DOJ Admits Aaron's Prosecution Was Political | Hacker News Reader

DOJ Admits Aaron's Prosecution Was Political

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520 pointsrrbrambley148 comments

> "Guerilla Open Access Manifesto" played a role in the prosecution,

The fact that something Aaron wrote "played a role" in the prosecution does not mean it was politically motivated.

It's a fundamental principal in our legal system that intent matters. Of course if you are charged with a crime the prosecutors will use whatever evidence they can to try and back their claims of what your intent was.

The HuffPo article explicitly states that this is what is being discussed:

> The "Manifesto," Justice Department representatives told congressional staffers, demonstrated Swartz's malicious intent in downloading documents on a massive scale.

So we're not talking about anything "political" here, they planned to use it as evidence. One can make a strong argument that it's lousy as evidence...but the fact that they planned to use it as evidence does not suggest any sort of political motivations (on it's own)...only that they are bad at selecting evidence for their case.

My comment should absolutely NOT be construed to say it wasn't politically motivated or that it was handled well....I'm strictly speaking about that one little line...you can't use that one line to support an assertion that it was politically motivated, because it's just not valid. Use other information to bolster the case instead.

> It's a fundamental principal in our legal system that intent matters.

Context error.

If Bob dies by falling off a bridge while I am grabbing at him, my intent matters a lot. Was it completely an accident, Bob slipped and fell and I tried to pull him back? Or did I hate Bob and plot for months to kill him and was pushing him? From a distance the two things may look the same - it's important to figure out what I was thinking.

But let's say I dislike Bob and even once wrote a blog post about him and his annoying toenail clipping habits several years ago. Some people might even speculate I would not be unhappy if annoying old "Toenail Bob" was dead. I haven't actually done anything to Bob though. Charging me with murder at this point because it is speculated I am thinking about killing Bob and might do so in the future on account of my having complained years ago about his toenail clipping habits would be prosecuting a thought crime. Even if I happen to have bought an axe and rope recently. Or maybe I even stole the axe. What about that? So I could be prosecuted for stealing the axe, that's fair. But prosecute me for killing Toenail Bob because I once disliked his clipping protocols? Claiming that is reasonable to charge people with things they may or may not be thinking of doing but have not actually done because "It's a fundamental principal in our legal system that intent matters." just doesn't make sense. Especially when there's plenty of evidence the axe and rope were for some other purpose, such as I buy a new axe every winter, I need the rope for my spelunking hobby, or I have an established and documented history of downloading large datasets as a professional academic researcher in order to do statistical analysis on them.

Your analogy doesn't fit, as Aaron was not charged with something analogous to murder.

It would be more akin to attacking, but not killing, Bob after having publicly declared that "It is a moral imperative that we should kill Bob." You might then be charged with attempted murder. The law[1] recognizes attempt and conspiracy to attempt as crimes, just as it would if you had attempted to or conspired to kill Bob.

This is not "thoughtcrime", either: it still requires you to take a swing at him with your axe.

I have an established and documented history of downloading large datasets as a professional academic researcher in order to do statistical analysis on them.

Consider (again, because I mentioned this in reply to you once before) that Aaron did not make use of his status as an academic researcher when he did what he did. It might have made a good defense had he gone to trial, but it isn't a magic bullet that absolved him of scrutiny for what he was observed doing.

[1] http://www.law.cornell.edu/uscode/text/18/1030

You bring up attempt, but we both know perfectly well he did not attempt to distribute papers. It's clear at this point you are arguing in bad faith and making specious arguments.

I assure you, it's just a misunderstanding. I am not saying or in any way attempting to imply that he attempted to distribute papers. In fact, I will emphatically state that Aaron Swartz was not charged with attempting to distribute the papers he downloaded. That's the reason the analogy doesn't work: it's not only that he didn't "kill Bob", it's that nobody even accused him of killing Bob.

If you look at the law, it's the combination of the actions that we all tend to agree that he did (the downloading and what that entailed) with the (alleged) intent of republishing them that constitutes the crime he was charged with.

>If you look at the law, it's the combination of the actions that we all tend to agree that he did (the downloading and what that entailed) with the (alleged) intent of republishing them that constitutes the crime he was charged with.

Except...no. He wasn't charged with copyright infringement, he was charged with violating the CFAA and wire fraud. How is whether or not he would have subsequently infringed copyright by publishing the papers to the world relevant to whether he committed those crimes?

That's why this is a big deal. The DoJ came in and said "we think he's going to commit a copyright crime after downloading all these papers, look at his politics" but they couldn't prove that (or else why didn't they charge him with it?), so they poked around for something entirely different to charge him with even though their motivation in prosecuting him was to punish him for the thing they couldn't prove he was going to do. Raise your hand if you think that's how prosecution decisions are supposed to be made.

he was charged with violating the CFAA and wire fraud

Um, yeah. That's exactly the law[1] I am referring to. That's why I linked to it before and why I'll link to it again. Go read it. Because the rest of your comment is just plain ignorant, and please understand: I don't mean that as an insult. You may mean well, but it's really counterproductive to make up your mind about something while remaining untethered to reality.

[1] http://www.law.cornell.edu/uscode/text/18/1030 (You may find the phrase "and with intent" to be relevant to answering both of your questions.)

The only place "and with intent" appears in the linked statute is when it makes up the phrase "and with intent to defraud." I'm not seeing how an intention to post articles on the internet would defraud anyone, so how is possible intent to infringe copyright going to satisfy a requirement for intent to defraud? Does the CFAA have some non-standard definition of "defraud" that I'm not aware of that would encompass copyright infringement?

> Claiming that is reasonable to charge people with things they may or may not be thinking of doing but have not actually done because "It's a fundamental principal in our legal system that intent matters."

You seem to be rather severely misunderstanding my post - please read it again.

This is silly. Intent matters but no one said it is solely sufficient for prosecution. Aaron was not being prosecuted for owning a laptop and network cable, he was being prosecuted for what he actually did with them--which is not under dispute. In that context, it is legally valid (i.e. not a sign of special political tampering) to consider prior statements when establishing his intent while acting.

A MANIFESTO CANNOT DEMONSTRATE MALICIOUS INTENT TO DOWNLOAD DOCUMENTS ON A MASSIVE SCALE BECAUSE DOWNLOADING DOCUMENTS CANNOT BE MALICIOUS

Edit: Sorry, not against you personally jsjunky, it's just that my mind is getting stretch marks from being twisted around. The all caps were it snapping back.

A manifesto written by the defendant discussing how there is a moral imperative to break a law is a pretty decent piece of evidence when you are trying the defendant for breaking that law. At the very least it demonstrates that he knew what he was doing.

Where in the manifesto does it advocate breaking the law? In fact it mentions that it should be public domain or purchased in the manifesto.

"There is no justice in following unjust laws. It's time to come into the light and, in the grand tradition of civil disobedience, declare our opposition to this private theft of public culture."

> A MANIFESTO CANNOT DEMONSTRATE MALICIOUS INTENT TO DOWNLOAD DOCUMENTS ON A MASSIVE SCALE BECAUSE DOWNLOADING DOCUMENTS CANNOT BE MALICIOUS

You're talking about something completely unrelated to what I am talking about.

No, they didn't admit that. An anonymous staffer told the Huffington Post they felt that the prosecution was overcommitted to a token prison sentence and felony convictions to justify the effort they had put into the case, and Swartz' "Guerilla Open Access Manifesto" was used as evidence to establish his intent.

4/5ths of Hacker News believed the day the news about Swartz came out, when we learned about the prison time demand, that this was what was happening. There has been no revelation, unless Taren or one of her peers was at the hearing and learned something different than the Huffington Post.

the prosecution was overcommitted to a token prison sentence and felony convictions to justify the effort they had put into the case

In short: to keep themselves from looking bad.

I wasn't sure, before I read this, that I actually wanted to see Ortiz and Heymann fired. Now I'm starting to think I do. Putting someone in prison just so you don't have to publicly admit that you shouldn't have been prosecuting them in the first place... I can hardly think of a worse reason.

