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The Criminal Charges Against Aaron Swartz (Part 1: The Law)

198 points by abtinf 14y ago

binarymax 14y ago
The witch hunt was inevitable due to the sheer emotion we all felt during this tragic event. It is correct to step back and not look at getting one or two attorneys fired - but rather look at the law itself, and reflect on the absolute absurdity of how it can be applied. If the law is the law, and the law says that someone downloading academic papers carries the same punishment as a murderer or rapist, then the law needs to be changed. A fundamental shift needs to take place. We can take a page from: "Dear Congress, It's No Longer OK To Not Know How The Internet Works" And follow with: "Dear Attorneys, It's No Longer OK To Not Know All Hacking Isn't Terrorism"
- SeanDav 14y ago
  I think the attorneys getting fired would be a great first step. After all they hounded Aaron and people like him to send a "message". Let them get sent a "message" in return.
  - nicpottier 14y ago
    Yes, after all, "an eye for an eye" is a great system of justice. No, they shouldn't be fired for doing their job, regardless of the consequences. It is a tragedy that Aaron took his life, but nobody can argue that it was an appropriate response to the challenges posed to him. You can't blame a prosecutor because Aaron reacted violently to them doing his job, just as you can't blame violent video games for Columbine or D&D for kids hurting themselves in the forest with swords. They are all contributing factors, but it is the core mental illness that is at fault.
    - jlgreco 14y ago
      An eye for an eye? Please, we're talking about firing some people, not a dozen+ felonies and decades in prison. >You can't blame a prosecutor because Aaron reacted violently to... That is not what we are proposing firing them for. > them doing his job They did a shit job of that, and that is what they need to be fired for.
      - deleted 14y ago
        [deleted]
    - yarrel 14y ago
      Hounding someone with threats of bankruptcy or of imprisonment for longer than they'd been alive is very different from them playing games. Your comparison of a suicide to a mass killing in order to plead the just world fallacy is ill chosen at best.
    - downandout 14y ago
      > You can't blame a prosecutor because Aaron reacted violently to them doing his job Perhaps they cannot be blamed for his response, but a myriad of evil things have occurred in this world at the hands of people "just doing their jobs". The mere fact that someone is being paid for them doesn't justify vicious, cruel, and/or outrageous actions that have predictably bad outcomes. Further, it could easily be argued that their pursuit of this case went beyond the normal scope of their jobs. While federal criminal cases are technically brought on behalf of the government, in many cases the charges are dropped when the victim expresses disinterest in having the individual prosecuted. In this case, they were attempting to lock someone up for decades in a case where the alleged victims didn't even want the perpetrator prosecuted. Since the victims had no interest in it, the only remaining motivation for such an aggressive prosecution would be to put another notch in the belts of the US Attorney's office prosecuting the case. That is hardly an acceptable use of taxpayer resources. It is an abuse of power aimed at furthering the individual careers of the lawyers involved.
      - moccajoghurt 14y ago
        > It is an abuse of power aimed at furthering the individual careers of the lawyers involved. Does this mean that if you win a case where the actual victim doesn't even care anymore still gives you a good reputation?
        downandout 14y ago
        It means that a high profile conviction such as this would have been a nice boost to their resumes, regardless of the particulars. The legal profession is somewhat unique in that being perceived as an aggressive, cold-hearted, and ruthless individual with the ability to squeeze out a win even when the facts and circumstances don't support a win is a positive thing.
    - hobbyhacker 14y ago
      Nobody called for her imprisonment or hounding her to the point where she's going to hang herself. Just a corrective measure to a system that has clearly spun out of control. A change of career.
    - chris_wot 14y ago
      If the job of the prosecutor is to persecute someone, even after the "victim" resolved their issue with the offender, then they have a shitty job and should just up and quit. There are better jobs out there: ones that don't destroy the lives of good people.
      - Xylakant 14y ago
        The job of the prosecutor is indeed to continue the prosecution, even if the victim and the offender have resolved their issues. Think of a case of some victim being coerced to have the charges dropped. Would you prefer the prosecution to stop or would you prefer if the crime was resolved?
        chris_wot 14y ago
        I'm sorry, was JSTOR coerced into asking for the charges to be dropped?
        Xylakant 14y ago
        In this case probably not, though public pressure may have been a part of it. And MITs statement was less clear on that matter. However, this is not for the prosecution to decide. The prosecution should treat each case equal. If criminal charges haven been brought forward, they must be prosecuted or dismissed solely based on evidence, not based on the victims actions. Please note that I do not think that the way the prosecution pushed the charges was right.
        pdonis 14y ago
        If criminal charges haven been brought forward Neither JSTOR nor MIT brought forward criminal charges; that was done by the US Attorneys themselves. So saying "this is not for the prosecution to decide" is wrong--the prosecution decided to bring charges, so it's their responsibility if the charges were way out of proportion.
        14y ago
    - RHSeeger 14y ago
      > You can't blame a prosecutor because Aaron reacted violently to them doing his job We seem perfectly happy blaming bullies when people commit suicide (including incidents where both parties were adults). Given the position of relative power of the two individuals, it's not unreasonable to draw a parallel there.
    - TruthElixirX 14y ago
      >You can't blame a prosecutor because Aaron reacted violently to them doing his job, Their job is to perpetuate violence, rather justified or not.
    - daniel-cussen 14y ago
      This is not an eye for an eye. Aaron's dead, and we're not talking about killing the attorney. But firing her? Absolutely.
    - alexqgb 14y ago
      Sorry, but no, they weren't "just doing their jobs". They were operating way outside the parameters of their jobs, which - as extensions of the Executive Branch - are subject to oversight by the Judicial branch which, in turn, is subject to direct popular oversight in the form of trial by jury. The critical fact is that the Prosecutors were doing everything in their power secure guilty pleas without going in front of a jury, where they were very likely to lose. That's why they were offering a mere 6-8 months in jail on multiple felony confessions vs. 35 years in prison, a $1mm fine and a trial process designed to be financially ruinous. In other words, their "offer" hinged on their ability to place an insurmountable wall between Aaron and a jury. In doing so, they avoided a key provision of the Constitution. The breath-taking abusiveness with which they pursued him only underscores why that provision was made in the first place. http://online.wsj.com/article_email/SB10001424127887324581504578238692048200404-lMyQjAxMTAzMDEwMzExNDMyWj.html http://online.wsj.com/article_email/SB1000142412788732458150... Faced with power this unchecked and malicious, most people simply cave, which is why fewer than 10% of Federal crimes end up before a jury. But apparently, Aaron considered life as a convicted felon to be a fate worse than death. As with so many other things, he simply wasn't like most people. While his suicide brought an unusual amount of attention to the abuse that's going on, the abuse itself is far from unusual. Indeed, it's become par for the course. That's the issue. That's why the response is about people regaining control over a terrifyingly out-of-control system. Extending this to the specific individuals is essential, because that - and only that - can reflect the moral dimension of the situation. After all, we're not talking about a busted sewer pipe here, or a faulty traffic light leading to an especially bad traffic accident. The DOJ's standard operating procedure represents a calculated erosion of democratic safeguards. That's what makes their conduct a violation of their oaths and crime against the people. So yes, the public's reassertion of its moral authority over its government should absolutely involve severe punishment for those who have so egregiously betrayed the public trust. Given the context, "career ending" is hardly too high a price for the specific individuals to pay. As any prosecutor will tell you, the law is about deterrence as much as it is about punishment.
  - patrickgzill 14y ago
    Some are criticizing you, but I personally think this is the right answer. US Attorneys and the Fed "gotcha" system of justice need to be contrained.
- pdmccormick 14y ago
  I agree that in this situation the laws on the books should also be under review. But prosecutors have some discretion as to whom and what and to what extent they'll pursue a case. Regardless of where they might be on a spectrum from noble, high minded civil servant to the most egregious political opportunist, a consequence to the prosecutorial action this case (public opinion, increased scrutiny, career consequence severe or light, etc.) could help establish an incentive for others in the future to act differently. Not legally binding, not compulsory, but just a element of "Let's not make that mistake again."
- legutierr 14y ago
  The reason to seek to end the political career of Ms. Ortiz is not because her hounding of aaronsw was inconsistent with the behavior of other federal prosecutors, but rather precisely because it was "what any good federal prosecutor" would have done. There are so many criminal laws on the books--and federal law enforcement powers are so great--that any individual who is identified as a political target can have their lives ruined, regardless of the moral justice of the charges they face. Furthermore, in spite of what this article says, prosecutors frequently use their discretion when choosing to file charges. The beneficiaries of that discretion are often the politically connected, examples of which are numerous and infamous. In other words, the filing of these charges against Aaron Swartz was an inherently political act and requires a political response. That these charges were morally odious cannot be doubted, and yet articles like this ask, were they nonetheless correct? By asking that question they attempt to exculpate Ms. Ortiz and her subordinates. This prosecution was "correct" only because people like Aaron Swartz who seem powerless are the kind of people who go to jail all the time. The effort to end Ms. Ortiz' career is an effort to make prosecutions like this "incorrect" by making people like Aaron Swartz more powerful, because just as the powerless are targeted in this very way all the time, similar digressions by the powerful are frequently overlooked. When mercy and proportionate justice is granted only to the powerful, then any quest for mercy and justice must concern itself first and foremost with power. In the American political system, power is gained and exerted by imposing political consequences on those politians who transgress against your objectives.
  - viggity 14y ago
    http://www.harveysilverglate.com/Books/ThreeFeloniesaDay.aspx http://www.harveysilverglate.com/Books/ThreeFeloniesaDay.asp...
Illychnosis 14y ago
People like Orin Kerr are part of the problem. Anyone associated with the DoJ can't see that the DoJ is the problem, not the Aaron Swartzes of the world. "It is difficult to get a man to understand something, when his salary depends upon his not understanding it." -Upton Sinclair
- danso 14y ago
  I think it's unnecessary and unhelpful to bash an argument based merely on authority or ad hominem. Kerr brings up a level headed assessment of case law and it will be interesting to read the rebuttals to it. If people truly want to fix the problem here, then they must understand its domain, not simply say "this is not how I want the world to be"
  - FSEA 14y ago
