The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion

Regarding "cowboy engineering", granted. I would argue that respect for engineering practices/stability comes after that blistering innovation that builds the system in the first place. And in some cases at least, many lawyers seem to endorse anti-democratic measures (e.g. having federal prosecutors immune from election, or having the federal government enforce civil rights measures that were vastly unpopular in the states of enforcement). So it is more complex than pro/anti-democratic on the lawyer side too.

But ultimately even more than "democracy", it may just be whether you explicitly believe the ends justify the means. If your bold stratagem ends in failure, then even more scrutiny is placed on your extralegal or envelope-pushing means (see Napster). If it ends in success, you often have much more popularity/influence than you did before and the envelope-pushing is forgotten or romanticized (see Jobs' early phone-phreaking, or Youtube). So whether or not people verbally agree that the ends justify the means, they usually practically agree, in that one or more of their heros was a nonconformist who did change the system.

Indeed, often the kind of hero responsible for creating the legal system that they're implementing. The guys on the dollar bills, like Washington and Lincoln, led a revolution and suspended habeas corpus respectively; they did what it took to win, and let history be the judge of whether it was right. So from this vantage point, those who simply execute the law without concern for higher morality are respecting the hackers/revolutionaries of times gone by (because they won) while blocking those of the present day (because they haven't won...yet).

HSBC has admitted that it is for all practical purposes a criminal enterprise masquerading as a bank. This is not a paperwork mistake or a lapse of oversight, it's their business model. Nobody will be prosecuted. The people performing these admitted criminal acts will be allowed to keep their paychecks, their bonuses, and in many cases, their jobs. No jail time, no criminal records, not even 40 hours of picking up trash in a park.

As a concrete example, consider the last election. More than 50% of voters voted for Democrats in Congress (even when you discard seats where there was only one party on the ballot, still over 50% voted that way), and a large majority in polls want Congress to become less partisan. Yet Republicans won Congress by a significant margin, and most members of Congress are in seats where their only realistic political challenges will come from the radical wing of their own political party.

In short, the population wanted moderates with a slight preference for Democrats, yet overwhelmingly we got extremists and a significant Republican majority. This does not reflect the desires of the American people, nor will the actions of our elected officials reflect our aspirations.

I could multiply with examples of how the governance of our society results in things not desired by the population, or not supported by my understanding of how the Constitution was meant to be read. But my point is simple. If you like sausage, you shouldn't learn how it is made. I want to like our legal system, but I've learned just enough about how it works and came to be that I cannot trust it.

I'll paraphrase Churchill: I think that democracy is horrible, but it's simply the best means we have of protecting individual rights.

Furthermore, democracy doesn't mean "majoritarianism", it means "rule of people". Yet even a simple representative democracy is exceedingly difficult to implement (obvious example is how would one draw district boundaries to ensure fair representation of all groups -- Gerrymandering is a huge problem) as to adequately represent "the will of the people". So a lot of people are contending this specific point.

I think where I draw the line is in ends vs. means: I strongly care about protecting basic individual rights. Primitive ancestral tribalism means absolute collectivism and zero individual rights (the right to swing one's fist was not limited by where another's nose began), so we've continuously evolved better and better systems to do so including Anglo-American Common Law (which today still provides some of the strongest guarantees of liberty anywhere on Earth).

On the other hand, just looking at the judicial history, I see a lot of clever bending of the rules and hacks that got us there: using 14th amendment to apply first amendment to defend highly unpopular speech was both "anti-democratic" and contrary to the letter of the law (the first amendment clearly said "congress shall pass no law"). Likewise, Roe v. Wade was a great judicial hack (use of 9th and 14th amendment to defend another activity most everyone opposed) that significantly expanded women's reproductive freedom.

These kind of "hacks" even made the idea of law entertaining to me (when fresh out of undergrad, I was being prepared for deposition in some IP litigation I got dragged to as a result of an internship I had, the counsel seriously urged me to consider law school instead of MS in CSE). However, I knew that realistically my choices would be either near-starvation or big law (absolutely the wrong place for someone like me, who could never adhere to a strict schedule or a dress code).

However, I don't see that "order loving" and "order breaking" are mutually exclusive: a software engineer is free to work at a firm that requires everyone to be in the office at 9:30 (irrespective of how late they stay until) and many choose to do so (practically all engineer working for financial firms). I don't see an issue with companies choosing this culture, with some reasonable exceptions (e.g., I'm not a laissez-faire absolutist, so I would consider it grossly unjust to fire an engineer for coming at 9:45 because their daughter had a doctor's appointment that morning).

