The Criminal Charges Against Aaron Swartz (Part 1: The Law)
volokh.com
volokh.com
Criminals should be a tiny group of antisocial people who deserve serious consequences for their serious actions, with law enforcement enforcing a limited set of laws (rape, murder, etc.) universally - going after every criminal that comes to their attention. Fair and understandable.
Back in reality, most of us have probably innocuously violated some federal law already (Silverstein's Three Felonies a Day has been mentioned a bunch - it's a great book.) Even in cases like Swartz's where his violations were arguably intentional rather than accidental, the penalties are completely disproportionate to the action.
In this system, where we're practically all lawbreakers, the government has the discretion to decide exactly whose lives they want to ruin. In the best case they're enforcing the law selectively in line with their best moral judgement - for example, Al Capone. He was generally suspected to be a bad guy, but no one could prove that he committed any sort of real crime - so out of the millions of people that cheat on their taxes every year, the government singled him out to prosecute for tax evasion, and then threw the book at him. Maybe jailing him was a good result, but by selecting one man out of a pool of millions of lawbreakers to go after, the government crossed the line from the rule of law to the rule of man. And think of the result when the government's initial instinct about a person's "good guy" vs. "bad guy" status is wrong!
In this system, the nightmare is the malicious prosecutor, one that's not even attempting to "do what's right" but instead is selecting cases to prosecute for personal motivations - political advancement, personal causes, etc. People who are initially targeted for federal prosecution but somehow 'escape' are frequently recharged for something else - for example, the hapless fuel-cell entrepreneur Krister Evertson. That's what it sounds like happened to Aaron Swartz - thanks to the previous federal investigation into PACER, when he popped up again the federal government was delighted to go after him with both barrels, for reasons having nothing to do with MIT or JSTOR. Even if PACER wasn't an influence, going after Swartz instead of modern Al Capones shows that the arbitrary rule of man we've got in place of a real legal system is working pretty damn poorly.
The way to solve this problem, ultimately, would be to dramatically shrink the size of criminal federal law - ideally by limiting what can be declared criminal in the constitution, since we certainly can't rely on the legislative branch's sense of justice. This will never happen, at least not until this system is torn down and another is constructed (yeah, you scoff, but historically this does happen from time to time). In the meantime, we might as well find legal ways to make being a prosecutor politically unrewarding, and look for incremental reform where we can find it.
Go up to your mother and tell her a story that involves someone breaking into restricted closet at MIT, plugging into their network, evading electronic attempts to stop him, and downloading millions of scientific articles that normally are sold for a fee. If your mother is anything like mine, she won't be able to fathom why anyone would do something like this unless he were up to no good.
Swartz did not innocuously do anything. He willfully violated laws designed to proscribe exactly the conduct he was engaged in, conduct that to your average person smacks of criminal activity. Legislators, who think more like my mother than they think like you or me, intended to prohibit Swartz's exact conduct. The prosecutor here was doing exactly what my mother or my Congressman would consider the right course of action in such a situation.
At the end of the day you have to tackle the real problem, which is this: my mother understands the difference between joy riding and grand theft auto. That's within the wheel house of her experience. People interested in "information freedom" or even just proportionate punishment in these situations need to be able to make a case to my mom about why downloading JSTOR articles on MIT's network isn't the same thing as hacking into Bank of America's servers to steal credit card numbers.
After telling your mother that story about Swartz, tell her a bunch of other stories about a bunch of other potential federal cases, and then tell her she has the resources to prosecute just a subset of them. Prosecutors are always complaining about not having enough resources, after all. See if she likes the feeling of arbitrarily choosing which of a whole bunch of people get a taste of federal justice, and which go free. Explore the rationale your mother uses to make her decisions. Do political considerations ever come into it? Does settling a grudge? The ability of the defendant to defend himself?
I don't get why you're bringing up 'information freedom' or other red herrings. I'm not particularly interested in that or the rest of Aaron's politics, which were rather far from my own. I'm not even trying to argue that Aaron's actions were harmless (although it's true I don't see any significant harm resulting from them). I'm just stating that the real problem is too many laws on the books, prosecuted selectively by people who don't have to justify why they pursue the cases they choose to pursue and ignore the cases they choose to ignore. Arbitrary power. Rule by man, not by law. Something that threatens every one of us, no matter what we think of Aaron's actions.
You mean "convince", not "remind". You're trying to persuade people here, not remind them of something they already believe. Bear this in mind when trying to refer to what you think "the real problem" is, else you might say things that only sound convincing to people that already share your views.
You mean you can describe "crimes" in such a way that a technically naive outsider draws the knee-jerk reaction that you want? Stunning! You should be a lawyer or something.
Also, what does being "technically naive" have to do with anything? Do you need to be well-versed in the technology to know that Swartz was doing something on MIT's network that MIT did not give him license to do?
As you know, what you omit is just as important as what you include. Now yes, if I say "JSTOR had no continued beef with Aaron", a lawyer would (correctly) respond that this hardly matters since they are not the ones expected to press charges. Does the fact that this is then legally irrelevant make it irrelevant to a member of the general public who is forming an ethical, rather than legal, opinion? Hardly.
Similarly, the response you will get from, say, your mother to "evading electronic attempts to stop him" is different from the response you will hear from many people who actually know and understand exactly what that entailed. Why do you think that is? Blind loyalty to someone they probably never met?
Then there is the issue of "accessing a restricted closet at MIT"/"breaks into a restricted closet at MIT". Pretty damning, even to me. Sounds like there was certainly a crime happening here. Is it important that we point out that trespassing charges were dropped? I am inclined to think so.
Merits of all of these points aside, the point is that you can be factual and make a layman think whatever you want. What they conclude in response to any particular wording is entirely irrelevant.
There is a reason trials involve a lot more than just having the prosecution explain the situation to their mother.
To address some of your specific points:
> Now yes, if I say "JSTOR had no continued beef with Aaron"
What about MIT?
> Similarly, the response you will get from, say, your mother to "evading electronic attempts to stop him" is different from the response you will hear from many people who actually know and understand exactly what that entailed.
Do you think ordinary people draw an ethical distinction between changing a MAC address and more complex measures? Should they? Does that change the underlying intent?
> Why do you think that is? Blind loyalty to someone they probably never met?
How about cultural differences? My mother thinks that smoking marijuana is seriously wrong and a danger to society. Most people in say Berkeley, CA, do not. Until relatively recently, the former opinion was more prevalent. People who frequent Hacker News do not think it's a big deal to change your MAC address to get onto a network that MIT doesn't want you to be on. That sentiment isn't universal.
> Is it important that we point out that trespassing charges were dropped? I am inclined to think so.
Now whose being the lawyer? Does the fact that the trespassing charges were dropped change the fact that MIT didn't want people going into that closet?
All I'm trying to say is that there are two different things to you could rant about.
1) A prosecutor abusing her discretion to target someone for activity that people think are harmless.
2) Laws that don't recognize that certain kinds of network intrusions are more harmful than others.