    That's OK, when someone legislates criminal punishment for being friends with Jews lets try to understand the it's domain instead of resoundingly denying it's attempt to exist. No this type of behavior just enables judicial bullying more. Instead of taking time to acknowledge the heavy handed and totally ruinous tactics of prosecutors and the law they tout as their sword, lets continue to defend ourselves on it's terms as Kerr begs us to do. No, that just means more meat mangled by 'the system.' "It is the law so lets try to respect it because it is the law."
- zaidf 14y ago
  Anyone associated with the DoJ can't see that the DoJ is the problem Why? He is precise in what his post is doing: simply making an evaluation of whether the charges stack up with the law on the books. He neither promises nor tries to evaluate the legitimacy of the laws. I think that is perfectly fine and in fact I'd love if more qualified folks shared their specific interpretation of the law with minimal bias in either direction.
  - michaelfeathers 14y ago
    Here's the thing that we need to be aware of. I'm assuming that many of the readers of HN are programmers or have been programmers. The law is very literal, it is like code. But not everything in life is black and white. Often I run into programmers who want want to think that all questions should have yes or no answers. Even if they don't, many of us have a deep sense that there is something right about seeing the world in terms of strict categorical statements. Me? Well, as a programmer, citizen and human being, I'm suspicious of it. Deeply.
jmcgough 14y ago
I'm looking forward to the second part of this (on prosecutorial discretion) - this is a good analysis. I feel torn about the trial, and I know I'll get flack for this but what Aaron did was illegal, and I'm sure he knew while he was doing it that it was illegal, or at least in a grey area. At the same time, they were way overly aggressive in prosecuting him. There's something wrong with the system when someone can have their life destroyed and their resources drained by their choice to exercise civil disobedience in protesting something that is morally wrong.
- josephlord 14y ago
  Largely agree although I would insert the word 'probably' before illegal in your second paragraph. It hadn't come to trial yet and we don't have ALL the evidence (especially the defense evidence). I would say that I don't think that the concept of prosecuting him was inherently or clearly wrong. I'm also very interested to read the second part. I hope it covers the number of counts of each charge brought. This seems to be something that racks up the potential penalty very fast and the individual offences aren't necessarily that distinct from each other
JohnsonB 14y ago
How can spoofing IP/MAC addresses be considered "false pretenses" if these are considered, by nature of how computer networks and management thereof have evolved, to be transient or arbitrary in nature? Spoofing IP/MAC addresses does't even involve "pretenses", because it is a fallacious assumption (usually by the technically illiterate) that IP/MAC addresses correspond, or are even supposed to correspond, to a unique person/computer/entity in the first place. I can't say this is a good analysis by Kerr, given that he ignores extremely basic weaknesses such as this in the charges brought against Swartz.
- danso 14y ago
  Isn't this like asking "How is wearing a fake mustache in public a false pretense?" It isn't. But if I'm doing it with an obvious intent on deceiving someone about my identity, don't you think that context matters? Even if the fake-mustache seems ridiculous?
  - gnud 14y ago
    In that case, if he'd bought a new laptop instead of changing the MAC address, would he have been off the hook?
    - andylei 14y ago
      he did buy a new laptop. its in the article.
  - JohnsonB 14y ago
    That's the point, the spoofing of the IP/MAC addresses in themselves prove nothing, and yet Kerr is assessing it as such. The guy with a fake mustache could be a method actor preparing for his next role, and Swartz could have thought "MIT/JSTOR doesn't give a damn if I scrape these articles, but I don't care to ask for official resources to do it just to be told no."
    - danso 14y ago
      Why are we speculating what Swartz "could have thought"? What was his defense team planning on arguing?
belorn 14y ago
On the legal theory used, I do find a few areas where further information would be useful. In the case of Wire Fraud, is it JSTOR or MIT's rights that was violated if someone under false pretenses gains access to MIT's facilities and MIT's licensed access for research articles? What is the legal precedence in regard to rented or licensed property; is it the licensee's right that was violated if a crime is made to the property whiles in the care of the licensee or is it the licensers? By continuing giving MIT access after the breach of contract/license agreement, does JSTOR still have a legal claim of Wire fraud? In the case of Unauthorized Access, Orin Kerrthe refer to a methodology of using the cost of production as a means to determine the value of the information obtained. But are we talking about the cost of production that JSTOR did in producing access to the information, or the production of the information itself done by parties not JSTOR or MIT. If we talk about the production efforts made by JSTOR, would the production cost be limited to the licensing fee's that JSTOR is (or are they?) paying to get exclusive access to the research journals?
- jforman 14y ago
  By continuing giving MIT access after the breach of contract/license agreement, does JSTOR still have a legal claim of Wire fraud? You're thinking in terms of a civil suit, where an aggrieved party sues to restore their property/rights/etc. This was a criminal suit where the process is very different: the party suing is always the government in criminal cases, and the only matter at hand is whether the defendant violated the letter of the law. Aggrieved parties don't even have any authority to press or drop charges in criminal cases: that authority rests solely with the government (and the government will often continue cases when the parties involved just want it to go away).
Vivtek 14y ago
You know what Aaron's sin was? Greed. If he'd set this same thing up so that it would download JSTOR over the course of, say, two years, nobody would ever have been the wiser, we'd actually have that data today since it's actually been two years, and he'd still be alive. But he had to have all the data NOW. I get it, I really do. He lost track of the goal in the excitement of the pursuit.
- peterwaller 14y ago
  I don't like the use of the word greed here. If you're going to liberate information, you have to be timely. And it would still have been a lot to download even over years, so whilst your proposal reduces the instantaneous bandwidth, the aggregate is still large and so still likely to be noticed. The longer that laptop is in the cupboard...
- rdl 14y ago
  His sin was being in the middle of the barbell. Act fully legally and under your own name (or, only slightly illegally, and with the intention of being arrested and prosecuted as civil disobedience), or, act entirely covertly, unlinkable to your identity, and just get it accomplished. Doing things multiple times with risk that someone would set up surveillance is what exposed him. Buying a throwaway laptop for cash, wiping all prints, and hiding it somewhere off-video, waiting a few days, and then starting a slow-leech, uploading the content to some anonymous site, and then acting shocked about how someone copied what he'd done with PACER in this way, would have been a lot safer. $300 laptop is cost of doing business. ATM skimmers crews know this.
  - ansible 14y ago
    I agree. After getting detected and stopped the first couple times, I would have preferred him to be a bit more clever. And certainly when it gets to the point you're worried about being identified via video surveillance, it is time to take a radically different approach.
- deleted 14y ago
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rdl 14y ago
We really need to change the laws as they relate to computer crime and copyright.
- tptacek 14y ago
  I do not agree. Beyond that, I worry that what geeks hope for is a situation where the plain language of the law protects them from "overcharging". That's never going to happen. A zealous prosecutor is going to be able to make your life miserable no matter what. That's the problem we need to address. Count me among those who think what Swartz did could reasonably have been charged as a felony, but should never have been charged as multiple felonies. Swartz' attorneys tried to arrange a plea deal and were told that Swartz would need to cop to all thirteen felonies, and would still serve prison time. If all we know now is all there is to the story, that's a gross abuse on the part of Stephen Heymann's office.
  - rdl 14y ago
    I would like to see some element of malice, profit, or real and reasonably expected destructiveness in intrusion as a separate crime, and thus separate sentencing guidelines, similar to degrees of murder or assault. The problem with prosecutorial discretion is sometimes you end up with abuses like this. Having at least an order of magnitude written into the law would go a long way. I think this was essentially on the line as a felony vs. serious misdemeanor. 1-3 year range, tops, and probably something which should have gotten a suspended sentence for that period, as well.
    - tptacek 14y ago
      Regarding the addition of "malice" to some successor of the CFAA: the prosecution could have charged malice; there was clear enough evidence that Swartz's goal was to harm JSTOR. A malice requirement would have made the case harder to win, but the tragedy here isn't how hard this case was to win. Aaron's attorney, who at this moment is motivated to make the strongest possible case for the hardship Aaron faced, says he believes Swartz (a) could have beaten the charges as they stood and (b) was very unlikely to get more than a suspended sentence even if he hadn't. I think there's broad agreement that Swartz both shouldn't have and was unlikely to serve time as a result of this case. Which brings me back to Heymann and the conduct of the prosecution, which seems to have been hell-bent on scaring the crap out Swartz.
roel_v 14y ago
Highlight: "This is going to be a long post, so here’s the summary of my conclusion on the first question: I think the charges against Swartz were based on a fair reading of the law. None of the charges involved aggressive readings of the law or any apparent prosecutorial overreach. All of the charges were based on established caselaw. Indeed, once the decision to charge the case had been made, the charges brought here were pretty much what any good federal prosecutor would have charged. This is different from what a lot of people are hearing on the Internets, so I realize this post isn’t going to be popular." (should have been in the title imo)
- bane 14y ago
  Right, which points strongly to how disproportionate and broken the penalties are in the legal system.
- hippich 14y ago
  (shameless plug) that's how it look for me - http://i.imagebanana.com/img/vnuwcz24/Selection_044.png http://i.imagebanana.com/img/vnuwcz24/Selection_044.png . Thanks to https://chrome.google.com/webstore/detail/hn-tldr/meanhkdlijooagengnomdkmlfhmhbjha https://chrome.google.com/webstore/detail/hn-tldr/meanhkdlij... =)
- deleted 14y ago
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jasonzemos 14y ago
The best refutation to this law professor's analysis is mostly within here: http://io9.com/5975592/aaron-swartz-died-innocent-++-here-is-the-evidence http://io9.com/5975592/aaron-swartz-died-innocent-++-here-is... The application of these federal penal statutes is wholly improper for this case. This case is a civil matter.
- officemonkey 14y ago
  To be fair, the person cited in your refutation is an expert hired by Swartz's lawyer to prove Aaron innocent. He may be in possession of better facts, but as they say, "IANAL."
- Symmetry 14y ago
  While I agree that it was entirely inappropriate for the prosecutor to bring criminal charges into a matter that had already been settled in civil court, leaving out the iterations of MIT coming up with ways to prevent Aaron form downloading things and Aaron coming up with ways to get around them really changes the analysis.
- bradleyjg 14y ago
  It may have been improper in some grand sense, but that's not what Professor Kerr was addressing. He was addressing whether or not the conduct fit the laws in question, as interpreted by the relevant case law. Alex Stamos doesn't even really try to refute that. Instead he provides context that suggests that it was an injustice to apply those laws to Aaron Swartz. That's a separate question, and one that Kerr apparently intends to address in a follow up post.
