Members Of Congress Ask Eric Holder To Try Again In His Explanation Of The Prosecution Of Aaron Swartz

from the this-time,-with-some-reality-involved dept

Tomorrow is the anniversary of the unfortunate passing of Aaron Swartz. Senators John Cornyn and Al Franken, along with Rep. Darryl Issa, have now sent Attorney General Eric Holder yet another request for an explanation concerning the investigation and prosecution of Swartz. This follows on a similar request from last year, but these elected officials note both that the DOJ's response was inadequate, and that it was also contradicted by the eventual report on the prosecution that came out of MIT.

We regret that the information your Department has provided to date has not been satisfactory -- among other things, it painted a picture of prosecutors unwilling or unable to weigh what charges to pursue against a defendant, something which you have instructed federal prosecutors is "among [their] most fundamental duties."

The account also is inconsistent with findings in the report prepared by MIT about the prosecution of Mr. Swartz, dated July 26, 2013 ("MIT Report"). A letter provided by the Department in May states that "the charging and sentencing decisions made by Department. lawyers were properly based on the law and the facts of the case . . . and not on inappropriate considerations, such as Mr. Swartz's exercise of his legal rights as a citizen." The MIT Report indicates that Assistant U.S. Attorney Stephen Heymann considered other factors in advance of the return of the superseding indictment. He told MIT that "the straw that broke the camel's back" was an internet webpage soliciting signatures on Mr. Swartz's behalf by Demand Progress, an activist group founded by Mr. Swartz.

In other words, despite the claims from Holder that the charges against Aaron were not based on Swartz exercising his right to free speech, Stephen Heymann has since admitted that, in fact, Swartz's friends speaking out on his behalf were what made him decide to try to throw the book at Swartz. The letter points out further claims from Holder that appear to be contradicted by the MIT report and note:

Inconsistencies such as these require serious responses to the original letter, and indeed raise more questions about the prosecution of Mr. Swartz. One year ago, we sought the basis for the U.S. Attorney Carmen Ortiz's determination that her office's conduct was "appropriate." We have received no such information, not even the sentencing memoranda that surely were prepared in a case such as this.

In March, you testified that Mr. Swartz's case was "a good use of prosecutorial discretion." We respectfully disagree. We hope your response to this letter is fulsome, which would help re-build confidence about the willingness of the Department to examine itself where prosecutorial conduct is concerned.

Given how Holder and the DOJ have responded to these issues in the past, I wouldn't expect any real response to be forthcoming any time soon.

Filed Under: aaron swartz, al franken, darrell issa, doj, eric holder, john cornyn, prosecution, stephen heymann

Rep. Darrell Issa, Who Voted Against Amash Amendment, Now Wants To Bring It Back For Another Vote

from the flip-flopping dept

When the Amash Amendment to defund aspects of the NSA's spying was narrowly defeated, one of the somewhat unfortunate no votes was Rep. Darrell Issa, who has proven to be really good on important tech issues. Of course, since that vote, there have been a series of increasingly stunning revelations about just how deep the NSA's surveillance efforts go, and quite a few Representatives have suggested that they were totally unaware of the extent of the surveillance. Others have suggested that if the Amash Amendment was voted on again today, the vote would be different.

So, it's interesting to see that Rep. Issa is asking for exactly that:

In recent weeks, concerning reports have been made public about the scope and depth of the National Security Agency's (NSA) surveillance programs and serious legal violations in those programs. In particular, the recent declassification of a 2011 Foreign Intelligence Surveillance Court (FISC) ruling has revealed that the Agency unlawfully gathered and held the contents of emails for tens of thousands of Americans between 2008 and 2011. Additionally, there are concerning allegations that officials at the NSA may have misrepresented to the FISC the scope of a collection program conducted under Section 702 of the ISA Amendments Act.

Prior to earlier votes on the House floor on amendments to limit NSA intelligence gathering programs, members of Congress were given assurances that there would be a substantive legislative review of their scope and function. Now that it has been publicly acknowledged that the communications of Americans were included in the NSA's data collection program, likely violating their Fourth Amendment rights, Congress must respond in a manner that both increases the transparency of the Agency's programs and reinforces the constitutional protections of our citizens.

