3 ms·

"mens rea" means that there was knowing intent to commit a crime. Clearly there was mens rea is this case as steps were taken to circumvent and conceal the act.

by ynniv 15y ago

"mens rea" means that there was knowing intent to commit a crime. Clearly there was mens rea is this case as steps were taken to circumvent and conceal the act. mindcrime's point is that your comment suggests the crime could be escalated based on some possibility that the defendant might commit a more serious crime. This more serious crime was of course not committed, thus making it a crime of thought.

tptacek 15y ago
We have our wires crossed; I see why: I'm writing message board comments, not essays. There are two issues of intent here: (1) There is the question of whether Swartz's repeated accesses of JSTOR were done knowing that access was wrong, or recklessly, or purposefully to accomplish an illegal end. This question, of "mens rea", is I think reasonably established in the charging documents by things like MAC address spoofing. (2) There is the entirely speculative question of whether Swartz had the intention of "liberating" all of JSTOR onto BitTorrent. Nobody knows whether this is true except Swartz and possibly the DoJ. My suggestion here is only that we don't know all the evidence, and perhaps some of the severity of the DoJ's response is based on evidence they have but have not yet disclosed to the public. The confusion here is my fault. Sorry. I certainly don't believe that Swartz should be prosecuted for thinking JSTOR should be liberated, or that the DoJ should be building a case based on what they think he was going to do next.
- firebones 15y ago
  Based on the text of the indictment, the establishment of his intent with the documents is the one claim that doesn't appear to established with any mention of supporting evidence. This stands in stark contrast to the meticulously detailed accounts of MAC address changes, computer purchase history and surveillance video describing his actions. The question that this hinges on is whether there is hard evidence of his intent; either there exists a clear statement from Swartz of his intention (e.g., say, a chat log from an informant where he expressed his intent, or an actual upload) and they didn't feel the need to share this info to get the indictment, or they're just trying to make up some circumstantial case (oooh, look, he had a BitTorrent client on a laptop we seized) to justify the harassment. I would guess that it must be something very weak, ambiguous and circumstantial which is why they didn't feel the need to substantiate the claim. But then again, given the long time frame (many months) and the rashness of some of the behavior Swartz displayed, I wouldn't be at all surprised to find that someone got him to say something via electronic means that could be construed as an intent to P2P the documents.
- nitrogen 15y ago
  This question, of "mens rea", is I think reasonably established in the charging documents by things like MAC address spoofing. On this point specifically I hope that, if it would be beneficial and accurate, Swartz's attorneys bring up the point that: 1. Programmers routinely work around various limitations to do their jobs. 2. Those limitations may originate in the laws of physics, limitations of current technology, or excessively strict corporate IT policies. 3. Those workarounds may include changing MAC addresses, connecting to a different switch port, etc. 4. Therefore, a programmer such as Swartz would have considered his actions in an engineering context. Overcoming any blocking or access rate limitations imposed automatically by JSTOR's systems would be seen by Swartz in the same light as bypassing a faulty router or otherwise routing around network damage, rather than as a specifically legal affront. 5. Thus, at first glance, mens rea is not present.

by ynniv 15y ago

tptacek 15y ago

We have our wires crossed; I see why: I'm writing message board comments, not essays. There are two issues of intent here: (1) There is the question of whether Swartz's repeated accesses of JSTOR were done knowing that access was wrong, or recklessly, or purposefully to accomplish an illegal end. This question, of "mens rea", is I think reasonably established in the charging documents by things like MAC address spoofing. (2) There is the entirely speculative question of whether Swartz had the intention of "liberating" all of JSTOR onto BitTorrent. Nobody knows whether this is true except Swartz and possibly the DoJ. My suggestion here is only that we don't know all the evidence, and perhaps some of the severity of the DoJ's response is based on evidence they have but have not yet disclosed to the public. The confusion here is my fault. Sorry. I certainly don't believe that Swartz should be prosecuted for thinking JSTOR should be liberated, or that the DoJ should be building a case based on what they think he was going to do next.

firebones 15y ago
Based on the text of the indictment, the establishment of his intent with the documents is the one claim that doesn't appear to established with any mention of supporting evidence. This stands in stark contrast to the meticulously detailed accounts of MAC address changes, computer purchase history and surveillance video describing his actions. The question that this hinges on is whether there is hard evidence of his intent; either there exists a clear statement from Swartz of his intention (e.g., say, a chat log from an informant where he expressed his intent, or an actual upload) and they didn't feel the need to share this info to get the indictment, or they're just trying to make up some circumstantial case (oooh, look, he had a BitTorrent client on a laptop we seized) to justify the harassment. I would guess that it must be something very weak, ambiguous and circumstantial which is why they didn't feel the need to substantiate the claim. But then again, given the long time frame (many months) and the rashness of some of the behavior Swartz displayed, I wouldn't be at all surprised to find that someone got him to say something via electronic means that could be construed as an intent to P2P the documents.
nitrogen 15y ago
This question, of "mens rea", is I think reasonably established in the charging documents by things like MAC address spoofing. On this point specifically I hope that, if it would be beneficial and accurate, Swartz's attorneys bring up the point that: 1. Programmers routinely work around various limitations to do their jobs. 2. Those limitations may originate in the laws of physics, limitations of current technology, or excessively strict corporate IT policies. 3. Those workarounds may include changing MAC addresses, connecting to a different switch port, etc. 4. Therefore, a programmer such as Swartz would have considered his actions in an engineering context. Overcoming any blocking or access rate limitations imposed automatically by JSTOR's systems would be seen by Swartz in the same light as bypassing a faulty router or otherwise routing around network damage, rather than as a specifically legal affront. 5. Thus, at first glance, mens rea is not present.