Everyone on HN is going after (1), because they are steeped in a cultural context that considers what Swartz did no different than someone cutting across a private lawn. But that sentiment is not universal, and I'd argue that it's not even common. The correct answer here is (2).
You see, omission is fun! Needless to say though, I am looking forward to hear what Abelson concludes concerning that.
> Do you think ordinary people draw an ethical distinction between changing a MAC address and more complex measures?
No, I do not think that ordinary people would. Once again, part of the problem.
> How about cultural differences?
I am not sure comparisons to the war on drugs does anything to alleviate my concern.
> Now whose being the lawyer?
Omitting MIT's position didn't tip you off? That's your trick, not mine.
> Does the fact that the trespassing charges were dropped change the fact that MIT didn't want people going into that closet?
In your one-sided "prosecutor sits down with his mother for some tea and justice" system? Yes, I think it is very relevant.
> 1) A prosecutor abusing her discretion to target someone for activity that people think are harmless.
> The correct answer here is (2).
Here is the deal. I think the prosecutor acted legally. I have no reason to suspect otherwise. More importantly, I think the prosecutor acted typically. I have no reason to suspect that this was the prosecutor lashing out in any sort of 'personal' way.
But more importantly than both of those, I think that the prosecutor acted unethically.
That position may be uncommon, but that coupled with your personal or professional disagreeance does not render it incorrect. The correct answer is (1) and (2).
I think the drug war example is apropos. I don't really blame federal prosecutors over the last 30 years (say until the recent legalization efforts). They were acting consistently with the thinking of an entire generation of "just say no" and "zero tolerance" moms and dads.
Or, to be clear, do you think the correct amount of discretion was exercised when they went after Aaron with over a dozen felonies?
Is 35+ years in prison an ethical punishment for what he did, or isn't it? Is that what he deserved?
I do not think 35 years in prison would have been an appropriate punishment for what Swartz did, but he wasn't sentenced to 35 years in prison. Being charged with counts that could carry up to 35 years is totally different than being sentenced to that amount of time. Ultimately, sentencing is the domain of the judge, and in this case the judge never got to make the call. And I don't mean that in a legalistic sense--simply describing the status quo. It's the engineer in my that admires the division of responsibilities inherent in our system.
I don't know. I suppose I am just naturally suspicious of anything that allows someone to witness an injustice, take part in it, then wash their hands and declare that it wasn't their problem. Something about that just seems wrong to me.
If we can't trust federal prosecutors with discretion because of past abuses, that's a specific and reasonable objection. But "other parties thought it was a good idea" dodges a lot. A prosecutor may be the first person available to witness how the law is being misapplied.
As convincing as ever.
Am I supposed to take it as indicative of anything particularly relevant that he thinks he could convince his mother that multiple felonies were committed here?
Of course that means fuck-all in a discussion about ethics.
What does your class warrior attitude have to do with anything? I'm not sure what country you are from but in the states law school is three years and the majority of students graduate with mountains of student debt. Its hardly what I would call "pampered school dayz[sic]."
Everyone I know, technical or not, is completely capable of understanding these things are different just based on that sentence alone. I don't know anyone at all that would say the two things were equally serious.
If my mom were still around, I'm 100% positive she would see the difference.
We can take a page from: "Dear Congress, It's No Longer OK To Not Know How The Internet Works"
And follow with: "Dear Attorneys, It's No Longer OK To Not Know All Hacking Isn't Terrorism"
There are so many criminal laws on the books--and federal law enforcement powers are so great--that any individual who is identified as a political target can have their lives ruined, regardless of the moral justice of the charges they face.
Furthermore, in spite of what this article says, prosecutors frequently use their discretion when choosing to file charges. The beneficiaries of that discretion are often the politically connected, examples of which are numerous and infamous.
In other words, the filing of these charges against Aaron Swartz was an inherently political act and requires a political response.
That these charges were morally odious cannot be doubted, and yet articles like this ask, were they nonetheless correct? By asking that question they attempt to exculpate Ms. Ortiz and her subordinates.
This prosecution was "correct" only because people like Aaron Swartz who seem powerless are the kind of people who go to jail all the time. The effort to end Ms. Ortiz' career is an effort to make prosecutions like this "incorrect" by making people like Aaron Swartz more powerful, because just as the powerless are targeted in this very way all the time, similar digressions by the powerful are frequently overlooked.
When mercy and proportionate justice is granted only to the powerful, then any quest for mercy and justice must concern itself first and foremost with power.
In the American political system, power is gained and exerted by imposing political consequences on those politians who transgress against your objectives.
No, they shouldn't be fired for doing their job, regardless of the consequences.
It is a tragedy that Aaron took his life, but nobody can argue that it was an appropriate response to the challenges posed to him.
You can't blame a prosecutor because Aaron reacted violently to them doing his job, just as you can't blame violent video games for Columbine or D&D for kids hurting themselves in the forest with swords.
They are all contributing factors, but it is the core mental illness that is at fault.
Perhaps they cannot be blamed for his response, but a myriad of evil things have occurred in this world at the hands of people "just doing their jobs". The mere fact that someone is being paid for them doesn't justify vicious, cruel, and/or outrageous actions that have predictably bad outcomes. Further, it could easily be argued that their pursuit of this case went beyond the normal scope of their jobs.
While federal criminal cases are technically brought on behalf of the government, in many cases the charges are dropped when the victim expresses disinterest in having the individual prosecuted. In this case, they were attempting to lock someone up for decades in a case where the alleged victims didn't even want the perpetrator prosecuted. Since the victims had no interest in it, the only remaining motivation for such an aggressive prosecution would be to put another notch in the belts of the US Attorney's office prosecuting the case. That is hardly an acceptable use of taxpayer resources. It is an abuse of power aimed at furthering the individual careers of the lawyers involved.
Does this mean that if you win a case where the actual victim doesn't even care anymore still gives you a good reputation?
The critical fact is that the Prosecutors were doing everything in their power secure guilty pleas without going in front of a jury, where they were very likely to lose. That's why they were offering a mere 6-8 months in jail on multiple felony confessions vs. 35 years in prison, a $1mm fine and a trial process designed to be financially ruinous. In other words, their "offer" hinged on their ability to place an insurmountable wall between Aaron and a jury. In doing so, they avoided a key provision of the Constitution. The breath-taking abusiveness with which they pursued him only underscores why that provision was made in the first place.
http://online.wsj.com/article_email/SB1000142412788732458150...
Faced with power this unchecked and malicious, most people simply cave, which is why fewer than 10% of Federal crimes end up before a jury. But apparently, Aaron considered life as a convicted felon to be a fate worse than death. As with so many other things, he simply wasn't like most people. While his suicide brought an unusual amount of attention to the abuse that's going on, the abuse itself is far from unusual. Indeed, it's become par for the course. That's the issue. That's why the response is about people regaining control over a terrifyingly out-of-control system.
