Hacker News Reader

Comment by pmb | Hacker News Reader

This whole thing weirds me out. Here we are on Hacker News, and yet there is a super-large contingent of people going "Well, he DID technically commit a victimless crime...".

So yes - he did do something that was against some terms of service. But jail time? For breaking a clickthrough "license" and computer hacking at MIT in the service of public knowledge? This sucks unutterably.

MIT: Playful physical hacks okay, but don't try to mass harvest the knowledge of the world or the DOJ will come down on you like a sledgehammer.

JSTOR: All the world's knowledge, as long as you don't try to access all of it.

DOJ: We'll break you just because we can (or for other reasons that we are not stating).

Hacker News: Well, they do have a point - he did access semi-public data in a non-approved way, and he had to plug into the network in a strange way to do it.

View on HN

I think "he just broke a clickthrough license" greatly oversimplifies what he was alleged to have done. In fact, what he did was to devise an escalating series of tactics to evade the countermeasures that both MIT and JSTOR set up to stop him from doing what he was doing.

And as has been pointed out elsewhere on this thread, the likelihood of him spending a single night in custody is very low.

That escalating series of tactics arguably did not include any federal crimes.

I refer you to Max Kennerly's analysis, under the section "Did Aaron Swartz Really Commit Any Crimes?"

http://www.litigationandtrial.com/2011/07/articles/series/sp...

Perhaps not, but if the DoJ's perspective is that mirroring JSTOR without permission ultimately constitutes wire fraud, then the series of tactics he took, legal or not, establish mens rea: they constitute evidence that Swartz' actions were knowing and purposeful.

I like the article you cited, but it seems predicated on a lot of assumptions about the evidence the DoJ has. Like I've said elsewhere: if the only thing Swartz was doing was taking a shortcut to getting bulk documents to analyze, then this is clearly a misstep on the DoJ's part; an extreme overreaction. But if they have evidence that his plan was to dump them onto BitTorrent, they have a case. I hope they lose the case!

Other than plotting to murder the president, I am not sure there are any crimes of thinking about doing illegal things.

Even if the DOJ has evidence that he planned on dumping the JSTOR archives on BitTorrent, until he actually would have pushed that data, (IANAL) but I believe that they can't necessarily persecute based on actions never undertaken.

Intent matters in law. For example, if someone is arrested with enough of an illegal drug, they can be charged with "possession with intent to distribute". That is a different charge than just "possession".

Posession with intent to distribute is an actual statutory crime (written explicitly to make prosecution easier for the cops)

There is no generalised "intent to" law, there would need to be an actual seperate crime of posession with intent to distribute academic articles.

So "mens rea" is not enough to convict without action unless there is a specific exception. And in general even the police try not to rely on the intent laws - which is why bank robbers get nicked after robbing the bank, and why we have such convoluted anti terrorist laws.

Most crimes aren't strict-liability, and for all of those, the state has to prove mens rea. It's not an optional thing, or something that has fallen out of fashion.

Similarly, there is a huge body of law around what it takes to convict for an attempt as opposed to the actual crime. Attempts also require actus reus, but of a different sort (for instance, "an attempt occurs when the defendant has obtained control of an indispensable feature of the criminal plan").

Still, "intent to piracy" isn't a crime. He's accused of scraping the documents, not doing anything with them. It's the same crime, whether he intended to use the as a personal library, analyze them, or put them all on The Pirate Bay.

The only question of "intent" is whether he intended to bypass security, and download the documents.

I think it's a stupid law. Wire fraud should only matter if he used social engineering, forged cookies, or some other measure that was intentionally deceiving (see the definition of "fraud"):

From Wikipedia:

Common law fraud has nine elements:

1. a representation of an existing fact;

2. its materiality;

3. its falsity;

4. the speaker's knowledge of its falsity;

5. the speaker's intent that it shall be acted upon by the plaintiff;

6. plaintiff's ignorance of its falsity;

7. plaintiff's reliance on the truth of the representation;

8. plaintiff's right to rely upon it; and consequent damages suffered by plaintiff.

Now, he did "lie" - he listed his name as "Gary Host". But were the damages consequential to the plaintiff's reliance on the dummy name? I doubt it.

Robbing a bank while wearing a Mickey Mouse mask isn't fraud. It's robbery, and it might bring down the wrath of the Disney corporation, but the disguise isn't conning anyone, so it's not fraud. Robbing a bank by disguising yourself as a security guard would be fraud, as the disguise isn't just to mask your identity, but to deceive the victim.

Robbing an archive while using phony credentials (but NOT the credentials of a person who is allowed to access the archive) shouldn't be wire fraud.

the state has to prove mens rea. It's not an optional thing, or something that has fallen out of fashion.

You say it like the state can't just do whatever it damn well pleases, such as imprison Aaron if he's being a pain in its ass.

It's obvious that the US is quite a police state already. If we assume that Aaron's indictment is political - which seems highly likely to me at least - it makes you look like some kind of weird police state apologist.

I'm not a lawyer, but I think there's a sense in which this comment misses the point and a sense in which it's simply wrong.

First: to prevail in a criminal proceeding, the prosecution has the burden of proving two things: actus reus (an actual act that causes social harm) and mens rea (criminal intent). The prosecution's failure to establish mens rea will in a wire fraud case lead to acquittal. So, his intentions are very valid.

