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Comment by tptacek | Hacker News Reader

If there's evidence yet to come that Swartz intended to anonymously push the corpus he took from JSTOR up to BitTorrent, the crime is no longer minor.

I think I share Swartz's politics, but I'd like to believe that law enforcement would at least take a plan like that seriously.

On the other hand, it's equally possible that there is no evidence Swartz was going to publish what he took from JSTOR, and that instead the DoJ is upset about the PACER incident, which it couldn't prosecute, and jumped on this case, which it clearly can prosecute.

Swartz is lucky to have such well connected and influential friends.

View on HN

As a tangent, isn't it scary that you can effectively piss off entities such as the DoJ and they can hold a grudge against you?

Or from the article:

> Attorney Jerry Cohen, a Boston IP lawyer, suggests this aggressive use of criminal charges rather than civil charges is part of a trend in government prosecution of such cases, like taking “a sledgehammer to drive a thumb tack… It’s intended to terrorize the person who’s indicted and others who might be thinking of the same thing.“

Is it even legally okay to publicly make an example of someone like that?

I guess. What do you expect? They're people just like everyone else. This isn't one of those "1,001 crimes you can commit in the morning while making orange juice" things from Reason magazine. Aaron went way out of his way to expose himself to this situation. It's possible that where you see an Internet folk hero, the DoJ sees someone bent on forcibly publishing every closed database pertaining to the public interest, laws be damned.†

Let me add something else that I think some other HN people may be familiar with:

My Confirmation sponsor is/was a criminal court judge (friend of the family). Very nice guy. Spectacularly nice guy. I babysat his kids once. I've seen him maybe twice in the past ten years, but I'd be surprised if he didn't remember the names of my kids. When I was younger, we saw him all the time. Every weekend. My dad played in the church folk group with him.

I can't remember the particulars, it may have been 4th of July firecrackers (illegal in Chicago) or it may have been shaving cream on Halloween, but either way he caught me and some friends doing something technically illegal. It was NOT. OK. I remember the legality of the incident being taken VERY. SERIOUSLY. Entirely different demeanor. I've seen the same thing with friends' cop dads.

I think people on HN don't fully appreciate the extent to which prosecutors and judges take the law seriously. They've dedicated their life to it. Our country is ruled by laws.

There are definitely times when the law is wrong, or when its diligent enforcement doesn't ultimately serve the social good. This may very well be one of them. But I think it's a very bad idea to build a worldview around the notion that the criminal justice system is going to casually look past the law. The law is a big deal.

† I don't know Aaron Swartz personally and am not asserting any of this to be true.

†† To your later edit: there's no statute against "public example making". If you don't want to be an example, avoid felonies. That's going to get me downvoted, so can we assume good faith and accept this new emoticon I just made up: :#> as shorthand for "I don't really think the person we're talking about is culpable for a felony based on the information we currently have"? :#>! :#>! :#>!

I think people on HN don't fully appreciate the extent to which prosecutors and judges take the law seriously.

On the other hand, a relative is a DA. She has explained how around the holidays, she collaborates with the prosecutor to ram cases through the system or slap people on the wrist and send them home. This way all the noble guardians of the law can take an extra few weeks off between Thanksgiving and Christmas.

I said they were people, and people who had dedicated their lives to the idea of the law. I did not say they were superhuman. They can be wrong and have faulty judgement. In fact, I feel like I went out of my way not to ascribe moral judgement on their worldview; I simply wanted to point out that their worldview exists and shouldn't be ignored if you plan on operating at the frontier of the law.

It's good of you to point out the limitations of that worldview. I don't mean to criticize you. I'm just saying, be careful if you think that a charge of "hypocrisy" is going to help here. The real world is not an Internet message board argument. Lots of prosecutors, all of them riven with human frailties, nonetheless believe passionately in the law. You're not going to talk them out of it.

I am for the most part happy about this. Unlike a lot of HN people, I think that the law by and large serves the common good, and protects the weak far more than the powerful.

(My uncle was/is? an ADA. I didn't hear any stories like this, but didn't ask. Totally believe it though.)

