Fraudulent Claims

February 6, 2013 by David Michael

By now, many of you have heard of the tragic loss of technology wunderkind and Reddit Co-Founder Aaron Swartz on Jan. 11. You probably read that he was facing charges for downloading academic articles and had been threatened with steep penalties despite a large public outcry. What is less commonly known is that on Jan. 31, the villain of that story, U.S. Attorney Carmen Ortiz, was invited as an honored guest to speak on Claiming Williams day.

It would be giving Ortiz too much credit to call her exceptional, even if it were to say she is an unusually bad prosecutor. Rather, she is the poster child for the modern style of prosecution, which considers years in prison notches of success rather than as a tool of a system of justice designed to prevent harms. She has also led other controversial cases that typify the excesses of the Holder Justice Department and callously disregards constitutional rights.

Swartz was accused of downloading thousands of articles from JSTOR, which violated the terms of use of their site, which prohibits such automatic scraping of their files. He also disguised his identity while using MIT’s open network. While the indictment claims that he intended to distribute those files over peer-to-peer networks, that is not alleged to have happened. The penalty sought by Ortiz was 30 years and a $1 million fine (worse than the penalties for aggravated rape), despite the fact that JSTOR declined to press charges. Her intent was to bully him into a plea deal rather than have his day in court – it’s no wonder roughly 94 percent of federal cases end in plea bargains. Like any negotiation, this strategy relies on intimidation and power differentials, not an examination of truth or actual harms. As a result, the victims of this system are often poor or from marginalized groups that cannot endure years of expensive litigation.

Ortiz was exploiting the ambiguities in the Computer Fraud and Abuse Act, which is commonly stretched by U.S. Attorneys. It criminalizes the violations of terms of service of websites in an unprecedented manner. Normally, violations of contracts between two parties are a civil matter, meaning parties must sue voluntarily and cannot seek prison, only injunctive or monetary relief. Under this law, you could technically be federally prosecuted for lying about your age on Facebook, or as Swartz was, downloading too many articles from JSTOR, even if the offended party didn’t want to press charges. Other laws have been similarly interpreted broadly by the Obama administration, such as asset forfeiture laws created as a part of the “War on Drugs.”

Ortiz tried to do nearly the same thing to Russ Caswell, the owner of a motel in Tewksbury, Mass. Ortiz filed a forfeiture action against Caswell, which, if successful, would have resulted in the government taking his land, building and property with physical force. Her argument was that there had been 15 minor drug offenses by patrons of the hotel over a 14 year period in which Caswell had rented over 196,000 rooms. In his defense, which cost over $500,000 in time and legal fees, Caswell contended that the U.S. Attorney’s office wanted his property because it was worth over one million dollars and was not mortgaged. The proceeds of the forfeiture would have funded Ortiz’s ongoing expeditionary activities directly. In her Jan. 24 decision, Magistrate Judge Judith Dein strongly criticized the forfeiture action as deeply problematic and factually unfounded, finding the case entirely against Ortiz. While in this case Caswell was represented by the Institute for Justice, a libertarian legal aid group, many others in his position have no choice but to accede to similar charges because they do not have the resources to contest these bloated claims. Asset forfeiture cases have skyrocketed in recent years and have been used as a major source of funding for U.S. Attorneys’ offices.

Ortiz’s actions were reprehensible, and should have either disqualified her from being honored at Claiming Williams day or been the subject of the discussion she was invited to on campus. If Claiming Williams is supposed to actually “Dig Deeper” like its motto proclaims rather than simply dole out accolades to the heroes of the authoritarian left, Carmen Whalen and the Steering Committee should have had the courage to confront Ortiz. Instead, she was given a free pass to avoid any questions on the issues just days on the heels of these cases. This is just another example of the shallow and dishonest nature of these types of events that bombard us year after year. It would be wiser to not be blinded by empty multicultural proclamations and instead stand up to those who actually cause so much harm to the most vulnerable members of society.

David Michael ’13 is a political science major from Sierra Madre, Calif.  He lives in Dodd House.

{ 1 comment… read it below or add one }

Eapen Thampy February 6, 2013 at 10:31 am

Hi David,
I was wondering if you might be interested in discussing this issue and particularly Ortiz’s involvement in Caswell forfeiture for us in an op-ed.
Eapen Thampy
Americans for Forfeiture Reform

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