Extending this to the specific individuals is essential, because that - and only that - can reflect the moral dimension of the situation. After all, we're not talking about a busted sewer pipe here, or a faulty traffic light leading to an especially bad traffic accident. The DOJ's standard operating procedure represents a calculated erosion of democratic safeguards. That's what makes their conduct a violation of their oaths and crime against the people. So yes, the public's reassertion of its moral authority over its government should absolutely involve severe punishment for those who have so egregiously betrayed the public trust. Given the context, "career ending" is hardly too high a price for the specific individuals to pay. As any prosecutor will tell you, the law is about deterrence as much as it is about punishment.
>You can't blame a prosecutor because Aaron reacted violently to...
That is not what we are proposing firing them for.
> them doing his job
They did a shit job of that, and that is what they need to be fired for.
Your comparison of a suicide to a mass killing in order to plead the just world fallacy is ill chosen at best.
We seem perfectly happy blaming bullies when people commit suicide (including incidents where both parties were adults). Given the position of relative power of the two individuals, it's not unreasonable to draw a parallel there.
There are better jobs out there: ones that don't destroy the lives of good people.
There are fingers to point, and they need to be pointed in the right direction.
http://aynrandlexicon.com/lexicon/patents_and_copyrights.htm...
All that I really being said is that the person who comes up with an idea should be properly compensated. You don't need IP laws to do that. Many businesses agree - they file patents for inventions for their employees, and pay them a wage (and possibly a bonus).
Please note that I do not think that the way the prosecution pushed the charges was right.
Neither JSTOR nor MIT brought forward criminal charges; that was done by the US Attorneys themselves. So saying "this is not for the prosecution to decide" is wrong--the prosecution decided to bring charges, so it's their responsibility if the charges were way out of proportion.
On the other hand, criminal actions are not just about the grievances between the defendant and the victim of the crime. In principle, crimes are committed against the people themselves (hence the case naming scheme exemplified by the United States vs. X or The People of Illinois vs. X). Even if the victim isn't particularly interested in pursuing the prosecution, the prosecutor is still within his rights to try the case. Indeed, in many violent crimes such as rape, the victim is not interested in aiding the trial. While this can sometimes derail the prosecution, it need not. Pursuing the case absent the victim's full cooperation cannot ipso facto be considered prosecutorial abuse.
How so? Nothing you said contradicts anything that I said.
Even if the victim isn't particularly interested in pursuing the prosecution, the prosecutor is still within his rights to try the case.
Yes, and if the prosecutor decides to do so, he/she is responsible for that decision. That was my point.
a) it is MIT and JSTOR that have primary discretion in whether a criminal case moves forward (it is the government's sole discretion)
b) MIT and JSTOR are in fact responsible for bringing criminal charges (they are not - they can only bring civil charges)
c) that the prosecutor is responsible for the severity of the penalty and/or the defendant's emotional response to that penalty
My disagreement with your third assertion was more implicit so let me clarify a bit.
First, it is not the prosecutor's job to question whether a law's penalties are in proportion to the crime it proscribes when deciding whether to bring a case. Discretion over the severity of the punishment is left to the sentencing phase of the trial if the defendant is convicted, and it is highly likely that Aaron's sentence would not have been the maximum had he been found guilty (a fact I am sure his lawyers made him aware of).
Second, under what reasonable standard can a prosecutor be held personally responsible for the emotional state of the defendant? Should it be acceptable for criminal defendants to pressure prosecutors into dropping cases by threatening self-harm or suicide in the hopes that a public outcry will harm the prosecutor's career? Try to ignore for a moment that the defendant in this case has your sympathies. Would you accept that tactic from a serial killer or rapist?
It may be that the law itself is unnecessary or counterproductive. I'm certainly open to the argument that at least publicly funded research ought to be open to the public. Yet it is still the law of the land. From the facts of the case, Aaron committed an obvious crime and behaved as though he knew it were a crime. The potential price of civil disobedience is that you will in fact end up punished for it. In the end, his story (like Rosa Parks and others before him) may end up bringing about the change he wants. But to say that the prosecutor abused her authority or was personally responsible for his death is an emotional response without basis and runs counter to the very idea of a criminal justice system.
I didn't make any of those assertions. Other people in this thread might have, but I didn't.
it is not the prosecutor's job to question whether a law's penalties are in proportion to the crime it proscribes when deciding whether to bring a case.
I didn't say it was. I agree that the prosecutor doesn't decide what the possible charges and punishments are; those are taken as given. But the prosecutor certainly does decide which cases to prosecute at all, and how aggressively to prosecute them. As I understand it, this case was prosecuted extremely aggressively.
under what reasonable standard can a prosecutor be held personally responsible for the emotional state of the defendant?
I didn't say he was (I realize others in this thread have, but I didn't); I agree he isn't. But that's irrelevant to whether or not this prosecution was way too aggressive for the actual harm done; IMO it was.
The potential price of civil disobedience is that you will in fact end up punished for it.
This is quite true. But it doesn't make the punishment fair or just.
to say that the prosecutor abused her authority...runs counter to the very idea of a criminal justice system.
Maybe it runs counter to the idea of a perfect criminal justice system, but the one we have is far from perfect, and prosecutors know that. In a perfect system, every instance of a given offense would be prosecuted the same, every defendant would get a fair chance to defend themselves, and we would have a reasonable expectation of a just outcome. In the system we have, because so many things have been criminalized, there are far more offenders of the letter of the law than can possibly be prosecuted, and defendants are at a huge disadvantage vs. the system. So who actually gets prosecuted, and what chance they have at a fair hearing, ends up being decided by the prosecutor's judgment, which is often colored by their personal beliefs or political leanings. Under those circumstances, IMO it is quite legitimate to question a prosecutor's judgment when a case is treated far more aggressively than seems warranted by the actual harm done.
Their job is to perpetuate violence, rather justified or not.
Kerr is probably right on the narrow point that if you decided to throw the book at someone you'd hit them with a combo like this (and they later expanded it into a 13-hit combo), and might even be right that this combo is "nothing unusual". We should wait for part two, but the multiplication of an infinite number of federal statutes in combination with prosecutorial discretion looks like the real problem here. We need to trim the sails of these prosecutors in a big way, or at least provide an external check.
For example: they're against jury trials? They want to deny people the right to a jury by depleting their cash? Well, what about a virtual jury? Have a site with all public court documents and filings, like the grand jury indictment. Look at how many years they are pursuing and include bios/faces of the accused, defense, and the prosecutors. Then have people vote up/down as to whether or not they think the punishment fits the crime. Completely non-binding of course, and conceptually separate from the question of innocence/guilt. Include lots of analytics/stats on past convictions and the like. Make money via Amazon affiliate links to books on crime, TV shows, etc. And do SEO so that people found innocent are very clearly marked as such in search result snippets.
Many crimes are salacious so with reasonable graphic design you'd have no problem getting visitors (like the Smoking Gun). The resulting scrutiny of prosecutorial decisions by thousands of people would indeed change the profession, putting a second and more scalable check on them comparable to the press.
" But the ordinary practice is to charge all the possible offenses committed in the indictment, even if they overlap, and then let the jury sort them out at trial."
There is at least a passable amount of evidence for each of the charges, so naturally the prosecution will maximise the number of possible charges. This prevents the whole case falling through if of the one of the counts fails.