I commented yesterday when these HuffPo rageview pieces started spooling out: you should listen to the WBUR piece on Ortiz's office:

http://news.ycombinator.com/item?id=5264200

Unlike Mashable or Techdirt, WBUR did actual reporting, talking to multiple defense attorneys that handled Ortiz-managed prosecutions, tracking down judges admonishing Ortiz, even finding people who had recommended Ortiz for the post who have since backed away. The WBUR investigation is packed full of details.

They don't paint a pretty picture! There is good reason to be concerned about Ortiz. There are concerns about the way she manages her office, sets up incentives for AUSAs, oversees cases, and handles transparency. The story they build is of a US Attorney appointment that is simply not working out. It's damning enough that I actually started to reconsider whether Heymann was really the root of the problem; if he'd been reporting to a different US Attorney, things might have worked out differently.

The most disquieting thing Ortiz says in the WBUR show is an offhand comment. "It's an adversarial system" she says, defending her aggressive handling of prosecutions. But while that's true at one level (prosecutors are technically & mechanically adversaries of defense attorneys), it's deeply untrue at the level she seems to mean it on. She comes off as believing that her job is to present the most aggressive possible case for conviction and let the judge & jury sort out the truth. But that's not the prosecutor's role in the US! Prosecutors have discretion over what cases they bring and are required to use it. It's very worrying when a US Attorney implies that it's not their job to deploy that discretion.

I hate to be the devil's advocate in this case, but how else would an adversarial system work? If you want to see an opposite situation, where the prosecutors have full discretion to the point that courts basically always side with them, look no further than Japan and its 99% conviction rate. http://ideas.repec.org/p/wpa/wuwple/9907001.html

Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.

http://www.roberthjackson.org/the-man/speeches-articles/spee...

In addition to being a Supreme Court justice, Robert Jackson was also Attorney General and also the chief prosecutor at the Nuremburg trials.

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.

I think we'll be waiting a long time for her to include careerism and score-settling among her motivations.

The same piece dismisses explicitly the idea that ambition and careerism played a part in these problems. The issue here seems to be one of competence, not of motivation or integrity.

I don't know, I don't think it comes down too hard on that point. I read it as some people think she's a weak manager, but it also describes weak cases that were charged whole-hog. I think it's probably a matter of interpretation and context whether the things in the article are a form of soft-pedaling for career's sake, bad lawyering, or misplaced priorities within the DOJ, or etc. It may have been a bit better of a study of her landscape if they had included Stephen Heymann in their reportage.

It is an adversarial system. But where Ortiz gets it wrong is that the purpose of the whole system is to deliver justice, not to crush an opponent.

Right. It's defense counsels role to throw everything they can in good faith at the prosecution. Prosecution has a more nuanced duty the public.

This kind of callousness and careerism happens with anybody who starts working in the industry of putting people in jail. They have to succeed in their organizations.

Because definitely a great way to ensure the best people are handling the difficult task of prosecuting criminals is to cast aspersions on everyone who's ever done that job.

I made that statement because the incentive structures & cultures of these organizations make it you have to behave this way on some level or get weeded out. It wont apply to everyone of course, but the overall trend points to it.

It's up to the people who hold the knobs on the incentives to make the changes they want to see.

I agree that if they though they shouldn't prosecute they should have dropped the case. Arguably, that's part of their duties as prosecutors. But we don't know what they thought. We just have huffpo rumors.

The government is chosen through a political process and so everything it does is political.

The DOJ's actions were heavy-handed in a way that has freaked out a lot of people who evidently never realized that the government was like this.

Anyone who has ever gotten a letter from the IRS or has been pulled over by a surly police officer knows well that even though there are laws which apply to everyone fairly, the way those laws are enforced is mostly left up to the discretion of whoever is enforcing them.

Try being an immigrant and dealing with INS officers or a traveler dealing with TSA. Our government has created all kinds of thugs whose job it is to put on a big show of force to intimidate people.

Why are government buildings so big and grand? To create a show of force and make our government seem formidable. Why are there so many ceremonies involving soldiers, government officials, marching, etc. Simply to put on a show and create the impression of solemnity, gravity, and importance.

Governments must continually act to keep the power they have achieved. They do this mostly through propaganda and PR efforts. Every white gloved soldier in a ceremony is a PR stunt. Every wood paneled room, dramatic monument, motorcade, marble building, podium, flag and seal are part of the PR show.

The world is full of greedy people who seek power over others. Whether it's an ambitious Carmen Ortiz or an up-and-coming young congressman or a mild mannered traffic cop. Each seeks to control others as a very significant portion of his/her motivation and life's goal.

Most people who do startups just want to build something and work with interesting technology and so we often forget just what government is. We must wake up and realize that it's about control and force, and now and then the victim of this control and excess is a fellow hacker and we start to take it seriously for a few minutes before we forget about it again. Don't assume that you won't be the target, don't adopt that conservative worldview.

I find it overreaching to conclude that every individual who is employed by the government in a law enforcement capacity chose their job out of a need to control other people. The world is not black and white and there are shades of gray. The police officers you despise hunt down the murderers, rapists, and child molesters that harm society, the soldiers fight against genocidal sociopaths like Adolf Hitler & Sadaam Hussein, and the congressmen you despise fight for things like universal healthcare. With regards to startups the primary motivation for most entrepreneurs, but not all, is to make money, not some noble goal of making the world a better place. Apple, Facebook, Twitter, Foursquare and the like do little or nothing to solve the world's most serious problems, they're just toys for upper middle class people with money and time to burn. Finally no reputable news source has reported on this story because everything is based on hearsay on what a "DOJ representative" allegedly said which fails to pass the credibility test for reputable news outfits such as the NY Times, Reuters, Washington Post, CNN, with reporting standards. Before you act on the word, consider the source.

But he didn't conclude that "every individual who is employed by the government ... chose their job out of a need to control other people", you put those words in his mouth. Neither did he say he "despised" anybody, you put that word in his mouth too. He didn't claim that startups weren't in it for the money, and neither were any of his statements predicated on any new information in the "unreputable" linked article.

I'm not sure why you've chosen to attack his comment on these spurious grounds. It'd be more interesting to discuss why it engendered an emotional response from you, or perhaps if you disagree with it then make a coherent criticism of his main point: that there exists a formidable power structure in our society and many of us chose to remain unaware of it.

He said this:

The world is full of greedy people who seek power over others. Whether it's an ambitious Carmen Ortiz or an up-and-coming young congressman or a mild mannered traffic cop. Each seeks to control others as a very significant portion of his/her motivation and life's goal.

That does imply that everyone who ends up in a position of government power does so in order to control other people. That's the problem when someone uses such strident language and paints with such a broad brush - its very easy to just call them out on their lack of nuance and over-generalization

It doesn't imply that every person in those jobs or roles does so for power, but rather that those that do seek out that kind of power end up in those jobs and roles.

"The world is full of..." is not a totalizing phrase. "Each," refers back to this clause.

The semantics leave space for people in power to work against that power. It does not imply what you believe it does.

You seem to take issue with questioning power at all.

I read the "Each" to refer to the prior sentence. Which is <example list of objectionable and non-objectionable government roles> which I interpret to mean, all government roles. While you may read it differently - I don't believe my reading is inaccurate or unfair.

Your interpretation of the sentence is arguably valid, but its derailing the discussion.

I'm going to give you the benefit of the doubt since I don't know if English is your first language, but I assure you that paragraph implies no such thing.

"I find it overreaching to conclude that every individual who is employed by the government in a law enforcement capacity chose their job out of a need to control other people."

Honestly, I look at all my childhood friends who became cops and such and I do see a correlation to their social statuses.

Individual goals will vary. GP's points still hold.

Some people want to start a business so that they can positively change the world. Many people who work for corporations and the govt may have similar aims in life. After all, this may be the only chance at life that you get.

