9 ms·

In the Wake of Aaron Swartz's Death, Let's Fix Draconian Computer Crime Law

452 points by colin_jack 14y ago

AnIrishDuck 14y ago
The CFAA is far too big a stick to trust with federal prosecutors. Aside from the case the EFF names, it was also used to threaten geohot [1] when he first released details on the PS3 jailbreak. Sony argued that geohotz's access to his own (!) PS3 constituted unauthorized access to a protected computer and this claim survived a preliminary motion to dismiss. 1. http://www.groklaw.net/article.php?story=20110218181557455 http://www.groklaw.net/article.php?story=20110218181557455 EDIT: I do realize that geohotz's case is civil; in my opinion both the civil and criminal aspects of the statute are wrong.
w_t_payne 14y ago
You are fixing the wrong thing -- let's get the results of publicly funded academic research into the public domain. That, as a goal, offers a far greater good for humanity; the potential to save far more lives; and the greatest net benefit to us all.
- AnIrishDuck 14y ago
  Why not fix both?
  - w_t_payne 14y ago
    Yes, true. Why not?
- jwoah12 14y ago
  You are fixing the wrong thing. Let's secure world peace first. See what I did there?
  - w_t_payne 14y ago
    Been there, tried that. Dinnae work.
- dinkumthinkum 14y ago
  I think solving the problem of injustice in the legal system is not the "wrong thing." Really? While, yes, publicly funded research may need to be fixed and put in the public domain; it's not as if people that would use that research to do further research (i.e. scientists) don't already have access, albeit encumbered, to "save the world." However, people are definitely being treated unjustly -- seems like a higher priority
venomsnake 14y ago
I think that the important part in the eternal debate about large vs small government is missed - the real problem is fuzzy government. The one with overly broad and ill defined powers and fuzzy laws. What we need is a precise government where the functions and powers granted to the executive branch are not allowed for discretion, interpretation and overzeal. Unlike the rights of the constitution that are universal and eternal the laws describe the here and now - so every law should have its built in expiration trigger (10-20 years) - this will ensure that the congress will act to reauthorize it if they like it so much. And because of the limited time they will be forced to triage and some insanities will just expire.
- toufka 14y ago
  There is always an other side. In general, I think you want fuzzy laws, as there are fairly universally agreed 'bad' things, though not a single person has a good definition of 'bad'. A computer 'crime' or 'fraud' can easily be understood by an informed jury, judge and prosecutor and be just beyond the very letter of the law. So long as our system is adversarial in nature, I don't think an occasional push against the fuzzy line is in poor form, as long as there is commensurate push back. And in general, in the long run, this is a more equitable and just system than one of algorithmic rules where technicalities truly do trump intent.
  - AnthonyMouse 14y ago
    I've never liked this argument. "Fuzzy" always helps prosecutors (unless the defense can argue that it's so fuzzy it's unconstitutional, which is pretty hard), because the prosecutor gets to choose who goes to court in criminal cases of first impression. They find someone with insufficient resources to mount a vigorous defense who happens to be wildly unsympathetic and the judge and the jury will make the contortions necessary to put them in prison -- and then that precedent sets the stage for the next prosecution. Make the law clear and some defendant will get off on a technicality, but only once, then you fix the loophole. Over time the law evolves to more accurately reflect congressional intent as they pass patches to fix bugs, instead of leaving it to the courts and the biases (like prosecutors choosing who to prosecute when they want a precedent) that come along with that.
polemic 14y ago
There should also be a push for better use of discretion and 'common sense' from the US judiciary. Most (all?) laws are, by their nature, crude sticks that have to be wielded carefully. I'm not sure that in this case, the law is 'wrong'. As has been outlined elsewhere, by a reasonable reading of the applicable law Aaron's actions were criminal and (in my opinion) the law itself, in spirit, is not unreasonable. What is unreasonable in this case, appears to be the application of the law, and more generally, the cost in time and money that is required to mount an adequate defence. It should never take two years and millions of dollars to have a case like this settled, one way or the other. It seems a basic violation of human rights that it could happen. This is the general problem that needs to be solved in the US. To end with a favourite quote that feels timely: "The fall of Empire, gentlemen, is a massive thing, however, and not easily fought. It is dictated by a rising bureaucracy, a receding initiative, a freezing of caste, a damming of curiosity - a hundred other factors. It has been going on, as I have said, for centuries, and it is too majestic and massive a movement to stop" -- Isaac Asimov, Foundation, 1951. Let's hope that's not entirely true.