When people see that a small act like this causes such a number of charges that threatens a large portion of person's life in prison then it becomes an untrustworthy process. It gains the appearance of not being about justice but of something else. It is not good for a justice system to seem that it is more concerned over how a particular crime is committed versus what the crime is in of itself, because it creates a feeling of injustice. For example, why should a murderer be punished more severely because he chose one weapon over another?
(Or are the prosecutors not versed well enough in the law to know which law/crime is the correct one that was violated?)
What do you think about this: if the prosecutor thinks the big charge might not stick because the evidence is questionable then charge the lesser crime?
Or perhaps (I know many don't like this, especially the government) a separate trial for each charge. Yes, the cost to prosecute goes up (if all charges are going to be charged) and that's why they combine multiple charges into one trial. But psychologically, if the jury see that a person has been charged with 13 crimes then he must be guilty of one or some of them right? If the state had to try each charge separately and the big one didn't stick, then if the state truly thought the next one would stick do that trial.
Our legal/justice system has a flaw and that flaw was to let a few guilty men go free to safe guard and protect innocent men from going to prison.
In the UK we have Drunk Driving and Drug Driving as separate offences, so what happens when I crash my car and test positive for weed and booze (we have chemical tests for both - unlike America's strange obsession with an officers judgement), they both carry the same sentence, does the prosecutor just throw out one of them at random as they are similar but overlap?
"But psychologically, if the jury see that a person has been charged" that is a whole different discussion on the suitability of jury as a method of trial, for a case to get in front of a jury it must have some merits which can't be ignored. Also as a sidenote, you don't think people would form an opinion if they had already seen some guy "walk free" from an earlier trial, then ended up sitting on the jury for a similar but not trial, the jury would have their first case facts from the media which is even worse idea.
The jury is not informed of the statue(s) the defendant is being charged with having violated except the most petty one for each category that the state is charging them with. For each applicable "petty" charge the jury finds the defendant guilty of then and only then is the jury then asked and tasked with determining if the defendant violated the next offense. So we still have one trial for numerous charges but the jury is focused on only one at a time and working on them in an escalating order.
I have this feeling that juries tend to start at the top most severe charge and whittle themselves done and if enough charges were made they may psychologically believe the defendant must be guilty of something. Working from the bottom up that pressure and psychology would be absent from the jury.
So the jury is informed the State believes a man is guilty of 1st degree murder and burglary. Judge tasks the jury with determining if the man broke into someones home, if yes, then the man took something of $xxx in value which determines the level of the burglary charge for sentencing purpuses. Next the judges asks about the killing charges, starting with manslaughter. Jury believes that defendant did in fact unlawfully kill another man. Then judge instructs them to determine if defendant premeditated the murder, etc... on up from manslaughter to 3rd degree homicide, 2nd degree homicide, first degree...
I realize that some laws may need to be rewritten to make this progressive application work.
EDIT: What I'm trying to say or do is: Don't provide biasing information ahead of time. Just like when doing software estimates you don't want a manager going to the dev team saying: hey we NEED these features can you give us an estimate, and oh we need it by the end of the month.
This tragedy is really bringing out the propensity of us Americans to try and find someone to blame for every bad thing that happens so we can prevent bad things from happening again. Unfortunately, there's a certain level of tragedy in this world that is just random and unavoidable. The hang-wringing isn't doing Aaron or his causes any good, it's just creating new victims and wasting a lot of time.
As a point of order, since trials are incredibly stressful and expensive for the accused, society isn't supposed to use them for "the truth to come out" or "to find out what happened."
The trial is where the state -- having decided internally that a person is guilty and must be punished -- goes to prove its case to a jury of the accused's peers, in an orderly courtroom where only pertinent evidence is allowed.
This probably backs up your point even more -- having multiple trials for the same thing is horrible for the accused.
This is a very bad idea. If the prosecutor can charge 13 crimes that are all substantially the same thing, they get 13 bites at the apple to try to convict you. I imagine it may also violate double jeopardy when the underlying actions for the crimes charged overlap, but I am not a lawyer.
"This is going to be a long post, so here’s the summary of my conclusion on the first question: I think the charges against Swartz were based on a fair reading of the law. None of the charges involved aggressive readings of the law or any apparent prosecutorial overreach. All of the charges were based on established caselaw. Indeed, once the decision to charge the case had been made, the charges brought here were pretty much what any good federal prosecutor would have charged. This is different from what a lot of people are hearing on the Internets, so I realize this post isn’t going to be popular."
(should have been in the title imo)
It is argued that since JSTOR claims property rights with a tangential link to another case where someone downloaded a chunk of software that was in wide distribution and used that to their defense which was invalidated is reason enough to establish that this data was the property of JSTOR and that any unauthorized download is therefore a breach of the law.
This is interesting because as far as I can see the whole of Aaron's argument revolved around this data being public property all along by virtue of the research being publicly funded and the fact that many authors of these papers can't legally distribute their own work.
If the law can't distinguish between unjust claims of property and a complete lack of public interest on the one side and the good intentions of an individual on the other then you can stick to the 'letter of the law' but that means the law is no longer functional.
I also keep reading about 13 counts, and here there are only 4, is there any reason for the discrepancy or is this commentary based on the pre-September expansion of the charges?
II. The Legal Charges Brought Against Swartz (a) Wire Fraud. The Wire Fraud statute, 18 U.S.C. 1343, prohibits a scheme to gain “property” by false pretenses. This strikes me as a pretty strong charge here. The false pretenses are provided by the false identification and spoofing of Swartz’ IP address and MAC address.
-> This is not false identification, IP or MAC is not tied to Aaron as person. MIT allows guest access and blocking an IP does not mean forbidding to a person access.
Swartz was trying to trick JSTOR into giving him access to their database after they had specifically tried their best to ban him from doing so. And the “property” was the contents of the JSTOR database itself.
-> The property is not the contents of the database since it was not produced by them they were handling it.
Some might argue that the contents of the JSTOR database should not be considered “property.” But I think that’s a hard argument to make in light of United States v. Seidlitz, (...) that OSI invested substantial sums to modify the system to suit its peculiar needs, that OSI enjoyed a multi-million dollar competitive advantage because of WYLBUR,(...)
-> "OSI invested substantial sums to modify the system to suit its peculiar needs, that OSI enjoyed a multi-million dollar competitive advantage because of WYLBUR" ???????? This is the exact opposite of this case where specifically JSTOR cannot alter the content of the producer. It's mission statement says it is also a not for profit organization [1]
That reasoning seems to apply reasonably well to the JSTOR database, too. See also Carpenter v. United States, 484 U.S. 19 (1987) (recognizing a property right for purposes of federal fraud statutes for a business in confidentiality and use of information to appear in a forthcoming publication). It’s possible to argue that Seidlitz is distinguishable, but I think it’s an uphill battle.
