The Prosecution of Aaron: A Response to Orin Kerr
thepublicdomain.org
thepublicdomain.org
We need to distinguish between decisions made before and after Aaron's death. It is totally fair to say that Kerr's blogposts - or my attempts to remind programmers what they thought about Aaron when he was alive - lack "sympathy." But what exactly does Boyle think should have made the prosecutors sympathetic to Aaron when they brought their charges against him? His lawyers' claim that he might be psychologically unstable? His desire for attention from the geek community? His on-and-off friendship with Lessig or Doctorow? His history of writing code as a volunteer? His involvement in a sale of a company to Conde-Nast?
To use my example from another thread, let's say Brian Behlendorf gets arrested for DUI while on the way to a conference to talk about free software. Should we be sympathetic because he gave us the Apache httpd server (something a thousand times - maybe a hundred thousand times - more significant than any code Aaron ever wrote)?
By the by, I do feel like a jerk for not being more "sympathetic" to Aaron now that he is dead. But when the people around you turn your case into a political football and say the government killed you, it is fair game to try to put things into perspective.
Regarding both what you've written and what Kerr has written, I think it's worth pointing out that "sympathy" isn't a prerequisite for discussing the legal issues involved in the Swartz case. It's annoying that everyone who writes about the CFAA needs to provide a benediction. The Swartz tragedy does not want for sympathy, emotion, or action-spurring anger. But we can always use more (respectful) critical thinking.
It's especially annoying in critiques of Kerr's writing. Kerr's goals were to answer some basic questions. Did the prosecution stretch the CFAA to make a case against Swartz where none was warranted? Was the prosecution's conduct towards Swartz unusually cruel? Is there any legitimate public policy purpose animating the CFAA and wire fraud statutes? In discussing these questions, Kerr more or less stipulates that Swartz did what prosecutors alleged he did. But that's all it is: a stipulation. "Assuming", Kerr asks, "that Swartz did all this stuff --- and it looks like he did --- let us take a clear-eyed look at whether and how any miscarriage of justice occurred."
To berate Kerr for not adequately addressing the question of Swartz's innocence is to miss the point of the two articles.
I don't think httpd is 1000-100,000 times more important than the things Aaron helped to accomplish (he did more than just code, btw). An open source web server was somewhat inevitable but I'm not sure rss, creative commons, reddit, or some of the other things Aaron worked on were.
For example: "This article was first published in 2005. After it was published, Django launched a RemovingTheMagic project to address some of my criticisms (though personally I still find it unusable), web.py inspired FriendFeed’s tornado.web and Google’s gae.webapp and others (though I still prefer web.py), and this article led to a permanent surge in Reddit traffic that still hasn’t really stopped growing."
Lessig would probably disagree with you on CC.
I left off Demand Progress so maybe we'd have SOPA in place today.
The fact that he thought he was acting in the public interest.
Your DUI example is not analogous. Behlendorf could not reasonably have thought his downing several beers was going to benefit the world.
I would very much like to see a detailed response by Kerr to Stamos' argument.
I think this would have been a very interesting trial.
I say this only because his points were of the form "It was so easy to get around MIT's weak security that you can hardly call it hacking", but Swartz wasn't charged with "hacking", he was charged with wire fraud, computer fraud, unauthorized access, etc., and these are not charges that go away just because it was easy to do.
His testimony would certainly have been very helpful if it came to a sentencing phase but during the trial he would have been all but confirming that Aaron did indeed get around the feeble MIT and JSTOR blocks on him, and that's much of what the prosecution would have needed to prove right there.
I have noticed several of comments with this "focus on the larger picture" style of criticism here, and frankly I think at this point it amounts to concern trolling. I think this article does a good job of rebutting that sentiment.
So sure, HN types can go about their lives. No so much for other folks. The larger picture has to be kept in mind. Since so many posts over the last couple of days have focused on comparisons to MLKjr, I'll leave this quote: "Injustice anywhere is a threat to justice everywhere."
Surely anyone who's aware of the history of prohibition in the 1920s would understand that prohibition itself gave power to violent criminal gangs, that exactly this is happening again on a much broader scale thanks to drug prohibition.
