7 ms·

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

by 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.
  - sliverstorm 14y ago
    Agreed, this is part of why we have judges! Besides, if you think law is a tortured convoluted process today- just wait until we try to write it to explicitly handle every possible corner case. The reason our laws have held up fairly well thus far is because they are vague. For example, the "reasonable person" clauses. What is considered reasonable changes with time. Do you really want to have to re-write all the laws centered around "reasonable person" every couple decades? Remember, the legal system is not a computer. It doesn't necessarily make sense to approach it like one. Many of us here are programmers, and sometimes it shows.
    - gyardley 14y ago
      Is approaching our body of laws like a programmer necessarily a bad thing? I'm being a bit tongue in cheek here, but to use your example - if only our body of laws were properly DRY, changing that precisely-defined 'reasonable person' would only require one tweak.
    - betterunix 14y ago
      "Do you really want to have to re-write all the laws centered around "reasonable person" every couple decades?" Yes, and in fact, I would like every law to expire no more than 10 years after it is passed. We have too many laws and too many ways to become a criminal; force politicians to spend their days renewing necessary laws and we'll curb our out-of-control legal system. Keep the legal system straightforward, so that nobody is confused about whether or not they are committing a crime. Eliminate plea bargaining. Reduce the power of prosecutors, and reduce the power of the police (let's start by reducing the power of their firearms -- we really don't need soldiers serving search-and-arrest warrants).
      - sliverstorm 14y ago
        If this was such a great way of doing things, why don't we programmers (who of course have everything all figured out) already do this in our code? Have a harvester that regularly walks your VCS and deletes any function older than 1 year. Sound like fun? Keep the legal system straightforward Being explicit is not the way to achieve that. Explicit handling of corner cases is always confusing when there are many, even more so when you are speaking in legaleese. "Reasonable Person" codified explicitly would take pages and pages and pages. You think that would be more understandable to the layman than, "What a Reasonable Person would do"? If Real Life and People could be so easily codified, heuristics would be a completely useless field. Eliminate plea bargaining. Reduce the power of prosecutors, and reduce the power of the police What does that have to do with this line of discussion?
- pdonis 14y ago
  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. What I don't understand is why we need a separate law against "computer fraud", when we already have laws against, well, fraud. In the scenario you describe, in a sane legal system, the person who broke into Amazon's servers would be prosecuted for fraud, period. The fact that the fraud was committed using computers would merely be one of the facts of the case, not a reason for an additional charge.
  - AnthonyMouse 14y ago
    I agree with you. You kind of have to understand the history: The Computer Fraud and Abuse Act was passed in 1986. I don't know if you remember 1986 (I know I don't), but from what I understand from the history books, computers communicated at around 300 baud and even if you exclude the mandatory freon compressor, the amount of energy required to run a computer with processor power equivalent to the phone in your pocket would still have been measured in tons of coal per fortnight. So in 1986 they passed a law because "computers are huge corporate things used primarily by banks and governments that cost big money and don't concern common people, so fraud on a computer should have really high penalties." That's why we have a special law for it. As to whether we still need it to be a separate law from ordinary fraud... no, I don't think so.
    - betterunix 14y ago
      Maybe in 1956 computers were "huge corporate things," but by 1986 there was a global computer network for PCs that remains popular in some parts of the world to this very day: https://en.wikipedia.org/wiki/Fidonet https://en.wikipedia.org/wiki/Fidonet
      - AnthonyMouse 14y ago
        In 1986 large computers were still "huge corporate things" which is almost certainly what Congress was targeting with the law rather than Fidonet (hence the trouble).
rayiner 14y ago
I'm not sure, at least in Swartz's case, you can fault the judiciary for not exercising it's ultimate discretion over punishment when no judge ever got to make that call.
- polemic 14y ago
  And yet it had already cost him 2 years of his life and millions of dollars. I should amend the comment to read "justice system", but judges are ultimately responsible for the fair and equitable operation of their courts. That is clearly not happening.
  - rayiner 14y ago
    The prosecutor brought a case within the letter and spirit of the law. What was the judge supposed to do at that stage, exactly?
lallysingh 14y ago
Can we start with shaming the prosecutors? Just pull public records, say with PACER.
- fnordfnordfnord 14y ago
  PACER is free if you use less than $10.00 per year. If everyone used RECAP, there would be no need to access any document more than once.
  - Flenser 14y ago
    I wasn't aware of RECAP. Having searched for it I came across a page on the pacer site[1] where Pacer say if you use if for free you aren't allowed to use RECAP. I'd be interested to know whether it's legal for them to have a fee exemption for limited purposes that allows them to make prohibition on transfer of information that is (as I understand it) public domain. Edit: I've looked on www.recapthelaw.org and couldn't find any clarification on this. [1] http://www.pacer.gov/announcements/general/exemptnotice.html http://www.pacer.gov/announcements/general/exemptnotice.html it's the third result when searching for [pacer recap]
anigbrowl 14y ago
There should also be a push for better use of discretion and 'common sense' from the US judiciary. As a general matter (IOW I haven't analyzed the CFAA in this light) the judicary only has as much discretion as the legislature grants it. Populist legislators do not like the idea of an independent judiciary and frequently attempt to exclude legislative clauses from judicial review - which attempts often fail, but at considerably increased political cost to the judiciary. I'm personally biased, but it's worth considering that there are a lot more constitutional constraints on the executive and legislative branches than upon the judicial. 'Judicial activism' is the buffer on which many a judicial career has been halted, no matter how well-founded the decision it is applied to.
InclinedPlane 14y ago
The idea of "law as program" vs "law as guideline" is certainly a dangerous one, and has become far too common lately. However, I don't think that we should rely on discretion too heavily. It should be the exception not the rule. Today it is the rule, and that means that for all intents and purposes it is de facto "the law", regardless of what's on the books. Which means takes away a lot of the checks and balances we have in place to keep the law reasonable and to ensure it works toward advancing liberty rather than fighting against it.
padmanabhan01 14y ago
If there is a law that can possibly be unreasonably used to frighten someone, it needs to be clarified and explained and quantified and whatever else so that this kind of thing doesn't happen again. Needs to be given more thought before someone can use it in this manner at the very least
javajosh 14y ago
>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. >There should also be a push for better use of discretion and 'common sense' from the US judiciary. I cannot agree with your comments more. When people can't afford justice, justice may as well not exist. And there needs to be a better mechanism in place to thwart over zealous prosecutors from bullying defendants who are, almost by definition, weaker than the prosecution (as they are either less informed about the rules of the game, or have to pay through the nose for the services of someone who does.)