- deleted 14y ago
  [deleted]
- AnthonyMouse 14y ago
  >What is unreasonable in this case, appears to be the application of the law I don't think you can let the law off the hook for allowing unreasonable applications of itself. The idea of criminalizing "computer fraud" (i.e. breaking into Amazon's servers to have it mail you expensive products without paying or to steal credit card numbers) is not objectionable. But the breadth and vagueness of the existing law, and the obscene penalties, most certainly are objectionable and should be fixed. I completely agree that something must also be done about the excessive cost of criminal defense as well.
  - polemic 14y ago
    > But the breadth and vagueness of the existing law... My point is this: of necessity, most laws are broad and vague, and it relies on judges to build the necessary case law to interpret it. The current law absolutely needs to be addressed, but 'computer law' will always be 10 steps behind the technology. The much bigger issue is the fundamentally flawed, inhumane and insanely expensive US justice system.
gte910h 14y ago
Let's instead fix vast overcharging, with 5x-20x pleabargain:max sentence ratios. If something is bad enough to lock someone away for 20 years, 2 years shouldn't be an option just because they made the legal system cost less money. Plea bargains are coercive, undermining our rights to a trial by the jury of our peers, and are likely coercing false testimony/false corroboration of evidence against 3rd parties far more than they should More trials for actual bad things, fewer arrests for just marginally bad things, and less prosecutorial discretion is what we need here. Computer crime having overly high penalties in most cases is merely a symptom of a general problem we should be solving for all law.
- rayiner 14y ago
  Yes. This is just a fragment of a much larger problem.
- betterunix 14y ago
  How about not having plea bargains? The odds are always stacked against the defendant in a plea bargain, and plea bargaining is the primary reason we have the world's largest prison population, as well as the only reason so many of those prisoners were never actually found guilty in a court of law.
- westicle 14y ago
  This might be too extreme, but what about forcing the prosecution to put some skin in the game where it comes to predicting the eventual outcome of the case? In civil matters parties have the option of making a "Calderbank Offer", in which they put forth a reasonable resolution for the dispute by mutual agreement. If the other side does not accept that offer, but does not get a better outcome than the offer made, they are punished with costs consequences (for tying up court resources, forcing the other party through expensive litigation etc). In a criminal trial, perhaps the prosecution should be required to go on record stating the sentence they will be asking the court for. In the event that the actual sentence varies significantly from the sentence threatened by the prosecution, a discounting procedure could be applied (for every 10% the prosecutor overstates the likely sentence, the accused receives a 5% reduction in their sentence). ie. if a prosecutor proposes a 4 month custodial sentence for accessing academic journal articles, and a judge imposes 2 months, the accused would be entitled to a 50% discount, and serve only 1 month. If the prosecutor proposes 35 years, the accused serves no time.
isalmon 14y ago
I think the problem is not the Law itself. The problem is that in order to protect yourself (even if you're not guilty) you have to spend ENORMOUS amount of money. From this perspective rich people have more access to the basic rights (in this case ability to defend themselves) rather than poor.
- Shivetya 14y ago
  Connected people have a better ability, being rich does not guarantee you protection from Federal prosecutors. The Feds act with near impunity and only someone connected with the press or government officials really stand a chance against them. A relatively unknown internet person, regardless of money, is an easy mark to them. The issue I take with the case is the piling on by the prosecutors. There needs to be some limit to the number of charges one can apply and total time applied for cases where no life is lost. The current rules simply allow prosecutors to intimidate people into accepting punishment, even when those accused are not guilty of a crime; see the many false imprisonment stories around the net. People cheer on these laws when applied to people they don't like, financial fraud cases are very similar and involve the same strategy, bury them in charges so they have to accept something.
ChristianMarks 14y ago
