments

  1. We live in a country where the right to life, liberty, and the pursuit of happiness only belongs to the corporations and special interest groups that own our government officials…or if you are on American Idol.

    I saw the HSBC story on Stewart also…insane. To big to prosecute!
    I also enjoyed the Gore bashing that JS turned on FOX news…whose owner owns media that hates the US and Israel.

  2. Shannon, you seem to be saying the DOJ is an accountability-free zone, and its misbehavior must be blamed on someone else. Is that what you mean?

  3. We should be ashamed.

    True. And the power brokers should be ashamed but aren’t capable of it.

    (yes, I start sentences with conjunctions. – sue me)

  4. Hmm Dr. J, who is the executive in charge of that branch? The buck stops at his desk.

    The HSBC story is absolutely disgusting.

  5. Dirty little non-secrets. Who has gone to jail for the crash. What did we do with Fannie and Freddie except pump 180 billion into them. Were Dodd and Frank and all the other politicians that helped us into the pit chastised. Noooooo.
    The list would go on and on in many other areas where a a blind eye is common.
    Nothing new here folks, keep moving.

  6. Our public legal system — the one that is supposed to be looking out for us, the citizens of the United States — kowtowed to a British corporation while grinding its heel into a 26-year-old idealist.

    This is what happens in a country that has lost it’s soul. Yes, we should be ashamed.

  7. Thanks, folks. dduck, the bigger story here is Aaron’s, IMO. Had I not watched TDS Friday night, it would have been soley about him.

  8. zephyr – i believe we have lost something or have seriously misplaced it. or shifted our worship to the dollar.

    i keep thinking i need to read Gibbons.

  9. I just discovered this:

    (1) A fitting tribute to Aaron might be a mass protest uploading of copyright-protected research articles. Dump them on Gdocs, tweet the link. Think of the great blu-ray encoding protest but on a bigger scale for research articles.

    Edit: someone took the initiative- it’s happening!! Post your papers to hashtag #pdftribute

    Reddit thread

    (2) Researchers begin posting article PDFs to twitter in #pdftribute to Aaron Swartz

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

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