by polemic 14y ago

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.
- sliverstorm 14y ago
  Agreed, this is part of why we have judges! Besides, if you think law is a tortured convoluted process today- just wait until we try to write it to explicitly handle every possible corner case. The reason our laws have held up fairly well thus far is because they are vague. For example, the "reasonable person" clauses. What is considered reasonable changes with time. Do you really want to have to re-write all the laws centered around "reasonable person" every couple decades? Remember, the legal system is not a computer. It doesn't necessarily make sense to approach it like one. Many of us here are programmers, and sometimes it shows.
  - gyardley 14y ago
    Is approaching our body of laws like a programmer necessarily a bad thing? I'm being a bit tongue in cheek here, but to use your example - if only our body of laws were properly DRY, changing that precisely-defined 'reasonable person' would only require one tweak.
  - betterunix 14y ago
    "Do you really want to have to re-write all the laws centered around "reasonable person" every couple decades?" Yes, and in fact, I would like every law to expire no more than 10 years after it is passed. We have too many laws and too many ways to become a criminal; force politicians to spend their days renewing necessary laws and we'll curb our out-of-control legal system. Keep the legal system straightforward, so that nobody is confused about whether or not they are committing a crime. Eliminate plea bargaining. Reduce the power of prosecutors, and reduce the power of the police (let's start by reducing the power of their firearms -- we really don't need soldiers serving search-and-arrest warrants).
    - sliverstorm 14y ago
      If this was such a great way of doing things, why don't we programmers (who of course have everything all figured out) already do this in our code? Have a harvester that regularly walks your VCS and deletes any function older than 1 year. Sound like fun? Keep the legal system straightforward Being explicit is not the way to achieve that. Explicit handling of corner cases is always confusing when there are many, even more so when you are speaking in legaleese. "Reasonable Person" codified explicitly would take pages and pages and pages. You think that would be more understandable to the layman than, "What a Reasonable Person would do"? If Real Life and People could be so easily codified, heuristics would be a completely useless field. Eliminate plea bargaining. Reduce the power of prosecutors, and reduce the power of the police What does that have to do with this line of discussion?
pdonis 14y ago
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. What I don't understand is why we need a separate law against "computer fraud", when we already have laws against, well, fraud. In the scenario you describe, in a sane legal system, the person who broke into Amazon's servers would be prosecuted for fraud, period. The fact that the fraud was committed using computers would merely be one of the facts of the case, not a reason for an additional charge.
- AnthonyMouse 14y ago
  I agree with you. You kind of have to understand the history: The Computer Fraud and Abuse Act was passed in 1986. I don't know if you remember 1986 (I know I don't), but from what I understand from the history books, computers communicated at around 300 baud and even if you exclude the mandatory freon compressor, the amount of energy required to run a computer with processor power equivalent to the phone in your pocket would still have been measured in tons of coal per fortnight. So in 1986 they passed a law because "computers are huge corporate things used primarily by banks and governments that cost big money and don't concern common people, so fraud on a computer should have really high penalties." That's why we have a special law for it. As to whether we still need it to be a separate law from ordinary fraud... no, I don't think so.
  - betterunix 14y ago
    Maybe in 1956 computers were "huge corporate things," but by 1986 there was a global computer network for PCs that remains popular in some parts of the world to this very day: https://en.wikipedia.org/wiki/Fidonet https://en.wikipedia.org/wiki/Fidonet
    - AnthonyMouse 14y ago
      In 1986 large computers were still "huge corporate things" which is almost certainly what Congress was targeting with the law rather than Fidonet (hence the trouble).