Now that the House has come back into session, I respectfully request that you move legislation to the floor, including the language of the Amash Amendment that was narrowly defeated on July 26, 2013 during debate on the Department of Defense Appropriations Act, as quickly as possible. Government actions that violate the Constitution cannot be tolerated and Congress must act to ensure the NSA and the rest of the intelligence community permanently cease such acts and hold the appropriate individuals accountable.

This is a fairly surprising move. While there have been a number of other bills offered up in response to the NSA's activities, to have a highly visible member of Congress who voted against the Amash Amendment suddenly ask for it to be brought to the floor again suggests that the tiny majority that the NSA had in the House on this issue is long gone. It's also noteworthy that Issa directly notes that the NSA's actions "likely" violate the 4th Amendment. While plenty of people outside of Congress have been pointing this out, people inside Congress have mostly been tiptoeing around the Constitutional issue.

Filed Under: amash amendment, darrell issa, justin amash, nsa, nsa surveillance, patriot act, section 215

DOJ Decided To Ratchet Up Case Against Aaron Swartz Because He Spoke Out Publicly About Being Innocent

from the vindictive-doj dept

A few weeks ago, we wrote about the MIT report concerning the case against Aaron Swartz. A number of people have picked up on some really questionable things in the report. One incredible claim made in it was that Assistant U.S. Attorney Stephen Heymann, who was running the prosecution against Swartz, apparently admitted that he really only ramped up his efforts against Swartz to punish Swartz and the organization he founded, Demand Progress, for having the audacity to discuss the case publicly and explain why Swartz believed he didn't do anything wrong. Here's the passage from the report:

The prosecutor said that, pre-indictment, he had wanted to approach the case on a human level, not punitively. To this extent he made an extremely reasonable proposal, and was "dumb-founded" by Swartz's response.

The prosecutor said that the straw that broke the camel's back was that when he indicted the case, and allowed Swartz to come to the courthouse as opposed to being arrested, Swartz used the time to post a "wild Internet campaign" in an effort to drum up support. This was a "foolish" move that moved the case "from a human one-on-one level to an institutional level." The lead prosecutor said that on the institutional level cases are harder to manage both internally and externally

MIT used this to explain why it thought that any public statements it might make in support of Swartz would make the case worse for him, because Heymann, in his petty vindictive mind, might view it as a further "wild" public campaign by Swartz. Leaving aside that this makes absolutely no sense at all, the actions of Heymann are particularly despicable here, suggesting that merely professing your innocence to crimes that you believe you are innocent of, should lead to much greater prosecution.

This passage has now caught the attention of Rep. Darrell Issa, and he is asking Attorney General Eric Holder about whether or not the DOJ directly comes down hard on those who exercise their First Amendment rights in the face of questionable prosecutions:

"The implication that the Department ratcheted up the prosecution by moving the case to 'an institutional level' after it discovered the petition by Demand Progress suggests that the Department acted in a retaliatory manner and that it bases its charging decisions on externalities such as an Internet campaign," Issa, who chairs the House Oversight Committee, wrote in his letter to Holder.

"The suggestions that prosecutors did in fact seek to make an example out of Aaron Swartz because Demand Progress exercised its First Amendment rights in publicly supporting him raises new questions about the Department's handling of the case," Issa wrote.

A separate point that comes out in the report that is equally as absurd was that Heymann believed that the case required some jail time as punishment because it "involves the unauthorized downloading of intellectual property that cost millions of dollars to create." This is ridiculous on so many levels. First of all, MIT made those works freely available to anyone on campus, so the argument that it was "unauthorized" remains very questionable. Second, the "cost millions of dollars to create" argument is simply laughable. Nearly all of that was publicly funded by taxpayer money, which is supposed to lead to the enrichment of public learning and knowledge -- the exact thing that Swartz appeared to be focused on. This ridiculous belief that he needed to be put in prison because of the monetary cost of creating these educational works is astounding. And sad, given the eventual outcome.

It's no secret that the DOJ often seems to think that "intellectual property" laws are designed to protect the moneyed interests of copyright holders, but that's not what the Constitution or the law says. At the very least, the people hired as US Attorney's to represent the US government should know better than to ratchet up prosecution for people who are expressing their First Amendment rights and doing things that directly align with the Constitutional reasons for copyright law.