  - AnthonyMouse 14y ago
    The thing that's going to disappoint me is if Kerr strictly analyzes whether the prosecutor choosing to bring the charges was unlawful, which I imagine it probably wasn't -- it's standard operating procedure. Which is its own problem. But the problem with what prosecutors did is that prosecutors are allowed not to bring the charges and did anyway, notwithstanding the epic disproportionality of the charged penalties to the acts. In other words, the problem is that the law is defective, and prosecutors could have had a conscience and not abused that fact to break this kid, but they failed at being human, and for that they are culpable. Morally and ethically if not legally.
yarrel 14y ago
Stay classy, Orin Kerr.
lhnz 14y ago
Unrelated to this, but does anybody else wonder whether the prosecutors would have gone after him when others decided not to if it wasn't for his activism? SOPA being stopped surely annoyed a few powerful people. What better way to move up in the establishment than by taking out bright activists...
fijal 14y ago
Ok, fine. Assuming this analysis is correct (and I really lack the legal background to asses this), it does not really change that Aarons accusations was in the mind of people who know what they're talking about utter nonsense. Hence the logical conclusion is that prosecutors might be fine, but it does not change the fact that the law is completely nonsensical and this is what we should change. How about you guys fire some congresman instead?
- AnthonyMouse 14y ago
  You can't really fire a Congressman, only vote them out at the next election. But that comes after you push them to fix it and they falter. First we push them to fix it. Hard.
SagelyGuru 14y ago
When the laws, applied fairly and legitimately, have the effect of silencing an activist working for the public benefit, one has to start questioning those laws and the motivations behind them.
- aneth4 14y ago
  This activist was working to change laws, so that's a circular argument.
- teach 14y ago
  I agree. But one man's "freedom fighter" is another man's "terrorist". It just depends what side you're on.
hobbyhacker 14y ago
The fact that it was 'perfectly legal' definitely does not make it right.
chmike 14y ago
What about 35 or more years prison sentence threat ? Whether law was breached, is apparently not contested. What is weird is this sentence. In France, murder gets you usually at most 20 years jail. The sentence seams totally disproportionate to the harm. Will Mr Orin Kerr also discuss this aspect ? Another point is the harm done just by the trial. Going for trial is in itself condemning someone to pay a huge amount of money. Even if if that someone is finally proven innocent or the charges excessive and abusive.
- OGinparadise 14y ago
  Technically that is the max sentence tied to the statues and does not depend on the prosecutors. Aaron would have probably gotten a few years in jail, but as a felon life would have never been the same. After jail some are probation for 1-10 years and some are prohibited from using computers for example. Being a felon also makes travel outside US very hard unless you're a superstar and very hard to get a job or associate with "regular" people and companies. It's a horrible label: convicted felon, and very few ask why and how you got it.
  - chmike 14y ago
    Thank you for the clarification. i didn't know that. What justified to invoke felony in Aaron case ? What constitute felony ? (please note that my ignorance is becasue I'm not American)
    - bradleyjg 14y ago
      A felony is any crime for the which the maximum penalty is at least one year in prison. The term used to mean crimes which were potentially capital, but with so few of them these days the definition changed.
- tptacek 14y ago
  Clarity: Swartz wasn't seriously threatened with 35 years. The prosecution told his attorneys they'd seek ~7 years. 7 years is still ludicrous. 1 year would be ludicrous. The prosecutors can't fairly escape the blame for the "35 years" publicity, because they themselves bragged about it. Swartz's own lawyer predicted that there'd be minimal chance of him serving any time even if he'd been convicted. First time offender, no commercial purpose, no malice, no lasting damage.
ramanujan 14y ago
One thing worthy of notice are the "combo" nature of these penalties. For example, he says Computer Fraud is pretty much the same as Wire Fraud. Yet that's a separate count, with more years/fines/numbers, which gives the prosecution a larger Sword of Damocles to hold over someone's head. Why have a separate crime if you are always going to charge both? Kerr is probably right on the narrow point that if you decided to throw the book at someone you'd hit them with a combo like this (and they later expanded it into a 13-hit combo), and might even be right that this combo is "nothing unusual". We should wait for part two, but the multiplication of an infinite number of federal statutes in combination with prosecutorial discretion looks like the real problem here. We need to trim the sails of these prosecutors in a big way, or at least provide an external check. For example: they're against jury trials? They want to deny people the right to a jury by depleting their cash? Well, what about a virtual jury? Have a site with all public court documents and filings, like the grand jury indictment. Look at how many years they are pursuing and include bios/faces of the accused, defense, and the prosecutors. Then have people vote up/down as to whether or not they think the punishment fits the crime. Completely non-binding of course, and conceptually separate from the question of innocence/guilt. Include lots of analytics/stats on past convictions and the like. Make money via Amazon affiliate links to books on crime, TV shows, etc. And do SEO so that people found innocent are very clearly marked as such in search result snippets. Many crimes are salacious so with reasonable graphic design you'd have no problem getting visitors (like the Smoking Gun). The resulting scrutiny of prosecutorial decisions by thousands of people would indeed change the profession, putting a second and more scalable check on them comparable to the press.
- cones688 14y ago
  Key point with regards to your opening paragraph is: " But the ordinary practice is to charge all the possible offenses committed in the indictment, even if they overlap, and then let the jury sort them out at trial." There is at least a passable amount of evidence for each of the charges, so naturally the prosecution will maximise the number of possible charges. This prevents the whole case falling through if of the one of the counts fails.
  - jrs235 14y ago
eric_bullington 14y ago
I think it's important to note here that Orin Kerr was a DoJ lawyer before he became a law professor[0]. It is likely that he maintains ties and some degree of loyalty to his former employer (many people do). Many bloggers would include a disclaimer on a blog post defending a former employer in a contentious matter, but Kerr did not. 0. http://en.wikipedia.org/wiki/Orin_Kerr http://en.wikipedia.org/wiki/Orin_Kerr
- slapshot 14y ago
  It's also worth noting that he literally wrote the book on the law of computer crime [1], and served as a pro bono (free) defense attorney _against_ the DOJ in the Lori Drew MySpace case [2], and he was extensively critical of the government in that case [3], and he has testified before Congress to say that the Computer Fraud and Abuse Act is too broad.[4] He worked for the DOJ from 1998-2001. If he harbors sympathies for the government, they're pretty well hidden at this point. [1] http://www.amazon.com/Computer-Crime-Law-American-Casebook/dp/0314204547 http://www.amazon.com/Computer-Crime-Law-American-Casebook/d... [2] http://en.wikipedia.org/wiki/United_States_v._Lori_Drew http://en.wikipedia.org/wiki/United_States_v._Lori_Drew [3] http://www.volokh.com/archives/archive_2008_05_11-2008_05_17.shtml#1210889188 http://www.volokh.com/archives/archive_2008_05_11-2008_05_17... [4] http://www.volokh.com/2011/11/14/my-congressional-testimony-on-the-need-to-narrow-the-computer-fraud-and-abuse-act/ http://www.volokh.com/2011/11/14/my-congressional-testimony-...
  - danielweber 14y ago
    Some of the best defense attorneys are former prosecutors.
  - DannyBee 14y ago
    Orin doesn't harbor sympathies for anyone. He has his own viewpoints, some of which match up with the government, and some of which don't. I took classes on computer crime from him when I was in law school :) At this point, he seems more interested in the development of 4th amendment jurisprudence as it relates to technology that he does the CFAA in particular. At least on that front, he's been wildly wrong about future development of the 4th amendment so far. He was a strong opposer of the "mosaic theory" of the 4th amendment, and thought there was a 0% chance the supreme court would go for it, and he was completely and utterly wrong. So take what he says with a grain of salt. He's a brilliant commentator on the CFAA, but a lot of what he says seems to be based on an idea that courts don't really change law to suit justice or policy given sets of facts, which at least, IMHO, is completely false.
hobbyhacker 14y ago
I've read the piece carefully and the thing that stands out for me most is the bit about the data being 'property'. It is argued that since JSTOR claims property rights with a tangential link to another case where someone downloaded a chunk of software that was in wide distribution and used that to their defense which was invalidated is reason enough to establish that this data was the property of JSTOR and that any unauthorized download is therefore a breach of the law. This is interesting because as far as I can see the whole of Aaron's argument revolved around this data being public property all along by virtue of the research being publicly funded and the fact that many authors of these papers can't legally distribute their own work. If the law can't distinguish between unjust claims of property and a complete lack of public interest on the one side and the good intentions of an individual on the other then you can stick to the 'letter of the law' but that means the law is no longer functional. I also keep reading about 13 counts, and here there are only 4, is there any reason for the discrepancy or is this commentary based on the pre-September expansion of the charges?
kandahar 14y ago
Thanks for the adult, reasoned perspective Professor Kerr--it was much-needed. I have been dismayed (but not surprised) by the ghoulish treatment of this poor kid. He's a perfect martyr for movement-minded people. The only movement he should inspire right now is a gut check by anyone who is "mentoring" a minor or a troubled young person. Are you mentoring him/her for his/her benefit, or for your own? I'm sure it's immensely flattering for the leading lights of the various hacker and open source, open information movements to have brilliant youngsters sitting at their feet, capering and reacting to their social manifestos. Well, I hope Aaron's whole-hearted devotion was gratifying to SOMEONE. I personally wish he had never been allowed to wander at an impressionable age among the manifesto crowd, who in fact do incite criminal actions by their followers. They have now shown that they will allow themselves to address a child as though he is an adult, and let the chips fall where they may. But of course we all know who the REAL villains are: those who have and attempt to assert property rights. Just astounding. I think I will have to avert my gaze from this crowd of ghouls--I don't want to see a dead kid's face on tee shirts and posters, but that is where this is going.
gyardley 14y ago