-> If it possible to argue, then it is possible for the prosecuter to show discretion
(b) Computer Fraud. The next charges were brought under the Computer Fraud statute, 18 U.S.C. 1030(a)(4), which is a close cousin of the Wire Fraud statute. The two are usually charged together in computer crime cases, and there isn’t really all that much that separates them that we need to dwell on here. So let’s move on to the next crime.
-> ... so if there isn't a wire fraud there is also no computer fraud?
(c) Unauthorized Access. The next charge was unauthorized access to a computer to obtain information valued more than $5,000, in violation of 18 U.S.C. 1030(a)(2)(C) and 18 U.S.C. 1030(c)(2)(B)(iii). I think this charge was a fair one. There are two notable legal issues here. First, was the information valued at more than $5,000? The answer is clearly yes under the leading case of United States v. Batti, (...)methodology when “information obtained by a violation of § 1030(c)(2)(B)(iii) does not have a readily ascertainable market value.” In such cases, the court held, “it is reasonable to use the cost of production as a means to determine the value of the information obtained.” Creating thousands of journals over many years obviously costs more than $5,000, so that element is easily satisfied.
-> He did not steal any journals. The only thing he got was the content that for JSTOR it had a zero cost of production. At least they have not claimed it did since they dropped the case. The Batti case had as an example a video feed that the company had created, and the cost for its production. That does not seem releveant it is legal name dropping.
(...) They blocked his IP address; he changed it. They blocked his MAC address; he spoofed it. They blocked access and he broke into a restricted closet and connected directly to MIT’s network. This is not merely a case of breaching a written policy. Rather, this is a case of circumventing code-based restrictions (...)So I think unauthorized access is established here, too.
-> It is pretty clear that he has not exceed anything not explicitly stated. Was there a page saying "We forbid YOU the PERSON to ever access this server?". I guess there wasn't because it would have already become an internet sensation. He did not circumvent code restrictions since there weren't any for MIT guests. The professor does not see why this is different than stealing someone else's password. An interesting view for a law Professor, so help me god.
(d) Computer Damage. The final charge brought was exceeding authorized access and thereby impairing the availability or integrity of information in ways that cause more than $5,000 or loss or involve more than 10 computers, in violation of 18 U.S.C. 1030(a)(5)(B) and 1030(c)(4)(A)(i)(I) & (VI). This is a plausible charge, although we’d need to know more details about the case to know if it is fully merited. I’ve already covered the elements of authorized access, so we can adopt that analysis above here and move on to the other elements.
-> We should thank the unbiased professor here also.
To get to $5,000 in a 1030(a)(5) case, the easiest and most widely-accepted methodology in the caselaw is to focus on the time spent responding to the unauthorized access. (...)
-> JSTOR seems to have had an automated system that cut access so there is not a proof that anyboy worked on it. After the breach was established JSTOR and MIT should provide data of manhours that were used ouside the daily shift (was there overtime? a destruction of the system?). Merely adding restrictions that they previously had CHOSEN not to have as part of the system is definitely not a response cost. They were repairing a broken business model. Anyway good luck obtaining dollar figures from JSTOR or MIT for the prosecutor.
The impairment of availability or integrity element would probably be satisfied, as well, (...) And more significantly, does access to a particular service from some users really constitute an impairment of availability of the JSTOR computer itself? I’m not sure, but I’m wary of that argument. So the 1030(a)(5) charges are plausible, but we would need to know more facts to know for sure if they were justified.
->"The impairment of availability or integrity element would probably be satisfied" and "The indictment alleges that Swartz’s conduct impaired the working of the JSTOR database but doesn’t give us much detail, so it’s hard to be sure" are two opposing sentences. Either it is probably justified or it is hard to be sure. Ofcourse since the admins have taken down the system themselves they will have to prove that it would go down by itself. But neither JSTOR or MIT have provided such data.
III. Conclusion
My conclusion, at least based on what we know so far, is that the legal charges against Swartz were pretty much legit. Three of them are pretty strong; one is plausible but we would need to know more facts to be sure. Of course, there may have been reasons not to charge Swartz even though he had violated these statutes or to offer him a lenient plea. I’ll take on those questions in my next post. But to the extent we’re focused on just what the law is, I think that what Swartz was alleged to have done fits pretty well with the charges that were brought.
->My Conclusion: This is a biased opinion but not necessarily wrong or willfully biased. It is legally biased. Truth or Mens Rea is irrelevant and things that are hard to be proven by the government alone are described as self explanatory, or obvious interpretation of facts.
I feel torn about the trial, and I know I'll get flack for this but what Aaron did was illegal, and I'm sure he knew while he was doing it that it was illegal, or at least in a grey area. At the same time, they were way overly aggressive in prosecuting him.
There's something wrong with the system when someone can have their life destroyed and their resources drained by their choice to exercise civil disobedience in protesting something that is morally wrong.
I'm also very interested to read the second part. I hope it covers the number of counts of each charge brought. This seems to be something that racks up the potential penalty very fast and the individual offences aren't necessarily that distinct from each other
This is explicitly not an analysis of right versus wrong. This is an analysis of the cudgel that the prosecutors were about to use on Aaron. This is about whether the charges were likely to stick in court.
The analysis says that the cudgel was very strong. Aaron had real cause to fear. And his defense was going to face an uphill battle.
I look forward to part 2, which is explicitly supposed to be an analysis of whether or not the cudgel should have been swung in the first place.
But even though I expect the conclusion, I'll still be very interested to see how a legal expert makes the case persuasively, and manages to support it with objective examples.
However your comparison to the Gonzalez carding ring is highly unfair. We've been repeatedly warned about the difference between statutory maximums and actual penalties. Jail sentences are like college tuition, the actual amount you pay is not the official sticker price you're given.
How much less? According to http://www.boston.com/metrodesk/2013/01/14/mit-hacking-case-... the plea bargain that Aaron was offered was that he had to plea guilty to all 13 counts, and spend 6 months in jail. That's a lot less than what the defendants in the Gonzalez carding ring got.
But that's a plea deal. If Aaron took it to trial and won some, lost the others, his likely sentence would be something greater than the plea bargain and significantly less than the maximum. The judge would have discretion, and would likely take everything you say into account in determining the penalty. So I'd still hope it would be less than what the defendants in the Gonzalez carding ringt got.
That said, being declared to be a felon is no picnic, as many can attest. Doubly so if, like Aaron, you have friends all over the world and would like to travel to conferences in other countries. And yes, you can sometimes get the felony officially expunged years later, but even that is imperfect. (As I learned sharing beers with Randal Schwartz...)
The whole thing is a tragic game of chicken. Both players seem to have been dysfunctional in different ways. But the prosecution wielded far more power. If what we know about the case is the whole story, then any reasonable person looking at this case should have been able to see that a 6 year sentence was an unjust outcome. Unlike most HN'ers, I actually have no problem with plea deals and stern prosecutions for people who go to trial; the system has to work that way unless we fund it differently. But the stern prosecutions need to be hemmed in by reason and fairness and logic. Here, it doesn't seem to have been.
Otherwise we're in violent agreement.
The application of these federal penal statutes is wholly improper for this case. This case is a civil matter.