My point is not a charge of hypocrisy, I just think the language you are using imparts a phony gravitas. I'm a systems engineer but I would LOL if I read that someone wrote I "dedicated my life to the spirit of the command line." Likewise, many lawyers are just in it because it's something they are good at and it pays the bills. Not every lawyer is Harvey Silverglate.

I'm really not trying to impute gravitas. I am being completely serious. These people we're talking about at the DoJ are different people when matters of law come up. They are not kidding around about it.

That doesn't make them granite monuments to justice. But it might mitigate the concern that they're being petty. There is a reasonable narrative here in which Swartz is purposefully causing harm to the social good. I don't really agree with that narrative (based on what we know now), but I can see it.

If it helps, think about pro-life people (I'm pro-choice) and their attitude towards abortion. They are not kidding around about that issue. Do they have a lot of gravitas to you? Maybe not! But they believe human beings are being killed. So I can see where they're coming from, even though I disagree with them.

Yes, in this particular case you are right. This case is interesting because Aaron is doing this as an "activist" and as such it becomes political-legal theatre. He is friends with a bunch of lawyers and legal researchers who are working at the intersection of IP rights and freedom of information rights.

If he was just some nobody kid in Schaumburg stealing PDFs from Motorola, he'd either be in jail already or slapped on the wrist and sent home. Nobody would have heard about it, and there'd be no internet dialectic about it.

We don't really know if this was an "activist" crime.

It's very possible that he just intended to analyze the documents and publish aggregated results. If that's the case, I think this prosecution is a mistake; an extreme overreaction. Scholarly analysis of JSTOR documents is not a criminal intent. His actions may leave him culpable to a variety of minor crimes, but his impact on the social good is minimal at worst.

On the other hand, it's possible (though less likely, I think) that the intent here was to mirror JSTOR onto BitTorrent. I might sympathize with this goal, but I don't think its prosecution as wire fraud is an overreaction. I'll root for Aaron at trial, though.

The problem with that analysis is that there's nothing criminal (or even illegal) about sharing public domain works over BitTorrent. So whether he copied the documents for personal use or distribution, it was still the initial copying that was at fault.

It's a little like someone broke into a library every night for a few months and scanned a bunch of public domain books.

The only actual crimes are breaking and entering, and using the scanning equipment without authorization. What he intended to do with the scans is irrelevant.

JSTOR's particular collection of documents is protected by copyright and has been valued, by virtually every one of the most learned and respected educational institutions in the country, at millions of dollars annually.

Let's say I come into possession of a trove of public domain documents from the 1800s, and I take the time to scan every one of them painstakingly and from those scans to assemble an academically useful database, for which I charge $100/person/year for access. Your contention is that because the underlying documents are public domain, you are entitled to unfettered access to my work product, despite the fact that I took steps to gate access to my work product.

The law isn't going to see it that way, I don't think. But maybe you're right. I'm not a lawyer.

Like everyone else on HN, I wish all these documents were freely available too.

Copyright protects creative work. If you used creativity (as defined in case law) in choosing documents for your compilation, or got creative with your scanning, then you can claim exclusive rights.

Look for links in the phrase "such scans are often considered uncopyrightable" in the original article for more on this topic.

> JSTOR's particular collection of documents is protected by copyright

We've discussed this on HN before. Reproductions of public domain works are not protected by copyright.

Edit: Of course a significant portion of JSTOR's archive does consist of copyrighted works.

I thought collection copyright applied, but am happy to be wrong about that.

There is a "collective works" copyright, so I guess -- I am also not a lawyer -- that if one made a copy of some database, it may be infringing on the creator's rights even if the contents of the database consisted solely of public domain works.

So I think you are correct.

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/...

>You are free to copy and use individual images but copying and distributing the complete collection may infringe what is known as the “collective works” copyright. Collections of public domain material will be protected if the person who created it has used creativity in the choices and organization of the public domain material. This usually involves some unique selection process, for example, a poetry scholar compiling a book -- The Greatest Poems of e.e. cummings.

I don't think JSTOR is using what could be described as a unique selection process.