It would help if defendants could speak more freely about their finances without provoking the ire of a judge. This places advocates for free information in a bind. If you need to mount an expensive legal defense because you applied the principle that information should be free and, in consequence, find yourself in legal trouble (I'm speaking generally to avoid argument on inessential points) do you 1. apply the principle that information wants to be free to yourself and expose your finances, possibly provoking a judge; or 2. selectively apply the principle and in your own special case, not disclose your finances, although information wants to be free. Until there is reform in this direction, activists for the information-wants-to-be-free principle either have to reconsider, or else understand that their ability to fund their legal defense may be compromised as well the principle they acted upon. Of course, a push for common sense and proportion from the judiciary might obviate this.
- ChristianMarks 14y ago
  Some rejoinders to myself: 1. Personal information isn't the kind of information Swartz was attempting to liberate. It was publicly funded academic research behind paywalls. There is no principle of symmetry to appeal to. (If I am incorrect and the intent was that "information wants to be free," then symmetry holds: one cannot consistently be free with the information of others and prefer the exiguous disclosure of one's own.) 2. The government has systematically violated the laws it was accusing Swartz of violating many times over. (An inadmissible legal argument, I understand, but historically valid.) 3. His assets may have been frozen. 4. The disproportionate legal action against Swartz is an indication of the government's cyberspace vulnerability. It is also an indication of the imprecision of the law as it is written.
Codhisattva 14y ago
Vindictive prosecutions intended to "set an example" or "send a message" are simply cloaked ambition. And end up destroying lives.
peterhajas 14y ago
> In the Wake of Aaron Swartz's Death, Let's Fix Draconian Computer Crime Law I think this is an unfortunate attitude to have. When such an event happens, it's easy to become blinded by emotions - and makes it more difficult to make rational, reasonable decisions. Let's think about this calmly, logically, and with a level-head. Let's not have the reputation of making decisions that are emotionally driven.
- SoftwareMaven 14y ago
  Many people already feel this way. The addition of a little emotion can be the difference between doing something and letting it slide another day. If these laws were not a core piece of the issues surrounding Aaron's suicide, I would be disgusted. As it is, saner laws would have pushed the prosecution to take a more reasonable stance, so if we can push for change, great. Unfortunately, I don't think there is anything we can do to actually impact such change.
- betterunix 14y ago
  I have been thinking calmly and logically about the CFAA for years, starting with my last year of college. I have long held the opinion that the punishments handed down for computer crimes are entirely out of whack, and time and time again we have seen computer crime laws used to attack people who have not done anything most people would consider to be "wrong." Computer crime laws seem to be based on the idea that hackers are dark wizards whose powers are limitless if they are allowed to walk free. It is a symptom of a society that is vastly ignorant of the machines it relies on, coupled with a far-right ideology that says that the only reason anyone does anything is to advance their financial interests (e.g. that nobody would download files that a company makes millions selling access to unless their goal was to make millions). In the early 90s, the government tried to prosecute hackers over the Bellsouth E911 document using computer crimes laws -- and they were laughed out of court when the defense revealed that the document was a less-detailed version of a technical document that could be purchased for less than $20. We are looking at the same situation with the prosecution of Aaron Swartz: ludicrously overstated charges and overzealous prosecutors whose knowledge of computers is on the level of a chimpanzee (not to mention their sense of justice). Laws like the CFAA create this situation by enabling the sort of behavior we saw from the prosecutors in this case.
rhizome 14y ago
I have a better idea: a political party. The Internet Party.
- dmix 14y ago
  http://en.wikipedia.org/wiki/Crypto-anarchism http://en.wikipedia.org/wiki/Crypto-anarchism
  - rhizome 14y ago
    Just like I couldn't take a hint from aaronsw and suggest the Progress Party due to cultural biases against Progressivism, anarcho-anything suffers the same.
    - jlgreco 14y ago