"The police officers you despise hunt down the murderers, rapists, and child molesters that harm society, the soldiers fight against genocidal sociopaths like Adolf Hitler & Sadaam Hussein, and the congressmen you despise fight for things like universal healthcare."

And which of those things was Carmen Ortiz doing?

One of government's very effective dodges is to point at the truly good things it is doing and playing the hell out of them like they are the bulk of the work. But go look at a budget; how much of the budget of the federal government is actually spent on those things? Even just the discretionary budget? And when you see umpty billion dollars going to the "Justice Department", don't forget that nowhere near all of those umpty billion dollars are actually going to things like that. Only a fraction.

Yes, I acknowledge that I want a police force that adequately protects me. But after decades and decades of bloated growth, that is now no more than a mere sideline of government, not its core task.

The congressmen I despise aren't the ones fighting for universal healthcare.

> Finally no reputable news source has reported on this story because everything is based on hearsay

One could easily argue that none of the "reputable" news sources you mentioned would report on this because it would be damaging to the administration that they feverishly backed and helped get elected. Regardless of your political views, if mainstream media reported a factual account of what happened to Aaron Swartz, the "warm and fuzzy" image of the Obama administration would go right out the window.

This case is truly disturbing, and it shows prima facie evidence of an extremely dark and hypocritical underbelly to the current administration that I don't think most people believe could possibly exist. Some of the what has gone on in this particular case can only be described as evil, and I'm not sure that even the best PR spinners would be able to spin this in any other way.

With your "the 'warm and fuzzy' image of the Obama administration" you may have some answers I don't have to some questions I do have.

In simple terms, I didn't and don't 'get it', why Obama was elected in 2008 and even more why he was elected in 2012. And I don't 'get it' why so much of the MSM seemed to be part of the Obama campaign.

And in the 2012 election, looking at the map and the states and the counties and the voting in those places, Obama won big on the two coasts and the upper Midwest, that is, heavily in the more wealthy parts of the country. Just why the wealthier people liked him more is beyond me.

If you have some good explanations, maybe start with the MSM and their bias, e.g., pictures of Obama wearing a halo. Then continue with the TARP program: Remember there was TARP I that Paulson did and then TARP II which was very different. For TARP I, that apparently was designed to make a statement to the world that the banks were too strong for a 'run'. So, Paulson stopped massive runs on the banks. And TARP I was paid back in full, or nearly so, ASAP. Wells Fargo didn't want or need the money, but the high interest rate cost their stockholders $2.5 billion. TARP II was very different, a big give away to many small parts of our economy. Yet the MSM never made an issue of the give away and kept talking about TARP I as a Wall Street 'bailout' -- Wells Fargo and others might say that they were ripped off, not 'bailed out'. Besides, everyone who paid back the money can object to 'bail out'. Then there was the $92 billion or so for 'clean, green, pure, pristine' energy, that was almost entirely wasted. $92 billion here and there, and after awhile it adds up to real money. Then there was the real cause of The Great Recession, that is, the housing bubble. The real cause was Congress trying to please the CBC with the CRA and Fannie, Freddie, and FHA backing junk paper and ignoring the bubble and trying to 'spread the home ownership around', and Obama was one of the main leaders in that effort. Then there's the Obama AG .... And there's more. So, the NYT, Time, WaPo, ABC, CBS, NBC, SAI, and more were totally in the tank for Obama. Why?

I'm not trolling or joking or playing politics. Instead, I know I don't understand what happened, e.g., why the MSM and the two coasts and the upper Midwest went for Obama, and want to know why. If I had bet, then I would have lost. I read it wrong, all wrong. You have an explanation?

wow lots to address here and I generally have a policy of avoiding political discussion on HN, so I'll refrain.

However I'd just say rather than looking at maps and guessing about wealth distribution you can just look at the exit poll data.

http://imgur.com/tzToXpv

Source: http://www.foxnews.com/politics/elections/2012-exit-poll

Google gave me fox news, but exit polls are exit polls so I'm willing to go along with it. :)

Thanks.

http://imgur.com/tzToXpv

Nice data. Basically Obama won only among people with less than $50 K a year.

Wow! The exit poll data is amazing -- the poor, the non-whites, the women, the less educated except Obama also won the postgraduate crowd! Amazing.

Partly you are correct about my error in geography. But there is still an issue: Romney won in a lot of the less wealthy geography -- as I recall, Kentucky, Tennessee.

Maybe the Romney 49% comment was a more serious torpedo below his waterline than I estimated.

In simple terms, the Republicans were too happy with themselves and 'conservative principles' and just seriously failed to 'please enough of the real customers'.

But I still don't quite get the MSM bias: The MSM, especially the 'good demographics' the advertisers want, and from the data in your two links, should have an audience that voted for Romney. My only guess about the MSM is that it is populated by people who are totally interested in gumment and, thus, want to see more gumment and gumment do more and, thus, are for the Democrats. But at least for much of the campaign, Fox News had ratings that no doubt meant that the biased MSM outlets lost a lot of money, and I'm surprised that the biased MSM 'suits' upstairs would put up with that.

Looks like the Republicans have to get out of conservative country clubs and get with more of the real people, and some investors can do some MSM takeovers and make some big bucks.

Thanks.

>You have an explanation?

I can explain it. Obama is no saint but the Republicans are ten times worse. They go on TV and pander to religious extremists, deny evolution and climate change, take absolutist positions on taxes while decrying deficit spending but refusing to touch social security or military spending, adopt comprehensively anti-liberty positions on social issues while paying lip service to small government, use the filibuster and confirmation hearings as bargaining chips against totally unrelated policies, start a bunch of unnecessary wars and promote a police state where the federal government is listening to everyone's conversations without a warrant and I can't even get on a plane without taking off my shoes.

Obama was supposed to have done something about all that. That's why people voted for him. The fact that he hasn't has been sorely disappointing to a great many people -- and the tragedy is, now what do we do to stop it?

Thanks for your response. Maybe we are close to a boundary of what HN will tolerate. So, I shouldn't try to comment on all you mentioned.

In effect, commenting on the Republicans, what is crucial is simpler than your list -- they lost!

For a politically neutral response, all I wanted was good gumment. I'm registered as a D but try to vote just for good gumment. I like my Congressman, and he's R.

But as you will see below, I learned a lot from the two links from antoko.

At times I was shaking my head or screaming or both at some of the Rs talking about 'abortion': Why? Because Roe has been the law for 40 years, and no matter what anyone wants about Roe, there's zip, zilch, zero chance Roe will be changed. So, talking about it is just to get some people up on their hind legs for nothing.

Then the political strategy question is, what were the R gains from the people up on their hind legs? My guess was, negative: The Rs had those people anyway, and talking about abortion just cost the Rs a lot of votes otherwise. E.g., a lot of single women were scared. Then look at the two links and see how the women voted, scared. Maybe talking about abortion got some Rs some $ donations, but I have a tough time believing that that was an issue. Net, I just didn't 'get it' why so many Rs talked so much about abortion. Sure, maybe Rove helped W win an election in Texas that way, but in national politics? Gads.

Places where I wanted better gumment: Fighting two foreign wars for 10 years each. Gumment backing junk housing paper and, thus, blowing the housing bubble that crashed, wiped out financial assets and bank reserves, much as in The Great Depression. Our gumment did it to us. Gumment should have seen it coming and executed a soft landing. Supposedly both Clinton and W saw the problem but concluded that politically they couldn't do anything about it and, then, just hoped for the best. Bummer. What will gumment do next? See a big flu epidemic coming and not tell anyone because gumment leaders don't want to be blamed for the sting of a flu shot needle? I believe that we should be doing more with fission nuke power, but apparently we're not. I just don't think we have gumment nearly as good as we should.

Your question of what to do about it is on target. Of course the short answer is, have people demonstrate, have some politicians take up the positions, and have the voters vote them in. I thought that somewhere between 2008 and 2012 we would have had a few million people on the Mall in DC screaming for better gumment, but we didn't.