Sure, but the appropriateness or inappropriateness of the particular charges isn't the issue. Anyone who focuses on 'computer crime' or any of Aaron's pet causes is missing the point. The issue is abuse of power, and why the federal government has so much power in the first place. Criminals should be a tiny group of antisocial people who deserve serious consequences for their serious actions, with law enforcement enforcing a limited set of laws (rape, murder, etc.) universally - going after every criminal that comes to their attention. Fair and understandable. Back in reality, most of us have probably innocuously violated some federal law already (Silverstein's Three Felonies a Day has been mentioned a bunch - it's a great book.) Even in cases like Swartz's where his violations were arguably intentional rather than accidental, the penalties are completely disproportionate to the action. In this system, where we're practically all lawbreakers, the government has the discretion to decide exactly whose lives they want to ruin. In the best case they're enforcing the law selectively in line with their best moral judgement - for example, Al Capone. He was generally suspected to be a bad guy, but no one could prove that he committed any sort of real crime - so out of the millions of people that cheat on their taxes every year, the government singled him out to prosecute for tax evasion, and then threw the book at him. Maybe jailing him was a good result, but by selecting one man out of a pool of millions of lawbreakers to go after, the government crossed the line from the rule of law to the rule of man. And think of the result when the government's initial instinct about a person's "good guy" vs. "bad guy" status is wrong! In this system, the nightmare is the malicious prosecutor, one that's not even attempting to "do what's right" but instead is selecting cases to prosecute for personal motivations - political advancement, personal causes, etc. People who are initially targeted for federal prosecution but somehow 'escape' are frequently recharged for something else - for example, the hapless fuel-cell entrepreneur Krister Evertson. That's what it sounds like happened to Aaron Swartz - thanks to the previous federal investigation into PACER, when he popped up again the federal government was delighted to go after him with both barrels, for reasons having nothing to do with MIT or JSTOR. Even if PACER wasn't an influence, going after Swartz instead of modern Al Capones shows that the arbitrary rule of man we've got in place of a real legal system is working pretty damn poorly. The way to solve this problem, ultimately, would be to dramatically shrink the size of criminal federal law - ideally by limiting what can be declared criminal in the constitution, since we certainly can't rely on the legislative branch's sense of justice. This will never happen, at least not until this system is torn down and another is constructed (yeah, you scoff, but historically this does happen from time to time). In the meantime, we might as well find legal ways to make being a prosecutor politically unrewarding, and look for incremental reform where we can find it.
btilly 14y ago
I read through this and got the opposite impression from most people who are responding here. This is explicitly not an analysis of right versus wrong. This is an analysis of the cudgel that the prosecutors were about to use on Aaron. This is about whether the charges were likely to stick in court. The analysis says that the cudgel was very strong. Aaron had real cause to fear. And his defense was going to face an uphill battle. I look forward to part 2, which is explicitly supposed to be an analysis of whether or not the cudgel should have been swung in the first place.
- tptacek 14y ago
  I would be shocked if Part 2 says anything other than "the prosecution's conduct was abusive", given that Swartz's violations were done without commercial intent, caused little if any lasting damage, and were (mostly) not malicious. The defendants in the Gonzalez carding ring got lower sentences than Swartz was threatened with.
  - btilly 14y ago
    I suspect the same, else I wouldn't be looking forward to it. But even though I expect the conclusion, I'll still be very interested to see how a legal expert makes the case persuasively, and manages to support it with objective examples. However your comparison to the Gonzalez carding ring is highly unfair. We've been repeatedly warned about the difference between statutory maximums and actual penalties. Jail sentences are like college tuition, the actual amount you pay is not the official sticker price you're given. How much less? According to http://www.boston.com/metrodesk/2013/01/14/mit-hacking-case-lawyer-says-aaron-swartz-was-offered-plea-deal-six-months-behind-bars/hQt8sQI64tnV6FAd7CLcTJ/story.html http://www.boston.com/metrodesk/2013/01/14/mit-hacking-case-... the plea bargain that Aaron was offered was that he had to plea guilty to all 13 counts, and spend 6 months in jail. That's a lot less than what the defendants in the Gonzalez carding ring got. But that's a plea deal. If Aaron took it to trial and won some, lost the others, his likely sentence would be something greater than the plea bargain and significantly less than the maximum. The judge would have discretion, and would likely take everything you say into account in determining the penalty. So I'd still hope it would be less than what the defendants in the Gonzalez carding ringt got. That said, being declared to be a felon is no picnic, as many can attest. Doubly so if, like Aaron, you have friends all over the world and would like to travel to conferences in other countries. And yes, you can sometimes get the felony officially expunged years later, but even that is imperfect. (As I learned sharing beers with Randal Schwartz...)
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antman 14y ago
The professor says this is a first post is about the law, but it is an assortment of opinions. II. The Legal Charges Brought Against Swartz (a) Wire Fraud. The Wire Fraud statute, 18 U.S.C. 1343, prohibits a scheme to gain “property” by false pretenses. This strikes me as a pretty strong charge here. The false pretenses are provided by the false identification and spoofing of Swartz’ IP address and MAC address. -> This is not false identification, IP or MAC is not tied to Aaron as person. MIT allows guest access and blocking an IP does not mean forbidding to a person access. Swartz was trying to trick JSTOR into giving him access to their database after they had specifically tried their best to ban him from doing so. And the “property” was the contents of the JSTOR database itself. -> The property is not the contents of the database since it was not produced by them they were handling it. Some might argue that the contents of the JSTOR database should not be considered “property.” But I think that’s a hard argument to make in light of United States v. Seidlitz, (...) that OSI invested substantial sums to modify the system to suit its peculiar needs, that OSI enjoyed a multi-million dollar competitive advantage because of WYLBUR,(...) -> "OSI invested substantial sums to modify the system to suit its peculiar needs, that OSI enjoyed a multi-million dollar competitive advantage because of WYLBUR" ???????? This is the exact opposite of this case where specifically JSTOR cannot alter the content of the producer. It's mission statement says it is also a not for profit organization [1] That reasoning seems to apply reasonably well to the JSTOR database, too. See also Carpenter v. United States, 484 U.S. 19 (1987) (recognizing a property right for purposes of federal fraud statutes for a business in confidentiality and use of information to appear in a forthcoming publication). It’s possible to argue that Seidlitz is distinguishable, but I think it’s an uphill battle. -> If it possible to argue, then it is possible for the prosecuter to show discretion (b) Computer Fraud. The next charges were brought under the Computer Fraud statute, 18 U.S.C. 1030(a)(4), which is a close cousin of the Wire Fraud statute. The two are usually charged together in computer crime cases, and there isn’t really all that much that separates them that we need to dwell on here. So let’s move on to the next crime. -> ... so if there isn't a wire fraud there is also no computer fraud? (c) Unauthorized Access. The next charge was unauthorized access to a computer to obtain information valued more than $5,000, in violation of 18 U.S.C. 1030(a)(2)(C) and 18 U.S.C. 1030(c)(2)(B)(iii). I think this charge was a fair one. There are two notable legal issues here. First, was the information valued at more than $5,000? The answer is clearly yes under the leading case of United States v. Batti, (...)methodology when “information obtained by a violation of § 1030(c)(2)(B)(iii) does not have a readily ascertainable market value.” In such cases, the court held, “it is reasonable to use the cost of production as a means to determine the value of the information obtained.” Creating thousands of journals over many years obviously costs more than $5,000, so that element is easily satisfied. -> He did not steal any journals. The only thing he got was the content that for JSTOR it had a zero cost of production. At least they have not claimed it did since they dropped the case. The Batti case had as an example a video feed that the company had created, and the cost for its production. That does not seem releveant it is legal name dropping. (...) They blocked his IP address; he changed it. They blocked his MAC address; he spoofed it. They blocked access and he broke into a restricted closet and connected directly to MIT’s network. This is not merely a case of breaching a written policy. Rather, this is a case of circumventing code-based restrictions (...)So I think unauthorized access is established here, too. -> It is pretty clear that he has not exceed anything not explicitly stated. Was there a page saying "We forbid YOU the PERSON to ever access this server?". I guess there wasn't because it would have already become an internet sensation. He did not circumvent code restrictions since there weren't any for MIT guests. The professor does not see why this is different than stealing someone else's password. An interesting view for a law Professor, so help me god. (d) Computer Damage. The final charge brought was exceeding authorized access and thereby impairing the availability or integrity of information in ways that cause more than $5,000 or loss or involve more than 10 computers, in violation of 18 U.S.C. 1030(a)(5)(B) and 1030(c)(4)(A)(i)(I) & (VI). This is a plausible charge, although we’d need to know more details about the case to know if it is fully merited. I’ve already covered the elements of authorized access, so we can adopt that analysis above here and move on to the other elements. -> We should thank the unbiased professor here also. To get to $5,000 in a 1030(a)(5) case, the easiest and most widely-accepted methodology in the caselaw is to focus on the time spent responding to the unauthorized access. (...) -> JSTOR seems to have had an automated system that cut access so there is not a proof that anyboy worked on it. After the breach was established JSTOR and MIT should provide data of manhours that were used ouside the daily shift (was there overtime? a destruction of the system?). Merely adding restrictions that they previously had CHOSEN not to have as part of the system is definitely not a response cost. They were repairing a broken business model. Anyway good luck obtaining dollar figures from JSTOR or MIT for the prosecutor. The impairment of availability or integrity element would probably be satisfied, as well, (...) And more significantly, does access to a particular service from some users really constitute an impairment of availability of the JSTOR computer itself? I’m not sure, but I’m wary of that argument. So the 1030(a)(5) charges are plausible, but we would need to know more facts to know for sure if they were justified. ->"The impairment of availability or integrity element would probably be satisfied" and "The indictment alleges that Swartz’s conduct impaired the working of the JSTOR database but doesn’t give us much detail, so it’s hard to be sure" are two opposing sentences. Either it is probably justified or it is hard to be sure. Ofcourse since the admins have taken down the system themselves they will have to prove that it would go down by itself. But neither JSTOR or MIT have provided such data. III. Conclusion My conclusion, at least based on what we know so far, is that the legal charges against Swartz were pretty much legit. Three of them are pretty strong; one is plausible but we would need to know more facts to be sure. Of course, there may have been reasons not to charge Swartz even though he had violated these statutes or to offer him a lenient plea. I’ll take on those questions in my next post. But to the extent we’re focused on just what the law is, I think that what Swartz was alleged to have done fits pretty well with the charges that were brought. ->My Conclusion: This is a biased opinion but not necessarily wrong or willfully biased. It is legally biased. Truth or Mens Rea is irrelevant and things that are hard to be proven by the government alone are described as self explanatory, or obvious interpretation of facts. [1] http://about.jstor.org/about http://about.jstor.org/about