      This is unfortunately true. Crypto-anarchism is fairly unique though in an important way. It does not require approval and the technologies that are created by self-described crypto-anarchists can (ideally) be used by anybody, not just those who are also interested in self-identifying as something so weird and fringey. Hell, you can even create technologies that don't even need to be used by the general public for the general public to benefit from them. Firesheep is a fine example of such software; a few years ago most sites were wide open to that attack but after the release of an exploit with a slick interface and some effective publicity, most social networking sites tightened up their ship. Sure, it is questionable what good this really does against a government like the US, but people in other parts of the world surely benefit. Your parents need never respect, understand, nor even hear of crypto-anarchy in order for it to have a positive effect on the world. It has the potential to do good without requiring ideological buy-in from the masses.
    - dmix 14y ago
      Agreed, although I believe there a technological and societal reasons why crypto-anarchism could become a reality regardless of populist support.
- eru 14y ago
kandahar 14y ago
Ghouls.
anigbrowl 14y ago
Not to be argumentative, but I don't think the problem is draconian computer crime law, as such. The problem here is a deeper one: the constitutional bias towards procedural rather than substantive guarantees. This bias is partly responsible for the constitution's longevity (and by extension, that of the Republic), but is also responsible for the exhaustive and attritional nature of common-law legal proceedings. This is a huge problem in the criminal justice system in general, as well as in other areas of law. I prefer common law to civil law systems, but that's partly because I grew up in one. It's more flexible, but at the expense of much greater complexity and arguably much lower predictability.
- eru 14y ago
  Could you elaborate on what you mean by substantive vs procedural?
  - anigbrowl 14y ago
    Very, very briefly: Substantive is the what, procedural is the how. In Aaron Swartz's case the substantive argument is that copying academic journal articles shouldn't be a prosecutable crime in the first place, but at worst a civil tort. The procedural argument is that Swartz went about his activities in a demonstrably illegal fashion and was arrested pursuant to a properly issued warrant. Is the law stupid? Maybe, but that's what it says and we're just following it as written. Now in a civil law country (where legislative text >> precedent) you'll often enjoy all sorts of substantive protections that you wouldn't have in the US, but if you did break a law then you probably won't be able to argue your way out on technicalities like whether the police search was legal or you were read your rights correctly. The constitution doesn't give you a whole lot of rights, but rather imposes a variety of limitations upon the government. If someone in government can find a hole in those limitations, then there isn't a whole lot you can do about it, at least in the short term. Look at the drug laws; Congress certainly seems to be within its rights to ban possession of certain substances, and there's no substantive right to say you have jurisdiction over what you put in your own body. Another famous legal example is the Dredd Scott case; the Supreme Court of the day said that a law law which gave a slave called Dredd Scott his freedom was an unconstitutional infringement of his owner's property rights (procedural argument). Now we consider the whole notion of people being property invalid (substantive) so even the most logically watertight contract in which someone agrees to be the property of someone else is void and unenforceable. Now, contrast the familiar language of the US constitution with things like the UN declaration of human rights, which imposes very few strictures on how governments go about governing, but has a great deal to say about how people should be treated and is much more like the Declaration of Independence than the Constitution (http://www.un.org/en/documents/udhr/index.shtml http://www.un.org/en/documents/udhr/index.shtml). This is a complex philosophical issue at the heart of legal theory and hard to sketch out in only a few sentences. Think of the above as an impressionistic sketch rather than a systematic description.
perlgeek 14y ago
In general, the sentences for different crimes/offenses have blown out of proportion. Usually an outragous case of <mumble> goes around the media, and politicians respond by increasing the punishment. Or Lobbyists push for it. The whole thing (and not just in the US, in most states I know of) would need a new assessment, and not just one section at a time, but some kind of unified assessment. It's a bit like a huge, sprawling code base that has never seen a major refactoring, and is in dire need of one.
- InclinedPlane 14y ago
  This happens all the time with weapons. For example, during the Bruce Lee craze a lot of states passed laws against nunchucks which are still on the books. It's a continuing pattern. Moral panic -> SOMETHING must be done -> useless, unhelpful laws get put on the books. The same sort of security theater that we see today with the TSA and whatnot.
RyanMcGreal 14y ago
It looks like some members of the US government need to re-read Beccaria's Of Crimes and Punishments.