On Obama, if take some of his positions, e.g., his SFC interview of his intention to shut down all the coal fired electric generating plants, then 49% of our electric power and 23% of all of our energy (in a DoE report), then I was outraged. But he hasn't done it. To me there is a pattern: He says a lot of things; some of the things please some people, outrage some others, and get ignored by others. Then when that issue is out of the news, he says more things. Next to none of what he says actually leads to corresponding action. So, net his actions have not been nearly as bad as I feared. I still believe that he is a poor president. Then I have to conclude: I'm in the minority or nearly so -- he is still relatively popular. I don't see just why, but he is. Then this comes back to your issue of how to get better gumment: As long as Obama is as popular as he is, I don't see much hope for big demonstrations for something better. If nothing else really bad happens, then he will be able to have served for 8 years and leave often regarded as at least an okay president. So, our chances for something a lot better don't look good.

Then for the Rs, from the noise I hear from them on how to do better next time, I don't hear much that looks like it will win elections. Instead, the Rs are still talking to themselves about what their right wing dreams of and ignoring everyone else. I don't think that what they are saying is really good gumment, and I think it will lose in elections.

For the biased MSM, I don't have a clue what they will do.

To me, the saving grace is our founding fathers and our Constitution and, in particular, that the Rs have the House and the Ds have the Senate so that there is 'grid lock' and not much gets through and there's lots of talk that doesn't mean anything. In particular, Obama can ask Congress for anything he wants, but he will have a tough time getting back even a resolution in favor of apple pie. So, such grid lock is not good gumment but not the worst thing that could happen.

Sorry guys, I wasn't trying to start a political debate on HN. I was just stating the fact that most of the media sources mentioned in the comment I was responding to are very much pro-Obama administration. That could conceivably affect their decision not to report on cases like this that simply can't be spun in a positive light. Regardless of what party is in power, if they are committing acts against US citizens that are wrong, they need to be publicly called on the carpet for it.

They aren't pro-Obama, they're just pro-whoever's-in-power. It's called "access journalism," and is both inherently political and super lame.

http://threads2.scripting.com/2012/december/cynicismAmongRep...

"the soldiers fight against .... Sadaam Hussein". Before arming the next group of sociopaths nominally running the country, and leaving in disgrace from the smoking ruins of said country. Kristen, baby, I didn't ask "the soldiers" to invade Iraq, so they will get no thanks from me for that war. By the way, when's your next vacation to Baghdad?

Think about it this way. Suppose an activist decides that he/she wants to run for office to make a difference on some issue that matters to him/her and gets elected.

The activist does not strive to get 100% of the vote, only the requisite majority to pass a law, thus forcing the minority to abide by a law it does not support. Consider pre-Brown-v-Board black students who had to follow the law and attend segregated schools. They were in the minority subjected to the will of the majority. The same goes for poor students today who are unable to obtain a school voucher b/c they are in the political minority and so must attend vastly inferior schools.

So my statement is trivially true for all efforts to create legislation that is not unanimously supported, regardless if history decides the majority view is enlightened or backward.

It's a good thing that Aaron wasn't around to 'unlock' his phone from his cell carrier; they would have really gotten him then. :D

I took the statements by grandalf as meaning 'some' or 'many' and not literally 'all'.

But notice

http://www.businessinsider.com/a-third-of-people-manipulate-...

with

About A Third Of People Have A Fundamental Desire To Manipulate Others Max Nisen | Dec. 4, 2012, 7:07 PM

So if there is 1/3rd in the general population, the fraction in 'fitting' parts of gumment might be much higher, still not 100% but high enough to underline the grandalf theme.

You've hit the nail on the head, but come to the wrong conclusion. Signals of the authority of government are good things, within reason. We are merely tribes of monkeys--without authority we'd do whatever the hell we wanted and that's not how civilization happens. The alternative to living under government authority isn't just peacefully building things and working with interesting technology. It's living under the authority of different thugs. Thugs we don't vote for, thugs we don't pay the salaries of, thugs we don't have any influence over.

My family comes from a country where the government has little authority (Bangladesh). It's not a good thing. People don't respect the law, and it's a deep moral failing of the country. It's a contemptible characteristic of the people. It's a hindrance to collective prosperity. I note with some amusement that tons of people like my father got the hell out of Bangladesh and moved to a country where he paid much more taxes, where there was much more regulation, much more oversight of society by government. Yet, not very many people seem to want to do the opposite.

While I agree with your overarching point that it's a good thing when institutions gain legitimacy and authority, I think it's also important to appreciate the corrupting influences that exist within organizations. In the corporate world we have watchdog groups, regulatory agencies, etc. But for governments there are few checks and balances. The US Government has conducted a war on whistleblowers and watchdog groups.

In my view, the government is just the gang that drove out all the rival gangs and got rich enough to start laundering its reputation, rewriting history, etc.

Even in 2013, the atrocities committed by the US government are worse than those of nearly any criminal gang in the world. Consider rendition. Consider drone attacks on children.

"Even in 2013, the atrocities committed by the US government are worse than those of nearly any criminal gang in the world."

I think you are greatly underestimating the criminal organizations of this world. Look into the Zetas cartel in Mexico, for example. Sure, American military strikes kill civilians, but we don't have a policy of targeting innocent civilians.

Our rendition and torture programs are not governed by the rule of law and are known to take into custody many innocent people. The decision to carry on with these programs even though they are quite flawed is essentially the decision to carry out collateral damage on civilians... on purpose.

Also, don't be deceived and think that "smart" bombs and missles are smart enough to avoid lots of civilian casualties. They may be better than the previous technology was, but they are far from perfect, and considering that they are used outside of an actual war (targeted strikes in mostly civilian areas) there is definitely the deliberate tradeoff being made to commit some very horrible atrocities in the hope that the actual (though still extralegal) target is the one who gets killed.

And, when you consider the horrible regimes we support and fund (yet also turn on when their atrocities are exposed) it becomes clear that the US Government is the largest sponsor of human suffering in the world.

This is too bad, and it's escalated under Obama. Our militarism is out of control to the point where a massive propaganda effort must be used to keep the public supporting it. Smart bombs are actually propaganda bombs, b/c the footage can occasionally be used as part of the "good guy" narrative that is fed to the public.

I'm quite ashamed of this as an American citizen !

the thuggery starts at the top and because of that it becomes accepted behavior by those within. Look at the mindset these people have, what we see playing out with the budget games in Washington I have seen the same at the local level.

They play the thug, always threatening their own constituents with less services, longer lines, less safety, and if all that doesn't work they go after your freedoms. The insinuate, they investigate, they intimidate.

To use a favorite term of the political class but in a different way, we have a government too big to fail.

One of mankind's greatest insights in the past few thousand years was the idea of not seeing all phenomena as caused by human motives, jealousies of gods, etc.

I don't disagree wholly on substance here, but will point out that, according to the WBUR investigation, many of the issues coming out of Ortiz' office were not because she sought to control others, but that she didn't wield enough and let others control her:

http://www.wbur.org/2013/02/20/carmen-ortiz-investigation

(Seriously worth a read; even if you skim, be sure to read the case descriptions in full. They're pretty shocking.)

  | The same law that says that anyone using a fake
  | middle name on Facebook is committing a federal
  | felony.

Federal prosecutors tried to get this interpretation through the courts with that mother that drove her daughter's 'rival' to suicide via MySpace. It didn't work. The judge threw it out, rightly stating that interpreting breach of ToS as a Federal crime effectively allows companies to set the bar for what is a Federal crime (e.g. "You must always access this website while standing on one leg or else we revoke your permission to use it! Now you're a 'hacker' with a felony conviction. Have a nice day.").

It should be pointed out that unless the case went to the Supreme Court, a different circuit could yet come to a different conclusion, so better to fix it nationwide through Congress than risk some other court siding with prosecutors (and that defendant having to argue it to a different circuit's appellate court even if the court comes to the same conclusion).