198 points by abtinf 14y ago

The witch hunt was inevitable due to the sheer emotion we all felt during this tragic event. It is correct to step back and not look at getting one or two attorneys fired - but rather look at the law itself, and reflect on the absolute absurdity of how it can be applied. If the law is the law, and the law says that someone downloading academic papers carries the same punishment as a murderer or rapist, then the law needs to be changed. A fundamental shift needs to take place. We can take a page from: "Dear Congress, It's No Longer OK To Not Know How The Internet Works" And follow with: "Dear Attorneys, It's No Longer OK To Not Know All Hacking Isn't Terrorism"

SeanDav 14y ago
I think the attorneys getting fired would be a great first step. After all they hounded Aaron and people like him to send a "message". Let them get sent a "message" in return.
- nicpottier 14y ago
  Yes, after all, "an eye for an eye" is a great system of justice. No, they shouldn't be fired for doing their job, regardless of the consequences. It is a tragedy that Aaron took his life, but nobody can argue that it was an appropriate response to the challenges posed to him. You can't blame a prosecutor because Aaron reacted violently to them doing his job, just as you can't blame violent video games for Columbine or D&D for kids hurting themselves in the forest with swords. They are all contributing factors, but it is the core mental illness that is at fault.
  - jlgreco 14y ago
    An eye for an eye? Please, we're talking about firing some people, not a dozen+ felonies and decades in prison. >You can't blame a prosecutor because Aaron reacted violently to... That is not what we are proposing firing them for. > them doing his job They did a shit job of that, and that is what they need to be fired for.
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  - yarrel 14y ago
    Hounding someone with threats of bankruptcy or of imprisonment for longer than they'd been alive is very different from them playing games. Your comparison of a suicide to a mass killing in order to plead the just world fallacy is ill chosen at best.
  - downandout 14y ago
    > You can't blame a prosecutor because Aaron reacted violently to them doing his job Perhaps they cannot be blamed for his response, but a myriad of evil things have occurred in this world at the hands of people "just doing their jobs". The mere fact that someone is being paid for them doesn't justify vicious, cruel, and/or outrageous actions that have predictably bad outcomes. Further, it could easily be argued that their pursuit of this case went beyond the normal scope of their jobs. While federal criminal cases are technically brought on behalf of the government, in many cases the charges are dropped when the victim expresses disinterest in having the individual prosecuted. In this case, they were attempting to lock someone up for decades in a case where the alleged victims didn't even want the perpetrator prosecuted. Since the victims had no interest in it, the only remaining motivation for such an aggressive prosecution would be to put another notch in the belts of the US Attorney's office prosecuting the case. That is hardly an acceptable use of taxpayer resources. It is an abuse of power aimed at furthering the individual careers of the lawyers involved.
    - moccajoghurt 14y ago
      > It is an abuse of power aimed at furthering the individual careers of the lawyers involved. Does this mean that if you win a case where the actual victim doesn't even care anymore still gives you a good reputation?
      - downandout 14y ago
        It means that a high profile conviction such as this would have been a nice boost to their resumes, regardless of the particulars. The legal profession is somewhat unique in that being perceived as an aggressive, cold-hearted, and ruthless individual with the ability to squeeze out a win even when the facts and circumstances don't support a win is a positive thing.
  - hobbyhacker 14y ago
    Nobody called for her imprisonment or hounding her to the point where she's going to hang herself. Just a corrective measure to a system that has clearly spun out of control. A change of career.
  - chris_wot 14y ago
    If the job of the prosecutor is to persecute someone, even after the "victim" resolved their issue with the offender, then they have a shitty job and should just up and quit. There are better jobs out there: ones that don't destroy the lives of good people.
    - Xylakant 14y ago
      The job of the prosecutor is indeed to continue the prosecution, even if the victim and the offender have resolved their issues. Think of a case of some victim being coerced to have the charges dropped. Would you prefer the prosecution to stop or would you prefer if the crime was resolved?
      - chris_wot 14y ago
        I'm sorry, was JSTOR coerced into asking for the charges to be dropped?
        Xylakant 14y ago
        In this case probably not, though public pressure may have been a part of it. And MITs statement was less clear on that matter. However, this is not for the prosecution to decide. The prosecution should treat each case equal. If criminal charges haven been brought forward, they must be prosecuted or dismissed solely based on evidence, not based on the victims actions. Please note that I do not think that the way the prosecution pushed the charges was right.
        pdonis 14y ago
        If criminal charges haven been brought forward Neither JSTOR nor MIT brought forward criminal charges; that was done by the US Attorneys themselves. So saying "this is not for the prosecution to decide" is wrong--the prosecution decided to bring charges, so it's their responsibility if the charges were way out of proportion.
        14y ago
  - RHSeeger 14y ago
    > You can't blame a prosecutor because Aaron reacted violently to them doing his job We seem perfectly happy blaming bullies when people commit suicide (including incidents where both parties were adults). Given the position of relative power of the two individuals, it's not unreasonable to draw a parallel there.
  - TruthElixirX 14y ago
    >You can't blame a prosecutor because Aaron reacted violently to them doing his job, Their job is to perpetuate violence, rather justified or not.
  - daniel-cussen 14y ago
    This is not an eye for an eye. Aaron's dead, and we're not talking about killing the attorney. But firing her? Absolutely.
  - alexqgb 14y ago
    Sorry, but no, they weren't "just doing their jobs". They were operating way outside the parameters of their jobs, which - as extensions of the Executive Branch - are subject to oversight by the Judicial branch which, in turn, is subject to direct popular oversight in the form of trial by jury. The critical fact is that the Prosecutors were doing everything in their power secure guilty pleas without going in front of a jury, where they were very likely to lose. That's why they were offering a mere 6-8 months in jail on multiple felony confessions vs. 35 years in prison, a $1mm fine and a trial process designed to be financially ruinous. In other words, their "offer" hinged on their ability to place an insurmountable wall between Aaron and a jury. In doing so, they avoided a key provision of the Constitution. The breath-taking abusiveness with which they pursued him only underscores why that provision was made in the first place. http://online.wsj.com/article_email/SB10001424127887324581504578238692048200404-lMyQjAxMTAzMDEwMzExNDMyWj.html http://online.wsj.com/article_email/SB1000142412788732458150... Faced with power this unchecked and malicious, most people simply cave, which is why fewer than 10% of Federal crimes end up before a jury. But apparently, Aaron considered life as a convicted felon to be a fate worse than death. As with so many other things, he simply wasn't like most people. While his suicide brought an unusual amount of attention to the abuse that's going on, the abuse itself is far from unusual. Indeed, it's become par for the course. That's the issue. That's why the response is about people regaining control over a terrifyingly out-of-control system. Extending this to the specific individuals is essential, because that - and only that - can reflect the moral dimension of the situation. After all, we're not talking about a busted sewer pipe here, or a faulty traffic light leading to an especially bad traffic accident. The DOJ's standard operating procedure represents a calculated erosion of democratic safeguards. That's what makes their conduct a violation of their oaths and crime against the people. So yes, the public's reassertion of its moral authority over its government should absolutely involve severe punishment for those who have so egregiously betrayed the public trust. Given the context, "career ending" is hardly too high a price for the specific individuals to pay. As any prosecutor will tell you, the law is about deterrence as much as it is about punishment.
- patrickgzill 14y ago
  Some are criticizing you, but I personally think this is the right answer. US Attorneys and the Fed "gotcha" system of justice need to be contrained.
pdmccormick 14y ago
I agree that in this situation the laws on the books should also be under review. But prosecutors have some discretion as to whom and what and to what extent they'll pursue a case. Regardless of where they might be on a spectrum from noble, high minded civil servant to the most egregious political opportunist, a consequence to the prosecutorial action this case (public opinion, increased scrutiny, career consequence severe or light, etc.) could help establish an incentive for others in the future to act differently. Not legally binding, not compulsory, but just a element of "Let's not make that mistake again."
legutierr 14y ago
The reason to seek to end the political career of Ms. Ortiz is not because her hounding of aaronsw was inconsistent with the behavior of other federal prosecutors, but rather precisely because it was "what any good federal prosecutor" would have done. There are so many criminal laws on the books--and federal law enforcement powers are so great--that any individual who is identified as a political target can have their lives ruined, regardless of the moral justice of the charges they face. Furthermore, in spite of what this article says, prosecutors frequently use their discretion when choosing to file charges. The beneficiaries of that discretion are often the politically connected, examples of which are numerous and infamous. In other words, the filing of these charges against Aaron Swartz was an inherently political act and requires a political response. That these charges were morally odious cannot be doubted, and yet articles like this ask, were they nonetheless correct? By asking that question they attempt to exculpate Ms. Ortiz and her subordinates. This prosecution was "correct" only because people like Aaron Swartz who seem powerless are the kind of people who go to jail all the time. The effort to end Ms. Ortiz' career is an effort to make prosecutions like this "incorrect" by making people like Aaron Swartz more powerful, because just as the powerless are targeted in this very way all the time, similar digressions by the powerful are frequently overlooked. When mercy and proportionate justice is granted only to the powerful, then any quest for mercy and justice must concern itself first and foremost with power. In the American political system, power is gained and exerted by imposing political consequences on those politians who transgress against your objectives.
- viggity 14y ago
  http://www.harveysilverglate.com/Books/ThreeFeloniesaDay.aspx http://www.harveysilverglate.com/Books/ThreeFeloniesaDay.asp...