Alex Stamos doesn't even really try to refute that. Instead he provides context that suggests that it was an injustice to apply those laws to Aaron Swartz. That's a separate question, and one that Kerr apparently intends to address in a follow up post.
Which is its own problem. But the problem with what prosecutors did is that prosecutors are allowed not to bring the charges and did anyway, notwithstanding the epic disproportionality of the charged penalties to the acts.
In other words, the problem is that the law is defective, and prosecutors could have had a conscience and not abused that fact to break this kid, but they failed at being human, and for that they are culpable. Morally and ethically if not legally.
While we wait though, I wonder Aaron's lawyers ever explained to him that thirty five years was an all but impossible outcome of this case, that seven years was a longshot and some type of non-incarceration a distinct possibility. If his lawyers for some reason didn't make that clear they did him no favors.
Now whether pervasive overcharging to extract pleas is itself ethical is another question ...
Now admittedly I'm not an expert at internet law (though I do have a JD), but Professor Kerr is. Unless your contention is that he doesn't understand the technical details well enough to render an opinion, I don't see how you or the linked article refute his opinion given that you neither of you address it head on (i.e. using the case law).
If he'd set this same thing up so that it would download JSTOR over the course of, say, two years, nobody would ever have been the wiser, we'd actually have that data today since it's actually been two years, and he'd still be alive.
But he had to have all the data NOW. I get it, I really do. He lost track of the goal in the excitement of the pursuit.
Doing things multiple times with risk that someone would set up surveillance is what exposed him. Buying a throwaway laptop for cash, wiping all prints, and hiding it somewhere off-video, waiting a few days, and then starting a slow-leech, uploading the content to some anonymous site, and then acting shocked about how someone copied what he'd done with PACER in this way, would have been a lot safer. $300 laptop is cost of doing business. ATM skimmers crews know this.
And certainly when it gets to the point you're worried about being identified via video surveillance, it is time to take a radically different approach.
Aren't you? Aren't we all, here?
Hence the logical conclusion is that prosecutors might be fine, but it does not change the fact that the law is completely nonsensical and this is what we should change. How about you guys fire some congresman instead?
What better way to move up in the establishment than by taking out bright activists...
In the case of Wire Fraud, is it JSTOR or MIT's rights that was violated if someone under false pretenses gains access to MIT's facilities and MIT's licensed access for research articles? What is the legal precedence in regard to rented or licensed property; is it the licensee's right that was violated if a crime is made to the property whiles in the care of the licensee or is it the licensers? By continuing giving MIT access after the breach of contract/license agreement, does JSTOR still have a legal claim of Wire fraud?
In the case of Unauthorized Access, Orin Kerrthe refer to a methodology of using the cost of production as a means to determine the value of the information obtained. But are we talking about the cost of production that JSTOR did in producing access to the information, or the production of the information itself done by parties not JSTOR or MIT. If we talk about the production efforts made by JSTOR, would the production cost be limited to the licensing fee's that JSTOR is (or are they?) paying to get exclusive access to the research journals?
You're thinking in terms of a civil suit, where an aggrieved party sues to restore their property/rights/etc. This was a criminal suit where the process is very different: the party suing is always the government in criminal cases, and the only matter at hand is whether the defendant violated the letter of the law. Aggrieved parties don't even have any authority to press or drop charges in criminal cases: that authority rests solely with the government (and the government will often continue cases when the parties involved just want it to go away).
Nobody who isn't blinded by groupthink or hero worship can deny that Swartz was guilty of a number of crimes. You can debate whether the prosecution was inappropriately heavy-handed given the nature of the crimes, or even whether some or all of those crimes should in fact be crimes, but not that he did commit them.
The blocks weren't necessarily to prevent fraud. Swartz's actions took place in the "open" culture of MIT, and that context matters and should be taken into account before you accuse Swartz of wire fraud.
>Nobody who isn't blinded by groupthink or hero worship can deny that Swartz was guilty of a number of crimes.
That is a legitimate area of debate.
Orin Kerr:
> As for unauthorized access, you're assuming that the unauthorized access was to MIT's computer. [...] I don't think thhese objections work if you assume that the unauthorized access was to JSTOR's computer.
He didn't do "a bit of scraping", he tried to download the entire archive. On a guest account at a university he had no relationship with. Over a period of months. He was blocked with increasingly wide-reaching measures and reacted with increasingly elaborate circumvention attempts, culminating with a laptop hidden in a closet.
His intent was very clearly criminal.
No, it's not. But doing it to get around people blocking your computer is. Likewise firing a gun isn't illegal, but attempting to hit someone when you fire a gun is illegal even if you miss. Intent figures into guilt and inncense in most matters of criminal law.
Swartz clearly knew that his IP address and then MAC address were being blocked specifically. You could argue he might have thought that it was just traffic shaping, but that wouldn't explain the MAC block.
EDIT: Clarified by adding 'criminal' in front of law.
except that
1. his behavior was clearly against JSTOR's terms of service
2. his computer was blocked MULTIPLE times
3. when he retrieved his computer, he was using his helmet as a mask to avoid being filmed
2.) Irrelevant, could be a simple traffic reduction block.
3.) Too flimsy to rest the entire charge on.
Take a real property, rather than intellectual property, example: my house is private property. If you open my door and walk into my living room, you are trespassing, which is a crime (or you could be breaking and entering depending on your intent). However, if I put a sign up saying "come on in, JohnsonB!" then you have my consent to enter, and you have therefore not violated the letter of the law.
See how consent to use private property is the crux of whether a criminal violation occurred?
A TOS defines the boundaries of how an intellectual property owner consents to your use of that property. Go outside the bounds of that TOS and you are no longer operating with consent, and may indeed be committing a crime.
I'm not saying that this is how it should be. Just that this is how the law is generally interpreted.
so is your comment a joke reply, or do you have a serious argument? has this ridiculous response indicates that you concede that it is against the terms of service?
> 2.) Irrelevant, could be a simple traffic reduction block.
if he thought it was that, why did he need a mask to retrieve his computer?
> 3.) Too flimsy to rest the entire charge on.
agree. except there's all the stuff above.
In France, murder gets you usually at most 20 years jail. The sentence seams totally disproportionate to the harm. Will Mr Orin Kerr also discuss this aspect ?
Another point is the harm done just by the trial. Going for trial is in itself condemning someone to pay a huge amount of money. Even if if that someone is finally proven innocent or the charges excessive and abusive.
Swartz wasn't seriously threatened with 35 years. The prosecution told his attorneys they'd seek ~7 years.
7 years is still ludicrous. 1 year would be ludicrous.
The prosecutors can't fairly escape the blame for the "35 years" publicity, because they themselves bragged about it.
Swartz's own lawyer predicted that there'd be minimal chance of him serving any time even if he'd been convicted. First time offender, no commercial purpose, no malice, no lasting damage.
Moreover, it allows prosecutors to threaten defendants with that and coerce even the innocent into plea bargains, and coerce those guilty of minor offenses into plea bargains for multi-year prison terms because the alternative is to risk multi-decade prison terms, which is a problem with the conduct of prosecutors when they choose to do that.