Assistant US Attorney Stephen Heymann is a disgrace to the Constitution he's supposed to be defending.

Filed Under: aaron swartz, darrell issa, free speech, innocence, mit, prosecution, stephen heymann

Bad Week For Carmen Ortiz: Admits To Botched Gang Arrest As Congress Kicks Off Swartz Investigation

from the complete-flops dept

Carmen Ortiz is not having a good month. The US Attorney who was in charge of the ridiculous Aaron Swartz prosecution -- and now has over 50,000 people asking the White House to fire her -- now will have to deal with an official investigation by Congress into that particular case. A bipartisan pair of Congressional representatives, Darrell Issa and Elijah Cummings -- who are basically the top dogs from each party on the House Oversight and Government Reform committee -- have officially kicked off their investigation. They're asking these specific questions:

• What factors influenced the decision to prosecute Mr. Swartz for the crimes alleged in the indictment, including the decisions regarding what crimes to charge and the filing of the superseding indictment?
• Was Mr. Swartz's opposition to SOPA or his association with any advocacy groups among the factors considered'?
• What specific plea offers were made to Mr. Swartz, and what factors influenced the decisions by prosecutors regarding plea offers made to Mr. Swartz?
• How did the criminal charges, penalties sought, and plea offers in this case compare to those of other cases that have been prosecuted or considered for prosecution under the Computer Fraud and Abuse Act?
• Did the federal investigation of Mr. Swartz reveal evidence that he had committed other hacking violations?
• What factors influenced the Department's decisions regarding sentencing proposals?
• Why was a superseding indictment necessary?

Combine these with the questions already sent by Senator Cornyn, and the DOJ is going to be busy.

But, of course, that's not all that is weighing on Carmen Ortiz. Last week, we noted, she lost a highly questionable case in which it appears she tried to seize a family-owned motel based on some trumped up charges concerning drug deals, even though there weren't that many drug problems there (less than others in the area) and the owners of the motel had worked with law enforcement to try to crack down on them.

And... that's not all. Today there's news of an even bigger embarrassment as it appears that Ortiz had to go to court to admit that her office arrested the wrong man in a gang takedown a few weeks ago. Basically, her office is coming to the conclusion -- weeks later -- that one of the guys arrested may just look like the guy they wanted.

In the latest setback for Boston’s beleaguered U.S. attorney, red-faced feds admit they may have arrested the wrong man during a massive gang and drug takedown two weeks ago because he looked like someone they wanted, after they were forced to tell a judge there was “sufficient doubt” that he was the suspect.

How many screw-ups do you get to make and keep such a job?

Filed Under: aaron swartz, botched arrest, carmen ortiz, darrell issa, doj, elijah cummings, investigation

Rep. Issa Promises Investigation Into Aaron Swartz Case

from the prosecutorial-overreach dept

The backlash following Aaron Swartz's suicide has continued as Rep. Darrell Issa is now promising an investigation into the DOJ's handling of the case, according to statements he gave to the Huffington Post:

Praising Swartz’s work toward “open government and free access to the people,” Issa told HuffPost that the government's case against Swartz is problematic enough to warrant further investigation.

“I’m not condoning his hacking, but he’s certainly someone who worked very hard,” Issa said. “Had he been a journalist and taken that same material that he gained from MIT, he would have been praised for it. It would have been like the Pentagon Papers.”

Issa then specifically called out how prosecutors could go too far in pressuring innocent people to plead guilty:

“I’ll make a risky statement here: Overprosecution is a tool often used to get people to plead guilty rather than risk sentencing,” Issa said. “It is a tool of question. If someone is genuinely guilty of something and you bring them up on charges, that’s fine. But throw the book at them and find all kinds of charges and cobble them together so that they’ll plea to a 'lesser included' is a technique that I think can sometimes be inappropriately used.”

Issa, of course, has been a long time critic of the DOJ under President Obama, so it's likely that some will just brush this off as an opportunity to go on a partisan attack. However, it appears this attack may be growing bipartisan support. We've already mentioned Rep. Zoe Lofgren's plans to propose legislation to limit what the DOJ can do in these kinds of cases, and others on both sides of the aisle have started expressing concerns about prosecutorial overreach by Carmen Ortiz.

