Letter to Carmen Ortiz about Aaron Swartz
blog.payne.org
blog.payne.org
"It is clear Swartz did something wrong and should have been punished"
"He didn’t access something he wasn’t supposed to"
"Swartz did not destroy or damage data or infrastructure"
See, maybe I am just confused about the meanings of words here, but if Aaron did not access anything he was not supposed to access and did not destroy or damage anything, what exactly is it that he did wrong? Who gets to define the upper bound on how many articles a person is supposed to access, or what counts as an "appropriate" or "acceptable" method of utilizing a JSTOR subscription?
Aaron was the victim here; his suicide was shocking and brought that fact to our attention, but if he were alive today he would still be the victim. I called this a senseless prosecution when I learned about it months before his death. Aaron did nothing wrong, and he deserved no punishment.
Continuing to access MIT's network after MIT tried to get him to stop.
> Who gets to define the upper bound on how many articles a person is supposed to access, or what counts as an "appropriate" or "acceptable" method of utilizing a JSTOR subscription?
Something called behaving like a reasonable person. The scope of a license is implied by the nature of the license. If JSTOR gives you permission to access journal articles for academic purposes, it's outside the scope of the permission to download them wholesale with intent to distribute them. Nobody needs it spelled out to them that this is the case--it's obvious from the nature of the transaction.
Disclaimer: I'm not justifying the prosecutor's actions. But it's possible to support what Aaron did and think the prosecutor overreached without degrading the argument to a hyper-technical and willfully blind defense of how he didn't actually do anything wrong.
I am not really seeing the moral argument there. MIT's network is designed to be open; a ban on a MAC address is, on such a network, little more than a polite request to not continue your access. Being rude by ignoring polite requests is not morally wrong.
As for the law, all I can say is that there are an awful lot of criminals in this world if accessing a network that tries to block your computer is a crime. If the law criminalizes a common behavior, then the law itself is what is wrong.
"behaving like a reasonable person"
How conservative of you. I hear there are some lovely caves that people used to live in, until some unreasonable person had a "better" idea (I wonder if you would have made an argument for punishing him -- after all, not living in caves might disrupt the social order).
"If I let you come apple picking in my orchard, you can't bring in a fruit truck and some day laborers and strip the trees bare."
You are comparing apples to universal Turing machines. Your comparison is actually that bad -- you might as well be talking about the superbowl than Aaron Swartz.
Aaron did not strip anyone or anything. He prevented nobody else from using JSTOR, nor did he stop anyone from reading the articles he downloaded, nor from using the network, nor from using the closet where he hid his laptop. He caused no measurable damage to anyone or anyone's property at any point in the JSTOR incident.
"If JSTOR gives you permission to access journal articles for academic purposes..."
...then I should be free to use those articles for any purpose, because JSTOR has no claim to them or to the knowledge they contain. What gives JSTOR the moral right to tell anyone what they are allowed to do with the articles JSTOR provides to them? Sure, we have this thing called copyright that emerged from British attempts to censor books in the age of printing presses (I wonder if the Chinese firewall will lead to the creation of a similar law), but copyrights are in no way related to modern senses of morality or justice -- copyrights are just a way for the government to promote a particular class of business, and that is all they have ever been about in the United States. "Right" and "wrong" are no more relevant to copyright than they are to parking in a loading zone.
"nobody needs it spelled out to them that this is the case."
That is because prior to the attack on Aaron Swartz, nobody thought that automatically downloading scientific articles on a university network would ever warrant the attention of federal prosecutors. Now we know: don't you dare download articles using any software other than your web browser, and don't you dare do so if you ever suggested that those articles should be shared freely on the Internet, or else you'll face a long and expensive prosecution by the US government.
MIT's network is a private network and they have complete authority over who gets to access it, in a legal sense and a moral sense. It's their prerogative to extend access to anyone except specifically chosen people. In our society, we do not treat "get off our lawn" and the equivalent as a "polite request." We treat it as an enforceable demand.
> How conservative of you.
Yes. We live in a society of rules and borders and boundaries. We like those things, so much that we often enforce them with guns (and cheer on those who do). It is not your prerogative to flout them as you please, but your burden to convince us which of those boundaries are unnecessary so we legislate accordingly.
> What gives JSTOR the moral right to tell anyone what they are allowed to do with the articles JSTOR provides to them?
JSTOR at the very least has a moral right to control how he used their private service to download the articles.
> copyrights are in no way related to modern senses of morality or justice
I disagree. I think most people believe that creators are entitled to control the distribution of their work. I think the prevailing mindset is that a digital creation should not be treated differently, for ownership purposes, than a physical creation. Do people download anyway? Sure. But people also sneak into movie theaters. That doesn't mean they feel that theater owners don't have a moral right to exclude non-paying viewers.
To the extent that I think the law is out of step with the modern sense of justice is proportionality. People think (and I'd argue rightfully so), that downloading a movie should warrant the kind of slap on the wrist (if anything) that sneaking into the theater to watch that movie would warrant. Not huge dollar fines and possible jail time.
Swartz's case really boils down to that: the trespassing charge was dropped, while the charge for accessing the network was not. He was trespassing, and he was accessing the network illegally, but if one was minor enough to be dropped the other should have been treated similarly.
Then as I said, there are an awful lot of criminals in our society, because people routinely access private networks without permission or in violation of requests to discontinue their access.