It is, obviously, an extremely troubling fact that the prosecutors in this particular case decided to try to scare the shit out of the defendant to get him to cop to 13 felonies.
Are we sure of that? Putting 6-7 years instead of 35 in the indictment or a public statement may be calculated by prosecutors to try to avoid outraging the jury or the public with wildly absurd penalties. That doesn't preclude their ability to use the maximum as leverage in plea negotiations prior to that.
I'm willing to admit that I don't know either, but we can't assume what we don't know one way or the other. My point is that prosecutors should be precluded from being able to do that, and in general should be chastised for doing it even if they are legally allowed to, regardless of what happened in this specific case.
* If Swartz plead out, he was being required to plea to all 13 counts.
* If he plead out the prosecution would seek some prison time.
* If he went to court, the prosecution would seek 6-7 years of prison time.
* His own attorney expected that even if he was found guilty, he would receive a suspended sentence.
No credible source suggests that the prosecution seriously entertained or threatened 35 years. Though, again, the prosecution brought this misunderstanding on themselves by bragging to the media about a 35 year sentence.
Being a felon also makes travel outside US very hard unless you're a superstar and very hard to get a job or associate with "regular" people and companies.
It's a horrible label: convicted felon, and very few ask why and how you got it.
What justified to invoke felony in Aaron case ? What constitute felony ? (please note that my ignorance is becasue I'm not American)
Count me among those who think what Swartz did could reasonably have been charged as a felony, but should never have been charged as multiple felonies.
Swartz' attorneys tried to arrange a plea deal and were told that Swartz would need to cop to all thirteen felonies, and would still serve prison time. If all we know now is all there is to the story, that's a gross abuse on the part of Stephen Heymann's office.
I don't know if overcharging is an unsolvable problem. "Plain language" may not be the right approach, but taking the excessive breadth and poor wording out of existing legislation would go a long way toward removing the number of felony counts a prosecutor can "legitimately" charge a typical bystander with.
Here are a couple of examples: A lot of these laws have threshold amounts of property that have to be in question before someone can be guilty of the crime. (And the amounts haven't been adjusted for inflation in several decades, which we could easily fix too.) But the real trouble there is that we take the amounts and then shovel a whole bunch of questionable nonsense into what can qualify. If I'm reading Prof. Kerr's analysis correctly, if someone breaks into your computer and you hire someone to clean it up, that goes in. You're paying them, so just pay them enough to hit the threshold and you've made a felon of the accused. It seems the value of intangible works goes in, so you bring in the copyright mathematicians who say one copy of one work is worth $150,000, which makes that element of the charge totally redundant in virtually every single case involving a computer, because all computers do is send data to one another, and virtually all data is copyrighted, so you copy one work and it exceeds the threshold and you're guilty of a felony. So let's take the ability to count all of that sort of thing out of that requirement and only include actual cash money or tangible physical products with specific market values, and if you want to have criminal copyright statutes or trade secret misappropriation statutes with appropriate penalties then let them be separate from statutes originally intended to deal with fraud and sabotage.
Then we can get rid of the vagueness. "Unauthorized access" is nonsense words. If someone is guilty of fraud, charge them with fraud. If someone is guilty of copyright infringement, sue them. If someone accesses a computer without authorization and hasn't committed any other offense whatsoever, use technological measures to prevent future access and don't charge them with anything.
Furthermore, we can do something about the maximum penalties. 35 years is insane. It's insane for actual hardened criminals -- bank robbers often go to jail for five years. Murder is on the order of 25 to life. We can make the maximum penalty for any computer crime that isn't also a serious non-computer crime something like 364 days.
Is that the sort of thing you mean to do to check over-zealous prosecutors, or did you have something else in mind? Because I'm open to suggestions. And we can do both.
There is no question, at least none I can find anywhere, that Swartz was overcharged, and that requiring prison time from a plea deal or a threat of 6-7 years in prison was unreasonable. The problem we face is that prosectors aren't held accountable for failures to exercise discretion. In Chicago, a local prosecutor pursued a felony charge against someone who recorded two internal affairs officers. She was roundly castigated in the media for doing so, but won reelection handily, because nobody pays any attention to what prosecutors are doing.
It may very well be that the problem here is lack of funding for prosecutors and the courts; that we should give them more money, instead of playing a futile game of whack-a-mole when problems like this happen, so that we can make saner decisions about prosecuting people and not immediately push every case into a tragic game of chicken.
That's what I'm saying. We should change the definition of "computer fraud" and other felonies so that they no longer cover what Swartz is alleged to have done.
Computer fraud should cover breaking into Amazon's order processing system and modifying the database so that they ship you $50,000 worth of jewelry without you paying for it. What Swartz allegedly did is more accurately characterized as something like excessive use or (for entering the network closet) physical trespass, for which the maximum penalty should be a modest fine along the lines of a speeding ticket. There should exist no felony charge available for prosecutors to use whose text can be legitimately said to cover his actions. All felonies should require extremely serious harm, such as personal injury or death, physical damage, or depriving others of extremely high value property explicitly for the purpose of personal financial gain. In all other cases there may be an offense but it should not be a felony, and we can work to have the law changed to reflect that.
I understand that even if we do that, it may be possible for prosecutors to file totally fictitious charges against their targets, but in those cases at least in theory it should be trivial for the defendant's lawyer to win quickly with a motion to dismiss, unless law enforcement is going so far as to fabricate evidence and the like, which is a different class of problem.
>It may very well be that the problem here is lack of funding for prosecutors and the courts; that we should give them more money, instead of playing a futile game of whack-a-mole when problems like this happen, so that we can make saner decisions about prosecuting people and not immediately push every case into a tragic game of chicken.
I agree with this as long as you concede that the only way it will be possible is to drastically reduce the number of accused somehow. If we prosecuted significantly fewer criminals (for example because we repealed many of the unnecessary laws that they are now prosecuted under) then we can easily afford to spend more resources on each case. I don't think the alternative will be possible: Spending significantly more per case without significantly reducing the number of cases would be prohibitively expensive, because there are currently so many people accused of serious crimes.
I think we could reasonably argue about that; the entire database is freely available to anyone who goes into a major university library, etc., and unless posting the articles resulted in universities ceasing to subscribe to JSTOR (which seems unlikely) then they lose no significant revenue. But this is going off on a tangent.
Even if I concede that JSTOR would be financially harmed, it still shouldn't be a felony. Let them sue him for copyright infringement.
I think this was essentially on the line as a felony vs. serious misdemeanor. 1-3 year range, tops, and probably something which should have gotten a suspended sentence for that period, as well.
Aaron's attorney, who at this moment is motivated to make the strongest possible case for the hardship Aaron faced, says he believes Swartz (a) could have beaten the charges as they stood and (b) was very unlikely to get more than a suspended sentence even if he hadn't. I think there's broad agreement that Swartz both shouldn't have and was unlikely to serve time as a result of this case.
Which brings me back to Heymann and the conduct of the prosecution, which seems to have been hell-bent on scaring the crap out Swartz.