Also:

>interpreting breach of ToS as a Federal crime effectively allows companies to set the bar for what is a Federal crime

Reminds me of something Larry Lessig said during his speech last Tuesday: The alternative interpretation is that it's a violation when someone violates code-based restrictions, right? So you're still allowing companies to set the bar for what is a Federal crime, they just have to do it in code instead of in contract. Write some nominal piece of code whose stated purpose is to prevent the thing you want to prohibit, even if it's facile and trivially bypassed, and now bypassing it is apparently back to being a federal crime again. Is this really something we want to allow? Shouldn't the law require prosecutors to prove there was some actual harm before we go throwing people in federal prison?

It should be pointed out that unless the case went to the Supreme Court, a different circuit could yet come to a different conclusion

Sorry to pedant, but a case will typically not get to the Supreme Court at all unless two circuits come to different conclusions.

http://en.wikipedia.org/wiki/Circuit_split

If we're really going to be pedantic, it won't get to the Supreme Court unless they grant a petition for a writ of certiorari or it's one of those rare, few types of cases where the US Constitution says the Supreme Court has original jurisdiction.

They do deny most such petitions, though, and resolving circuit splits is one reason they might grant cert.

Circuit splits are by far the most common way of getting cert. They don't grant cert to every circuit split, but most of what they do, however...

Indeed, and I should probably clarify one thing from what I wrote above: if the Supreme Court had original jurisdiction over a case, it would start with them, rather than being appealed to them. There aren't a lot of cases like that, though.

>Sorry to pedant, but a case will typically not get to the Supreme Court at all unless two circuits come to different conclusions.

I don't see how that is inconsistent with what I posted.

The difference is that your point was based on a single circuit ruling, where it's pretty much required that the "another circuit ruling differently" happen before it's even possible to get to the SC. That is, unless the "another circuit" is the third or more circuit to split on the law, it won't get to the SC at all (pretty much, see elsewhere here) before there's a second, different, verdict, obviating the "unless" in the sentence I quoted. Again, pedantry.

>The difference is that your point was based on a single circuit ruling, where it's pretty much required that the "another circuit ruling differently" happen before it's even possible to get to the SC.

It isn't a requirement that there be a circuit split before the Supreme Court will take a case. You're certainly right that a circuit split makes it a lot more likely they'll take it, but that doesn't make it a prerequisite. They've been known to take important cases of first impression without it. If we're going to be pedants then we have to be pedantic, right?

I never said it was a prerequisite, "pretty much required" is not "requires," and have gone out of my way to couch my point with wiggle room. Yes, it's not required, but these days it's pretty much all they work on. It's just an observation based on historical behavior, not an analysis of the various paths by which a case can make it there.

>Write some nominal piece of code whose stated purpose is to prevent the thing you want to prohibit, even if it's facile and trivially bypassed, and now bypassing it is apparently back to being a federal crime again.

I'm not sure what I think about this, but here's a real-world analogy to consider. Suppose I have a storefront, and I keep the doors unlocked, but I put a small sign on the door saying you can't enter unless I've issued you a membership card. Should it be a crime to enter without one? Probably not. Now let's say I get a card reader-based lock, so you can't enter without a card. Even if the lock is easily bypassed (let's say I've left a window open), isn't it reasonable to consider it a crime to do so?

That's hardly an apt comparison. People are wary about unlawful trespass on private property and there are numerous and typically obvious signals which people use to understand which private property is out of bounds for entering without explicit permission and which private property has implicit permission to do so. More so, a sign specifically detailing the rules necessary for entering would make this even more clear and there would be little or no reasonable defense against someone who went out of their way to break those rules. And it would be a crime to do so, either unlawful entering, breaking and entering, or trespass, depending on the specific circumstances. However, these are local misdemeanor crimes, not federal felonies. Though if someone walked through an obvious hole in a fence in order to intentionally bypass the security on, say, an army base that could be a felony.

The internet includes just as varied a spectrum of activities as does private property, so the implications and consequences of violating the ToS for a given site are, or should be, equally varied.

For what it's worth in the UK that would still be trespass, a civil offence. If you had intent to burgle that would be a crime, but if you had no criminal intent it would stay a civil matter.

Edit: removed incorrect example - thanks seebee

Not since 6 months ago: http://www.justice.gov.uk/news/features/2012/squatting-new-c...

Ah thanks, I wasn't aware of that. Squatting was a bad example then, but in general if you have no criminal intent it would still be a civil offence.

So in the UK if someone trespasses on your property, you can't call the cops to have them removed, you have to file a lawsuit?

Well, before the squatting laws were changed, effectively yes. You had to go to court, get a court order, then if they ignored that then bailiffs and possibly police.

Edit: squatting was I believe a special case as squatters gained rights as residents. If you are asked to leave and don't, I believe the police could then be asked to remove you.

I think 2012 was the year that real world analogies for digital cases stopped being seen as useful for discussion of legal issues.

The Simple or complex circumvention of rules, which cannot themselves be considered valid expectations of usage, should be weak grounds for prosecution.

The law depends on reasonable interpretations of intent and harm, not tricks of code. If your nominal piece of code "protects" something that is reasonably understood to be public, and if access cannot reasonably be interpretted to cause harm, then the code does not create a federal crime.

But, wait, isn't that unworkably fuzzy? Who gets to decide what is reasonable? Ultimately the answer would be a judge or jury of your peers.

>The law depends on reasonable interpretations of intent and harm, not tricks of code. If your nominal piece of code "protects" something that is reasonably understood to be public, and if access cannot reasonably be interpretted to cause harm, then the code does not create a federal crime.

Can you cite any court opinion interpreting the CFAA that says anything resembling that?

>But, wait, isn't that unworkably fuzzy? Who gets to decide what is reasonable? Ultimately the answer would be a judge or jury of your peers.

Or more likely your local prosecutor, since the vast majority of cases never go to trial. And given that, shouldn't we try to do better than "unworkably fuzzy"?

What I am describing in my first sentence is an aspect of U.S. law in general. If you can cite precedent that disagrees with my second sentence, I'd be very interested to read it.

All law is fuzzy because human concepts of morality and right and wrong are fuzzy. That is why we rely on human judges and juries to interpret them.

>What I am describing in my first sentence is an aspect of U.S. law in general. If you can cite precedent that disagrees with my second sentence, I'd be very interested to read it.

How about the DMCA prohibition on circumvention of DRM in light of the process set out in 17 U.S.C. 1201(a)(1)(C) regarding the Librarian of Congress exempting DMCA circumvention from criminal liability in specific circumstances. The very existence of the latter admits a violation of your second sentence, because if the law did not prohibit such things in the general case then there could never be anything to request an exemption for. And the possibility of an exemption being granted doesn't disprove the point because any act falling into your category when the "code" is DRM remains prohibited unless an explicit exemption is both applied for and granted, and then renewed every three years. The exemption for jailbreaking phones that recently expired provides a concrete example of that not happening.

>All law is fuzzy because human concepts of morality and right and wrong are fuzzy. That is why we rely on human judges and juries to interpret them.

This is a popular refrain used in response to engineering types who naively expect the law to be so fully specified that it can be subject to mathematical analysis or proved to be internally consistent, etc. And it's true that for pragmatic and practical reasons we can't have laws that are perfectly clear and utterly unambiguous. But that doesn't mean we can't have laws that are more clear and less ambiguous, especially where the starting point is something as overly broad and unclear as the CFAA.

In light of this, it is clear that Ortiz and Heymann should be in prison. I made this same comment in a thread earlier and got a bunch of snivelly equivocating about "intent" as a reply...that is just invalid here. These people either didn't like or criminally misunderstood something Swartz did and used that and the position given to them by the government to terrorize him. Inexcusable, at least and it should be criminal (if it's not outright already).

got a bunch of snivelly equivocating about "intent" as a reply

As somebody that took time out of his evening to address your prior comment with what I felt was sincerity and (I hoped) clarity, I'm sorry it came across to you as "snivelly equivocating".

that is just invalid here

It may help you to understand the relevance of intent better if you look at what Taren writes in the footnote: "His lawyers instructed him very strictly that he should never talk about motive with anyone before the trial, as it could play a key role in the defense and they didn’t want the prosecution to get any hint of what line of argument might be used."

