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This whole thing weirds me out. Here we are on Hacker News, and yet there is a super-large contingent of people going "Well, he DID technically commit a victim

by pmb 15y ago

This whole thing weirds me out. Here we are on Hacker News, and yet there is a super-large contingent of people going "Well, he DID technically commit a victimless crime...". So yes - he did do something that was against some terms of service. But jail time? For breaking a clickthrough "license" and computer hacking at MIT in the service of public knowledge? This sucks unutterably. MIT: Playful physical hacks okay, but don't try to mass harvest the knowledge of the world or the DOJ will come down on you like a sledgehammer. JSTOR: All the world's knowledge, as long as you don't try to access all of it. DOJ: We'll break you just because we can (or for other reasons that we are not stating). Hacker News: Well, they do have a point - he did access semi-public data in a non-approved way, and he had to plug into the network in a strange way to do it.

tptacek 15y ago
I think "he just broke a clickthrough license" greatly oversimplifies what he was alleged to have done. In fact, what he did was to devise an escalating series of tactics to evade the countermeasures that both MIT and JSTOR set up to stop him from doing what he was doing. And as has been pointed out elsewhere on this thread, the likelihood of him spending a single night in custody is very low.
- deleted 15y ago
  [deleted]
- brlewis 15y ago
  That escalating series of tactics arguably did not include any federal crimes. I refer you to Max Kennerly's analysis, under the section "Did Aaron Swartz Really Commit Any Crimes?" http://www.litigationandtrial.com/2011/07/articles/series/special-comment/aaron-swartz-computer-fraud-indictment/ http://www.litigationandtrial.com/2011/07/articles/series/sp...
  - tptacek 15y ago
    Perhaps not, but if the DoJ's perspective is that mirroring JSTOR without permission ultimately constitutes wire fraud, then the series of tactics he took, legal or not, establish mens rea: they constitute evidence that Swartz' actions were knowing and purposeful. I like the article you cited, but it seems predicated on a lot of assumptions about the evidence the DoJ has. Like I've said elsewhere: if the only thing Swartz was doing was taking a shortcut to getting bulk documents to analyze, then this is clearly a misstep on the DoJ's part; an extreme overreaction. But if they have evidence that his plan was to dump them onto BitTorrent, they have a case. I hope they lose the case!
    - tmarthal 15y ago
      Other than plotting to murder the president, I am not sure there are any crimes of thinking about doing illegal things. Even if the DOJ has evidence that he planned on dumping the JSTOR archives on BitTorrent, until he actually would have pushed that data, (IANAL) but I believe that they can't necessarily persecute based on actions never undertaken.
      - scott_s 15y ago
        Intent matters in law. For example, if someone is arrested with enough of an illegal drug, they can be charged with "possession with intent to distribute". That is a different charge than just "possession".
        lifeisstillgood 15y ago
        Posession with intent to distribute is an actual statutory crime (written explicitly to make prosecution easier for the cops) There is no generalised "intent to" law, there would need to be an actual seperate crime of posession with intent to distribute academic articles. So "mens rea" is not enough to convict without action unless there is a specific exception. And in general even the police try not to rely on the intent laws - which is why bank robbers get nicked after robbing the bank, and why we have such convoluted anti terrorist laws.
gavinlynch 15y ago
And doesn't the (alleged) fact remain that he continuously circumvented virtual and physical security systems in order to mirror a reported $1.5 million worth of assets in to his personal possession? When you boil it down it doesn't exactly sound like he should be receiving 10 hours of commuter service because he ran wget a few times. MIT and DoJ are just supposed to -assume- that he has nothing but perfectly angelic intentions with $1.5 millions dollars of an asset that he secretly obtained? I don't make that logical leap with you guys. The facts will come out. He will present his case with his defense team, and hopefully justice will be done.
- redrobot5050 15y ago
  1) It's very likely the $1.5 million figure is heavily inflated so as to help the prosecution with their case. I would like to see people really investigate where this $1.5 million is coming from? Was that how much JSTOR was really making off those documents, or were they using RIAA-style accounting to come up with its "value"? Considering JSTOR hasn't exactly been forthcoming in their public statements, many believe they don't see anything criminal with A.S.' actions. They would prefer he simply go through 'proper channels'. 2) If Schwartz is smart, he will not comment on his intentions no matter what. Simply maintain his denial that he intended to upload them anonymously to BitTorrent. Make the case entirely about the facts on hand. "Is it hacking to violate a site's TOS"? 3. MIT and DOJ could assume that there are other ways to stop whatever illegal actions they're assuming besides criminal prosecution. Already someone has leaked 30 million scientific papers from JSTOR simply because they assumed this is what MIT and DOJ were trying to stop.
  - tptacek 15y ago
    Doubt it. JSTOR subscriptions have a public price list; if MIT is paying "tens of thousands of dollars annually" for it, they are getting a deep discount. If every organization of MIT's size is paying tens of thousands of dollars for it, JSTOR is generating millions annually. Yes, by the way: it is "hacking" (computer fraud and abuse) to violate a site's ToS knowingly, recklessly, or purposefully. To preempt a recurring stupid message board article: it is tremendously difficult to prove that a blog commenter or a site visitor knowingly violated some random clause in your ToS, which is why tiny little ToS violations on blog sites don't get prosecuted.
mrschwabe 15y ago
Agreed. I too find many of the reactions here inconsistent with what you would expect from hackers and free-market entrepreneurs. Unfortunately, this is the same kind of zombie-like mentality that became increasingly prevalent on Digg.com late 2007 (and to this day).
- GHFigs 15y ago
  Wouldn't predictable consistency with pre-established lines of thinking be more zombie-like?