I mailed his attorney a couple days ago. Part of the tragedy is his attorney would have won this case.
Maybe what is needed is some kind of "legal counselor" to guide defendants in cases like this. Especially if a defendant is irrational or depressed, it's probably an inherently hellish process.
And then we could put them in an office and call it something like the public defender's office. ;)
Of course, then having them do their jobs would be expensive and no one wants to pay to help "criminals" so it would end up chronically underfunded and become unable to properly serve its clients.
And there you were saying we never agree on anything... you may have to re-visit that position.
Now where we dis-agree is the bit where you think that what Swartz did could have been charged as a felony. This side-steps the question of intent and that is normally a big part of any criminal suit.
The interests of closed academic publishing are not aligned with those of the general public.
Any attempts to break such a situation and to improve the status quo for the common good is not malicious by definition, it is beneficial by definition.
I see how you favor a much more literal interpretation of the word 'intent' here, but I'm talking about it the way a human would talk about it, and not some kind of legal AI. After all, we're all human first and our intent derives from our humanity and if there is a corporate interest that is harmed over a humanitarian one than I for one don't see too much harm there.
We're not talking about someone attempting to wreck the entertainment industry, we're talking about someone attempting to enable a large number of people to gain access to knowledge. Equating that with malicious intent because some faceless corporation might no longer have as much access to the gravy train is difficult for me to understand.
In order that we don't go off the rails here: I'm not saying malice matters here. Malice isn't an element of the CFAA. A comment upthread suggests that the CFAA would be improved with a requirement for evidence of malice; I'm simply saying that I don't think that requirement would help much.
"It is difficult to get a man to understand something, when his salary depends upon his not understanding it."
-Upton Sinclair
Why? He is precise in what his post is doing: simply making an evaluation of whether the charges stack up with the law on the books. He neither promises nor tries to evaluate the legitimacy of the laws. I think that is perfectly fine and in fact I'd love if more qualified folks shared their specific interpretation of the law with minimal bias in either direction.
Often I run into programmers who want want to think that all questions should have yes or no answers. Even if they don't, many of us have a deep sense that there is something right about seeing the world in terms of strict categorical statements.
Me? Well, as a programmer, citizen and human being, I'm suspicious of it. Deeply.
(I have degrees in law & CS)
No, it's not, and it's the nr 1 mistake armchair lawyers across the internet are making in commenting on this case. Law is much more common sense than many people give it credit for; except it's common sense in a very different way than many people want it to be. (e.g., the bickering elsewhere in this thread on the intricate details of the facts and Orin's analysis of it).
Which also implies that there is hardly any possibility for his analysis to be 'incorrect' because it is rooted to come out as correct within the provisions of existing laws.
Isn't that so?
If we learn the laws are far overreaching, it requires a different set of actions to attempt to change than if we find that the charges don't align with the law.
his analysis is about whether the charges the prosecutors levied against him were reasonable, based on case law. if he misinterpreted established case law or the charges levied against aaron, his analysis certainly could be incorrect.
This first post is to show how the charges fit the existing law...This is to tackle the first question of, Is what Aaron Swartz did illegal?
This is a wholly different question than whether the prosecution was justified in its aggression, which will be the topic of his second post.
But whether something was illegal or not, yes, generally, we want that question to be based on existing laws. You do not want to go to court, either as a defender or prosecutor, on the grounds that your case will be decided on what's made up during trial.
---
Someone noted that many HN readers are programmers and seem to have problems with seeing the world as too black and white...I'm surprised at how hard it is for professionals whose work is heavily governed by the concept of orthogonality not being able to understand why people like Kerr can dissect this controversy into two separate components. Both components, related as they are, are worth considering and involve different arguments and evidence.
[1] http://www.volokh.com/2011/11/14/my-congressional-testimony-...
[2] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=399740
But whenever I read him at the Volokh Conspiracy, inevitably he seems to come down on the other side.
Check out some of his GPS / 4th Amendment analyses. For a guy that claims to be a civil libertarian and for a guy that claims to understand tech, he sure comes down awfully frequently on more expansive powers for search and seizure and miss the obvious civil liberties and technology issues.
And no, I can't point to anything specific, but it is my general sense of the guy after reading what he writes at the VC for a couple of years now. And I appreciate what he writes, and it can be very illuminating to me as a non-lawyer, but I have often been struck by how much this critic of CFAA and civil libertarian isn't.
He got the GW Law gig, in part, because of his prosecutorial duties at DoJ. So his salary does somewhat depend on his not understanding that the problem was the DoJ, not Aaron.
It's a hazard of going corporate: Corporate becomes more important than people.
(I personally thought the CFAA "unauthorized access" could be fought, but that leaves 3/5. Computer Fraud and Wire Fraud are essentially always true if you do anything even slightly mean on a computer, and I'm not sure about the damage to computer systems -- that was self-inflicted by JSTOR, and IMO could have been fought. The MIT side of it was also stupid.)
Boycott or other commercial actions against anyone who supports the copyright empire would be one way of getting the law changed.
Unfortunately people in the tech community are going to get distracted by other stuff (both stupid legislation like getting involved in gun control, and reasonable stuff like working on cool new technology), so mounting the sustained, multi-year effort to fix this is going to be very difficult.
In the future, in any likely reality that I can foresee, the laws are going to remain more or less the same and prosecutors are going to still be using scorched earth tactics. To change the system you need lawyers, but lawyers have a love-affair with the system and knee-jerk in defense of one-another. Ethics and the law are too intertwined for them, any effort to change the system to be more ethical will only continue to be met with cries of "But it's already legal!". I've seen it dozens of times today, and I don't see any light at the end of that tunnel.
If others are going to follow in Aaron's footsteps, they will have to make one particular change: be better at remaining unidentified.
Either that or be fully aware of the consequences and do it anyway but in such a way that the genie can never be put back into the bottle. Aaron paid an extremely high price for something that eventually did not succeed.
Which I think is correct.
He worked for the DOJ from 1998-2001. If he harbors sympathies for the government, they're pretty well hidden at this point.
[1] http://www.amazon.com/Computer-Crime-Law-American-Casebook/d... [2] http://en.wikipedia.org/wiki/United_States_v._Lori_Drew [3] http://www.volokh.com/archives/archive_2008_05_11-2008_05_17... [4] http://www.volokh.com/2011/11/14/my-congressional-testimony-...
At this point, he seems more interested in the development of 4th amendment jurisprudence as it relates to technology that he does the CFAA in particular.
At least on that front, he's been wildly wrong about future development of the 4th amendment so far. He was a strong opposer of the "mosaic theory" of the 4th amendment, and thought there was a 0% chance the supreme court would go for it, and he was completely and utterly wrong.
So take what he says with a grain of salt. He's a brilliant commentator on the CFAA, but a lot of what he says seems to be based on an idea that courts don't really change law to suit justice or policy given sets of facts, which at least, IMHO, is completely false.
Downvoters, do you not believe that bloggers should disclose their ties to an employer or former employer when writing about that employer?
Hence the downvotes.
(See how unreasonable anyone can be?)