As I said in my prior comment: In law, intent (if it can be proven) can make an enormous difference in what you get charged with or convicted of. Far from being invalid here, the importance of someone's intentions in a case like this is exactly why prosecutors would look at Swartz's prior writings and why his lawyers would instruct him not to discuss it.

Assuming that what is charged here is true - namely, that the prosecutors brought the case against Swartz because of his philosophical writings on open data - any minutiae of the case is irrelevant. Thank you for your explanation of the importance of establishing intent in the context crminal law, but couched in the bed of prosecutorial misconduct that it apparently is, it just isn't relevant here and even bringing it up is compositional sophistry.

If I, as a prosecutor, decide to charge you with felony assualt because I don't like the color of your shirt, it simply does not matter that you either A) Slapped someone in the face last year or B) Wrote on your blog that you intended to do it. My case is prima facie invalid - I am not allowed to charge you with felonies because I don't like the color of your shirt or because I don't like your philosopy on government transparency.

Assuming that what is charged here is true - namely, that the prosecutors brought the case against Swartz because of his philosophical writings on open data

The whole point is that it's not true! It's just something HuffPo, et al. are spinning out of a much less controversial statement about what evidence they considered to establish intent. The strongly-conclusive headlines do not match the actual story here. Defending the bullshit headlines doesn't make them true--that's not how truth works.

Ortiz tried to prosecute a lawyer who was just doing her job. The judge threw it out of court. So fortunately for Ortiz, the kind of miscarriages of justice which she advocated for aren't too likely to happen.

Many people speculated throughout the whole ordeal that this was a political prosecution [...] but Aaron actually didn't believe it was

Aaron was an idealist that had some idealistic misconceptions about reality. Being an intelligent and nationally famous activist, which he was well on his way to becoming, is not something you can do without ruffling the feathers of some very powerful people. He knew it [1], but his idealism stopped him from understanding what it meant for him, personally. I'll admit I don't know much about "how Washington really works", but I wouldn't be surprised if those with such power over senators have some sway with prosecutors, as well.

1. "You don't just introduce a bill on Monday and pass it unanimously a couple of days later [...] but this time, it was going to happene [...] somehow, and the kind of thing you never see in Washington, the senators had all managed to put their personal differences aside, and come together to support one bill they were persuaded they could all live with, a bill that would censor the internet, and when I saw this, I realized, whoever behind this was good [i.e. powerful]". https://www.youtube.com/watch?v=Fgh2dFngFsg#t=411s

That video is heartbreaking to watch.

OT: Why doesn't web text flow anymore?

I increased the text size of this post because it started uncomfortably small (for me). Curiosity made me keep increasing the text size until it hit both ends of my browser, then I increased it some more and the text disappeared off the ends. The text did reflow as the size increased, within some internal margin set by the site's style, so it's clearly possible to reflow within the bounds of the window.

Why doesn't it reflow to stay inside the window, and why is this considered good? I vaguely recall that it used to be normal to reflow and keep everything visible.

I checked with FF and Chromium on linux, same behavior.

Basically: browsers started scaling pixel sizes years ago, so if you set the width of the page as a pixel size it will scale when you zoom the page. If you use sizes relative to the size of the text (ems or rems) to set the widths of containers, then those will scale when you increase the text size.

Developers can turn zooming off on mobile devices by specifying a fixed viewport which obviously upsets a large subset of people. (But then you potentially have the pinch gesture to yourself and it isn't intercepted by the system, but I digress..)

Alternatively percentage based and max-width css can be used on containers and then you can probably start to get the behaviour you're looking for. I'm not 100% sure if browsers will scale max-width. You can probably set pixel widths on containers and use percentage based sizes for fonts, but then a) you're assuming the default font size is 16px forever and b) the results are still going to depend on whether the browser scales text or zooms the entire page.

In this website's case it probably wouldn't be very helpful if the text scaled up without the design going wider, though. Maybe one or two steps but at a point the main column width gets ridiculously narrow.

Oh and obviously you can just never give containers widths, but then you probably get that html 1.0 look where text just goes all the way from one edge of the screen to the other.

I don't think it really is a solvable problem in a way that will make everyone happy all the time.

"This is making me angrier than almost anything I’ve heard since Aaron died. I finally figured out why: Because I worked my ass off to elect the Obama administration in 2008. I helped these people get in power. And then they drove the man I loved to suicide because they didn’t like something he said once."

A lot of people think the Democrats are lot more socially and politically liberal than they really are. Look no further than their repeated reiteration of punitive "War on Drugs" policy. The Democrats play that tune during elections, but it's a scam... as much as the Republicans and their Jesus babble. (Karl Rove is an atheist.) Both parties are absolutely status quo parties. Since the Reagan era, their stances have differed significantly only on hot-button "culture war" issues-- because these issues are really just tools to segment the electorate. On issues that matter to money and power they differ little if at all.

I don't know her, but I wonder if Taren S-K is going to define the rest of her life w.r.t. being Aaron's "widow". That can't be healthy, either.

No it wont.

After a decade, it will be a far fainter association, current trajectories of life being held equal. Beyond that...say after 3 decades? There will be a new generation of whipper snappers saying all sorts of stuff that barely intersect with today's actors. (They will intersect with the issues and choices we make today)

She will not be defined by it unless she chooses to pursue that path.

It hasn't been two months yet. Many cultures settled on one year as the reasonable mourning time, after which people are expected to get on with their life. Some people need less, some people need more.

Your comment might be warranted in five to ten years if she does indeed define herself that way.

I was thinking this too. More so along the lines that she will learn to master karate and katana sword skills over the next 10 years, and exact her vengeance upon the US Prosecutors office.

Is the governments recent announcement that they would make all tax-funded research papers free to access a big enough silver lining for people to forget about Ortiz and Heymann?

I hate to say this, but the DOJ didn't kill Aaron Swartz...he took his own life. Selfishley, if I may so. Many activists stand up to the oppressor, raise awareness, fight, he didn't. Not taking anything away from what he was trying to do with JSTOR (semi-noble), but don't blame the DOJ on his death.

Do blame them for bringing down the sledge-hammer though.

"If you wish to keep slaves, you must have all kinds of guards. The cheapest way to have guards is to have the slaves pay taxes to finance their own guards. To fool the slaves, you tell them that they are not slaves and that they have Freedom. You tell them they need Law and Order to protect them against bad slaves. Then you tell them to elect a Government. Give them Freedom to vote and they will vote for their own guards and pay their salary. They will then believe they are Free persons. Then give them money to earn, count and spend and they will be too busy to notice the slavery they are in." -Alexander Warbucks

Surely 'intent' only becomes material after some crime was actually committed? Otherwise prosecuting just for intent alone makes it into a thought crime?

Specifically, in this case, I do not understand how the shills are hoping to keep justifying the use of the manifesto as proof of intent to distribute the articles, when he has NOT actually distributed them? How can that be possibly relevant?

Or is it the case that we are not only not allowed to read research that we paid for but now are potentially all guilty of thought crimes as well?

Please refrain from referring to hn posters who disagree with you about the scope of "thought crime" as "shills". It's unbecoming.

Yes, intent only matters if you've committed a crime, but it's not at all difficult to argue that Swartz probably did commit a felony under the CFAA. If you can't see that, imagine he had downloaded loosely protected private emails or credit card account lists.

"imagine he had downloaded loosely protected private emails or credit card account lists"

Respectfully I don't think that's a great argument. That what he did is in the public interest (imo) is central to the issue. You can't just ignore that.

That's more of a factor for the sentencing phase of a trial (a "mitigating" factor to be considered when adjudging a proper sentence).

What you propose is vigilante justice (though without the violence we normally ascribe to it) and though I too am often sympathetic to that, the legal system is not (and we as a society have chosen that on purpose).