452 points by colin_jack 14y ago

The CFAA is far too big a stick to trust with federal prosecutors. Aside from the case the EFF names, it was also used to threaten geohot [1] when he first released details on the PS3 jailbreak. Sony argued that geohotz's access to his own (!) PS3 constituted unauthorized access to a protected computer and this claim survived a preliminary motion to dismiss. 1. http://www.groklaw.net/article.php?story=20110218181557455 http://www.groklaw.net/article.php?story=20110218181557455 EDIT: I do realize that geohotz's case is civil; in my opinion both the civil and criminal aspects of the statute are wrong.

w_t_payne 14y ago

You are fixing the wrong thing -- let's get the results of publicly funded academic research into the public domain. That, as a goal, offers a far greater good for humanity; the potential to save far more lives; and the greatest net benefit to us all.

AnIrishDuck 14y ago
Why not fix both?
- w_t_payne 14y ago
  Yes, true. Why not?
jwoah12 14y ago
You are fixing the wrong thing. Let's secure world peace first. See what I did there?
- w_t_payne 14y ago
  Been there, tried that. Dinnae work.
dinkumthinkum 14y ago
I think solving the problem of injustice in the legal system is not the "wrong thing." Really? While, yes, publicly funded research may need to be fixed and put in the public domain; it's not as if people that would use that research to do further research (i.e. scientists) don't already have access, albeit encumbered, to "save the world." However, people are definitely being treated unjustly -- seems like a higher priority

venomsnake 14y ago

I think that the important part in the eternal debate about large vs small government is missed - the real problem is fuzzy government. The one with overly broad and ill defined powers and fuzzy laws. What we need is a precise government where the functions and powers granted to the executive branch are not allowed for discretion, interpretation and overzeal. Unlike the rights of the constitution that are universal and eternal the laws describe the here and now - so every law should have its built in expiration trigger (10-20 years) - this will ensure that the congress will act to reauthorize it if they like it so much. And because of the limited time they will be forced to triage and some insanities will just expire.

toufka 14y ago
There is always an other side. In general, I think you want fuzzy laws, as there are fairly universally agreed 'bad' things, though not a single person has a good definition of 'bad'. A computer 'crime' or 'fraud' can easily be understood by an informed jury, judge and prosecutor and be just beyond the very letter of the law. So long as our system is adversarial in nature, I don't think an occasional push against the fuzzy line is in poor form, as long as there is commensurate push back. And in general, in the long run, this is a more equitable and just system than one of algorithmic rules where technicalities truly do trump intent.
- AnthonyMouse 14y ago
  I've never liked this argument. "Fuzzy" always helps prosecutors (unless the defense can argue that it's so fuzzy it's unconstitutional, which is pretty hard), because the prosecutor gets to choose who goes to court in criminal cases of first impression. They find someone with insufficient resources to mount a vigorous defense who happens to be wildly unsympathetic and the judge and the jury will make the contortions necessary to put them in prison -- and then that precedent sets the stage for the next prosecution. Make the law clear and some defendant will get off on a technicality, but only once, then you fix the loophole. Over time the law evolves to more accurately reflect congressional intent as they pass patches to fix bugs, instead of leaving it to the courts and the biases (like prosecutors choosing who to prosecute when they want a precedent) that come along with that.

polemic 14y ago

There should also be a push for better use of discretion and 'common sense' from the US judiciary. Most (all?) laws are, by their nature, crude sticks that have to be wielded carefully. I'm not sure that in this case, the law is 'wrong'. As has been outlined elsewhere, by a reasonable reading of the applicable law Aaron's actions were criminal and (in my opinion) the law itself, in spirit, is not unreasonable. What is unreasonable in this case, appears to be the application of the law, and more generally, the cost in time and money that is required to mount an adequate defence. It should never take two years and millions of dollars to have a case like this settled, one way or the other. It seems a basic violation of human rights that it could happen. This is the general problem that needs to be solved in the US. To end with a favourite quote that feels timely: "The fall of Empire, gentlemen, is a massive thing, however, and not easily fought. It is dictated by a rising bureaucracy, a receding initiative, a freezing of caste, a damming of curiosity - a hundred other factors. It has been going on, as I have said, for centuries, and it is too majestic and massive a movement to stop" -- Isaac Asimov, Foundation, 1951. Let's hope that's not entirely true.