While I would abhor forced-collectivism as a political system, I've enjoyed working at smaller "collectivist" companies, i.e., where everyone is focused on the same goal (which benefits everyone) rather than on advancing themselves.

So where does aaron enter into this? I think to me the part I found morally repugnant that the law that was meant to defend JSTOR (who have dropped the charges and whose rights were not severely transgressed) was aimed disproportionally against Aaron. In other words the state was acting to some concrete end that went far beyond what was reasonable to protect individual rights[1].

If the state wanted Aaron to never do this again, clearly stating to Aaron that if this happens again he will go to jail (something that seemed to absolutely deter him) and get a felony on his record (something that, again, would clearly deter him -- in that it would make his goals of social activism much more difficult in terms of difficulty of finding employment, vote or run for office, etc...).

Everything else seems superflous, unneeded and disproportionate (if JSTOR pursued the case they would have had a right to some kind of settlement, but not, e.g., forcing Aaron to pay $2 bn or sending him to jail for a decade).

What I think energized me even more personally is that his situation is far from unique -- you were also one of the first to point to this out too. However, rather than forgetting about Aaron, the proper response is to further seize on the momentum: Aaron was certainly influential and this influence could be used to change the laws governing prosecutorial conduct. I think (but correct me if I am wrong), you would also agree with me here.

Where we disagree (as far as I understand your comments) is just because 51% of people find personal drug use repugnant (or believe cooky theories about it), than they have a free hand at imposing drug laws. My own take being that "unenumerated" individual liberties (liberty being defined negatively and circularly as something that doesn't infringe on the liberty of othes) should be restricted if and only if doing so is crucial to protecting the rights of others (e.g., to use an artificial example, if a pain killer happens to make 30% of its users instantly and extremely violent it can be restricted, as long as it is still available under supervised conditions to who can't for one reason or another use another pain killer). More fundamental liberties (those crucial to continuation of liberty itself -- free speech, protection against torture, protection against unreasonable search and seizure) should have an even stricter standard (something similar to the "clear and present danger" standard for free speech in the US today). I think it's also close to the fundamental framework most (but not all) HN-ers subscribe to (libertarians and liberals alike), but there is wide disagreement on specifics of how it applies in each individual case (it's clear that an outright ban on marijuana has a zero or negative effect as far protection of fundamental liberties of others goes, but it's a bit more difficult for other drugs). Some might also argue that there is an even more fundamental right to use an entheogen, etc...

The libertarian positions tend to be more categorical than the liberal ones (e.g., property is the more right, so taxation is always unjust, even if it's the only way to provide basic healthcare or legal protection for individuals).

I am hopefully not caricaturing you, but your argument seems to be that liberties and rights are crucial, but they are granted and limited based on "greater common good" analysis as opposed to more categorical statements. I think it's perfectly valid and (often) seems to lead to similar conclusions as the system I use, but the thought process is very different in that a deeper-level happiness of majority (which is usually greatly bolstered by liberty, but not always so), as opposed to liberty itself is your overriding concern ("if a small minority really wants to do X which poses no harm to the majority, but the majority is deeply upset that X is allowed, then it's fine to bring the legal system down full-force on the minority that chooses to do X").

In the end I think these two systems actually converge more often that not: drug war does not serve the common good, for example. Yet, it's the disagreements that can be particularly vehement (such as issue of laws that infringe on individual rights in one way or another, but yet have a clear societal benefit despite not immediately protecting individual rights -- e.g., seatbelt laws, laws regulating food portions, drugs beyond marijuana, certain police practices, etc...)

[1] Reasonable people can disagree whether academic publishers have a right to hold papers behind a paywall. I think that's debatable, with my own views being closer to Aaron's. Another example where this is simply hard and reasonable people coming from the same "first principles" can disagree.

I think a lot of that comes from the decentralized nature of this industry. The status quo in Washington doesn't mesh with that very well. Normally when two industries have a trade disagreement over legislation, they both send their lobbyists to Congress to advocate their interests and then it gets hashed out and usually something mutually agreeable (or at least balanced) comes about. But decentralized entrepreneurs don't have lobbyists or official spokesmen, as a general rule. So we can't easily participate in that process in the "traditional" way, and then the process repeatedly fails to arrive at results that satisfy us and we rail against it.

Which is probably not very productive in the long run. What we need is to find a way to interface with Washington as a decentralized group. Because in many cases we all largely agree and have similar interests, it's just that no one can go there and claim official representation of the entire group and Congress is not currently equipped to negotiate with a million semi-independent individuals.

