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>Just to play devil's advocate here (and I understand this goes against prevailing opinion), but he did break the law.

He absolutely did break the law. I, personally don't dispute that, nor do I think that that's a controversial fact here. The trouble that I and many other commenters here have with what happened to Aaron Swartz is the gross disproportionality of the punishment he was facing. For downloading academic papers, he was facing a punishment that could have gone to literally millions of dollars in fines and up to 35 years in prison. That is the sort of punishment that I would expect for ending a life (i.e. negligent homicide), not downloading a few thousand academic papers and publishing them on the Internet.

Should Aaron have gone to jail? Should he have been forced to pay some restitution? Probably. But I don't think that holding the spectre of millions of dollars in fines and the rest of his adult life in jail over his head was the right thing for the prosecutor to do. Its very rare for a crime to break just one law. Prosecutors almost always have a choice of laws to prosecute under. In this case, the prosecutor chose the heaviest, most punishing law, when she could have chosen a lesser charge.

> For downloading academic papers, he was facing [...]

You left out the part where he snuck into a server closet and tampered with the network equipment. Among other things, that's burglary.

> Among other things, that's burglary.

And locking away scientific papers of research that was funded with public money behind paywalls is burglary of the public.

I can't imagine a way that's even figuratively true. The crime of burglary is about being somewhere that you're not supposed to; perhaps you meant to say it's like larceny of the public. But even then, it's a very tenuous connection you're trying to draw.

These companies were not taking anything away from the public; they made the effort to digitize, process, and catalog documents, which is no small task. And they set up servers to host these documents and make them searchable. If you feel they're asking too much money for these efforts, you're welcome to simply pretend they don't exist, and replicate their work yourself. They did nothing to make that task harder.

Now, if the companies destroyed the original public records or otherwise placed new locks around them that hadn't existed beforehand, then yes, your metaphor, while still hand-wavy, would at least hold water. But of course nothing like that actually happened here.

>or otherwise placed new locks around them that hadn't existed beforehand

How is creating network and identity based locks around the papers not placing new locks?

The "them" in the sentence you quoted refers to "the original public records".

The locks you refer to were around the new, value-added work: the digitized, processed, cataloged version of the papers they had made by adding value to the original public-domain documents. The locks were not applied to the original documents.

It's like the difference between storing a touched-up version you made of an Apollo 11 photo in a vault, and stealing the original photo negative from NASA and putting that in a vault.

Maybe you are talking about a different lock box?

JSTOR doesn't claim that its documents are public-domain:

    Our licenses from publishers are non-exclusive, meaning that the publishers are free to license their content to others to digitize or make it available in any way they might wish. [0]

Not only were many of the papers in JSTOR funded by the public, but JSTOR itself claims to be funded through by the public through universities:

    We do this with funds provided by thousands of libraries and institutions, all of whom are our partners in disseminating access around the globe. [0]

[0] http://about.jstor.org/10things

JSTOR cannot magically put documents in the public domain. It needs the permission of the original publishers. JSTOR is responsible for scanning a whole ton of old journals which would otherwise only be available as physical copies in libraries. Nothing JSTOR has ever done has ever made anything less accessible than it was before.

JSTOR doesn't lock content away. They make deals with existing journals to take content that is not available online and make it available online. Any access restrictions JSTOR imposes come from the content owners, not JSTOR.

JSTOR has also convinced most of these journals, even ones with restrictive access policies, to let JSTOR make their content available for free to the public at many libraries and schools, including ones that do not have subscriptions to the underlying journals. Because of JSTOR, many second tier colleges, community colleges, and even high schools have free access to vast journal libraries that they would not have otherwise had access to. They also do a lot to bring cheap or free access to vast journal libraries to schools and libraries in developing countries.

JSTOR has probably expanded free public access to scientific research more than any other group or organization.

Sure, it would be nice if everything were open access so you could just legally get it all on the net for free, but many journals aren't willing to do that yet, and in the meantime JSTOR provides a way for most of the public to get that content at the cost of having to visit a library or school that offers public JSTOR.

Which just proves my point. The penalty he would have faced for burglary would have been less, by far, than the penalty he faced for violating the CFAA.

The penalty for burglary in Massachusetts is up to 20 years ... a first-time offender might get five years: http://www.burglarylaws.com/massachusetts/

Aaron was offered a plea bargain of six months.

Also, you're still glossing over the part where he tampered with MIT's network infrastructure.

I've heard stories from my days at MIT of people doing much worse things in server closets. The MIT community's view on these things is vastly different from the federal government's, and there's a large and shocking disconnect when those laws are applied to what's normally fairly accepted (if not explicitly, then implicitly condoned) behavior in the community.