deleted 14y ago
[deleted]
AnthonyMouse 14y ago
>What is unreasonable in this case, appears to be the application of the law I don't think you can let the law off the hook for allowing unreasonable applications of itself. The idea of criminalizing "computer fraud" (i.e. breaking into Amazon's servers to have it mail you expensive products without paying or to steal credit card numbers) is not objectionable. But the breadth and vagueness of the existing law, and the obscene penalties, most certainly are objectionable and should be fixed. I completely agree that something must also be done about the excessive cost of criminal defense as well.
- polemic 14y ago
  > But the breadth and vagueness of the existing law... My point is this: of necessity, most laws are broad and vague, and it relies on judges to build the necessary case law to interpret it. The current law absolutely needs to be addressed, but 'computer law' will always be 10 steps behind the technology. The much bigger issue is the fundamentally flawed, inhumane and insanely expensive US justice system.

gte910h 14y ago

Let's instead fix vast overcharging, with 5x-20x pleabargain:max sentence ratios. If something is bad enough to lock someone away for 20 years, 2 years shouldn't be an option just because they made the legal system cost less money. Plea bargains are coercive, undermining our rights to a trial by the jury of our peers, and are likely coercing false testimony/false corroboration of evidence against 3rd parties far more than they should More trials for actual bad things, fewer arrests for just marginally bad things, and less prosecutorial discretion is what we need here. Computer crime having overly high penalties in most cases is merely a symptom of a general problem we should be solving for all law.

rayiner 14y ago
Yes. This is just a fragment of a much larger problem.
betterunix 14y ago
How about not having plea bargains? The odds are always stacked against the defendant in a plea bargain, and plea bargaining is the primary reason we have the world's largest prison population, as well as the only reason so many of those prisoners were never actually found guilty in a court of law.
westicle 14y ago
This might be too extreme, but what about forcing the prosecution to put some skin in the game where it comes to predicting the eventual outcome of the case? In civil matters parties have the option of making a "Calderbank Offer", in which they put forth a reasonable resolution for the dispute by mutual agreement. If the other side does not accept that offer, but does not get a better outcome than the offer made, they are punished with costs consequences (for tying up court resources, forcing the other party through expensive litigation etc). In a criminal trial, perhaps the prosecution should be required to go on record stating the sentence they will be asking the court for. In the event that the actual sentence varies significantly from the sentence threatened by the prosecution, a discounting procedure could be applied (for every 10% the prosecutor overstates the likely sentence, the accused receives a 5% reduction in their sentence). ie. if a prosecutor proposes a 4 month custodial sentence for accessing academic journal articles, and a judge imposes 2 months, the accused would be entitled to a 50% discount, and serve only 1 month. If the prosecutor proposes 35 years, the accused serves no time.

isalmon 14y ago

I think the problem is not the Law itself. The problem is that in order to protect yourself (even if you're not guilty) you have to spend ENORMOUS amount of money. From this perspective rich people have more access to the basic rights (in this case ability to defend themselves) rather than poor.

Shivetya 14y ago
Connected people have a better ability, being rich does not guarantee you protection from Federal prosecutors. The Feds act with near impunity and only someone connected with the press or government officials really stand a chance against them. A relatively unknown internet person, regardless of money, is an easy mark to them. The issue I take with the case is the piling on by the prosecutors. There needs to be some limit to the number of charges one can apply and total time applied for cases where no life is lost. The current rules simply allow prosecutors to intimidate people into accepting punishment, even when those accused are not guilty of a crime; see the many false imprisonment stories around the net. People cheer on these laws when applied to people they don't like, financial fraud cases are very similar and involve the same strategy, bury them in charges so they have to accept something.