I don't think I am proposing vigilante justice, are you confusing comments here perhaps?

The intent is absolutely a factor at the decision to prosecute stage.

You're trying to equate an act in the public interest (freeing academic information), with an act with clear criminal intent (credit card fraud). They simply aren't treated the same way and nor should they be.

I read your comment as essentially advocating vigilante justice as well. If you are not saying "we are free to steal if we think it's for the public good", then what are you saying?

You're describing civil disobedience, not vigilante justice.

"Vigilante justice" is simply justice applied outside of the legal framework.

I see what you're getting at with civil disobedience though... I suppose the difference is in scope and scale.

Someone passively resisting a bad law can certainly be said to not be a vigilante; they're not actively trying to to bring about their desired brand of justice, they are simply refusing to comply with the current legal version of it.

One would not expect to bring out change only by themselves via civil disobedience, it's power comes from being applied across a group of people. Vigilante justice is different; you simply fix whatever situation is unjust.

If Aaron had simply complied with his own manifesto (e.g. downloading an article at a time, organizing others to download articles, etc.) I think we could safely say he was simply being civilly disobedient.

But he kicked it up a notch. He used technology to speed up his extraction of the entire JSTOR database. He evaded network blocks in the process. When he finally could go no farther on Wifi he hooked his computer directly within the assumed-safe MIT subnet. In short, civil disobedience was taking too long for him and he decided to escalate.

So even if one agrees substantially with his desire for open access I hope it is understandable why people might disagree with his methods, and furthermore to understand why the legal system would disagree. We as a society have deliberately chosen to punish vigilantism because it breeds a world where justice applies only to those strong enough to enforce their worldview.

Although Aaron was not physically violent he certainly had a leg up on 99.9% of the rest of the U.S. population with regard to "cyberskills", does he not? If I stole a million cars and returned them without a scratch to their rightful owner in order to achieve some desirable positive goal I would still get in trouble, because I am not Caesar and therefore don't get to decide which laws do and do not apply to me (however virtuous I might be as a person).

We can debate about misdemeanor or felony, whether 3 months of prison or no jail time at all is appropriate but people seem to be shocked and amazed that the legal system would have taken an interest at all in this case, and I just don't understand why people think that.

I'm sorry but vigilante justice and civil disobedience are quite different concepts.

My comment advocated neither. I merely pointed out that pubic prosecutions should only proceed if they are in the public interest. Hardly that radical.

> I merely pointed out that public prosecutions should only proceed if they are in the public interest.

Sure, everyone agrees on the tautology, just like no one in Washington claims to like "Big Government" or wasteful spending.

If one considers it in the public interest to ensure that those with advanced computer skills do not use those skills to essentially write their own laws, then it's not hard to see why prosecutors like Ortiz and Heymann would consider it necessary to bring charges against Swartz.

It's "cybercrime", which they are responsible for prosecuting, the suspect has a manifesto indicating that this won't just be a one-off affair, the suspect has in fact done stuff like this before at a lesser scale, etc. etc.

Now you or I might say that it's all for a good cause and that we can trust Aaron not to do anything actually seriously malicious, but I can also see why a reasonable Federal prosecutor just doing their job would not agree.

That's not to say Ortiz has clean hands on all of this, just that there really is a plausible "public interest" reasoning to charging Swartz with something. If Swartz were allowed to continue unfettered where would it end (when you answer this remember that you're a lawyer, not a computer expert)?

It's easy to say that IP law is stupid in a world of patent trolls and continuously-expanding copyright for corporations but that doesn't mean the right answer is to burn the whole building down.

For instance, how did Swartz verify that he only downloaded publicly-funded articles? How much collateral damage is acceptable in the name of Open Access?

Swartz may have had answers to all these questions but they're questions none-the-less, and questions I would expect that a reasonable U.S. prosecutor might have as well.

So you think people should be prosecuted for something they might do?

I don't think I even hinted at anything that stupid... Swartz did enough to face the possibility of charges even without counting what he might have done later.

I am saying that the possibility of re-offending is one of the things a prosecutor has to consider when judging the public interest, especially in a resource-constrained environment.

What do you think his offence was then? He had the right to access all of the articles he downloaded individually. You seem to be suggesting that he should be prosecuted because he might have distributed them.

> He had the right to access all of the articles he downloaded individually.

Had he downloaded them all individually he might have retained that right. As it stands, MIT and JSTOR both took action to remove his specific permission to do so, so it is incorrect to say that he had permission to download anything from JSTOR after his download permissions were removed.

He should be prosecuted for repeatedly gaining unauthorized access to a computer network that he had no permission to be on. The manifesto simply shows to the prosecutors why he was doing that in the first place, and why he wasn't just some bored MIT student on a pen testing spree.

"Yes, intent only matters if you've committed a crime, but it's not at all difficult to argue that Swartz probably did commit a felony under the CFAA"

You are not saying much here. The CFAA is so broad that one could argue that any Internet user has violated it at one time or another. We might as well pass a law that says, "You are a criminal if the government does not like you."

"If you can't see that, imagine he had downloaded loosely protected private emails or credit card account lists."

Hm, I see where you are going. You are saying that if a business posts a bunch of credit numbers on its website, and says to everyone, "Please only download these numbers one at a time by manually clicking on the links on our website," it should be a felony for someone to write a script that automatically downloads all the numbers.

Aaron downloaded many research papers which, individually, he had every right to do. I remember it and at the time it was quite clear that the reason he needed so many papers was because he was doing statistical research on them - establishing how many were publicly funded.

However, we now know that he was a target for a political trial, so it was clearly imperative that some 'bad intent' be found to boost the charges to 14 counts with the total of 50 years in prison that had driven him to suicide. Having laws that make an intent alone (to make publicly funded work available to the public) into a crime has made this possible, of course.

Anyone trying to justify this, while making a living off the technological revolution made possible by free exchange of scientific knowledge which Aaron was trying to defend, is a shill in my book.

It remained to be seen whether he had committed a crime. That is what the trial was going to determine.

That said, I agree that since the prosecution was taking the position that it was a crime, it's not surprising or particularly concerning that they were looking at his past statements as evidence for establishing intent. That is a normal and expected thing for prosecutors to do.

I believe that this behavior is just the same as effectively murdering him. Ortiz and Heymann should be convicted of whatever the US equivalent of "Murder with intent" is. Let them rot in hell forever.

At best you could make a case (and I'm talking you making a case here, not talking from a legal point of view) for involuntary manslaughter, not murder with intent, unless you can show that they knew prosecuting would lead to his death.

>>unless you can show that they knew prosecuting would lead to his death.

Which it very clearly has, or more precisely in this case it can be described as "Abetment to suicide"

So it is okay for some people to threaten other people with jail when some files get copied? Do you know what the "jail" means? Humiliation every day, statistically guaranteed rape and possible murder.

As far as I can tell he was never charged with any variant of copying files.

He was charged with unauthorized access to a computer network and wire fraud.

Given your idea of what jail means for rich white kids like Aaron though, I'd just like to recommend that you actually look into the U.S. prison system (at worst you'll find out what's actually wrong with it and not have to make stuff up).

If he declines to go to a nice little jail, he'll be shot down when trying to defend himself. So the threat of jail is an ultimate threat of murder, right? Do you think it is appropriate measure for unauthorised access to a computer network? Especially after the fact, not while he's busy doing that.

When some guy comes to your porch and does not go away, what would you do? Would you try to push him out on the street, or you will chase him with a gun in attempt to put him in a cell? What would you do if the same guy already stepped on your porch and broke your chair? Will you threaten him with death? Or you will ask policemen and court to do that dirty job for you?

You've just used logic to prove that we have a death penalty for every crime that exists.

In the realm of government-imposed law? Yes. There is also lynching, but it generally does not occur.

Outside the government people use peaceful dispute resolution organizations, reputation systems, rating agencies and insurance companies.

I'm not arguing that what they did was OK, just that it was not "murder with intent". That requires them to have had his death as their goal, I'm not aware of any reason to believe this to be the case.

