The MIT report on aaronsw
lessig.tumblr.com
lessig.tumblr.com
If indeed Aaron’s access was not “unauthorized" — as
Aaron’s team said from the start, and now MIT seems to
acknowledge — then the tragedy of this prosecution has
only increased.
Allowed by (then) MIT policy: Enter library, download "some" jstor articles.
There were no explicit limits other than 'we reserve the right to refuse service' sorts of things in their policy. So were he a patient person it would have been ok for him to come in each day, download some, until he had the entire set of all documents, however long that took.
An analogy might be ketchup packets at a fast food restaurant. You are allowed to take a 'few' for your meal, but clearly if you poured the whole box of them into your back pack you would be asked to leave, not because you are "stealing" ketchup, but because they choose to refuse you service based on your abuse of their free ketchup.
So he clearly abused their good will, and by that abuse they had the right to revoke his access. And he was clearly working to avoid automated monitoring and revocation (which is a stand in for the librarian kicking you out) But prior to them revoking his access, his access was authorized.
Like I said, it's a weird thing. If someone comes to your "anyone is invited party" and then starts making an ass of themselves and you ask them to leave, you can't really accuse them of criminal trespass and breaking and entering. But you can sue them in civil court if they damage stuff, and you can call the cops to haul them away if they refuse to leave.
The point though of Lessig's note is, I believe, that this was an egregious use of a poorly written law (CFAA) with a variety of legal problems with its application. Had it gone to court the case law it might have established would have been helpful in avoiding future abuses.
Everyone agrees that if Swartz had asked the library staff to help him download the entire JStore archive, they would have clearly said no. The difference between "some jstor articles" and "the entire archive" is huge and significant. His authorization was never a blanket authorization to do whatever he wanted with the JStor access, in part because MIT could not offer that: they could only offer access under terms that JStor set, and those terms banned whole archive scraping.
As an illustration, compare the structure of the rules of NFL American Football:
http://static.nfl.com/static/content/public/image/rulebook/p...
To FIFA's Laws of the Game:
http://www.fifa.com/mm/document/footballdevelopment/refereei...
The more honest answer is that we'll never know what would've happened because he didn't ask the librarian--trying to make any stronger a claim is assumption.
When do the judicial misconduct hearings start?
The prosecutor basically did sell him as an Al Capone of computer hacking; a threat to the nation, Mom, apple pie, and all that is good and right in America.
Federal prosecutors later charged him with two counts of wire fraud and 11 violations of the Computer Fraud and Abuse Act,[17] carrying a cumulative maximum penalty of $1 million in fines, 35 years in prison, asset forfeiture, restitution and supervised release.[18]
http://en.wikipedia.org/wiki/Aaron_Swartz
[Edit] Background information is also available here. It verifies the number of charges filed but not the total length of the possible prison term involved: http://video.pbs.org/video/2325573247
Where is your reference to the contrary?
I've given you more than enough detail to go find the right answer.
You can in the meantime take my word for it on two things: (1) that Swartz was threatened with a specific sentence recommendation that was nowhere near 35 years (it was still a very tough sentence totally out of proportion to what he did) and (2) that a DoJ press release maximum sentence bears no resemblance to the sentences CFAA convicts can expect to receive from a judge.
1) The discussion on reasonable sentencing Some have argued that criminal prosecution was inappropriate ... did not mention that MIT, as well as JSTOR, did not want a jail sentence imposed. The recent MIT report states that MIT made this known to the prosecutor. That MIT suffered loss was a major reason given to justify jail time. The writer can be excused for not knowing that, at the time, confidential information but it makes moot his arguement of jail time being reasonable.
2) Pointing fingers at media outlets for exaggerating possible jail time is a non-sequitur when, as stated in the link, prosecutor PR releases purposefully seek the exaggeration.
3) No where in the link is it argued that the prosecution took long jail time off the table. Quite the opposite, they left the possibility there on the edges to bully the defendant into accepting a plea that included jail time. This even when JSTOR and MIT both wanted to avoid it.
4) Generally speaking I found the link was predisposed to favor the prosecutors. I say that because in all cases where Aaron Swartz's actions are discussed there is the assumption that his actions were part of a larger pattern of behavior. To me it smacked of justifying prosecutorial overreach based on "future-crimes". On the other hand it easily accepts overreaching prosecutorial actions as just the way the system works.
5) The link, I thought, worked hard to dismiss outrage over the Swartz case by saying it was misplaced. The outrage, it was argued, should instead be at the system. While it is obvious that it is the laws that must be changed, it is instances like the Swartz case that moves public opinion snd enables change.
And, no matter what DoJ's press releases say, facts are facts; sentences are not as a general rule computed by adding up all the possible maximum sentences of every charge.