ChristianMarks 14y ago

It would help if defendants could speak more freely about their finances without provoking the ire of a judge. This places advocates for free information in a bind. If you need to mount an expensive legal defense because you applied the principle that information should be free and, in consequence, find yourself in legal trouble (I'm speaking generally to avoid argument on inessential points) do you 1. apply the principle that information wants to be free to yourself and expose your finances, possibly provoking a judge; or 2. selectively apply the principle and in your own special case, not disclose your finances, although information wants to be free. Until there is reform in this direction, activists for the information-wants-to-be-free principle either have to reconsider, or else understand that their ability to fund their legal defense may be compromised as well the principle they acted upon. Of course, a push for common sense and proportion from the judiciary might obviate this.

ChristianMarks 14y ago
Some rejoinders to myself: 1. Personal information isn't the kind of information Swartz was attempting to liberate. It was publicly funded academic research behind paywalls. There is no principle of symmetry to appeal to. (If I am incorrect and the intent was that "information wants to be free," then symmetry holds: one cannot consistently be free with the information of others and prefer the exiguous disclosure of one's own.) 2. The government has systematically violated the laws it was accusing Swartz of violating many times over. (An inadmissible legal argument, I understand, but historically valid.) 3. His assets may have been frozen. 4. The disproportionate legal action against Swartz is an indication of the government's cyberspace vulnerability. It is also an indication of the imprecision of the law as it is written.

Codhisattva 14y ago

Vindictive prosecutions intended to "set an example" or "send a message" are simply cloaked ambition. And end up destroying lives.

peterhajas 14y ago

> In the Wake of Aaron Swartz's Death, Let's Fix Draconian Computer Crime Law I think this is an unfortunate attitude to have. When such an event happens, it's easy to become blinded by emotions - and makes it more difficult to make rational, reasonable decisions. Let's think about this calmly, logically, and with a level-head. Let's not have the reputation of making decisions that are emotionally driven.

SoftwareMaven 14y ago
Many people already feel this way. The addition of a little emotion can be the difference between doing something and letting it slide another day. If these laws were not a core piece of the issues surrounding Aaron's suicide, I would be disgusted. As it is, saner laws would have pushed the prosecution to take a more reasonable stance, so if we can push for change, great. Unfortunately, I don't think there is anything we can do to actually impact such change.
betterunix 14y ago
I have been thinking calmly and logically about the CFAA for years, starting with my last year of college. I have long held the opinion that the punishments handed down for computer crimes are entirely out of whack, and time and time again we have seen computer crime laws used to attack people who have not done anything most people would consider to be "wrong." Computer crime laws seem to be based on the idea that hackers are dark wizards whose powers are limitless if they are allowed to walk free. It is a symptom of a society that is vastly ignorant of the machines it relies on, coupled with a far-right ideology that says that the only reason anyone does anything is to advance their financial interests (e.g. that nobody would download files that a company makes millions selling access to unless their goal was to make millions). In the early 90s, the government tried to prosecute hackers over the Bellsouth E911 document using computer crimes laws -- and they were laughed out of court when the defense revealed that the document was a less-detailed version of a technical document that could be purchased for less than $20. We are looking at the same situation with the prosecution of Aaron Swartz: ludicrously overstated charges and overzealous prosecutors whose knowledge of computers is on the level of a chimpanzee (not to mention their sense of justice). Laws like the CFAA create this situation by enabling the sort of behavior we saw from the prosecutors in this case.

rhizome 14y ago

I have a better idea: a political party. The Internet Party.