They had clear intent to kill the guy if he tries to defend himself while someone in a uniform attempts to drag him to jail against his will. The fact that he got depressed and killed himself is irrelevant. Initially, there was a clear threat of murder on the part of prosecutors.

Lets say, I steal a wallet from you. You ask policeman to catch me and provide some evidence that I indeed have stolen the wallet. Now policeman chases me and presses to return the wallet. I do not return the wallet. Policeman pushes me to the car, I try to protect myself physically, he takes out a gun and kills me.

If you understand this before calling armed policemen to catch me, how can you "not have intent of murder"? This is exactly what you want: you want to threaten the guy with murder (by yourself or via 3rd party) so he does what you want.

If you are interested in how you can resolve conflicts without being a sadist or murderer, then there are a lot of books on the topic (I recommend http://www.freedomainradio.com/FreeBooks.aspx). However, many people simply blindly assume that by using external force they are "clean" and that the violence is the only way to solve problems when people disagree. Which is, of course, total bullshit and complete intellectual corruption. Because if you have a hard problem and instead of trying to solve it, you take out a gun and then claim that this is the "solution", you are worse than the stupid soldiers. Because you use your intellectual capacity to produce a false justification and gain brutal support from people less smarter than you.

Can we stop giving a shit about this already please?

There are a million and one worse things perpetrated and supported by this government that they actually do happily admit to and which are actually /really bad/ - i.e. resulting in the murder of tens of thousands innocent children.

I refuse to pity self entitled pricks who should have known what they were doing and taken some responsibility for the relatively tiny consequences of their actions instead of topping themselves.

Disrespectful tone fully intended.

Authoritarian prick detected. "He deserves bogus prosecution because he had it coming for acting like a douche." Yep, that's all it takes to justify ruining someone.

I'm not saying its right - just that the amount of fuss is massively disproportionate. Bogus prosecution is basically nothing compared to having your life threatened with bona fide aggression.

First world problems, in the extreme.

We are talking about a criminal case, in the United States, in which the defendant was a US citizen. The USA is a first world country, and this is purely domestic matter for us; yes, it is a first world problem. If Americans stop paying attention to these things, our problems will rapidly change from "first world" to "tyranny."

You make a valid point, but even in this context there are better things to pay attention to...

I am not so sure about that. I would say that the prosecutor's conduct in this case is symptomatic of a broad problem in America, and that the CFAA is symptomatic of that problem. Over the past few decades, the power of the police and of the executive branch as a whole has swelled, and the results have been predictable. What happened to Aaron Swartz is typical: aggressive prosecution by extreme conservatives who expect everyone to live life as passive, docile consumers (and only of particular products that are on the "good list"). It is another case of corporate interests superseding the rights and freedoms of individuals, and of the our government working for the benefit of those corporations while ignoring the needs of the people being governed.

It is not wrong to make a fuss about it, because it draws attention to bigger problems more than similar cases have. The CFAA is overly broad and can be used to prosecute almost anyone -- but it was not until Aaron's death that anyone cared. Prosecutors routinely pile on charges to intimidate defendants, but nobody cared until recently. While it is not as widespread as the superbowl, this case has received attention from people who usually ignore such things.

How great it is to meet someone who can tell us what is proportionate and can behave accordingly. What's six months or 400 hours of your time when there is still bigger injustice in the world.

You know when there's enough fuss? When you can see actual change, a problem being solved.

i'm sorry i come off as being an authoritarian douche, but regardless - solve the right problems first. the fuss over this is borderline offensive in the context of the US position on the world stage and the impact it has...

so yeah, i would like to bake the cake and ice it before i go about putting the cherry on top.

I'm gonna go out on a limb here and guess you've never so much as been in court, let alone charged with something serious and facing jail time.

Not true actually.

I'm going to go out on a limb here and guess that you've never so much as had to fight for your survival, let alone face what appears to be certain death.

Everything is relative. This is why I have a seriously hard time showing any pity or tolerance with this...

I'm not a military vet, so no, although I have been places and seen how the world works. Generally have been smart/lucky enough to avoid serious trouble.

So, political prosecution, facing jail-time for something pretty innocent, and you can't find the least bit of pity because nobody's threatening to kill him?

I'd suggest developing some empathy, it will make you more successful in business and more importantly will improve your life.

Its not a nice situation and I can understand why it is stressful, but you are right, I can't empathise entirely. Perhaps most shocking is the great amount of mental resolve required for suicide - which surely is the same that makes this sort of situation effectively non-threatening.

Still, personal feelings are largely irrelevant here - its pretty incredible to me that anyone can give a shit about this with, e.g. gun laws that enable the US to be responsible for 95% of child death by gun outside of warzones for instance. Changing that law will save thousands of children from death - I consider that infinitely more important than some kind of maybe, possibly a potential restriction on freedom if you want to interpret it that way...

Incidentally I find it interesting how this comment has been controversial - I was expecting it to be downvoted to death because it is obviously offensive and callous, but it has received quite a few more up votes than down.

Bogus prosecution is bona fide aggression, much like any other attempt to hold you long term against your will and threaten you with guns if you don't comply.

FWIW, I weakly agree with your basic point that this gets a disproportionate amount of play compared to other injustices, but you're not presenting it well.

Thanks. I am certainly a little too far on the offensive side... but I take offense to the level of attention this receives.

> the murder of tens of thousands innocent children

Citation needed

> relatively tiny consequences of their actions

So we can send you to jail for 30 years? It would only be a minor inconvenience if we did so?

See drones in Pakistan, and collateral damage in the most recent wars in Afghanistan and Iraq - then there is the support of the IDF in Israel. I could go back further but there is little point - it was a different administration, a long time ago etc. even if the same mistakes are being repeated.

The one thing learned from the Vietnam war being made so public seems to be 'control the media better' rather than 'war crimes are wrong'...

Any source of figures I quote is going to be suspect so I invite you to find your own an make your own judgement. I prefer Wikipedia to demonstrate how easily uncovered this information, or at least the suggestion of it is. Some official statements on the matter downplay the issues even by 2 or 3 orders of magnitude...

A quick browse of wikipedia on these matters gives a good overview of how confused the situation is... In particular even US allies do not agree with various statements from inside the US that the number of innocent deaths is as low as 'double figures'.

http://en.wikipedia.org/wiki/Drone_attacks_in_Pakistan

For Iraq I believe the consensus is that civilian Iraqi deaths outweighed US military deaths somewhere between 15 and 250 times. There is a nice table with cited sources again on Wikipedia...

http://en.wikipedia.org/wiki/Casualties_of_the_Iraq_War

The cleanest cut case is perhaps Israel, where many Israeli organisations themselves keep track of figures. I think nobody disagrees that the IDF have killed more Palestinian children, than Israelis in total have ever been killed by Palestinian terror attacks. This is an organisation which is funded in part by US aid at a time when the money could be better spent back home helping the economy...

e.g. http://www.btselem.org/statistics/fatalities/any/by-date-of-...

... and yes, going to prison in the US for 30 years would be an improvement in quality of life for most of the world's population.

There is a reason why the US is so often loathed by Arabs and its nothing to do with Islam, fanaticism or oil...

This is making me angrier than almost anything I’ve heard since Aaron died. I finally figured out why: Because I worked my ass off to elect the Obama administration in 2008. I helped these people get in power

So stop being a chump. Stop voting in the same career politicians from one of two sides of the same political coin. A coin that's entirely beholden to corporate interests and only nominally beholden to the people.

Insanity is doing the same thing over and over again but expecting different results

It's as if choosing between a douche and a turd sandwich.

> Insanity is doing the same thing over and over again but expecting different results

I think insanity has to do with how one perceives reality, rather than one's aptitude for inferring future results based on past ones. Wouldn't this more aptly be characterized as naivety?

It's a commonly referenced quote. I didn't coin it.

What is the statistical probability of a .920+ batting average over a decade period? If the Feds come after you, forget about how much money or connections you have; it won't be enough!

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