This wasn't implicitly or explicitly condoned. MIT had detected what Aaron was doing, and deployed countermeasures. Aaron defeated those countermeasures; MIT deployed tougher ones, and Aaron escalated again by breaking into the server closet and patching his laptop directly into the network switch, knowing it was the only way to bypass the considerable efforts MIT was making to protect itself.

This was no, "Oops, I didn't realize you minded!" situation. Aaron was fully aware that MIT didn't approve of what he was doing, and he didn't care, and was actively battling to do what he pleased anyway.

Are you basing this on statements from MIT, from the government, from the indictment...?

I ask because, though I've never been near MIT, everything I read about it suggests that every one of these steps is seen as part of the game expected to be played by a few curious students now and then.

Some quotes from the official MIT report: http://swartz-report.mit.edu/docs/report-to-the-president.pd...

Typically, when an excessive use case is reported that is determined to originate from within MIT’s network, the Libraries report this to either the MIT Information Services and Technology (IS&T) network security team or MIT’s “Stopit” group, which deals with inappropriate behavior that occurs electronically. The Stopit group’s general response is to send the offender a warning email message. This is almost always all that is needed to get people’s attention and have them stop whatever it was they were doing that caused the problem.

[...]

This time, the requests and downloads stimulated a cascade of failures that brought down multiple JSTOR servers. Half the servers in one data center failed, and JSTOR engineers feared that the entire service might go down worldwide.

[...]

Also on October 12, the Director of the MIT Libraries reported to MIT’s Academic Council that a cyber-attack of the JSTOR database had caused a weekend shutdown of JSTOR to the entire campus.

Now take a look at the "MIT Hacker Ethic", particularly bulletpoint #2: http://hacks.mit.edu/misc/ethics.html

> charges thousands of dollars a month for accessing little pdf files > go down in flames with a single user requesting files

I guess jstor staff doesn't have access to good technical texts on how to run a network.

Nobody was harmed, no property damaged. Sounds like a "hack" to me. Certainly cheaper than getting a car off of a building.

Sure people were harmed. JSTOR going down is a big deal. It's relied on by academics all over the world.

I'm an MIT alum. There is no "game" being played. If a student is violating certain terms of service (e.g. downloading all of JSTOR) he/she would normally be told to stop, and that's the end of it. You do it again, and you might get another warning. Alternatively, you might find yourself in front of a dean or without network privileges.

Breaking into a closet, and connecting your hardware gets you expelled. Regardless of the locked state of the door, entering a closet to which you do not have explicit access is breaking into said closet.

I sincerely doubt it gets you expelled as long as you're not damaging anything, which I wouldn't count connecting a piece of equipment as doing. Breaking into places locked and otherwise is part of the core of MIT's culture. Did you never go roof and tunnel hacking?

That said, I'm not as familiar as I should be with what MIT tried to do to get Aaron to stop, and whether he knew that they had deployed those because of what he did.

> I've heard stories from my days at MIT of people doing much worse things in server closets

Similar from my days at Caltech. However, there were two important considerations for this kind of thing at Caltech.

1. The "look the other way" attitude of the administration applied to members of the Caltech community, and also depended on how you were connected to Caltech. A student could get away with more than an employee or a friend/relative of a student.

2. The Caltech honor system applied. If you were hacking something without permission and the people in charge of that thing told you to stop, not stopping would have likely been an honor system violation. I'm pretty sure that repeatedly purposefully evading someone's attempt to get you to stop messing with their thing would count as ignoring a request to stop.

Does MIT have similar considerations?

Yes -- see particularly bulletpoint #2: http://hacks.mit.edu/misc/ethics.html

> that's burglary

No, it's not.

"Burglary is typically defined as the unlawful entry into almost any structure (not just a home or business) with the intent to commit any crime inside (not just theft/larceny). No physical breaking and entering is required; the offender may simply trespass through an open door."

http://criminal.findlaw.com/criminal-charges/burglary-overvi...

> he was facing a punishment that could have gone to literally millions of dollars in fines and up to 35 years in prison.

This is really not how the court system works.

Also, by killing himself before being sentenced he kind of ruined that argument anyway.

This is really not how the court system works.

Big, intimidating numbers are definitely one of the tactics used by prosecutors to coerce a plea.

And this is why we have lawyers.