Second, even if Swartz fails to actually publish documents on BitTorrent, if the prosecution can muster evidence showing that he would have, were he not thwarted in his attempt by MIT, JSTOR, or the DoJ, then he's culpable for the attempt. To prove the attempt it needs to be shown that Swartz intended to commit the offense (maybe he emailed his friends about it) and that he took "substantial steps" towards committing the offense.

Criminal law is fun. I want a law degree.

And doesn't the (alleged) fact remain that he continuously circumvented virtual and physical security systems in order to mirror a reported $1.5 million worth of assets in to his personal possession?

When you boil it down it doesn't exactly sound like he should be receiving 10 hours of commuter service because he ran wget a few times. MIT and DoJ are just supposed to -assume- that he has nothing but perfectly angelic intentions with $1.5 millions dollars of an asset that he secretly obtained? I don't make that logical leap with you guys. The facts will come out. He will present his case with his defense team, and hopefully justice will be done.

1) It's very likely the $1.5 million figure is heavily inflated so as to help the prosecution with their case. I would like to see people really investigate where this $1.5 million is coming from? Was that how much JSTOR was really making off those documents, or were they using RIAA-style accounting to come up with its "value"? Considering JSTOR hasn't exactly been forthcoming in their public statements, many believe they don't see anything criminal with A.S.' actions. They would prefer he simply go through 'proper channels'.

2) If Schwartz is smart, he will not comment on his intentions no matter what. Simply maintain his denial that he intended to upload them anonymously to BitTorrent. Make the case entirely about the facts on hand. "Is it hacking to violate a site's TOS"?

3. MIT and DOJ could assume that there are other ways to stop whatever illegal actions they're assuming besides criminal prosecution. Already someone has leaked 30 million scientific papers from JSTOR simply because they assumed this is what MIT and DOJ were trying to stop.

Doubt it. JSTOR subscriptions have a public price list; if MIT is paying "tens of thousands of dollars annually" for it, they are getting a deep discount. If every organization of MIT's size is paying tens of thousands of dollars for it, JSTOR is generating millions annually.

Yes, by the way: it is "hacking" (computer fraud and abuse) to violate a site's ToS knowingly, recklessly, or purposefully. To preempt a recurring stupid message board article: it is tremendously difficult to prove that a blog commenter or a site visitor knowingly violated some random clause in your ToS, which is why tiny little ToS violations on blog sites don't get prosecuted.

So if I were to try to scrub photos accessible to me with a valid username and password from Facebook, (btw Facebook makes millions annually off its users viewing photos) I would be hacking?

  > scrub photos

You mean 'delete' or did you mean 'scrape?'

Scrape.

Not sure if it would be considered hacking but facebook has definitely sued and won judgments against folks who scraped data from public facebook profiles.

I did some googling, and while Facebook has sued small fare (like individual researchers) those researchers have pointed out that all the public profiles have been cached by Google's webcrawler, and they haven't sued Google (yet).

If Google can do it, why can't the little guy?

> MIT and DoJ are just supposed to -assume- that he has nothing but perfectly angelic intentions with $1.5 millions dollars of an asset that he secretly obtained?

Yes. That's known as "innocent until proven guilty".

That's what courts do.

Let me rephrase that: They are supposed to -ignore- an action they are aware of that they believe constitutes criminal conduct? Prosecutors, DoJ don't drop cases they think they can bring to trial when, in their perception, illegal activity is taking place just on a hunch. Right?

No, but they're meant to have a good faith belief that they can actually make the case.

http://www.litigationandtrial.com/2011/07/articles/series/sp... examines in some detail why they probably don't.

The was an article by a retired judge and law professor explaining how the law could be interpreted differently to suit the circumstances. Regardless of the rights and wrongs of what Aaron did, I'm very worried that the book is going to be thrown at him to make an example of activists in the area of intellectual property.

I telecommute. Most people today do most of their personal communication over the internet. A charge of wire fraud carries hefty penalties and would tax the finances of most people to be able to defend against such charges.

If the scope of wire fraud isn't reduced, then if I even do something like tell a lie on news.ycombinator.com, I could potentially be charged with it.

Exactly how could you be charged with wire fraud for lying on HN?

The case of the bullying mum who pretended to be someone else on MySpace who eventually caused a suicide was charged with wire fraud.

It was smacked down by the courts, though I could see Federal prosecutors trying such a tactic over and over until they set a precedent.

The charge isn't the problem. It's the money (and time) sink of having to retain a lawyer and prove your innocence. The game is the prosecution load you up with charges and then leaves it up to you and your lawyer to chip away at each one.

If you've read the news lately you'll see 100 counts of X and 24 counts of Y. They are trying to intimidate you into a plea. They know that a conviction would be hard to get on the charges as presented so they are trying to trip you up just once. Chances are you've done something illegal and don't know it yet. So, while you are burning through savings and equity the DOJ has unlimited resources and time to come to pin something on you.

With all that pressure most people would just cop to something to have it be done with.

Agreed. I too find many of the reactions here inconsistent with what you would expect from hackers and free-market entrepreneurs.

Unfortunately, this is the same kind of zombie-like mentality that became increasingly prevalent on Digg.com late 2007 (and to this day).

Wouldn't predictable consistency with pre-established lines of thinking be more zombie-like?

Reply on news.ycombinator.com