JSTOR is not just public domain works, and there is no indication that the downloading was limited to public domain works.

I found this comment greyed. How does anyone downvote this? It's a single sentence with two clauses both of which state objectively verifiable facts relevant to the thread and responsive to the parent comment.

People downvote things they don't like, including the truth. They are also generally unable to distinguish between "this is how things are" and "this is how things should be", and will generally downvote as if you'd written the latter.

Our country is ruled by laws.

Our country is ruled by people. Laws are one way in which we communicate what is right and wrong, but they are imperfect and inconsistently enforced. Laws can also be changed, turning what is legal upside down for better or worse.

We are ruled by people, and we should never forget this. Laws are a convenient means of justifying the power of certain people over others; one which without substantial insight appears more fair than it actually is.

[ http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm ]

Zzzzzzz. I exercise my right not to relitigate Aristotle on Hacker News.

Well then don't rant about how serious our laws are. I don't much care how stern your paternal figure was about having illegal fireworks - moral and legal are almost unrelated.

To be vocally unhappy about something immoral is to be lauded. To defend action based on legality is trite.

You've misread my comment and now have a faulty understanding of my take on the situation. :#>

I was spurred by a specific sentence in your comment. Honestly I'm not especially concerned with your take on the situation, but with the conversation as a whole.

Am I surprised that the Feds are seeking a criminal indictment? No. Am I unhappy at the expansion of Federal power both at the expense of State power as well as an independent authority? Yes. Do I think that the justice system takes its job seriously? Yes. Do I think they do this selflessly? No. Do I think their position will lead to a better future? No.

Do I think their prosecution of this case stems from a desire to assert the will of the people? No. I think it comes from their own selfish desires, and should not be defended.

If you don't want to be an example, avoid felonies.

This is the point where, on reddit, someone would post the image captioned "civil disobedience is still disobedience". And they'd be right -- activists who campaign for big changes often end up in jail (multiple times, or for a long time, or both) along the way. It's not nice and it's not pretty, but it's reality.

True, but I hope your position isn't that "the rest of us should sit on our hands and shut up while it happens." If it is... well, sorry, but I don't accept that. My chance of having any meaningful impact in terms of "changing the world" before I die might be small, but I'll never stop arguing and fighting for what I believe in. I mean, what would be the point in living if we did that?

It's more that I get annoyed when I see people doing things for whatever cause they support, and then being surprised when they discover there can be consequences, or that the big entrenched system they're fighting will act like, um, a big entrenched system.

About being made an example of: I guess what you say makes decent sense. I'm more worried about the sort of situation where many people could be prosecuted of a certain crime, but one of them gets picked on because they are the designated target.

Another habit that I really don't like (that prosecutors have no qualms with) is when people are suspected of a crime but there is not enough evidence, sometimes they'll be taken in for a lesser "orange juice" crime until the prosecution can come up with something substantial.

But I guess you're right, even though they are dedicated to the law, prosecutors and judges are only human, and most of the time things do turn out well. I just wish they weren't so overt about it, as if it were completely okay.

I mostly agree with everything else you are saying.

An over zealousness to punish others out of proportion with their alleged crimes is not something which we should make a virtue.

I agree that we should not make overzealousness a virtue, and will go you one further by saying that zealous or not, out-of-proportion punishments shouldn't be considered virtuous either.

I think people on HN don't fully appreciate the extent to which prosecutors and judges take the law seriously. They've dedicated their life to it. Our country is ruled by laws.

Here's how seriously your judges take your laws: http://www.rollingstone.com/politics/news/matt-taibbi-courts...

  "the DoJ sees someone bent on forcibly publishing every
   closed database pertaining to the public interest, laws
   be damned.

  ...longwinded rather tangental story about your
  childhood...

  † I don't know Aaron Swartz personally and am not
  asserting any of this to be true."

classy...

Anyway, the primary issue with your little story here is you are taking a single encounter with a single person and making a generalization about an entire profession with it. A positive generalization sure, but still a generalization (and as someone who on occasion reads the news, one that does not jive with my perception of reality).