rayiner 14y ago

I'm not sure, at least in Swartz's case, you can fault the judiciary for not exercising it's ultimate discretion over punishment when no judge ever got to make that call.

polemic 14y ago
And yet it had already cost him 2 years of his life and millions of dollars. I should amend the comment to read "justice system", but judges are ultimately responsible for the fair and equitable operation of their courts. That is clearly not happening.
- rayiner 14y ago
  The prosecutor brought a case within the letter and spirit of the law. What was the judge supposed to do at that stage, exactly?

lallysingh 14y ago

Can we start with shaming the prosecutors? Just pull public records, say with PACER.

fnordfnordfnord 14y ago
PACER is free if you use less than $10.00 per year. If everyone used RECAP, there would be no need to access any document more than once.
- Flenser 14y ago
  I wasn't aware of RECAP. Having searched for it I came across a page on the pacer site[1] where Pacer say if you use if for free you aren't allowed to use RECAP. I'd be interested to know whether it's legal for them to have a fee exemption for limited purposes that allows them to make prohibition on transfer of information that is (as I understand it) public domain. Edit: I've looked on www.recapthelaw.org and couldn't find any clarification on this. [1] http://www.pacer.gov/announcements/general/exemptnotice.html http://www.pacer.gov/announcements/general/exemptnotice.html it's the third result when searching for [pacer recap]

anigbrowl 14y ago

There should also be a push for better use of discretion and 'common sense' from the US judiciary. As a general matter (IOW I haven't analyzed the CFAA in this light) the judicary only has as much discretion as the legislature grants it. Populist legislators do not like the idea of an independent judiciary and frequently attempt to exclude legislative clauses from judicial review - which attempts often fail, but at considerably increased political cost to the judiciary. I'm personally biased, but it's worth considering that there are a lot more constitutional constraints on the executive and legislative branches than upon the judicial. 'Judicial activism' is the buffer on which many a judicial career has been halted, no matter how well-founded the decision it is applied to.

InclinedPlane 14y ago

The idea of "law as program" vs "law as guideline" is certainly a dangerous one, and has become far too common lately. However, I don't think that we should rely on discretion too heavily. It should be the exception not the rule. Today it is the rule, and that means that for all intents and purposes it is de facto "the law", regardless of what's on the books. Which means takes away a lot of the checks and balances we have in place to keep the law reasonable and to ensure it works toward advancing liberty rather than fighting against it.

padmanabhan01 14y ago

If there is a law that can possibly be unreasonably used to frighten someone, it needs to be clarified and explained and quantified and whatever else so that this kind of thing doesn't happen again. Needs to be given more thought before someone can use it in this manner at the very least

javajosh 14y ago

>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. >There should also be a push for better use of discretion and 'common sense' from the US judiciary. I cannot agree with your comments more. When people can't afford justice, justice may as well not exist. And there needs to be a better mechanism in place to thwart over zealous prosecutors from bullying defendants who are, almost by definition, weaker than the prosecution (as they are either less informed about the rules of the game, or have to pay through the nose for the services of someone who does.)