by pmb 15y ago

tptacek 15y ago

I think "he just broke a clickthrough license" greatly oversimplifies what he was alleged to have done. In fact, what he did was to devise an escalating series of tactics to evade the countermeasures that both MIT and JSTOR set up to stop him from doing what he was doing. And as has been pointed out elsewhere on this thread, the likelihood of him spending a single night in custody is very low.

deleted 15y ago
[deleted]
brlewis 15y ago
That escalating series of tactics arguably did not include any federal crimes. I refer you to Max Kennerly's analysis, under the section "Did Aaron Swartz Really Commit Any Crimes?" http://www.litigationandtrial.com/2011/07/articles/series/special-comment/aaron-swartz-computer-fraud-indictment/ http://www.litigationandtrial.com/2011/07/articles/series/sp...
- tptacek 15y ago
  Perhaps not, but if the DoJ's perspective is that mirroring JSTOR without permission ultimately constitutes wire fraud, then the series of tactics he took, legal or not, establish mens rea: they constitute evidence that Swartz' actions were knowing and purposeful. I like the article you cited, but it seems predicated on a lot of assumptions about the evidence the DoJ has. Like I've said elsewhere: if the only thing Swartz was doing was taking a shortcut to getting bulk documents to analyze, then this is clearly a misstep on the DoJ's part; an extreme overreaction. But if they have evidence that his plan was to dump them onto BitTorrent, they have a case. I hope they lose the case!
  - tmarthal 15y ago
    Other than plotting to murder the president, I am not sure there are any crimes of thinking about doing illegal things. Even if the DOJ has evidence that he planned on dumping the JSTOR archives on BitTorrent, until he actually would have pushed that data, (IANAL) but I believe that they can't necessarily persecute based on actions never undertaken.
    - scott_s 15y ago
      Intent matters in law. For example, if someone is arrested with enough of an illegal drug, they can be charged with "possession with intent to distribute". That is a different charge than just "possession".
      - lifeisstillgood 15y ago
        Posession with intent to distribute is an actual statutory crime (written explicitly to make prosecution easier for the cops) There is no generalised "intent to" law, there would need to be an actual seperate crime of posession with intent to distribute academic articles. So "mens rea" is not enough to convict without action unless there is a specific exception. And in general even the police try not to rely on the intent laws - which is why bank robbers get nicked after robbing the bank, and why we have such convoluted anti terrorist laws.

gavinlynch 15y ago

And doesn't the (alleged) fact remain that he continuously circumvented virtual and physical security systems in order to mirror a reported $1.5 million worth of assets in to his personal possession? When you boil it down it doesn't exactly sound like he should be receiving 10 hours of commuter service because he ran wget a few times. MIT and DoJ are just supposed to -assume- that he has nothing but perfectly angelic intentions with $1.5 millions dollars of an asset that he secretly obtained? I don't make that logical leap with you guys. The facts will come out. He will present his case with his defense team, and hopefully justice will be done.

redrobot5050 15y ago
1) It's very likely the $1.5 million figure is heavily inflated so as to help the prosecution with their case. I would like to see people really investigate where this $1.5 million is coming from? Was that how much JSTOR was really making off those documents, or were they using RIAA-style accounting to come up with its "value"? Considering JSTOR hasn't exactly been forthcoming in their public statements, many believe they don't see anything criminal with A.S.' actions. They would prefer he simply go through 'proper channels'. 2) If Schwartz is smart, he will not comment on his intentions no matter what. Simply maintain his denial that he intended to upload them anonymously to BitTorrent. Make the case entirely about the facts on hand. "Is it hacking to violate a site's TOS"? 3. MIT and DOJ could assume that there are other ways to stop whatever illegal actions they're assuming besides criminal prosecution. Already someone has leaked 30 million scientific papers from JSTOR simply because they assumed this is what MIT and DOJ were trying to stop.
- tptacek 15y ago
  Doubt it. JSTOR subscriptions have a public price list; if MIT is paying "tens of thousands of dollars annually" for it, they are getting a deep discount. If every organization of MIT's size is paying tens of thousands of dollars for it, JSTOR is generating millions annually. Yes, by the way: it is "hacking" (computer fraud and abuse) to violate a site's ToS knowingly, recklessly, or purposefully. To preempt a recurring stupid message board article: it is tremendously difficult to prove that a blog commenter or a site visitor knowingly violated some random clause in your ToS, which is why tiny little ToS violations on blog sites don't get prosecuted.

mrschwabe 15y ago

Agreed. I too find many of the reactions here inconsistent with what you would expect from hackers and free-market entrepreneurs. Unfortunately, this is the same kind of zombie-like mentality that became increasingly prevalent on Digg.com late 2007 (and to this day).

GHFigs 15y ago
Wouldn't predictable consistency with pre-established lines of thinking be more zombie-like?