Illychnosis 14y ago

People like Orin Kerr are part of the problem. Anyone associated with the DoJ can't see that the DoJ is the problem, not the Aaron Swartzes of the world. "It is difficult to get a man to understand something, when his salary depends upon his not understanding it." -Upton Sinclair

danso 14y ago
I think it's unnecessary and unhelpful to bash an argument based merely on authority or ad hominem. Kerr brings up a level headed assessment of case law and it will be interesting to read the rebuttals to it. If people truly want to fix the problem here, then they must understand its domain, not simply say "this is not how I want the world to be"
- FSEA 14y ago
  That's OK, when someone legislates criminal punishment for being friends with Jews lets try to understand the it's domain instead of resoundingly denying it's attempt to exist. No this type of behavior just enables judicial bullying more. Instead of taking time to acknowledge the heavy handed and totally ruinous tactics of prosecutors and the law they tout as their sword, lets continue to defend ourselves on it's terms as Kerr begs us to do. No, that just means more meat mangled by 'the system.' "It is the law so lets try to respect it because it is the law."
zaidf 14y ago
Anyone associated with the DoJ can't see that the DoJ is the problem Why? He is precise in what his post is doing: simply making an evaluation of whether the charges stack up with the law on the books. He neither promises nor tries to evaluate the legitimacy of the laws. I think that is perfectly fine and in fact I'd love if more qualified folks shared their specific interpretation of the law with minimal bias in either direction.
- michaelfeathers 14y ago
  Here's the thing that we need to be aware of. I'm assuming that many of the readers of HN are programmers or have been programmers. The law is very literal, it is like code. But not everything in life is black and white. Often I run into programmers who want want to think that all questions should have yes or no answers. Even if they don't, many of us have a deep sense that there is something right about seeing the world in terms of strict categorical statements. Me? Well, as a programmer, citizen and human being, I'm suspicious of it. Deeply.

jmcgough 14y ago

I'm looking forward to the second part of this (on prosecutorial discretion) - this is a good analysis. I feel torn about the trial, and I know I'll get flack for this but what Aaron did was illegal, and I'm sure he knew while he was doing it that it was illegal, or at least in a grey area. At the same time, they were way overly aggressive in prosecuting him. There's something wrong with the system when someone can have their life destroyed and their resources drained by their choice to exercise civil disobedience in protesting something that is morally wrong.

josephlord 14y ago
Largely agree although I would insert the word 'probably' before illegal in your second paragraph. It hadn't come to trial yet and we don't have ALL the evidence (especially the defense evidence). I would say that I don't think that the concept of prosecuting him was inherently or clearly wrong. I'm also very interested to read the second part. I hope it covers the number of counts of each charge brought. This seems to be something that racks up the potential penalty very fast and the individual offences aren't necessarily that distinct from each other

JohnsonB 14y ago

How can spoofing IP/MAC addresses be considered "false pretenses" if these are considered, by nature of how computer networks and management thereof have evolved, to be transient or arbitrary in nature? Spoofing IP/MAC addresses does't even involve "pretenses", because it is a fallacious assumption (usually by the technically illiterate) that IP/MAC addresses correspond, or are even supposed to correspond, to a unique person/computer/entity in the first place. I can't say this is a good analysis by Kerr, given that he ignores extremely basic weaknesses such as this in the charges brought against Swartz.

danso 14y ago
Isn't this like asking "How is wearing a fake mustache in public a false pretense?" It isn't. But if I'm doing it with an obvious intent on deceiving someone about my identity, don't you think that context matters? Even if the fake-mustache seems ridiculous?
- gnud 14y ago
  In that case, if he'd bought a new laptop instead of changing the MAC address, would he have been off the hook?
  - andylei 14y ago
    he did buy a new laptop. its in the article.
- JohnsonB 14y ago
  That's the point, the spoofing of the IP/MAC addresses in themselves prove nothing, and yet Kerr is assessing it as such. The guy with a fake mustache could be a method actor preparing for his next role, and Swartz could have thought "MIT/JSTOR doesn't give a damn if I scrape these articles, but I don't care to ask for official resources to do it just to be told no."
  - danso 14y ago
    Why are we speculating what Swartz "could have thought"? What was his defense team planning on arguing?

belorn 14y ago

On the legal theory used, I do find a few areas where further information would be useful. In the case of Wire Fraud, is it JSTOR or MIT's rights that was violated if someone under false pretenses gains access to MIT's facilities and MIT's licensed access for research articles? What is the legal precedence in regard to rented or licensed property; is it the licensee's right that was violated if a crime is made to the property whiles in the care of the licensee or is it the licensers? By continuing giving MIT access after the breach of contract/license agreement, does JSTOR still have a legal claim of Wire fraud? In the case of Unauthorized Access, Orin Kerrthe refer to a methodology of using the cost of production as a means to determine the value of the information obtained. But are we talking about the cost of production that JSTOR did in producing access to the information, or the production of the information itself done by parties not JSTOR or MIT. If we talk about the production efforts made by JSTOR, would the production cost be limited to the licensing fee's that JSTOR is (or are they?) paying to get exclusive access to the research journals?

jforman 14y ago
By continuing giving MIT access after the breach of contract/license agreement, does JSTOR still have a legal claim of Wire fraud? You're thinking in terms of a civil suit, where an aggrieved party sues to restore their property/rights/etc. This was a criminal suit where the process is very different: the party suing is always the government in criminal cases, and the only matter at hand is whether the defendant violated the letter of the law. Aggrieved parties don't even have any authority to press or drop charges in criminal cases: that authority rests solely with the government (and the government will often continue cases when the parties involved just want it to go away).

Vivtek 14y ago

You know what Aaron's sin was? Greed. If he'd set this same thing up so that it would download JSTOR over the course of, say, two years, nobody would ever have been the wiser, we'd actually have that data today since it's actually been two years, and he'd still be alive. But he had to have all the data NOW. I get it, I really do. He lost track of the goal in the excitement of the pursuit.

peterwaller 14y ago
I don't like the use of the word greed here. If you're going to liberate information, you have to be timely. And it would still have been a lot to download even over years, so whilst your proposal reduces the instantaneous bandwidth, the aggregate is still large and so still likely to be noticed. The longer that laptop is in the cupboard...
rdl 14y ago
His sin was being in the middle of the barbell. Act fully legally and under your own name (or, only slightly illegally, and with the intention of being arrested and prosecuted as civil disobedience), or, act entirely covertly, unlinkable to your identity, and just get it accomplished. Doing things multiple times with risk that someone would set up surveillance is what exposed him. Buying a throwaway laptop for cash, wiping all prints, and hiding it somewhere off-video, waiting a few days, and then starting a slow-leech, uploading the content to some anonymous site, and then acting shocked about how someone copied what he'd done with PACER in this way, would have been a lot safer. $300 laptop is cost of doing business. ATM skimmers crews know this.
- ansible 14y ago
  I agree. After getting detected and stopped the first couple times, I would have preferred him to be a bit more clever. And certainly when it gets to the point you're worried about being identified via video surveillance, it is time to take a radically different approach.
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rdl 14y ago

We really need to change the laws as they relate to computer crime and copyright.

tptacek 14y ago
I do not agree. Beyond that, I worry that what geeks hope for is a situation where the plain language of the law protects them from "overcharging". That's never going to happen. A zealous prosecutor is going to be able to make your life miserable no matter what. That's the problem we need to address. Count me among those who think what Swartz did could reasonably have been charged as a felony, but should never have been charged as multiple felonies. Swartz' attorneys tried to arrange a plea deal and were told that Swartz would need to cop to all thirteen felonies, and would still serve prison time. If all we know now is all there is to the story, that's a gross abuse on the part of Stephen Heymann's office.
- rdl 14y ago
  I would like to see some element of malice, profit, or real and reasonably expected destructiveness in intrusion as a separate crime, and thus separate sentencing guidelines, similar to degrees of murder or assault. The problem with prosecutorial discretion is sometimes you end up with abuses like this. Having at least an order of magnitude written into the law would go a long way. I think this was essentially on the line as a felony vs. serious misdemeanor. 1-3 year range, tops, and probably something which should have gotten a suspended sentence for that period, as well.
  - tptacek 14y ago
    Regarding the addition of "malice" to some successor of the CFAA: the prosecution could have charged malice; there was clear enough evidence that Swartz's goal was to harm JSTOR. A malice requirement would have made the case harder to win, but the tragedy here isn't how hard this case was to win. Aaron's attorney, who at this moment is motivated to make the strongest possible case for the hardship Aaron faced, says he believes Swartz (a) could have beaten the charges as they stood and (b) was very unlikely to get more than a suspended sentence even if he hadn't. I think there's broad agreement that Swartz both shouldn't have and was unlikely to serve time as a result of this case. Which brings me back to Heymann and the conduct of the prosecution, which seems to have been hell-bent on scaring the crap out Swartz.

roel_v 14y ago

Highlight: "This is going to be a long post, so here’s the summary of my conclusion on the first question: I think the charges against Swartz were based on a fair reading of the law. None of the charges involved aggressive readings of the law or any apparent prosecutorial overreach. All of the charges were based on established caselaw. Indeed, once the decision to charge the case had been made, the charges brought here were pretty much what any good federal prosecutor would have charged. This is different from what a lot of people are hearing on the Internets, so I realize this post isn’t going to be popular." (should have been in the title imo)

bane 14y ago
Right, which points strongly to how disproportionate and broken the penalties are in the legal system.
hippich 14y ago
(shameless plug) that's how it look for me - http://i.imagebanana.com/img/vnuwcz24/Selection_044.png http://i.imagebanana.com/img/vnuwcz24/Selection_044.png . Thanks to https://chrome.google.com/webstore/detail/hn-tldr/meanhkdlijooagengnomdkmlfhmhbjha https://chrome.google.com/webstore/detail/hn-tldr/meanhkdlij... =)
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jasonzemos 14y ago

The best refutation to this law professor's analysis is mostly within here: http://io9.com/5975592/aaron-swartz-died-innocent-++-here-is-the-evidence http://io9.com/5975592/aaron-swartz-died-innocent-++-here-is... The application of these federal penal statutes is wholly improper for this case. This case is a civil matter.

officemonkey 14y ago
To be fair, the person cited in your refutation is an expert hired by Swartz's lawyer to prove Aaron innocent. He may be in possession of better facts, but as they say, "IANAL."
Symmetry 14y ago
While I agree that it was entirely inappropriate for the prosecutor to bring criminal charges into a matter that had already been settled in civil court, leaving out the iterations of MIT coming up with ways to prevent Aaron form downloading things and Aaron coming up with ways to get around them really changes the analysis.
bradleyjg 14y ago
It may have been improper in some grand sense, but that's not what Professor Kerr was addressing. He was addressing whether or not the conduct fit the laws in question, as interpreted by the relevant case law. Alex Stamos doesn't even really try to refute that. Instead he provides context that suggests that it was an injustice to apply those laws to Aaron Swartz. That's a separate question, and one that Kerr apparently intends to address in a follow up post.
- AnthonyMouse 14y ago
  The thing that's going to disappoint me is if Kerr strictly analyzes whether the prosecutor choosing to bring the charges was unlawful, which I imagine it probably wasn't -- it's standard operating procedure. Which is its own problem. But the problem with what prosecutors did is that prosecutors are allowed not to bring the charges and did anyway, notwithstanding the epic disproportionality of the charged penalties to the acts. In other words, the problem is that the law is defective, and prosecutors could have had a conscience and not abused that fact to break this kid, but they failed at being human, and for that they are culpable. Morally and ethically if not legally.

yarrel 14y ago

Stay classy, Orin Kerr.

lhnz 14y ago

Unrelated to this, but does anybody else wonder whether the prosecutors would have gone after him when others decided not to if it wasn't for his activism? SOPA being stopped surely annoyed a few powerful people. What better way to move up in the establishment than by taking out bright activists...

fijal 14y ago

Ok, fine. Assuming this analysis is correct (and I really lack the legal background to asses this), it does not really change that Aarons accusations was in the mind of people who know what they're talking about utter nonsense. Hence the logical conclusion is that prosecutors might be fine, but it does not change the fact that the law is completely nonsensical and this is what we should change. How about you guys fire some congresman instead?