"In our society, we do not treat "get off our lawn" and the equivalent as a "polite request." We treat it as an enforceable demand."
Maybe so, but it is also technically trespassing to cross railroad tracks outside of designated grade-level crossings. In my town, there was a brief period where the police attempted to enforce that, and it was found to be absurd and counter-productive to do so: people from every level of society walk across the tracks without hesitation, without thinking about the misdemeanor offense they are committing, and often in plain view of the police. In almost all cases, they are causing no damage to anyone, and so the police do not care -- it benefits nobody to mindlessly arrest everyone who technically violates some law.
"JSTOR at the very least has a moral right to control how he used their private service to download the articles."
Sure, because they own their computers; they are free to restrict access, disconnect from the Internet, or encrypt everything without releasing the keys, and that is fine. They chose not to do so, so why should we care if they do not like the particular program Aaron used, or his particular plans for the documents he downloaded?
"I think most people believe that creators are entitled to control the distribution of their work."
I doubt that; outside of one person who works for the music industry yet to meet anyone who shows even one millisecond of hesitation when it comes to sharing copies of photos, music, movies, written documents, or any other creative work. Most people are perfectly willing to sing "Happy Birthday to You" in public, without spending any mental effort on the idea that it is copyrighted or that the copyright holder forbids public performances.
The only moral issues people have with copyright infringement are when (a) artists are "ripped off" by it (but that is usually something the copyright holders are doing, and is irrelevant to Aaron's case anyway) or (b) when someone claims credit for work they did not do (equally irrelevant here). Copyright as a system has nothing to do with either of these: artists and creative people are routinely "ripped off" without any copyright violation occurring, and copyright does not require attribution (and creative people are often not credited for their work under the copyright system). It has nothing to do with morals, it is a legal framework for promoting businesses that were important to society in the 18th century. It is as morally relevant to most people as a bill meant to promote the laying of fiber optic lines to built Internet infrastructure.
"People think (and I'd argue rightfully so), that downloading a movie should warrant the kind of slap on the wrist"
No they don't; most people think downloading a movie is fine because they want to watch it, and that it is just the fat cats in Hollywood who would care about stopping them. Hollywood has desperately pushed for a moral basis for copyright, but has largely failed: it's too complex and most people cannot be bothered.
Activists break the law and they get punished for it. That's part and parcel of civil disobedience. The injustice here is not that Aaron was facing punishment--it's the magnitude of the punishment he was facing.
He did intend to distribute the articles, even if he didn't actually do so. I'm actually unsure what I think about this; some say "no harm, no foul", but others point out that we don't normally let people off the hook for crimes they were in the middle of committing just because they were prevented from completing them.
Personally, I think that Swartz did not properly consider that even though the articles he intended to distribute were in the public domain, the scans of those articles he was downloading belonged to JSTOR. He also did not consider the impact of his actions on other JSTOR users at MIT. I don't think he should have served any jail time, but I do think a small slap on the wrist -- a small fine and some community service -- would have been in order. Felony charges, on the other hand, were way, way, way out of proportion.
I was expecting more of a response from the community over the course of almost an hour.
If treating her like an adult instead of calling for her immediate resignation is defending her then I'm not sure what to say... how can you have sane debates with ideologues?
FWIW I have quibbles with the letter (e.g. it's entirely within the purview of USSS to investigate "computer crimes" due to historical circumstances) but those are just quibbles, minor areas of disagreements where sane people simply might not agree.
I agree that I expect approximately zero to come of his letter, as least as far as concrete action is concerned. But, his letter is exactly the kind of thing that is needed to appeal to those who really can make a big difference in how computer crimes are treated (as opposed to pitchforks and shrieking).
I actually disagree completely. Ortiz is a US Attorney. Her office is entirely aware of the legal issues. Trying to calmly inform them is a ridiculous waste of time.
For some reason she decided to launch a hyper agressive prosecution against Swartz. I'm guessing she wanted a big public win to help her political career, and she figured an introverted nerd was an easy target.
Under those circumstances pitchforks and shrieking are the only thing that can stop this from happening in the future.
I don't disagree, but we've had plenty of pitchforks and shrieking. A calm, factual, but pointed response in addition won't hurt.
Well for starters, legal issues are not computer code, even the law is open to interpretation. Even trained experts in the law are known to disagree as to its meaning, especially for laws as intentionally vague as CFAA.
However, even assuming their expertise in the law, the U.S. Attorney's office are not automatically experts at the technology and what the use of the technology means (as we are so often reminded here on HN).
That is why this letter is bunk. Federal Attorney's and Prosecutors are NOT naive to cyber crime, law, punishment, etc. They've been to law school, studied case law, prosecuted cases, worked with law enforcement.
Andrew, stick to investing brother :-)
This would be a good example to study in case at some future date you need to write a persuasive letter to someone who did something that you don't like.
Just as the author stated, however, I doubt it will have any impact, though I would certainly hope that it does.
Disagreed. This is not what good prosectors should do. Maybe substituting "the average US prosecutor" for "any good" would be more accurate. But good prosecturs don't play the system by extracting plea bargains and guilty pleas under the threat of horrific penalties at trial.
Does this guy actually expect his letter to be read by Ortiz? It seems ridiculous to me that this guy thinks his opinion regarding the case matters at all. But now I know who he is and the URL of his website, so perhaps his more subtle goal was achieved.