On December 16, 2005, The New York Times reported that the Bush administration was spying on American citizens without a warrant. Most of the major Telecoms were participants in this massive, warrantless eavesdropping system. So the EFF and the ACLU filed lawsuits against these telecoms. Federal courts began ruling against the telecoms (Yay! Democracy in action!).

So the telecoms "bought" some lawmakers. In July, 2008, the senate passed H.R. 6304 which provided retro-active immunity to telephone companies that participated in the Bush administration's warrantless surveillance program.

ie: This is not unsubstantiated. This is not hand-waving. The system was "bought".

Since then, congress doesn't even bother with immunity any more. Both Cheney and Bush have admitted on national television that they authorized torture. (Torture is still illegal in the U.S.: http://www.law.cornell.edu/uscode/text/18/2340 -- that's a specific law passed by a democratic system.) And yet no one was ever investigated or arrested or anything. Ho hum.

Obama now has a "kill list" that he personally signs. He can declare someone to die, without a court or a trial. That sounds like "monarchy" to me, not "democracy". ("Off with his head!")

Based on these and other events, as far as I can tell, at a federal level, we don't really have a democracy anymore. There's no democracy to uphold or respect. If you're a Washington insider, protecting Washington power, then anything goes -- spying on American citizens, torture, invading countries, killing people.

But if you threaten Washington power, then you will be hounded by prosecutors in the name of "justice". It's too bad Aaaron Swartz couldn't buy himself some retroactive immunity.

It is not exactly unsubstantiated: the powerful people within the system have basically admitted it. See, for example, Chris Dodd's comments:

http://www.foxnews.com/politics/2012/01/19/exclusive-hollywo...

How exactly might you interpret a comment like, "Candidly, those who count on quote 'Hollywood' for support need to understand that this industry is watching very carefully who's going to stand up for them when their job is at stake?" Politicians count on big business for support and the leaders of those businesses make sure those politicians do what benefits them.

It's not just Hollywood. Obama needed the support of the pharmaceutical industry to push the healthcare bill through; the deal was that the Obama administration would fight harder against medical marijuana and imported drugs, and despite the fact that Obama's public statements included talk of depriotizing marijuana, his first two years saw more raids on medical marijuana dispensaries than all eight years of his predecessor. There is little doubt that the defense industry has a comfortable relationship with the government either: we spend as much on buying their weapons and systems as we spend on social security, and no president after Eisenhower has failed to involve the US in some military engagement or war (most of which were entirely unnecessary).

It is not that democracy is discredited, but that we question whether we even have a real democracy anymore. If your only choices are "far right" and "not so far right," does your vote really count? One has to look to the extreme minorities, third parties and independents, to find anything that could be called "left wing" by any reasonable standard.

I place the beginning of valid questions about American democracy in the 1970s. That was when the Democrats began catering to big business just like the Republicans, and it was in that decade that we (probably coincidentally) saw the beginning of paramilitary law enforcement. It was also the decade that saw the beginning of explosive growth in executive branch power (once the dust from the Nixon affair settled, anyway), which at this point has come to mean "when the president has it in for you, you're dead." As an example, it was in the 1970s that the attorney general's office gained the power to declare drugs to be illegal without having to wait for the wheels of democracy, and to arrest and prosecute people for possessing those drugs.

So can you really blame us for questioning the democracy of the United States? It seems like the only democratic processes that matter anymore are those that decide which set of big businesses will receive help from the government.

The vast majority of the order you see in the world around you isn't because of laws, but because of a mutual interest in cooperation.

An "Al Capone" approach would be more like some of the actions of Anonymous -- performing security penetrations to collect, say, secret government or corporate data and then publishing it. Accessing publicly-funded research or public-domain documents and making them available is much more Rosa Parks.

I hadn't thought of Al Capone as an example of civil disobedience, but that's an interesting point, and I'll admit that example does strengthen your point, because he isn't what people usually think of as civil disobedience. There are many more examples than Al Capone of aiming primarily to change the situation directly, rather than mainly aimed at provoking a symbolic arrest, though. Would you consider the Underground Railroad an example of civil disobedience, or of something else?

Even in cases where there is a desire to provoke a high-profile, symbolic arrest, widespread flouting to render the law unenforceable is often part of the strategy as well. For example, Gandhi's famous Salt March had two components. On the one hand, Gandhi personally, very publicly and openly, announced his intention to make salt, and began a march to the sea where he'd do so, in a symbolic gesture to violate the British salt laws and provoke arrest. But equally importantly, the Salt March was intended to kick off millions of Indians making their own salt, rendering the law so widely violated that it became completely unenforceable. You (and Kerr) seem to be thinking of the first part of that as the only thing that counts as "civil disobedience", but the second part was critically important to the success of the Salt March, and I think it's fair to call it an example of widespread civil disobedience.