dmix 14y ago
http://en.wikipedia.org/wiki/Crypto-anarchism http://en.wikipedia.org/wiki/Crypto-anarchism
- rhizome 14y ago
  Just like I couldn't take a hint from aaronsw and suggest the Progress Party due to cultural biases against Progressivism, anarcho-anything suffers the same.
  - jlgreco 14y ago
    This is unfortunately true. Crypto-anarchism is fairly unique though in an important way. It does not require approval and the technologies that are created by self-described crypto-anarchists can (ideally) be used by anybody, not just those who are also interested in self-identifying as something so weird and fringey. Hell, you can even create technologies that don't even need to be used by the general public for the general public to benefit from them. Firesheep is a fine example of such software; a few years ago most sites were wide open to that attack but after the release of an exploit with a slick interface and some effective publicity, most social networking sites tightened up their ship. Sure, it is questionable what good this really does against a government like the US, but people in other parts of the world surely benefit. Your parents need never respect, understand, nor even hear of crypto-anarchy in order for it to have a positive effect on the world. It has the potential to do good without requiring ideological buy-in from the masses.
  - dmix 14y ago
    Agreed, although I believe there a technological and societal reasons why crypto-anarchism could become a reality regardless of populist support.
eru 14y ago

kandahar 14y ago

Ghouls.

anigbrowl 14y ago

Not to be argumentative, but I don't think the problem is draconian computer crime law, as such. The problem here is a deeper one: the constitutional bias towards procedural rather than substantive guarantees. This bias is partly responsible for the constitution's longevity (and by extension, that of the Republic), but is also responsible for the exhaustive and attritional nature of common-law legal proceedings. This is a huge problem in the criminal justice system in general, as well as in other areas of law. I prefer common law to civil law systems, but that's partly because I grew up in one. It's more flexible, but at the expense of much greater complexity and arguably much lower predictability.

eru 14y ago
Could you elaborate on what you mean by substantive vs procedural?
- anigbrowl 14y ago
  Very, very briefly: Substantive is the what, procedural is the how. In Aaron Swartz's case the substantive argument is that copying academic journal articles shouldn't be a prosecutable crime in the first place, but at worst a civil tort. The procedural argument is that Swartz went about his activities in a demonstrably illegal fashion and was arrested pursuant to a properly issued warrant. Is the law stupid? Maybe, but that's what it says and we're just following it as written. Now in a civil law country (where legislative text >> precedent) you'll often enjoy all sorts of substantive protections that you wouldn't have in the US, but if you did break a law then you probably won't be able to argue your way out on technicalities like whether the police search was legal or you were read your rights correctly. The constitution doesn't give you a whole lot of rights, but rather imposes a variety of limitations upon the government. If someone in government can find a hole in those limitations, then there isn't a whole lot you can do about it, at least in the short term. Look at the drug laws; Congress certainly seems to be within its rights to ban possession of certain substances, and there's no substantive right to say you have jurisdiction over what you put in your own body. Another famous legal example is the Dredd Scott case; the Supreme Court of the day said that a law law which gave a slave called Dredd Scott his freedom was an unconstitutional infringement of his owner's property rights (procedural argument). Now we consider the whole notion of people being property invalid (substantive) so even the most logically watertight contract in which someone agrees to be the property of someone else is void and unenforceable. Now, contrast the familiar language of the US constitution with things like the UN declaration of human rights, which imposes very few strictures on how governments go about governing, but has a great deal to say about how people should be treated and is much more like the Declaration of Independence than the Constitution (http://www.un.org/en/documents/udhr/index.shtml http://www.un.org/en/documents/udhr/index.shtml). This is a complex philosophical issue at the heart of legal theory and hard to sketch out in only a few sentences. Think of the above as an impressionistic sketch rather than a systematic description.

perlgeek 14y ago

In general, the sentences for different crimes/offenses have blown out of proportion. Usually an outragous case of <mumble> goes around the media, and politicians respond by increasing the punishment. Or Lobbyists push for it. The whole thing (and not just in the US, in most states I know of) would need a new assessment, and not just one section at a time, but some kind of unified assessment. It's a bit like a huge, sprawling code base that has never seen a major refactoring, and is in dire need of one.

InclinedPlane 14y ago
This happens all the time with weapons. For example, during the Bruce Lee craze a lot of states passed laws against nunchucks which are still on the books. It's a continuing pattern. Moral panic -> SOMETHING must be done -> useless, unhelpful laws get put on the books. The same sort of security theater that we see today with the TSA and whatnot.

RyanMcGreal 14y ago

It looks like some members of the US government need to re-read Beccaria's Of Crimes and Punishments.