I have no idea what you are trying to say here. Are you offended by the idea that someone might have an interpretation of the actions of the DoJ other than mendacious pettiness? That literally seems to be the only point you're trying to make: "you said something positive about the DoJ".

If you read the comment more carefully --- I apologize for making that harder for you by being long-winded --- you'll see that I'm not even defending the prosecution; just offering a theory for it other than pettiness.

"I think people on HN don't fully appreciate the extent to which prosecutors and judges take the law seriously. They've dedicated their life to it."

That is what I object to. Your story is not evidence of that assertion.

The law is a big deal

The law is a form of social technology... and yes it's a big deal.

However, we get into trouble when we leave too much about the enforcement of laws up to the whims and discretion of the law enforcement officer... for very obvious reasons. If we simply want to let armed thugs wearing badges decide who gets punished and how much, there is no need for laws.

No reasonable person of any political persuasion disagrees with this.

Good :) I thought your comment did a nice job of humanizing the law enforcers... I was just intending to mention what I think the limit of my sympathy for the psychology of the enforcers is :)

>there's no statute against "public example making". If you don't want to be an example, avoid felonies. That's going to get me downvoted, so can we assume good faith and accept this new emoticon I just made up.

Don't be a dick. You yourself have undoubtedly committed dozens of felonies this year alone. The sheer quantity of criminal legislation makes it almost unavoidable, and nobody is in a position to hurl stones at the unfortunate who get caught in the crossfire.

legal != right

http://online.wsj.com/article/SB1000142405274870447150457443...

Swartz isn't accused of an "orange juice crime". But I agree that nobody should be throwing stones at him.

Nothing in the link I provided was about orange juice. It discussed wiretapping, linking to sites with potentially violent anti-American content and a variety of other issues.

You've commented repeatedly on this thread about how it's THE LAW and how certain people's brains essentially shut off when evaluating ethics vs legality. Furthermore the tone of your comments make it clear that you have some respect for this sort of non-thinking.

Bringing public stoning into the discussion is a ridiculous straw-man. Isn't the fact that over two million Americans are in prison, and over half of them on non-violent offenses staggering enough already?

Public stoning? What the what?

http://news.ycombinator.com/item?id=2804414

>Is it even legally okay to publicly make an example of someone like that?

Yes, it's entirely up to the prosecuting attorney to prosecute with vigor. Again, if you up-jump the charges you often lower the odds of conviction because the burden of proof is raised, but so is the penalty. This also gives the prosecuting attorney grounds for a settlement (plea to lesser, civil charges, but with stiffer terms).

So it could all be posturing that a judge will throw out... what is good to know is that Schwartz can likely attract the best defense attorneys to fight this.

If there's evidence yet to come that Swartz intended to anonymously push the corpus he took from JSTOR up to BitTorrent, the crime is no longer minor.

Welcome to thought-crime, folks.

1984? Yeah right, man. That's a typo. Orwell is here now. He's livin' large. We have no names, man. No names. We are nameless! ~~ Cereal Killer

If by "thought crime" you mean "establishment of mens rea", it's been 1984 since English common law.

"mens rea" means that there was knowing intent to commit a crime. Clearly there was mens rea is this case as steps were taken to circumvent and conceal the act. mindcrime's point is that your comment suggests the crime could be escalated based on some possibility that the defendant might commit a more serious crime. This more serious crime was of course not committed, thus making it a crime of thought.

We have our wires crossed; I see why: I'm writing message board comments, not essays.

There are two issues of intent here:

(1) There is the question of whether Swartz's repeated accesses of JSTOR were done knowing that access was wrong, or recklessly, or purposefully to accomplish an illegal end. This question, of "mens rea", is I think reasonably established in the charging documents by things like MAC address spoofing.

(2) There is the entirely speculative question of whether Swartz had the intention of "liberating" all of JSTOR onto BitTorrent. Nobody knows whether this is true except Swartz and possibly the DoJ. My suggestion here is only that we don't know all the evidence, and perhaps some of the severity of the DoJ's response is based on evidence they have but have not yet disclosed to the public.

The confusion here is my fault. Sorry.