Any reasonably intelligent, informed person should already be aware of these facts. And yet, the only real progress has come very recently, and it's come because of direct democracy, not from politicians. If they can't even manage to fix these terrible, obvious mistakes of the past, what hope for arcane computer laws?
I don't think the things preventing the fixing of past mistakes actually stand in the way of fixing computer crime laws. The CFAA is bad because it was poorly drafted originally and is now fairly anachronistic. There is no huge lobby for putting a dozen hackers in jail for decades. It doesn't happen at scale. There is no big money in it. Setting the penalties to something less draconian would not cost powerful people anything of significant value.
The drug laws are bad because they were designed to be bad. Their lobbyists are prisons who want more prisoners on a mass scale and law enforcement agencies who want bigger budgets and to seize the assets of rich criminals for themselves. To fix them you have to take on the whole system.
I am not advocating that we should not try to fix the drug laws. We certainly should. But they're not the low hanging fruit. It's worth doing what's easy immediately while we figure out a long-term plan to do what's hard.
If that actually happened, that would be a major improvement on the legislative and legal front for everyone in the world, not just tech people.
Doubtful. Right now the lesson is "don't piss off rich people when it comes to financial crimes" and yet not-rich folk still get the short stick in terms of prosecution. The folks with the loudest voices always get listened too, the folks with no voices are ignored.
edit: downvoter, what do you disagree with?
"Last Friday, on the same day that Swartz hanged himself in his Brooklyn, N.Y., apartment, prosecutors from Ortiz’s office stood in a Boston courtroom and allowed a former state representative named Stephen “Stat” Smith to plead guilty to a misdemeanor for rigging absentee ballots in three elections. Swartz’s lawyers asked for the same consideration, that Swartz be allowed to plead guilty to a misdemeanor. Prosecutors refused.
So, given that Ortiz will not explain herself, we’ll just have to presume she believes that illegally manipulating the outcome of elections, which are the essence of our democracy, is less serious an offense than downloading an online archive of obscure academic articles." (Excerpt fm article by Kevin Cullen, Boston Globe). http://bostonglobe.com/metro/2013/01/18/taking-heat/L1rfSF47...
However, it is very difficult to make this kind of backseat-driver judgment. I'm not arguing that people shouldn't look into it. They should. But different cases are often treated very differently. Perhaps Smith's case would have been harder to prove to a jury. Perhaps he had better procedural objections. It doesn't just come down to how bad anyone thinks the crime is.
I like reading the Volokh Conspiracy. I disagree with them on at least half of what I read, but their posts and the comments almost always teach me something about the law, and interacting with lawyers, especially when they are wrong, helps take away the halo I seem to hold for them.
And many of them were former hackers, certainly Eugene Volokh got his start that way.
I write this now, because when I have submitted links to HN from the VC, the links seem to go dead pretty quickly, and I think that's a shame, because often what they write about certainly seems well targeted to the hacker community.
That said, regarding Professor Kerr, while I find his posts very informative, I have often detected a weird skew to his analyses.
I am not a lawyer and pretty ignorant and I am certain his analyses are just a zillion times better than anything I could say, but for example, in the Jones GPS case, Professor Kerr was very attached to the raw search and seizure aspects of the case, and seemed to ignore what the implications of his analyses would be in a world of very cheap government installed ALPR devices.
In general, I think Prof. Kerr is just a lot more pro law enforcement than I am. I find that he is often very dismissive of the defendant's case. For example, he seems to take for granted that Aaron violated the CFAA. With that being said, I still think he is Volokh's best contributor.
Yes, he was definitely doing that and he was right to. I am not saying he ought to play jury, just address some of the counterarguments.
this seems like a problem to me. it puts an overly high burden on the defendant to not only defend his case, but first decrease the "over-charge" to a fair punishment, and THEN continue past that point to the actual defense.