Filed Under: aaron swartz, darrell issa, doj

Rep. Issa Crowdsourcing Discussion Of Two Year Embargo On Internet Regulations

from the punt dept

We've been hearing rumors of this for a few weeks, but Rep. Darrell Issa has released a draft version of his Internet American Moratorium Act (there's a joke in that name for you Reddit folks...) and appropriately (see previous parenthetical) he's doing an IAMA session on Reddit to crowdsource ideas for the bill, a la Rep. Zoe Lofgren's recent Reddit discussion concerning a bill to stop the US government from seizing domain names without a prior adversarial hearing. And, of course, he's also put the bill on his Madison legislative crowdsourcing platform, so people can discuss it there as well. The key section of the draft bill is the following:

It is resolved in the House of Representatives and Senate that they shall not pass any new legislation for a period of 2 years from the date of enactment of this Act that would require individuals or corporations engaged in activities on the Internet to meet additional requirements or activities. After 90 days of passage of this Act no Department or Agency of the United States shall publish new rules or regulations, or finalize or otherwise enforce or give lawful effect to draft rules or regulations affecting the Internet until a period of at least 2 years from the enactment of this legislation has elapsed.

Considering the worries that many of us have about bad regulations impacting the internet, you can understand how this might be appealing, but we should at least be careful of any potential unintended consequences, concerning how it might limit good bills to fix bad laws already in place. The language above appears to try to avoid that -- as it clearly allows for fixing some existing legislation so long as it doesn't create new requirements for individuals or companies, but even that could get in the way of potentially useful legislation. Not that I'm recommending this per se, but what if there is an effort to "fix copyright" by going back to a system of requiring registration to get a copyright, rather than automatically placing it on all works once fixed. There are other issues with such a proposal (mainly the Berne Convention), but let's say it was legitimately considered -- and it is an idea that many have suggested would solve a segment of the problems with today's copyright law. Yet, I could see how this moratorium would block that as imposing "additional requirements" for "individuals or corporations engaged in activities on the internet."

Also, as I'm sure some will point out, there is a slight oddity in having Congress pass a law to say that it won't do something else, and Congress could always then just pass another law rescinding the original law (or overriding it with a bill that ignores it). However, such Congressional moratoriums often are useful in at least establishing a baseline and getting Congress to avoid wading into certain waters. So I'm not necessarily against the moratorium, but I worry that it could lead to unintended consequences that don't just prevent bad laws from being passed, but also might prevent good fixes to current law from passing as well.

Filed Under: crowdsourcing, darrell issa, embargo, internet, regulations

Rep. Darrell Issa Wants To Make It Clear That You're Allowed To Rip Your DVDs

from the good-for-him dept

Back in October, we noted that in the latest triennial DMCA exemption review, the Copyright Office/Librarian of Congress refused to say it was legal for you to rip your own legally purchased DVDs so that you could watch them on a computer or tablet. That seems fairly ridiculous, especially given that similarly ripping your CDs is recognized as legal. Rep. Darrell Issa has apparently recognized how silly this and is planning a bill to fix the Copyright Office's mistake.

"We think we can write at least some clarifying language that would instruct the Copyright Office to more accurately define what is, in fact, fair use," Issa said in an interview [with Roll Call]. "People who make copies on their iPod for jogging are not the problem."

We won't see anything until the next session, but given that at least some of Issa's colleagues appear to agree that it's time to broaden fair use in copyright law, hopefully we can finally see some movement in Congress on bills that actually will allow greater creativity to flourish while also not making most of the nation lawbreakers for simply wanting to watch legally purchased DVDs without having to carry around the plastic discs.