I certainly don't believe that Swartz should be prosecuted for thinking JSTOR should be liberated, or that the DoJ should be building a case based on what they think he was going to do next.

Based on the text of the indictment, the establishment of his intent with the documents is the one claim that doesn't appear to established with any mention of supporting evidence. This stands in stark contrast to the meticulously detailed accounts of MAC address changes, computer purchase history and surveillance video describing his actions.

The question that this hinges on is whether there is hard evidence of his intent; either there exists a clear statement from Swartz of his intention (e.g., say, a chat log from an informant where he expressed his intent, or an actual upload) and they didn't feel the need to share this info to get the indictment, or they're just trying to make up some circumstantial case (oooh, look, he had a BitTorrent client on a laptop we seized) to justify the harassment.

I would guess that it must be something very weak, ambiguous and circumstantial which is why they didn't feel the need to substantiate the claim. But then again, given the long time frame (many months) and the rashness of some of the behavior Swartz displayed, I wouldn't be at all surprised to find that someone got him to say something via electronic means that could be construed as an intent to P2P the documents.

This question, of "mens rea", is I think reasonably established in the charging documents by things like MAC address spoofing.

On this point specifically I hope that, if it would be beneficial and accurate, Swartz's attorneys bring up the point that:

1. Programmers routinely work around various limitations to do their jobs.

2. Those limitations may originate in the laws of physics, limitations of current technology, or excessively strict corporate IT policies.

3. Those workarounds may include changing MAC addresses, connecting to a different switch port, etc.

4. Therefore, a programmer such as Swartz would have considered his actions in an engineering context. Overcoming any blocking or access rate limitations imposed automatically by JSTOR's systems would be seen by Swartz in the same light as bypassing a faulty router or otherwise routing around network damage, rather than as a specifically legal affront.

5. Thus, at first glance, mens rea is not present.

Ok, IANAL, but I don't see the connection. My understanding of the use of "mens rea" in criminal law was that it referred to the necessity of intent, in order to qualify an action as a crime. I've never understood it to mean that intent - by itself - can be considered a crime.

My point above is that if Aaron did not actually distribute the files to bittorrent, then making any relevance of his intent to do so, is "thought crime." And as you can no doubt gather, I would consider such a thing to be total bullshit. That is, bullshit vis-a-vis my personal view of a sort of universal ethics... not necessarily with with regards to US government statutes.

If they caught Aaron, he gave up all the documents, and in the course of investigating him got a warrant for his email, wherein he wrote a series of messages about how he planned on liberating JSTOR, the evidence of his intent becomes relevant.

We are just talking here. I have absolutely no reason to believe that there is evidence that Swartz was going to liberate JSTOR. It's just, people seem to want a "why is the DoJ going so nuts about this", and I'm just saying, "here's a what-if".

So if the security guard catches me with my pockets stuffed with loot before I actually go out the door, would you say it's not shoplifting because I only intended to commit the crime, but didn't complete the act?

I'd say that's true.

What's the difference between the scenario you described and forgetting to pick up a basket by the door then using your pockets to hold what you intend to buy?

There's a reason why security normally waits until the person leaves the store to nab them.

How do you understand the charge of attempted murder then?

A man brings a gun to a political demonstration where a VIP with whom he violently disagrees will be arriving. He reaches the front of the crowd and as the VIP draws near, the gun slips from his pocket and he is arrested. Are you meaning to tell me he shouldn't be charged with attempted murder just because he hasn't yet pulled the gun out and engaged the trigger?

Just so you know, people have already been convicted under these circumstances, so the case law is already pretty clear.

Well, I wouldn't charge them with murder. You were talking about charging someone with shoplifting (not even "attempted shoplifting", if that exists) merely for holding not-yet-purchased items in their pockets while still in the store.

Attempted murder is a crime with a specific definition in specific laws. It's harder to make this charge stick than murder, for obvious reasons, but police are rather more likely to arrest someone they think is attempting murder than arrest someone they think is considering shoplifting, for equally obvious reasons.

...What does any of this have to do with planning to distribute files by bittorrent? These are not useful analogies.

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