AnthonyMouse 14y ago
You can't really fire a Congressman, only vote them out at the next election. But that comes after you push them to fix it and they falter. First we push them to fix it. Hard.

SagelyGuru 14y ago

When the laws, applied fairly and legitimately, have the effect of silencing an activist working for the public benefit, one has to start questioning those laws and the motivations behind them.

aneth4 14y ago
This activist was working to change laws, so that's a circular argument.
teach 14y ago
I agree. But one man's "freedom fighter" is another man's "terrorist". It just depends what side you're on.

hobbyhacker 14y ago

The fact that it was 'perfectly legal' definitely does not make it right.

chmike 14y ago

What about 35 or more years prison sentence threat ? Whether law was breached, is apparently not contested. What is weird is this sentence. In France, murder gets you usually at most 20 years jail. The sentence seams totally disproportionate to the harm. Will Mr Orin Kerr also discuss this aspect ? Another point is the harm done just by the trial. Going for trial is in itself condemning someone to pay a huge amount of money. Even if if that someone is finally proven innocent or the charges excessive and abusive.

OGinparadise 14y ago
Technically that is the max sentence tied to the statues and does not depend on the prosecutors. Aaron would have probably gotten a few years in jail, but as a felon life would have never been the same. After jail some are probation for 1-10 years and some are prohibited from using computers for example. Being a felon also makes travel outside US very hard unless you're a superstar and very hard to get a job or associate with "regular" people and companies. It's a horrible label: convicted felon, and very few ask why and how you got it.
- chmike 14y ago
  Thank you for the clarification. i didn't know that. What justified to invoke felony in Aaron case ? What constitute felony ? (please note that my ignorance is becasue I'm not American)
  - bradleyjg 14y ago
    A felony is any crime for the which the maximum penalty is at least one year in prison. The term used to mean crimes which were potentially capital, but with so few of them these days the definition changed.
tptacek 14y ago
Clarity: Swartz wasn't seriously threatened with 35 years. The prosecution told his attorneys they'd seek ~7 years. 7 years is still ludicrous. 1 year would be ludicrous. The prosecutors can't fairly escape the blame for the "35 years" publicity, because they themselves bragged about it. Swartz's own lawyer predicted that there'd be minimal chance of him serving any time even if he'd been convicted. First time offender, no commercial purpose, no malice, no lasting damage.

ramanujan 14y ago

One thing worthy of notice are the "combo" nature of these penalties. For example, he says Computer Fraud is pretty much the same as Wire Fraud. Yet that's a separate count, with more years/fines/numbers, which gives the prosecution a larger Sword of Damocles to hold over someone's head. Why have a separate crime if you are always going to charge both? Kerr is probably right on the narrow point that if you decided to throw the book at someone you'd hit them with a combo like this (and they later expanded it into a 13-hit combo), and might even be right that this combo is "nothing unusual". We should wait for part two, but the multiplication of an infinite number of federal statutes in combination with prosecutorial discretion looks like the real problem here. We need to trim the sails of these prosecutors in a big way, or at least provide an external check. For example: they're against jury trials? They want to deny people the right to a jury by depleting their cash? Well, what about a virtual jury? Have a site with all public court documents and filings, like the grand jury indictment. Look at how many years they are pursuing and include bios/faces of the accused, defense, and the prosecutors. Then have people vote up/down as to whether or not they think the punishment fits the crime. Completely non-binding of course, and conceptually separate from the question of innocence/guilt. Include lots of analytics/stats on past convictions and the like. Make money via Amazon affiliate links to books on crime, TV shows, etc. And do SEO so that people found innocent are very clearly marked as such in search result snippets. Many crimes are salacious so with reasonable graphic design you'd have no problem getting visitors (like the Smoking Gun). The resulting scrutiny of prosecutorial decisions by thousands of people would indeed change the profession, putting a second and more scalable check on them comparable to the press.

cones688 14y ago
Key point with regards to your opening paragraph is: " But the ordinary practice is to charge all the possible offenses committed in the indictment, even if they overlap, and then let the jury sort them out at trial." There is at least a passable amount of evidence for each of the charges, so naturally the prosecution will maximise the number of possible charges. This prevents the whole case falling through if of the one of the counts fails.
- jrs235 14y ago

eric_bullington 14y ago

I think it's important to note here that Orin Kerr was a DoJ lawyer before he became a law professor[0]. It is likely that he maintains ties and some degree of loyalty to his former employer (many people do). Many bloggers would include a disclaimer on a blog post defending a former employer in a contentious matter, but Kerr did not. 0. http://en.wikipedia.org/wiki/Orin_Kerr http://en.wikipedia.org/wiki/Orin_Kerr

slapshot 14y ago
It's also worth noting that he literally wrote the book on the law of computer crime [1], and served as a pro bono (free) defense attorney _against_ the DOJ in the Lori Drew MySpace case [2], and he was extensively critical of the government in that case [3], and he has testified before Congress to say that the Computer Fraud and Abuse Act is too broad.[4] He worked for the DOJ from 1998-2001. If he harbors sympathies for the government, they're pretty well hidden at this point. [1] http://www.amazon.com/Computer-Crime-Law-American-Casebook/dp/0314204547 http://www.amazon.com/Computer-Crime-Law-American-Casebook/d... [2] http://en.wikipedia.org/wiki/United_States_v._Lori_Drew http://en.wikipedia.org/wiki/United_States_v._Lori_Drew [3] http://www.volokh.com/archives/archive_2008_05_11-2008_05_17.shtml#1210889188 http://www.volokh.com/archives/archive_2008_05_11-2008_05_17... [4] http://www.volokh.com/2011/11/14/my-congressional-testimony-on-the-need-to-narrow-the-computer-fraud-and-abuse-act/ http://www.volokh.com/2011/11/14/my-congressional-testimony-...
- danielweber 14y ago
  Some of the best defense attorneys are former prosecutors.
- DannyBee 14y ago
  Orin doesn't harbor sympathies for anyone. He has his own viewpoints, some of which match up with the government, and some of which don't. I took classes on computer crime from him when I was in law school :) At this point, he seems more interested in the development of 4th amendment jurisprudence as it relates to technology that he does the CFAA in particular. At least on that front, he's been wildly wrong about future development of the 4th amendment so far. He was a strong opposer of the "mosaic theory" of the 4th amendment, and thought there was a 0% chance the supreme court would go for it, and he was completely and utterly wrong. So take what he says with a grain of salt. He's a brilliant commentator on the CFAA, but a lot of what he says seems to be based on an idea that courts don't really change law to suit justice or policy given sets of facts, which at least, IMHO, is completely false.

hobbyhacker 14y ago

I've read the piece carefully and the thing that stands out for me most is the bit about the data being 'property'. It is argued that since JSTOR claims property rights with a tangential link to another case where someone downloaded a chunk of software that was in wide distribution and used that to their defense which was invalidated is reason enough to establish that this data was the property of JSTOR and that any unauthorized download is therefore a breach of the law. This is interesting because as far as I can see the whole of Aaron's argument revolved around this data being public property all along by virtue of the research being publicly funded and the fact that many authors of these papers can't legally distribute their own work. If the law can't distinguish between unjust claims of property and a complete lack of public interest on the one side and the good intentions of an individual on the other then you can stick to the 'letter of the law' but that means the law is no longer functional. I also keep reading about 13 counts, and here there are only 4, is there any reason for the discrepancy or is this commentary based on the pre-September expansion of the charges?

kandahar 14y ago

Thanks for the adult, reasoned perspective Professor Kerr--it was much-needed. I have been dismayed (but not surprised) by the ghoulish treatment of this poor kid. He's a perfect martyr for movement-minded people. The only movement he should inspire right now is a gut check by anyone who is "mentoring" a minor or a troubled young person. Are you mentoring him/her for his/her benefit, or for your own? I'm sure it's immensely flattering for the leading lights of the various hacker and open source, open information movements to have brilliant youngsters sitting at their feet, capering and reacting to their social manifestos. Well, I hope Aaron's whole-hearted devotion was gratifying to SOMEONE. I personally wish he had never been allowed to wander at an impressionable age among the manifesto crowd, who in fact do incite criminal actions by their followers. They have now shown that they will allow themselves to address a child as though he is an adult, and let the chips fall where they may. But of course we all know who the REAL villains are: those who have and attempt to assert property rights. Just astounding. I think I will have to avert my gaze from this crowd of ghouls--I don't want to see a dead kid's face on tee shirts and posters, but that is where this is going.