The Rosa Parks story is interesting because she did something that was clearly good in the eyes of many but against the law anyway and that was 'bad' in the eyes of only a slight majority at the time.

That same thing can be said of Aaron Swartz, there are many people that feel the same way, that locking up knowledge behind paywalls is both immoral and that it impedes progress, but a majority can't be found to take on the business interests that control the flow of knowledge.

Unlike with Al Capone, we're not talking about flooding the streets with an intoxicating liquid, we're talking about to something that should be a basic human right here: the right to educate yourself through accessing our communal pool of knowledge. If there is one interesting thing about our current form of democracy it is that people routinely vote on a few narrow issues and get a whole pile of non-related items pushed at them going directly against the interests of that same majority.

Sometimes you have to do more than just sit on the wrong chair for a while to make a noticeable difference. Lots of people have been doing the equivalent of that for a long time now without much progress being made. I guess for Aaron that speed of progress just wasn't enough.

And just like Al Capone he wasn't charged with spreading the knowledge, he was charged with the computer crime equivalent of tax evasion, the breaking of some terms of service and evading some very basic bans on an otherwise terribly insecure network where everybody had access to that knowledge.

The internet doesn't care about censorship it is said, it will route around it. But someone will still have to program those routers and that where people like Aaron come in, they observe and identify bottle-necks, then proceed to fix them. If your gravy train ride depends on holding bits hostage and dribbling them out to the public at a rate or in a way that you can control then you really should go and read Nick Negroponte's 'being digital' again.

It's been said that I don't like JSTOR. I have no feelings positive or negative towards them, just like I have no such feelings towards dinosaurs. They're going to go away one of these days because their useful lifespan is almost at an end, disrupted by the combined cheap costs of storage and communication.

Now let's assume for a second that booze is just as important as scientific research. He would be equivalent to an anti-prohibition activist that ran a boat to Canada to pick up booze, but only charged for costs of operating the boat and the purchase price of the booze (operating at no profit), and never drank any himself.

He would not want to get caught for two reasons: he would not be able to provide the booze to those who need it and it would interfere with his plans to run as an anti-prohibition candidate which he can't with a felony on his record.

Utility is discrete rather than linear here: the cost of going "clean record" to "petty felon" is greater than going from "petty felon" to "petty felon with another conviction" (non-violent felonies are usually not subject to three-strike laws).

So here's what I would find a fit punishment:

* Monetary retribution to MIT and investigating agencies (as well as JSTOR if they so choose). Capped as to be reasonable.

* Misdemeanor conviction subject to being expunged if his record stays clear.

* No jail sentence, but perhaps community service that involved tutoring jail inmates (it would give him a realistic view of what jail is like).

* Some form of supervised parole with the condition that doing what he did again would mean jail and a felony charges.

* No restrictions whatsoever on his speech, but he should he prohibited about talking of his exact punishment/settlement (so that it's imagined to be more harsh than it really is).

Overall, maintain high incentives for him to not break the law again and to instead use other means to change it.

That does have one problem, however: it does not deter others from doing the same. Yet, as far as I understand, there aren't that many people seeking to do what Aaron did: the intersection between "people willing to torrent copyrighted material that they gleaned by breaking captchas with a script" and "people strongly supportive of open access with no profit motive" consisted of Aaron.

What he did was rare and unusual, so punishingly him harshly would do little to reduce crime -- there's no one else to deter.

Talk to anyone there in the days of Early Google. They were all about breaking rules.

what i got from the article is that Ortiz was not overzealous. she was doing what most prosecutors do all the time. why should we single her out? if we wanted to fire all prosecutors that used her tactics, we'd probably have to fire the majority of federal prosecutors.

If you want to see change, not just for people like Swartz but for all defendants, you need to remove the incentives for prosecutors to rack up the highest number of kills, and you need to make a trial something that isn't going to ruin the defendant if they choose not to plea out.

So I don't know if Kerr really meant for his question to be taken at face value. OTOH, he does seem to consider it important that the punishment be sufficient to cause the person to switch from illegal to legal means for achieving his goals. So he doesn't seem fully consistent on this point.

For many of us, the possibility of being deprived the tool that gives most of us the power we have should be enough to deter.

No offense but if you believe that only thing binding on people is moral imperatives, then you don't believe in a democratic society, you believe in something closer to an anarchical one.

The whole point to a democratic society is that the people set the rules, but there are still rules. You're talking about something else.