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> Had Swartz been convicted and served his sentence, would the HN community at large care? I would have. I totally misread the situation. I thought there was b

by gruseom 14y ago

> Had Swartz been convicted and served his sentence, would the HN community at large care? I would have. I totally misread the situation. I thought there was basically zero chance he would be punished so vindictively. And I had no idea that he was all this time in Kafka hell. Had Aaron gone to prison it would have been a wake-up call for a lot of people, much as his suicide was — except that one could have done something about it. Actually, a trial and conviction would likely have become a cause celebre in the tech world. And yes I know that people don't just kill themselves for one straightforward reason. It's still sickening.

jlgreco 14y ago
Maybe so. I am not confident that his conviction would cause waves large enough to really cause any sort of change though. I can't help but feel many people here would be less inclined to change their position (or even care enough to read articles about it) were the revelations not accompanied by such a tragic shock. Maybe I'm just being cynical because I found the dismissal from prominent community members so shocking and offensive at the time. However I am certain that were he someone with even less celebrity who was interested in something more marginal than freeing academic works, getting convicted really really would do fuck-all for his cause.
anigbrowl 14y ago
How do you mean punished so vindictively? A 6 month stint in jail (reduced for good behavior) doesn't seem wildly vindictive to me. For the people saying he was facing a lifetime in jail - well yeah, if you add up all the maximum possible sentences and run them consecutively. But that hardly ever happens except in the most egregious of cases. If he had lost at trial I doubt his sentence would have been much longer than a year or two. The indictment doesn't say 'he committed wire fraud, he must serve 20 years', it just says 'he committed wire fraud' - an offense for which the maximum penalty happens to be 20 years. The court decides what the actual sentence is after conviction.They rarely hand out the maximum and the statute does not assert any mandatory minimum (which provisions are unconstitutional now anyway, but that's beside the point).
- tptacek 14y ago
  Aaron's own lawyer said he didn't believe that Swartz would have received a custodial sentence even if he had been convicted. What's vindictive isn't the outcome. The outcome never had a chance to happen, so it's hard to discuss it. What was bad about this situation is a prosecution that had taken such a hard line that a 6-7 year prison sentence --- a life-changing calamity --- would have seemed like a real possibility. Swartz was being required to swear before a court that he committed 13 different felonies just to get off with ~half a year's prison time.
  - anigbrowl 14y ago
    We'll continue to disagree about this, but I think the plea deal was fair enough. Sure, being a felon is a burden - but realistically, being a hacker felon is much less of a burden than being an ex-crack dealer or something. Plugging your machine directly into someone's wiring closet without permission and then running scripts to pull down 100x the traffic requests of everyone else on the campus combined (resulting in a multi-day shutdown that affects all the legitimate users of that campus) is pretty abusive. If I was running a business and someone did that I'd be furious, even if they were just using the bandwidth to download all of wikipedia or something equally freely accessible.
    - tptacek 14y ago
      You & I don't disagree that Swartz's actions should have been subject to criminal charges. We depart at the need for time served in prison. In its context: an act clearly intended as civil disobedience (though perhaps intended anonymously) by a first time offender with no commercial purpose, minimal damage, minimal attempt to evade detection and thus obstruct investigation, no co-conspirators, and involving no critical information systems or protected information of any sort should have been acknowledged by the prosecution as one not meriting prison time. The offer should have been "take a felony conviction and we'll argue for a suspended sentence; go to court and you risk doing time in prison". You know what I bet happened here? Aaron hatched this plot assuming that the worst thing that might happen is that JSTOR might have sued him. After all, what was he really doing? The same set of actions from his own network would have been mere copyright infringement. He wanted to make it less likely that he'd get sued, so he did it from someone else's network. That was dumb, but does it really transmute a tort into a felony?

by gruseom 14y ago

jlgreco 14y ago

Maybe so. I am not confident that his conviction would cause waves large enough to really cause any sort of change though. I can't help but feel many people here would be less inclined to change their position (or even care enough to read articles about it) were the revelations not accompanied by such a tragic shock. Maybe I'm just being cynical because I found the dismissal from prominent community members so shocking and offensive at the time. However I am certain that were he someone with even less celebrity who was interested in something more marginal than freeing academic works, getting convicted really really would do fuck-all for his cause.

anigbrowl 14y ago

How do you mean punished so vindictively? A 6 month stint in jail (reduced for good behavior) doesn't seem wildly vindictive to me. For the people saying he was facing a lifetime in jail - well yeah, if you add up all the maximum possible sentences and run them consecutively. But that hardly ever happens except in the most egregious of cases. If he had lost at trial I doubt his sentence would have been much longer than a year or two. The indictment doesn't say 'he committed wire fraud, he must serve 20 years', it just says 'he committed wire fraud' - an offense for which the maximum penalty happens to be 20 years. The court decides what the actual sentence is after conviction.They rarely hand out the maximum and the statute does not assert any mandatory minimum (which provisions are unconstitutional now anyway, but that's beside the point).

tptacek 14y ago
Aaron's own lawyer said he didn't believe that Swartz would have received a custodial sentence even if he had been convicted. What's vindictive isn't the outcome. The outcome never had a chance to happen, so it's hard to discuss it. What was bad about this situation is a prosecution that had taken such a hard line that a 6-7 year prison sentence --- a life-changing calamity --- would have seemed like a real possibility. Swartz was being required to swear before a court that he committed 13 different felonies just to get off with ~half a year's prison time.
- anigbrowl 14y ago
  We'll continue to disagree about this, but I think the plea deal was fair enough. Sure, being a felon is a burden - but realistically, being a hacker felon is much less of a burden than being an ex-crack dealer or something. Plugging your machine directly into someone's wiring closet without permission and then running scripts to pull down 100x the traffic requests of everyone else on the campus combined (resulting in a multi-day shutdown that affects all the legitimate users of that campus) is pretty abusive. If I was running a business and someone did that I'd be furious, even if they were just using the bandwidth to download all of wikipedia or something equally freely accessible.
  - tptacek 14y ago
    You & I don't disagree that Swartz's actions should have been subject to criminal charges. We depart at the need for time served in prison. In its context: an act clearly intended as civil disobedience (though perhaps intended anonymously) by a first time offender with no commercial purpose, minimal damage, minimal attempt to evade detection and thus obstruct investigation, no co-conspirators, and involving no critical information systems or protected information of any sort should have been acknowledged by the prosecution as one not meriting prison time. The offer should have been "take a felony conviction and we'll argue for a suspended sentence; go to court and you risk doing time in prison". You know what I bet happened here? Aaron hatched this plot assuming that the worst thing that might happen is that JSTOR might have sued him. After all, what was he really doing? The same set of actions from his own network would have been mere copyright infringement. He wanted to make it less likely that he'd get sued, so he did it from someone else's network. That was dumb, but does it really transmute a tort into a felony?