Also, i do believe that context matters. If someone committing a crime is some anarchist taking pleasure in destruction of "anti-establishment", OR, that someone is a contributing member of our society trying to be heard.. no these are not the same crimes in my view. i do believe that such a thing as "good credit" should be taken under serious advisement.
I submit that the real culprit here isn't misconduct stemming from overcharging, but rather from our careless and illogical sentencing guidelines. Swartz's prosecution could have huffed and puffed all they wanted, but if the facts they had at their disposal supported a maximum of 6-9 months custody even at trial, it would have been a different story.
Instead, Heymann had at his disposal a set of sentencing guidelines that scaled up with "damages", which is a standard that makes no sense in a computer crime case. The difference between $500 and $1000000 in damages in a CFAA case is a number in the middle of a for() loop. This isn't a novel challenge for the criminal code; other offenses have more reasonable sentencing and "aggravation" elements as well. Swartz's sentence should have involved the extent to which his intentions were commercial, how many co-conspirators he roped in, how much of a challenge he made it for the prosecution to investigate him, how much damage he caused, how recklessly that damage was caused. These are familiar elements of criminal and civil cases and could apply in CFAA cases too, had the law been written more carefully.
I do think it's a strong possibility that Aaron intended to do so, but I also have my doubts. There was another instance where Aaron obtained documents en masse but did not "liberate" them: from Westlaw; he contributed to a statistical study on them. The results were published in the Stanford Law Review.
I cringe at the thought of Aaron's life being ruined over guesses about his future behavior.
Aaron never published anything in the Stanford Law Review. The student article in the Stanford Law Review that seems to form the basis of your claim doesn't even credit Aaron.
http://www.nationaljournal.com/domesticpolicy/a-law-for-aaro...
Given that the state always has more resources available than individuals it prosecutes, cases like Aaron's are powerful arguments for a limited government. A real limited government, not the kind that just keeps hands off hackers and turns their arsenal of weapons on another class we care about less. I realize this perspective is completely out of vogue these days, but the fact that governments oppress individuals is an age-old truth that needs to be relearned over and over, it seems.
Asking prosecutors to be "nicer" won't cut it. Nor will firing one and replacing them with another, tasked to enforce the same law. We must remove some of their power, meaning many laws need drastic change or repeal. It's sad that it takes a high profile individual to raise concern when plenty of others have been destroyed before and gone unnoticed.
That sums up everything I have a problem with in Orin's discussions about Aaron Swartz: he always sides with the government, whenever there is any doubt at all about the facts, the law, or the case. It's anti-Aaron, all the time, in seemingly every possible way Orin could find (without even considering all of the evidence). It makes no sense. Worse, it's dishonest, as the reader is given a severely distorted view of the facts.
I don't know why Orin chose to do that with Aaron; certainly, in others, he's not been reflexively pro-government as a rule. Maybe he just wanted page views, TMZ-style.
Or perhaps it's because the Computer Fraud issue was finally getting press, even though Orin has labored at it for years (without getting any traction at all)? That would explain why he seems so offended that Aaron's "fame" is why people care about Computer Fraud now.
Still, it's sad to see Orin so blinded by someone with "fame" and "friends". I suspect in the years to come that Orin will regret lashing out at Aaron literally days after his death. It just made Orin look petty, and any "fame" he's gained as a result is certainly the wrong kind of fame.
http://www.law.gwu.edu/SiteCollectionDocuments/CV/Orin_Kerr.... http://www.justice.gov/careers/legal/jobs/ccips-trial-atty.h...
Orin Kerr's second post is an indictment of the government's entire strategy in prosecuting cases. He's using the fact that Aaron's treatment was a standard application of this strategy to illustrate his issues with it. It sounds like you wanted him to invent some point as grounds to equivocate. Maybe that would make his post be better received in the tech community, but we shouldn't expect legal scholars to be motivated by that concern.
Sometimes that is our only choice to right a wrong. Case in point: the civil rights movement.
It's like saying don't jaywalk if you aren't ready for felony charges that might get applied. I mean the only law you really broke was jaywalking, but then you are charged with 9 counts of wire fraud because you wore a different outfit each day -- obviously changing your appearance was fraudulent.