Filed Under: copyright, darrell issa, fair use, gop, ripping

Members Of Congress Demand USTR Open Up On TPP

from the about-time dept

We've been talking about the incredible and ridiculous level of secrecy that the USTR has kept with regards to the TPP negotiations. While industry lobbyists are free to look over the exact details of what the US is proposing, the public, and even key Congressional staffers are left out in the cold. While USTR Ron Kirk keeps insisting that any elected member of Congress is free to look at the negotiating text, he's being disingenuous. Elected members are allowed to go to the USTR and request the document, which they will be given -- but only for viewing in that room, and they're not allowed to bring staff members (such as those who understand the ins and outs of what's being negotiated, nor are they allowed to make copies or even take notes). At the same time, lobbyists who are members of the USTR's "advisory committees" can login via any computer with internet access, and see what the latest text is without any concern. That doesn't seem right.

It appears that more and more people in Congress are getting fed up with this. A new letter has been sent to the USTR, on behalf of Congress (though, not surprisingly, spearheaded by Senator Wyden and Rep. Issa) demanding that this insanity stop, and that the USTR reveal what it's pushing for on behalf of Americans -- especially when it comes to the intellectual property sections.

Regrettably, the American people know very little about what the USTR is seeking in TPP generally, but specifically on IPR (Intellectual Property Rights). We believe that among all the areas of the TPP negotiations, the matters considered in the IPR chapter are ones in which there is particular public interest, therefore the USTR should be especially transparent and collaborative with the general public on these issues.

The American people deserve to know what the administration is purportedly seeking on its behalf.

We insist that, as expeditiously as possible, the USTR provide to the public detailed information about what obligations (and exceptions) the USTR is seeking in the IPR chapter. We call on the USTR to be particularly explicit with respect to what it aims to obtain as it relates to pharmaceutical drugs and enforcement of intellectual property rights online. Finally, it is important that the USTR convey to the American people whether the USTR is pursuing disciplines elsewhere in TPP that will promote an open and free Internet, given the Internet's increasing role in facilitating American exports of traditional goods and services as well as digital goods and services.

It seems likely that the USTR will simply ignore this letter, showing what kind of respect it has for Congress.

Filed Under: congress, darrell issa, ron wyden, tpp, transparency

Canada And Mexico Not Allowed To Observe TPP Negotations, Even Though They're Joining Them

from the shut-out dept

Remember how Canada and Mexico have been asked to join the negotiations over the Trans-Pacific Partnership (TPP) agreement -- and both agreed to do so? You might think that this would enable them to show up this week in San Diego and at least observe, if not actively participate in, the latest round of negotiations. No such luck. Both countries have been denied access to the negotiations as observers. This is, of course, similar to what Rep. Darrell Issa discovered after his own request -- but in that case, you can at least kind of understand, since we already know that the USTR wants to hide its negotiations from Congress. But denying two countries who are entering the negotiations? If Canada or Mexico had any self-esteem at all, this is the point where they should have walked out and said to hell with the TPP. Why should they be expected to join an agreement where secret negotiations are happening, which they're not allowed to take part in?

Filed Under: canada, darrell issa, mexico, san diego, tpp

USTR Rejects Rep. Issa's Request To Observe TPP Negotiations

from the sorry,-we-can't-have-that-kind-of-transparency dept

So much for "transparency." While the USTR continues to talk up its faux transparency as if it's real transparency, the truth is always going to come out. Earlier this week, we wrote about how Rep. Darrell Issa had asked the USTR if he could come and observe the next round of TPP negotiations, taking place next week in San Diego. The USTR took all of two days to reject such a request, showing that it's not at all interested in any sort of actual transparency with the Congress who is supposed to oversee issues of international commerce. The USTR told Issa he could only attend the "public" portions, like anyone else. In response, Issa put out the following statement:

“The U.S. Trade Representative has once again chosen to block Congress from observing negotiations for this vital trade agreement over which the House and Senate have fundamental constitutional responsibility.

“The TPP process should be transparent and open to oversight, not a secretive backroom negotiation. TPP agreements impact multiple sectors of the American economy--especially our ability to innovate and create new intellectual property, as well as preserve an open Internet.

“Congress has a constitutional duty to oversee trade negotiations and not simply act as a rubber stamp to deals about which they were kept in the dark. While I had hoped the TPP would permit me to observe this round of the negotiation process firsthand, our efforts to open TPP negotiations up to transparency will continue.”

Filed Under: darrell issa, negotiations, ron kirk, tpp, transparency, ustr