> For downloading academic papers, he was facing a punishment that could have gone to literally millions of dollars in fines and up to 35 years in prison

He wasn't realistically facing 35 years. He could not get anywhere near that under the federal sentencing guidelines. See this prior discussion for details: https://news.ycombinator.com/item?id=7996807

In particular, be sure to read this article linked to in the first comment, which explains exactly how the numbers given in DOJ press releases have very little connection to reality: https://popehat.com/2013/02/05/crime-whale-sushi-sentence-el...

Also see these two article if you want details specifically on how sentencing works on the specific charges Swartz faced:

http://www.volokh.com/2013/01/14/aaron-swartz-charges/

http://www.volokh.com/2013/01/16/the-criminal-charges-agains...

Prosecutors in the Swartz case were actually asking for about 7 years, which was still much higher than they were likely to get. Swartz's own lawyer thought that he'd probably just get probation if convicted.

The DOJ really needs to stop using this stupid method of writing press releases. They wrote the indictment and so they sure as hell better know exactly what they are charging and what facts they are alleging, so they should be able to figure out the guideline sentence that would result if they won on all counts. That's what should be in the press release.

> Just to play devil's advocate here (and I understand this goes against prevailing opinion), but he did break the law.

Aaron himself said "There is no justice in following unjust laws."

> https://archive.org/stream/GuerillaOpenAccessManifesto/Goamj...

I even go further and say that you can't be good and lawful at the same time - at least not in any currently existing system of laws.

Is the right course of action to break "unjust" laws, or to just fight to change them? This is an opinion, but I argue that every person has a different definition of what is "just", and if everyone followed their definition of "just", than our legal system would break down.

Society functions on a set of laws, but those laws can change for the better.

I mean "good" in the sense of the values that you honor - and here indeed you can't be good and lawful at the same time (except "being lawful" is your exact definition of good).

I personally believe that the way to go is to turn ethics from a humanity into an empirical science, so that any "false" (in a sense that future people will have to define formally) can indeed be falsified. This would at least solve many problems. But at the moment this all is rather science-fiction, since we don't even understand how our brains works (which such theories will probably have to incorporate as special case).

Unfortunately studies show that lawmaking in the U.S. does not reflect public opinion and interests except for the top % of richest people.

In the face of this reality, direct action exposing publicly funded papers to the public kind of makes sense.

http://www.bbc.com/news/blogs-echochambers-27074746

"A proposed policy change with low support among economically elite Americans (one-out-of-five in favour) is adopted only about 18% of the time," they write, "while a proposed change with high support (four-out-of-five in favour) is adopted about 45% of the time." On the other hand: When a majority of citizens disagrees with economic elites and/or with organised interests, they generally lose. Moreover, because of the strong status quo bias built into the US political system, even when fairly large majorities of Americans favour policy change, they generally do not get it. They conclude: Americans do enjoy many features central to democratic governance, such as regular elections, freedom of speech and association and a widespread (if still contested) franchise. But we believe that if policymaking is dominated by powerful business organisations and a small number of affluent Americans, then America's claims to being a democratic society are seriously threatened.

The US was founded after war. That is going far above and beyond merely breaking unjust laws. Working within the system is preferable as long as it remains an option, but for many it has closed off. So they switch to breaking unjust laws instead. Be wary of what follows if that option is removed.

Fighting to change the system from within that system is much, much less effective than massie civil disobedience of that system. In fact it seems completely ineffectual to me most of the time.

I'm on the 'break unjust laws' side of the argument, as have been many of the greatest civil rights figures in history. Break the unjust laws and convince as many people as you can to break them as well.

you can't be good and lawful at the same time

It's so early in the evening to have reached Peak HN already.

Unfortunately he picked the wrong unjust laws to break, the wrong targets to go after. The problem with being a true believer... http://unqualified-reservations.blogspot.com/2013/01/noam-ch...

Yes, he did commit crimes.

> a meager 6 months in a low-security prison

> They were going to go extremely light on him

6 months in any prison and having a criminal record for the rest of your life is extremely harsh and cruel - and unnecessarily so.

Going light on him would have meant dropping all charges.

>but he did break the law

Those here are well enough in the know to realize that the law is often twisted to serve corrupt ends and thus any question of law breaking should also be met with a consideration of the morality and ethics of the law and of the enforcement of the law.

>The prosecution was offering a meager 6 months in a low-security prison (for multiple felonies, that's peanuts) for his crimes but he rejected the offer (source: https://en.wikipedia.org/wiki/Aaron_Swartz#Arrest_and_prosec...).

Or isomorphically, they were willing to add decades to his sentence for insisting to his right to a trial.

>They were going to go extremely light on him but it was he who chose to fight.

How dare he exercise his rights!