gyardley 14y ago

Sure, but the appropriateness or inappropriateness of the particular charges isn't the issue. Anyone who focuses on 'computer crime' or any of Aaron's pet causes is missing the point. The issue is abuse of power, and why the federal government has so much power in the first place. Criminals should be a tiny group of antisocial people who deserve serious consequences for their serious actions, with law enforcement enforcing a limited set of laws (rape, murder, etc.) universally - going after every criminal that comes to their attention. Fair and understandable. Back in reality, most of us have probably innocuously violated some federal law already (Silverstein's Three Felonies a Day has been mentioned a bunch - it's a great book.) Even in cases like Swartz's where his violations were arguably intentional rather than accidental, the penalties are completely disproportionate to the action. In this system, where we're practically all lawbreakers, the government has the discretion to decide exactly whose lives they want to ruin. In the best case they're enforcing the law selectively in line with their best moral judgement - for example, Al Capone. He was generally suspected to be a bad guy, but no one could prove that he committed any sort of real crime - so out of the millions of people that cheat on their taxes every year, the government singled him out to prosecute for tax evasion, and then threw the book at him. Maybe jailing him was a good result, but by selecting one man out of a pool of millions of lawbreakers to go after, the government crossed the line from the rule of law to the rule of man. And think of the result when the government's initial instinct about a person's "good guy" vs. "bad guy" status is wrong! In this system, the nightmare is the malicious prosecutor, one that's not even attempting to "do what's right" but instead is selecting cases to prosecute for personal motivations - political advancement, personal causes, etc. People who are initially targeted for federal prosecution but somehow 'escape' are frequently recharged for something else - for example, the hapless fuel-cell entrepreneur Krister Evertson. That's what it sounds like happened to Aaron Swartz - thanks to the previous federal investigation into PACER, when he popped up again the federal government was delighted to go after him with both barrels, for reasons having nothing to do with MIT or JSTOR. Even if PACER wasn't an influence, going after Swartz instead of modern Al Capones shows that the arbitrary rule of man we've got in place of a real legal system is working pretty damn poorly. The way to solve this problem, ultimately, would be to dramatically shrink the size of criminal federal law - ideally by limiting what can be declared criminal in the constitution, since we certainly can't rely on the legislative branch's sense of justice. This will never happen, at least not until this system is torn down and another is constructed (yeah, you scoff, but historically this does happen from time to time). In the meantime, we might as well find legal ways to make being a prosecutor politically unrewarding, and look for incremental reform where we can find it.

btilly 14y ago

I read through this and got the opposite impression from most people who are responding here. This is explicitly not an analysis of right versus wrong. This is an analysis of the cudgel that the prosecutors were about to use on Aaron. This is about whether the charges were likely to stick in court. The analysis says that the cudgel was very strong. Aaron had real cause to fear. And his defense was going to face an uphill battle. I look forward to part 2, which is explicitly supposed to be an analysis of whether or not the cudgel should have been swung in the first place.

tptacek 14y ago
I would be shocked if Part 2 says anything other than "the prosecution's conduct was abusive", given that Swartz's violations were done without commercial intent, caused little if any lasting damage, and were (mostly) not malicious. The defendants in the Gonzalez carding ring got lower sentences than Swartz was threatened with.
- btilly 14y ago
  I suspect the same, else I wouldn't be looking forward to it. But even though I expect the conclusion, I'll still be very interested to see how a legal expert makes the case persuasively, and manages to support it with objective examples. However your comparison to the Gonzalez carding ring is highly unfair. We've been repeatedly warned about the difference between statutory maximums and actual penalties. Jail sentences are like college tuition, the actual amount you pay is not the official sticker price you're given. How much less? According to http://www.boston.com/metrodesk/2013/01/14/mit-hacking-case-lawyer-says-aaron-swartz-was-offered-plea-deal-six-months-behind-bars/hQt8sQI64tnV6FAd7CLcTJ/story.html http://www.boston.com/metrodesk/2013/01/14/mit-hacking-case-... the plea bargain that Aaron was offered was that he had to plea guilty to all 13 counts, and spend 6 months in jail. That's a lot less than what the defendants in the Gonzalez carding ring got. But that's a plea deal. If Aaron took it to trial and won some, lost the others, his likely sentence would be something greater than the plea bargain and significantly less than the maximum. The judge would have discretion, and would likely take everything you say into account in determining the penalty. So I'd still hope it would be less than what the defendants in the Gonzalez carding ringt got. That said, being declared to be a felon is no picnic, as many can attest. Doubly so if, like Aaron, you have friends all over the world and would like to travel to conferences in other countries. And yes, you can sometimes get the felony officially expunged years later, but even that is imperfect. (As I learned sharing beers with Randal Schwartz...)

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antman 14y ago

The professor says this is a first post is about the law, but it is an assortment of opinions. II. The Legal Charges Brought Against Swartz (a) Wire Fraud. The Wire Fraud statute, 18 U.S.C. 1343, prohibits a scheme to gain “property” by false pretenses. This strikes me as a pretty strong charge here. The false pretenses are provided by the false identification and spoofing of Swartz’ IP address and MAC address. -> This is not false identification, IP or MAC is not tied to Aaron as person. MIT allows guest access and blocking an IP does not mean forbidding to a person access. Swartz was trying to trick JSTOR into giving him access to their database after they had specifically tried their best to ban him from doing so. And the “property” was the contents of the JSTOR database itself. -> The property is not the contents of the database since it was not produced by them they were handling it. Some might argue that the contents of the JSTOR database should not be considered “property.” But I think that’s a hard argument to make in light of United States v. Seidlitz, (...) that OSI invested substantial sums to modify the system to suit its peculiar needs, that OSI enjoyed a multi-million dollar competitive advantage because of WYLBUR,(...) -> "OSI invested substantial sums to modify the system to suit its peculiar needs, that OSI enjoyed a multi-million dollar competitive advantage because of WYLBUR" ???????? This is the exact opposite of this case where specifically JSTOR cannot alter the content of the producer. It's mission statement says it is also a not for profit organization [1] That reasoning seems to apply reasonably well to the JSTOR database, too. See also Carpenter v. United States, 484 U.S. 19 (1987) (recognizing a property right for purposes of federal fraud statutes for a business in confidentiality and use of information to appear in a forthcoming publication). It’s possible to argue that Seidlitz is distinguishable, but I think it’s an uphill battle. -> If it possible to argue, then it is possible for the prosecuter to show discretion (b) Computer Fraud. The next charges were brought under the Computer Fraud statute, 18 U.S.C. 1030(a)(4), which is a close cousin of the Wire Fraud statute. The two are usually charged together in computer crime cases, and there isn’t really all that much that separates them that we need to dwell on here. So let’s move on to the next crime. -> ... so if there isn't a wire fraud there is also no computer fraud? (c) Unauthorized Access. The next charge was unauthorized access to a computer to obtain information valued more than $5,000, in violation of 18 U.S.C. 1030(a)(2)(C) and 18 U.S.C. 1030(c)(2)(B)(iii). I think this charge was a fair one. There are two notable legal issues here. First, was the information valued at more than $5,000? The answer is clearly yes under the leading case of United States v. Batti, (...)methodology when “information obtained by a violation of § 1030(c)(2)(B)(iii) does not have a readily ascertainable market value.” In such cases, the court held, “it is reasonable to use the cost of production as a means to determine the value of the information obtained.” Creating thousands of journals over many years obviously costs more than $5,000, so that element is easily satisfied. -> He did not steal any journals. The only thing he got was the content that for JSTOR it had a zero cost of production. At least they have not claimed it did since they dropped the case. The Batti case had as an example a video feed that the company had created, and the cost for its production. That does not seem releveant it is legal name dropping. (...) They blocked his IP address; he changed it. They blocked his MAC address; he spoofed it. They blocked access and he broke into a restricted closet and connected directly to MIT’s network. This is not merely a case of breaching a written policy. Rather, this is a case of circumventing code-based restrictions (...)So I think unauthorized access is established here, too. -> It is pretty clear that he has not exceed anything not explicitly stated. Was there a page saying "We forbid YOU the PERSON to ever access this server?". I guess there wasn't because it would have already become an internet sensation. He did not circumvent code restrictions since there weren't any for MIT guests. The professor does not see why this is different than stealing someone else's password. An interesting view for a law Professor, so help me god. (d) Computer Damage. The final charge brought was exceeding authorized access and thereby impairing the availability or integrity of information in ways that cause more than $5,000 or loss or involve more than 10 computers, in violation of 18 U.S.C. 1030(a)(5)(B) and 1030(c)(4)(A)(i)(I) & (VI). This is a plausible charge, although we’d need to know more details about the case to know if it is fully merited. I’ve already covered the elements of authorized access, so we can adopt that analysis above here and move on to the other elements. -> We should thank the unbiased professor here also. To get to $5,000 in a 1030(a)(5) case, the easiest and most widely-accepted methodology in the caselaw is to focus on the time spent responding to the unauthorized access. (...) -> JSTOR seems to have had an automated system that cut access so there is not a proof that anyboy worked on it. After the breach was established JSTOR and MIT should provide data of manhours that were used ouside the daily shift (was there overtime? a destruction of the system?). Merely adding restrictions that they previously had CHOSEN not to have as part of the system is definitely not a response cost. They were repairing a broken business model. Anyway good luck obtaining dollar figures from JSTOR or MIT for the prosecutor. The impairment of availability or integrity element would probably be satisfied, as well, (...) And more significantly, does access to a particular service from some users really constitute an impairment of availability of the JSTOR computer itself? I’m not sure, but I’m wary of that argument. So the 1030(a)(5) charges are plausible, but we would need to know more facts to know for sure if they were justified. ->"The impairment of availability or integrity element would probably be satisfied" and "The indictment alleges that Swartz’s conduct impaired the working of the JSTOR database but doesn’t give us much detail, so it’s hard to be sure" are two opposing sentences. Either it is probably justified or it is hard to be sure. Ofcourse since the admins have taken down the system themselves they will have to prove that it would go down by itself. But neither JSTOR or MIT have provided such data. III. Conclusion My conclusion, at least based on what we know so far, is that the legal charges against Swartz were pretty much legit. Three of them are pretty strong; one is plausible but we would need to know more facts to be sure. Of course, there may have been reasons not to charge Swartz even though he had violated these statutes or to offer him a lenient plea. I’ll take on those questions in my next post. But to the extent we’re focused on just what the law is, I think that what Swartz was alleged to have done fits pretty well with the charges that were brought. ->My Conclusion: This is a biased opinion but not necessarily wrong or willfully biased. It is legally biased. Truth or Mens Rea is irrelevant and things that are hard to be proven by the government alone are described as self explanatory, or obvious interpretation of facts. [1] http://about.jstor.org/about http://about.jstor.org/about